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					    Australia’s Anti-Terrorism Legislation — Is there a Boilermakers Spanner
                                 in the Works?

                                             Justice Mark Weinberg
                                            Federal Court of Australia

                            A revised version of a paper presented to the Supreme and Federal
                                 Court Judges’ Conference in Perth on 24 January 2007

               Australia’s anti-terrorism legislation, enacted post-September 11, has been the
               subject of great controversy. This paper seeks to examine just two aspects of the
               debate that surrounds this legislation. Firstly, the role that judges are required, or
               able, to perform in supervising or monitoring the exercise of coercive powers, from a
               constitutional perspective and in point of principle. Secondly, the extent to which
               legislative constraints upon the conduct of civil and criminal proceedings can be said
               to violate the doctrine of the separation of powers.

               It has been contended that some of the provisions that confer those powers on judges,
               state and federal, may be unconstitutional. It is said that they violate the doctrine of
               the separation of powers, as set out in the Australian Constitution, in that they vest
               non-judicial power in Ch III courts, or, alternatively, vest power in judges acting
               persona designata that is incompatible with judicial independence. These arguments
               are largely based upon what is described as the second limb of Boilermakers. The
               author examines recent High Court jurisprudence concerning Ch III. He concludes
               that it is unlikely that the provisions will be struck down on that basis.

               The author also considers whether, as some would hold, it is inappropriate for
               serving judges, acting persona designata, to exercise the powers that the anti-
               terrorism legislation confers upon them. He concludes that, notwithstanding the
               contentious nature of a number of the key provisions, judges are in the best position to
               exercise these powers, and should be prepared to do so.

               Finally, in relation to the legislative constraints upon the manner in which civil and
               criminal proceedings are to be conducted, based upon interests of national security,
               the author concludes that, on the current state of the authorities, these provisions are
               likely to be upheld.


                                               I       INTRODUCTION

1              It is a fundamental precept of the common law that individuals can be punished only
    for what they have done, and not for what they might do.1


2              Increasingly, that precept is being eroded. In part, this is the product of the modern


    1
        See generally: Everett v Ribbands [1952] 2 QB 198, 206 (per Denning LJ).
                                                       -2-


    scourge of terrorism. Many of our perceptions regarding the control of harmful conduct were
    changed, perhaps forever, by the attack upon the United States on 11 September 2001. In the
    words of one commentator:

            “We are moving away from our traditional reliance on deterrent and reactive
            approaches and toward more preventive and proactive approaches. This shift
            has enormous implications for civil liberties, human rights, criminal justice,
            national security, foreign policy, and international law—implications that are
            not being sufficiently considered. It is a conceptual shift in emphasis from a
            theory of deterrence to a theory of prevention, a shift that carries enormous
            implications for the actions a society may take to control dangerous human
            behaviour …”.2


3           There are some who say that the events of September 11 were in no way unique.
    They point to the long experience which England, in particular, has had with terrorism, going
    back to the time of Guy Fawkes, and extending through to the IRA bombing campaign of the
    1970s.3 They refer more generally to the many terrorist groups that have left their mark
    throughout the last century.


4           The term “terrorism” has been characterised as “palpable and elusive”.4 Nonetheless,
    it is generally seen as the use of arbitrary violence against defenceless individuals, intended
    to intimidate or coerce a civilian population or government. Australia, though never really a
    major terrorist target, has experienced some terrorist acts.5 However, until recently such acts
    tended to be regarded as ordinary crimes, rather than as conduct warranting its own peculiar
    legislative response.


5           Since September 11, terrorism has come to be seen in a different light. This is
    perhaps because of its random and indiscriminate nature, and the grotesque horrors of suicide
    bombings.


6           Terrorism, as it is practised today, often involves global networks. Or, as in the case
    of the London bombings, it can be a home-grown phenomenon. It is difficult to detect. It has


    2
      Alan M Dershowitz, Preemption: A Knife that Cuts Both Ways (2006) 2.
    3
      See, eg, David Feldman, “Human Rights, Terrorism and Risk: The Roles of Politicians and Judges” (2006)
    Public Law 364, 368.
    4
      Tony Coady and Michael O‟Keefe (eds), Terrorism and Justice: Moral Argument in a Threatened World
    (2002), xiii.
    5
      The Hilton bombing provides just one example.
                                                          -3-


     a capacity to wreak enormous harm, not just physical, but psychological as well. The
     potential for such harm has led many western nations, normally imbued with strong liberal
     traditions, to compromise on fundamental values. There has plainly been a move away from
     deterrence, and towards pre-emption, as the underlying justification for action.


7            It is generally accepted that the events of Bali, Madrid and London show that the
     threat of terrorism is real, and ongoing6. Indeed, despite the “war on terror”, the threat is, if
     anything, increasing.


8            Australia has not been slow to respond to the threat posed by terrorist groups. In 2001
     we had few national laws addressing terrorism.7 In the five years after September 11, the
     Commonwealth enacted some 37 new anti-terrorism laws.8 New offences were created,9
     some of them drafted in terms that are exceedingly vague.10 Police powers were expanded,11
     as were those of intelligence gathering bodies such as ASIO. 12 However, the new laws did
     not stop there. In addition, there were constraints imposed upon the conduct of civil and
     criminal proceedings.           Considerations of national security now loom large in any trial
                                13
     involving terrorist acts.


9            There is, of course, a vigorous debate as to whether any of these laws are really
     necessary. Some argue that they are disproportionate to the dangers actually posed. They
     say that these laws violate fundamental precepts of our criminal justice system. They say that
     a single act of terrorism, no matter how horrific, does not justify a radical departure from
     traditional values.


10           On the other hand, there are those who say that the new laws represent a measured
     response to a threat that is both real, and wholly unprecedented.




     6
       Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws
     (2006) 8.
     7
       Ibid, 9.
     8
       Ibid, 10. Additional laws have been enacted since, and even more are reported to be under consideration.
     9
       See Divs 101, 102 and 103 of Pt 5.3 of the Commonwealth Criminal Code.
     10
        Lynch and Williams, above n 6, Ch 1.
     11
        See Divs 104 and 105 of Pt 5.3 of the Commonwealth Criminal Code.
     12
        See the amendments to the Australian Security Intelligence Organisation Act 1979 (Cth).
     13
        National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
                                                    -4-



11             I have no intention of entering into this debate. My purpose is more modest. It is
     simply to examine just two aspects of the new provisions that have been enacted in this
     country. Firstly, the role that judges are required, or able, to perform in supervising or
     monitoring the exercise of coercive powers, from a constitutional perspective and in point of
     principle. Secondly, the extent to which legislative constraints upon the conduct of civil and
     criminal proceedings can be said to violate the doctrine of the separation of powers.


          II        A SUMMARY OF THE KEY PROVISIONS IN AUSTRALIA’S ANTI-TERRORISM
                                         LEGISLATION

12             This paper will focus upon the following provisions, which are summarised below:

              the amendments to the Australian Security Intelligence Organisation Act 1979 (Cth)
               (“the ASIO Act”), enacted in June 2003, which confer broad powers of monitoring,
               questioning and detaining suspected terrorists and others;

              the amendments to the Commonwealth Criminal Code introduced in late 2005 which
               enable control and preventative detention orders to be made; and

              the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)
               (“the National Security Information Act”) which is aimed at preventing any material
               which might endanger Australia‟s “defence, security, international relations or law
               enforcement interests” from being made public in the course of a trial.

     A         The ASIO Act

13             The amendments to the ASIO Act grant extraordinary new powers to ASIO. It can
     now not merely monitor suspected terrorists, and others who might have relevant information
     about terrorist offences, but also question and detain them.


14             Traditionally, the police have always had the power to question suspects and potential
     witnesses. However, there has never been any obligation on the part of those questioned to
     respond.
                                                           -5-


15            There are, of course, exceptions to that principle.14 The ASIO Act now carries those
     exceptions further. ASIO, which is of course an intelligence gathering body and not a police
     force, is empowered under the amendments to seek either a “questioning warrant” or a
     “questioning and detention warrant”. On request from the Director-General, and with the
     consent of the Attorney-General, ASIO can make an application for a warrant to an “issuing
     authority” (who is a Federal Magistrate or a Judge15).


16            In the case of a “questioning warrant” the “issuing authority” must be satisfied that
     reasonable grounds exist for believing that the warrant will “substantially assist the collection
     of intelligence that is important in relation to a terrorism offence”. An unusual aspect of
     these provisions is that a person may be the subject of such a warrant even though he or she is
     not suspected of a terrorism offence.


17            A “questioning warrant” authorises the person named therein to be brought before a
     “prescribed authority” for questioning. The prescribed authority is a person appointed by the
     Attorney-General. Those eligible for appointment include retired judges who have served for
     a period of five years or longer on a superior court, as well as serving state or territory
     Supreme Court or District Court Judges with at least five years‟ experience. They also
     include Presidential Members of the Administrative Appeals Tribunal (“AAT”) who are
     enrolled as legal practitioners and have been so enrolled for at least 5 years.16


18            Under a questioning warrant ASIO can ask the person questions and require him or
     her to provide records or other things.              The questions or requests must be relevant to
     intelligence that is important in relation to a terrorism offence, and the questioning must be
     recorded by video. The warrant may remain in force for up to 28 days. Any questioning can
     last for up to 24 hours (or 48 hours if an interpreter is required) but in general no individual
     period of questioning can be longer than eight hours.                     It is an offence punishable by
     imprisonment of up to five years to refuse to answer questions, or to give answers that are
     false or misleading. The privilege against self-incrimination is expressly abrogated. The
     answers given cannot themselves be used directly in subsequent criminal proceedings.


     14
        For example, drivers of motor vehicles are required to give their name and address to any police officer, upon
     request.
     15
        The term “Judge” is defined as “a Judge of a court created by the Parliament”.
     16
        For reasons that will become apparent, serving federal judges cannot act as prescribed authorities.
                                                          -6-


     However, disclosures can be used to gather evidence which can be used in future criminal
     proceedings.


19           A “questioning and detention warrant” authorises the person to be taken into custody
     by a police officer, brought before a prescribed authority, and questioned by ASIO. The
     procedures for obtaining such a warrant are similar to those for a questioning warrant.
     However, the Attorney-General must be satisfied that there is a need to have the person taken
     immediately into custody and detained: in order to avoid alerting others involved in terrorism
     of the fact that their conduct is being investigated; to prevent the destruction of records or
     things that may be requested; or, because there is reason to believe that the person will not
     appear before a prescribed authority. It authorises detention for up to seven days. As with
     questioning warrants a person can be questioned for no more than 24 hours (or 48 hours if an
     interpreter is used) in blocks of 8 hours. The person must then be released. However, a
     further warrant can be obtained if both the Attorney-General and the issuing authority are
     satisfied that additional information has come to light which justifies the grant of that
     warrant.


20           The ASIO Act also sets out requirements for secrecy in relation to questioning
     warrants and questioning and detention warrants.17 According to those requirements, while
     either warrant is in force a person cannot disclose any information about a particular warrant,
     including the fact that it has been issued. Certain limited exceptions apply in relation to
     persons such as legal representatives, parents, guardians and siblings.


21           The Parliamentary Joint Committee responsible for overseeing the ASIO Act has
     noted that in the period leading up to November 2005, a total of only 14 questioning
     warrants, and no questioning and detention warrants, were issued.18


22           The Honourable Michael McHugh has recently expressed doubts as to whether these
     provisions will withstand constitutional challenge. He focused largely upon the fact that,
     unlike the position in the United Kingdom, Canada and the United States, ASIO‟s detention


     17
       ASIO Act s 34ZS.
     18
       See Lynch and Williams, above n 6, 39. The longest period of questioning, a case involving an interpreter,
     was approximately 42.5 hours. The longest period of questioning without an interpreter was slightly less than
     16 hours.
                                                       -7-


     power can be exercised in relation to persons not suspected of actual involvement in any
     offences.19


23           It is important to emphasise that under the ASIO Act, issuing authorities (who, as
     previously indicated, are all federal judges) act persona designata,20 and not in their judicial
     capacity. They must, of course, signify their willingness to act, and do so in writing.


24           Prescribed authorities must also give their written consent. However, this has nothing
     to do with the doctrine of “persona designata”. As previously indicated, federal judges
     cannot act as prescribed authorities,21 and there is therefore no need to invoke that doctrine.


     B       The Criminal Code

25           The most controversial of the laws enacted in response to the threat of terrorism are
     those introduced as amendments to the Commonwealth Criminal Code in 2005.22 The most
     significant of these are Divs 104 and 105 of Pt 5.3.


26           Division 104 makes provision for the Australian Federal Police to seek what are
     known as “control orders”.         Division 105 allows for what are known as “preventative
     detention orders”.


     1       Control orders

     Control orders, though aimed at preventing terrorist attacks, can be made without any
     imminent risk of such attacks. They can be made if the court is satisfied, on the balance of
     probabilities, that doing so “would substantially assist in preventing a terrorist act”, or that
     the person who is to be the subject of the order “has provided training to, or received training
     from, a listed terrorist organisation”. In addition the court must be satisfied, on the balance of
     probabilities that each of the obligations, prohibitions and restrictions to be imposed on the
     person by the order is “reasonably necessary, and reasonably appropriate and adapted, for the
     purpose of protecting the public from a terrorist act”. Control orders can last for up to one


     19
        See the Hon Michael McHugh AC QC, “Terrorism Legislation and the Constitution” (2006) 28 Australian
     Bar Review 117, 125.
     20
        The importance of this concept will be discussed in detail below.
     21
        ASIO Act s 34B.
     22
        Anti-terrorism (No 2) Act 2005 (Cth).
                                                    -8-


     year, with the possibility of renewal. The making of such orders is not dependent upon a
     person having been convicted of a terrorist or other offence.


27             Control orders allow the AFP to monitor and restrict the activities of those who are
     regarded as terrorist risks to the community without having to wait until some overt act
     occurs.


28             They range in scope from the most minor interference with individual freedom to
     extreme deprivations of liberty. Division 104.5(3) relevantly provides:

               “The obligations, prohibitions and restrictions that the court may impose on
               the person by the order are the following:

                      (a)   a prohibition or restriction on the person being at specified
                            areas or places;
                      (b)   a prohibition or restriction on the person leaving Australia;
                      (c)   a requirement that the person remain at specified premises
                            between specified times each day, or on specified days;
                      (d)   a requirement that the person wear a tracking device;
                      (e)   a prohibition or restriction on the person communicating or
                            associating with specified individuals;
                      (f)   a prohibition or restriction on the person accessing or using
                            specified forms of telecommunication or other technology
                            (including the Internet);
                      (g)   a prohibition or restriction on the person possessing or using
                            specified articles or substances;
                      (h)   a prohibition or restriction on the person carrying out specified
                            activities (including in respect of his or her work or occupation);
                      (i)   a requirement that the person report to specified persons at
                            specified times and places;
                      (j)   a requirement that the person allow himself or herself to be
                            photographed;
                      (k)   a requirement that the person allow impressions of his or her
                            fingerprints to be taken;
                      (l)   a requirement that the person participate in specified counselling
                            or education.”


29             A person who contravenes a control order commits an offence the maximum penalty
     for which is five years‟ imprisonment.


30             Division 104.2 provides that the Attorney-General‟s written consent must be obtained
                                                          -9-


     before a request can be made to an issuing court for an interim control order. 23 That consent
     must be sought by a senior AFP member.


31            If the Attorney-General consents to the AFP request, the senior AFP member may
     proceed to request the interim control order. This is done by providing the issuing court (in
     this case the Federal Court, the Family Court or the Federal Magistrates Court) with:

             a written request, which, subject to any amendments required by the Attorney-
              General, is in the same terms as the draft request for which his consent was obtained;

             information sworn by the AFP member in relation to the interim control order that is
              sought; and

             a copy of the Attorney-General‟s consent.

32            An interim control order must set out a summary of the grounds upon which it was
     made. It must specify a date, as soon as practicable (but at least 72 hours after the order is
     made) on which the person may attend the court for it to confirm, vary, or revoke the order.
     The court may also declare the interim control order to be void. At a hearing, on the return of
     an interim control order, both the AFP and the person subject to the order can present
     evidence and make submissions.


33            The Attorney-General is required to report to Parliament each year regarding the
     number of control orders made, confirmed, declared to be void, revoked or varied.


34            It is important to appreciate that control orders are made by federal judges acting as
     such, and not in their capacity as personae designatae. If, as some commentators claim, the
     making of such orders involves an exercise of non-judicial power the entire control order
     regime will almost certainly be struck down as invalid.24


35            Thus far, it seems that only one control order has been made.25



     23
        Cf: The requirements for urgent interim control orders as set out in Div 104, Subdiv C of the Criminal Code.
     24
        This issue is presently under consideration by the High Court in Proceeding No. M119 of 2006, Thomas v
     Mowbray, which is part heard, and scheduled to resume on 20 February 2007. See Thomas v Mowbray [2006]
     HCATrans 660; and Thomas v Mowbray [2006] HCATrans 661.
     25
        Namely, the control order relating to Mr Jack Thomas, made on or about 27 August 2006.
                                                        - 10 -


     2        Preventative Detention Orders

36            Division 105 provides for a regime of preventative detention orders. Under that
     regime a person may be taken into custody and detained by the AFP, initially for a period of
     no more than 24 hours, but with an option to have that period extended for a further 24 hours.
     state and territory laws operate to extend the period of detention to a maximum of 14 days.26
     The aim of these provisions is to prevent an imminent terrorist attack from occurring, or to
     preserve evidence of, or relating to, a recent terrorist act.


37            A member of the AFP must apply to an “issuing authority” for a preventative
     detention order. Unlike control orders, the prior consent of the Attorney-General is not
     required.


38            In the case of an initial preventative detention order, which may allow detention for
     up to 24 hours, the issuing authority is in fact a member of the AFP of the rank of
     superintendent or higher. Division 105.2 provides that the Minister may appoint as an issuing
     authority for “continued preventative detention orders” (which sanction a further period of
     detention to a maximum of 48 hours in total) serving judges of the state or territory Supreme
     Courts, judges of courts created by the Commonwealth Parliament, Federal Magistrates, and
     persons who have served as judges in one or more “superior courts” for a period of five years
     but no longer hold a commission as a judge of a superior court. In addition, persons who
     hold presidential appointments to the AAT may be eligible. The Minister must not appoint a
     person unless he or she has, by writing, consented to being appointed and the consent is in
     force.


39            It is clear that federal judges act persona designata, and not in their judicial capacity,
     when they exercise what is understood to be the non-judicial function of granting, extending
     or revoking preventative detention orders. This is because, under the Constitution, federal
     judges are precluded from exercising non-judicial power, unless they do so in their personal,
     rather than judicial, capacity.




     26
       See further the discussion of the operation of these provisions in McHugh, above n 19, 127–129; and Lynch
     and Williams, above n 6, 47–54.
                                                          - 11 -



40            To a lesser degree, there may also be constraints upon the non-judicial powers that
     can be exercised by state and territory judges who, from time to time, exercise federal
     jurisdiction.27


41            Before granting a continued preventative detention order, the issuing authority must
     be satisfied that there are reasonable grounds to suspect that the subject: “will engage in a
     terrorist act”; “possesses a thing that is connected with the preparation for, or the engagement
     of a person in, a terrorist act”; or, “has done an act in preparation for, or planning, a terrorist
     act”. The issuing authority must also be satisfied that making the order would “substantially
     assist in preventing a terrorist act occurring”, and that “detaining the subject for the period for
     which the person is to be detained under the order is reasonably necessary” for this purpose.


42            A terrorist act referred to in this context must be one that is “imminent” and “expected
     to occur, in any event, at some time in the next 14 days”. Insofar as detention is based upon
     the preservation of evidence of, or relating to, a recent terrorist act, the terrorist act must have
     occurred within the last 28 days.


43            To date, it appears that there have been no preventative detention orders made.


     C        The National Security Information Act

44            The National Security Information Act was passed in response to a particular
     prosecution that gave rise to difficulties in relation to evidence of a highly sensitive nature.28
     The Attorney-General said that it was needed to protect those who may have given
     information for intelligence purposes, or to avoid warning people to change their behaviour to
     avoid inquiries or detection. He also noted that a good deal of Australia‟s intelligence comes
     from agencies abroad that are only prepared to share such intelligence if proper safeguards




     27
        Though state and territory judges are not prevented from exercising non-judicial power by any strict doctrine
     of the separation of powers, any such function that they perform must be broadly compatible with their judicial
     role. This is not as an exception to persona designata, but rather is simply a manifestation of Ch III in its
     application to courts that are invested with federal jurisdiction. See generally Kable v Director of Public
     Prosecutions (NSW) (1996) 189 CLR 51.
     28
        R v Lappas [2001] ACTSC 115 (per Gray J). See also the Australian Capital Territory Court of Appeal
     judgment: R v Lappas (2003) 152 ACTR 7.
                                                        - 12 -


     are put in place.29


45           The term “national security” is defined in very broad terms. It means Australia‟s
     “defence, security, international relations or law enforcement interests”.


46           As originally enacted the Act applied to any criminal proceeding in any court
     exercising federal jurisdiction. In 2005, it was amended to extend its operation to civil
     matters.


47           In relation to criminal proceedings, if either the prosecutor or counsel for the defence
     knows or believes that information to be disclosed in the course of a trial may affect national
     security, he or she must notify the Attorney-General of that fact.30 The same obligation
     applies if they think that a witness they intend to call will disclose such information either in
     giving evidence or by their mere presence.31 If a witness is asked a question and it is thought
     likely that the answer will disclose such information the court must be informed.32 A closed
     hearing must then be held and the question answered in writing. 33 The answer is shown to
     the prosecutor who is required to notify the Attorney-General if it is thought the answer
     might relate to or affect national security.34 Any failure to comply with these requirements is
     an offence punishable by imprisonment for up to two years.35


48           If the Attorney-General, upon notification, considers that disclosure would prejudice
     national security he may issue a certificate directing the person in possession of the
     information not to reveal it. Alternatively, the Attorney-General may permit part of the
     information to be used, or an edited version of a document to be tendered.36 Where the “mere
     presence” of a witness presents a risk to national security the Attorney-General may issue a
     certificate prohibiting the witness from being called to give evidence.37



     29
        Interview with Philip Ruddock, ABC Radio Hobart, 8 June 2006 as referred to in Lynch and Williams, above
     n 6, 79.
     30
        National Security Information Act s 24(1).
     31
        National Security Information Act s 24(1)(c).
     32
        National Security Information Act s 25(1) and (2).
     33
        National Security Information Act s 25(3), (4) and (5).
     34
        National Security Information Act s 25(6).
     35
        National Security Information Act ss 25 and 42.
     36
        National Security Information Act s 26.
     37
        National Security Information Act s 28.
                                                         - 13 -


49              Section 27(1) provides that the certificate is conclusive evidence that disclosure of the
     information is likely to prejudice national security.              The court must consider any such
     certificate at a closed hearing. In an ideal world, this would occur before the start of the trial.
     However, in practice, a certificate may issue at any time. This may require an adjournment
     of the trial while the court considers the effect of the certificate upon the evidence.


50              The National Security Information Act provides that, in relation to evidence of
     particular sensitivity, the accused may be excluded during the course of a closed hearing. 38
     So too may his or her legal representatives, unless they have obtained a security clearance. 39
     If either the Attorney-General, or the prosecution argues for non-disclosure of the
     information, the accused and his or her legal representatives must be given the opportunity to
     be heard regarding that contention.40 Plainly, these provisions are highly controversial.


51              Perhaps it is a redeeming feature that ultimately, it is the court which decides whether
     the evidence may be disclosed in full, in part, or not at all. The court also decides whether to
     allow or prevent the calling of a witness where the very appearance of the witness is said to
     pose a threat to national security. The court balances the risk to national security against the
     adverse effect upon the right of the accused to receive a fair hearing.


52              However, the Act states that in considering what order it should make, the court must
     give the “greatest weight” to the Attorney-General‟s certificate which, in any event, is
     conclusive as to the risk of prejudice to national security.41


          III     CHAPTER III AS THE BASIS FOR A CHALLENGE TO CONSTITUTIONAL VALIDITY

53              It has always been accepted that the Constitution embodies the doctrine of the
     separation of powers, and that this requires the maintenance of an independent judiciary. In




     38
        National Security Information Act s 29(3).
     39
        Indeed, court officials may be excluded for the same reason.
     40
        The opportunity to be heard, however, will inevitably be hampered by a lack of specific knowledge of the
     details of the evidence in question.
     41
        As the Hon Michael McHugh states, the Act “weights the exercise of the discretion in favour of the Attorney-
     General and in a practical sense directs the outcome of the closed hearing”: McHugh, above n 19, 131.
                                                            - 14 -


     recent years, Ch III has come to assume a dominant place in constitutional debate.42 Indeed,
     there are some who would say that, having regard to the recent jurisprudence of the High
     Court, it represents one of the few remaining constraints upon federal power.

54            By the time the Engineers’ Case43 was decided in 1920 it had already been
     established that federal judicial power could only be exercised by Ch III courts.44 In Re
     Judiciary and Navigation Acts45 the High Court affirmed that the Constitution was based
     upon a separation of powers, legislative, executive and judicial.46 That arrangement was
     clearly modelled upon the Constitution of the United States.


55            Prior to 1956, it was accepted that the doctrine of the separation of powers imposed
     certain limits upon Commonwealth power. However, those limits turned essentially upon
     whether legislation purported to confer federal judicial power upon a body that was not a
     Ch III court. There was little to suggest that the converse was true, namely that federal
     judges could not exercise non-judicial power.


56            All this changed in Boilermakers.47 There the High Court, by a 4-3 majority,48 held
     that the Commonwealth Court of Conciliation and Arbitration could not validly exercise the
     judicial power of the Commonwealth, essentially because it was not permissible for
     Parliament to confer upon one body both arbitral and judicial functions. The majority found
     that the Arbitration Court‟s main functions were “non-judicial”. For that reason, and in
     accordance with orthodox legal thinking, judicial power could not be conferred upon that
     body. However, the reasoning of the majority went further. Their Honours made it clear that
     had the main functions of the Arbitration Court been found to be judicial, the conferral of
     arbitral powers upon that body would itself have been invalid.




     42
        See generally: Fiona Wheeler, “The Rise and Rise of Judicial Power under Chapter III of the Constitution: A
     Decade in Overview” (2000) 20 Australian Bar Review 283.
     43
        Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
     44
        Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; New South Wales v Commonwealth (Wheat
     Case) (1915) 20 CLR 54; and Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR
     434.
     45
        (1921) 29 CLR 257.
     46
        The idea that these different functions of government should be vested in different institutions is said to have
     had its origins in the writings of Aristotle, but to have only become influential in the late 17th and 18th centuries
     through the work of Locke and Montesquieu.
     47
        R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
     48
        Dixon CJ, McTiernan, Fullagar and Kitto JJ formed the majority. Williams, Webb and Taylor JJ dissented.
                                                           - 15 -


57            The majority judgment, which it is accepted was written by Dixon CJ, said that even
     if one knew nothing of the history of the separation of powers, and made no comparison with
     the United States‟ Constitution, one “would still feel the strength of the logical inferences
     from Chaps. I, II and III and the form and contents of ss. 1, 61 and 71”.49 Indeed, the
     judgment added that it would be difficult to treat this as “a mere draftsman‟s arrangement”,
     and stated that this could not all be treated as meaningless, and of no legal consequence.50


58            For obvious reasons, there has been little criticism of the first limb of Boilermakers.
     Plainly federal judicial power cannot be conferred upon non-Ch III courts. However, despite
     the respect invariably accorded to Sir Owen Dixon‟s judgments, the second limb of
     Boilermakers is generally viewed with some scepticism.


59            Professor Geoffrey Sawer was an early critic of Boilermakers. Indeed, he went
     further and expressed doubt as to whether courts in this country had ever properly understood
     the doctrine of the separation of powers. In a rhetorical flourish, he stated:

              “There is no evidence that the Federal Fathers in general had the slightest
              desire to imitate the French theory of the separation of powers, which was
              based upon a misinterpretation of English practice, nor the American theory
              which was based upon a misinterpretation of the French.”51


60            Professor Sawer was unhappy with the theory because he regarded it as intrinsically
     flawed. He considered it to have no application in the real world. He noted that the doctrine
     could not operate in any rigid sense within a system of responsible government.


61            Professor Leslie Zines has also been a critic of the second limb of Boilermakers. He
     points out that Ch III speaks of judicial power, but says nothing whatever about non-judicial



     49
        Boilermakers (1956) 94 CLR 254, 275.
     50
        It has been noted that Sir Owen Dixon‟s own actions, while serving on the High Court, were not always
     consistent with the second limb of the majority‟s reasoning. In May 1942 he accepted appointment as
     Commonwealth Minister Plenipotentiary to the United States. In 1940–43 he was Chairman of the Central
     Wool Committee. In 1941 and 1942 he was Chairman of the Australian Shipping Control Board and the Marine
     War Risks Insurance Board. He held other war time appointments as well. Subsequently, he was involved in
     endeavouring to settle the Kashmir dispute. It has been suggested that, in later years, he entertained doubts as to
     whether he had acted correctly in accepting at least some of these appointments. See the Hon Sir Murray
     McInerney QC and Garrie J Moloney, “The Case Against” in Glenys Fraser (ed), Judges as Royal
     Commissioners and Chairmen of Non-Judicial Tribunals (1986) 33.
     51
        Quoted in Michael Coper, Encounters with the Australian Constitution (1987) 90.
                                                        - 16 -


     power.52 He sees no reason why federal judges should not exercise non-judicial power
     provided, of course, that the exercise of such power does not encroach upon the independence
     of the judiciary.


62           Boilermakers has also not escaped judicial criticism.                 In R v Joske; Ex parte
     Australian Building Construction Employees & Builders’ Labourers’ Federation,53 Barwick
     CJ stated:

             “The principal conclusion of the Boilermakers‟ Case was unnecessary, in my
             opinion, for the effective working of the Australian Constitution or for the
             maintenance of the separation of the judicial power of the Commonwealth or
             for the protection of the independence of courts exercising that power. The
             decision leads to excessive subtlety and technicality in the operation of the
             Constitution without, in my opinion, any compensating benefit.”54


63           Mason J joined with Barwick CJ in noting that there was a serious question as to
     whether Boilermakers should be followed.


64           It is plain that no system of government anywhere provides for the three branches of
     government to operate entirely independently of each other. To the contrary, the legislative,
     executive and judicial branches are, and must be, interconnected in various ways. Under the
     Westminster system of government, the executive appoints the judges. Judges review the
     actions of the executive and, in Australia, of the legislature. In theory at least, the legislature
     in turn holds the executive to account. To the extent that there is built into the Constitution
     an implicit doctrine of separation of powers, the reality is that it is based upon separate
     functions, rather than separate personnel.


65           Nonetheless, Boilermakers has stood, unchallenged, for more than fifty years.55 It is
     likely to remain good law for the foreseeable future.


66           At the same time, it is wrong to suggest that only a strict and rigid acceptance of the
     doctrine of the separation of powers can protect the principle of judicial independence.


     52
        Leslie Zines, The High Court and the Constitution (1997, 4th ed) 167.
     53
        (1974) 130 CLR 87.
     54
        R v Joske (1974) 130 CLR 87, 90 (footnotes omitted).
     55
        Even as recently as the argument in Thomas v Mowbray, no challenge to the second limb of Boilermakers was
     mounted.
                                                         - 17 -


     Judicial independence is, of course, an inviolable principle. Without it there can be no rule of
     law. There can however be judicial independence without the second limb of Boilermakers.
     The United Kingdom experience demonstrates how this is possible.


67           Even within Australia the separation of powers is, in practice, often viewed in
     pragmatic ways.        For example, it has long been recognised that the Commonwealth
     Parliament can validly delegate legislative power to the executive.56


68           Prior to Boilermakers, this pragmatic approach reigned supreme.57 For example, in
     Waterside Workers’ Federation of Australia v J W Alexander Ltd58 it was held that all federal
     judges had to be appointed for life. That was to be expected,59 and was in harmony with
     orthodox thinking regarding the need for judicial independence. However, the case is of
     particular significance in that although it focused exclusively upon Ch III, not one member of
     the High Court appeared to have any difficulty with the proposition that the Commonwealth
     Court of Conciliation and Arbitration could combine judicial and arbitral functions.


69           In a sense, that was hardly surprising. Professor Michael Coper, another critic of the
     second limb of Boilermakers, observes that it is one thing to limit judicial power to those who
     are suitably qualified to exercise it, and whose independence from external influences is safe
     guarded by security of tenure and other protective mechanisms. It is all together another
     thing to say that those who are appropriately qualified, and fully independent, cannot exercise
     any power other than that which is strictly judicial.60


70           Professor Coper goes on to say that no doubt combining judicial and non-judicial
     functions can, in some circumstances, detract from at least the perception of judicial
     independence. There are some non-judicial functions that are plainly incompatible with the
     proper discharge of judicial duties. It does not follow, however, that this applies to all non-


     56
        Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. Note, however, that
     that is not the position in the United States.
     57
        See, eg, Wheat Case (1915) 20 CLR 54, in which Isaacs J said (at 90) that “very explicit and unmistakable
     words” would be required “to undo the effect of the dominant principle of demarcation”. However, Barton and
     Gavan Duffy JJ adopted a more pragmatic approach to the issue, recognising that a combination of both judicial
     and administrative power might reasonably be thought necessary to ensure that the Inter-State Commission
     could function effectively.
     58
        (1918) 25 CLR 434.
     59
        Although Higgins and Gavan Duffy JJ dissented.
     60
        Coper, above n 51, 92.
                                                           - 18 -


     judicial functions. The arguments that relate to the two limbs of Boilermakers are different,
     and need to be considered separately.61


71            Modern constitutional writers agree that any challenge to Boilermakers is now
     unlikely. This is partly because since Joske the underlying rationale of Boilermakers has
     shifted. Courts engaged in determining constitutional issues are now often seen as bulwarks
     of individual liberty. Their role in policing constitutional limits on government is said to
     have as much to do with the protection of individual freedom as with the federal distribution
     of powers. This wider rationale is reflected, for instance, in the assertion by Deane J in Street
     v Queensland Bar Association62 that the most important of the express or implied guarantees
     of rights and immunities contained in the Constitution “is the guarantee that the citizen can be
     subjected to the exercise of Commonwealth judicial power only by the „courts‟ designated by
     Ch. III”.63


72            Given the paramount role now accorded to Ch III as a guarantor of individual liberty
     (albeit via the first limb of Boilermakers), there is some irony in the fact that the second limb
     of that case may actually prevent “the courts”, (and particularly federal courts), from
     discharging that responsibility. That is a matter to which I shall return.


                                IV       LIMITING THE SCOPE OF BOILERMAKERS

73            As a general principle, the doctrine of the separation of powers does not apply to the
     states64 and territories.65       Accordingly, state and territory judges are largely free from
     Boilermakers‟ constraints.




     61
        Ibid, 92–93. Professor Coper observes: “Many would see the actual decision in the Boilermakers case not as
     averting a grave danger but rather as causing considerable inconvenience”.
     62
        (1989) 168 CLR 461.
     63
        Street v Queensland Bar Association (1989) 168 CLR 461, 521. See also the discussion in Tony Blackshield
     and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (2006, 4th ed)
     660.
     64
        The doctrine of separation of powers has been held not to apply to state courts: see, eg, Kable v Director of
     Public Prosecutions (NSW) (1996) 189 CLR 51, 77–78 per Dawson J. Even where state constitutions deal
     specifically with the judiciary, and entrench the principle of judicial independence, they are not seen as reposing
     the exercise of judicial power exclusively in the holders of judicial office. Nor are they seen as precluding the
     exercise of non-judicial power by persons in their capacity as holders of judicial office.
     65
        The same is true of territory courts, which are regarded neither as “federal courts” nor as exercising “federal
     jurisdiction”. These are constituted under s 122 of the Constitution, and fall outside the ambit of Ch III.
                                                           - 19 -



74            In addition, at the federal level, the first limb of Boilermakers is riddled with
     exceptions.66 The same is true of the second limb. One particular device, increasingly
     favoured by the legislature, is the doctrine of “persona designata”.


75            Plainly, judges have no business performing certain non-judicial tasks. For example,
     in Australia, they cannot be elected to parliament. It follows that they cannot serve as
     government ministers.67 It is generally accepted that they should not take on significant
     regulatory or law enforcement functions, though they have, in the past, headed bodies such as
     ASIO and the National Crime Authority. It would plainly be wrong for any serving judge to
     be appointed Director of Public Prosecutions.


76            However, the second limb of Boilermakers, when read strictly, seems to preclude
     judges from engaging in non-judicial tasks that are far less controversial. This may explain
     why the doctrine of persona designata has come to play such an important role in
     circumventing its effects.


77            It is worth noting that persona designata is by no means a recent doctrine. It was used
     as far back as 1874, albeit not in any constitutional context.68


78            The doctrine was first discussed by the High Court in Holmes v Angwin.69 There it


     66
        As stated previously, the first limb of Boilermakers prevents federal judicial power from being vested in non-
     judicial bodies: see further Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
     Of course, there are ways in which judicial power can be exercised by bodies that are not Ch III courts. For
     example, courts-martial and other military tribunals are established under the defence power. Similarly, the
     Commonwealth Parliament has independent judicial power to punish for contempt: R v Richards; Ex parte
     Fitzpatrick and Browne (1955) 92 CLR 157. Judicial power can be delegated to court officials provided that the
     power of delegation is not inconsistent with the continued existence of the particular Ch III court in question:
     Harris v Caladine (1991) 172 CLR 84.
     67
        Cf: The position in the United Kingdom, where the Law Lords sometimes participate in general debate, and,
     until recently, the Lord Chancellor served as a Minister, as well as occupying the position of head of the
     judiciary. It is interesting to note that even in the United States, where the doctrine of the separation of powers
     is regarded as something of an article of faith, federal judges have, on occasion, acted on behalf of the executive.
     For example, the first Chief Justice of the United States (Chief Justice Jay) was sent as a special envoy to Great
     Britain in order to negotiate a treaty. Another Chief Justice (Chief Justice Ellsworth) served as a commissioner
     to France. Even Chief Justice Marshall served as Secretary of State for a short time after his appointment to the
     Court. In more recent times, Justice Jackson was one of the United States prosecutors at Nuremberg while
     Chief Justice Warren chaired the Commission that investigated the assassination of President Kennedy. See
     further: Kristen Walker, “Persona Designata, Incompatibility and the Separation of Powers” (1997) 8 Public
     Law Review 153, 168 fn 26.
     68
        Ex parte Jones; Re Jones v Bates (1874) 12 SCR (NSW) 284.
     69
        (1906) 4 CLR 297.
                                                        - 20 -


     was held that the power of the Supreme Court of Western Australia to determine disputed
     elections, undoubtedly a non-judicial function, was conferred upon judges of that Court as
     designated persons rather than upon the Court itself. It followed that no appeal lay to the
     High Court from their decisions.


79              In Medical Board of Victoria v Meyer,70 Dixon J (as his Honour then was) criticised
     the doctrine as metaphysical, difficult to follow, and as importing unreal distinctions.
     Nonetheless, it has come to be accepted as a legitimate, albeit artificial, technique for
     circumventing the second limb of Boilermakers.


80              The first stage in this process arose in Drake v Minister for Immigration and Ethnic
               71
     Affairs.       There a Full Court of the Federal Court held that although Boilermakers precluded
     vesting non-judicial functions upon Ch III judges, a person who happens to be a federal judge
     may validly be appointed or assigned to perform such functions provided that the
     appointment or assignment is addressed to the individual person. Indeed, such functions may
     be conferred even if the criterion by which that person is selected happens to be judicial
     tenure.


81              The Full Court held that Justice Davies, a judge of the Federal Court, had been validly
     appointed as a Deputy President of the Administrative Appeals Tribunal. In a joint judgment,
     Bowen CJ and Deane J stated:

                “There is nothing in the Constitution which precludes a justice of the High
                Court or a judge of this or any other court created by the Parliament under
                Ch III of the Constitution from, in his personal capacity, being appointed to
                an office involving the performance of administrative or executive functions
                including functions which are quasi judicial in their nature. Such an
                appointment does not involve any impermissible attempt to confer upon a
                Ch III court functions which are antithetical to the exercise of judicial power.
                Indeed, it does not involve the conferring of any functions at all on such a
                court. The attack on the validity of the appointment of Mr Justice Davies as a
                Deputy President of the Tribunal must be rejected.”72




     70
        (1937) 58 CLR 62, 97.
     71
        (1979) 24 ALR 577.
     72
        Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 584.
                                                   - 21 -


82            In Hilton v Wells73 the High Court considered the validity of certain provisions of the
     Telecommunications (Interception) Act 1979 (Cth) which authorised the use of evidence
     obtained by telephone intercepts. Section 20 of the Act provided for judges of the Federal
     Court to issue warrants allowing for such intercepts, and one question which had to be
     determined was whether this function was vested in those judges “persona designata”.


83            In a joint judgment, the majority (Gibbs CJ, Wilson and Dawson JJ) said:

              “The power conferred by s. 20 is not ancillary or incidental to any judicial
              function. If s. 20 confers power on the courts of which the judges to which it
              refers are members, it will therefore be invalid in so far as the court on which
              it confers the power is the Federal Court of Australia. It will be equally
              invalid in so far as it invests the Supreme Courts of the States with non-
              judicial power since s. 77(iii) of the Constitution, which enables the
              Parliament to make laws investing any court of a State with federal
              jurisdiction, does not enable the Parliament to require the State courts to
              exercise non-judicial power: Queen Victoria Memorial Hospital v.
              Thornton”.74


84            The joint judgment continued:

              “The question for decision in the present case then is whether s. 20 confers
              powers on (inter alia) the Federal Court, or on the judges individually as
              designated persons. It is a question which involves fine distinctions, which
              some may regard as unsatisfactory.”75


85            Their Honours observed:

              “It clearly appears from these authorities that where a power, judicial or non-
              judicial, is conferred by statute upon a court or a judge, it is not necessarily
              conferred on the court or the judge as such — the question is one of
              construction. Where the power is conferred on a court, there will ordinarily
              be a strong presumption that the court as such is intended. Where the power is
              conferred on a judge, rather than on a court, it will be a question whether the
              distinction was deliberate, and whether the reference to “judge” rather than
              to “court” indicates that the power was intended to be invested in the judge
              as an individual who, because he is a judge, possesses the necessary
              qualifications to exercise it.”76




     73
        (1985) 157 CLR 57.
     74
        Ibid, 67 (footnotes omitted).
     75
        Ibid, 69 (footnotes omitted).
     76
        Ibid, 72.
                                                     - 22 -


86              Finally, their Honours concluded:

                “For these reasons we conclude that s. 20 confers no power on the Federal
                Court and does not infringe the rule laid down in the Boilermakers‟
                Casehttp://thomsonnxt4/links/Handler.aspx?tag=dfa5ddc2d21fc5b23e458845
                3beb53da&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=9d5484a30
                78e2b161a51702016be4398&product=cl. It was submitted by Mr. Ellicott that
                the separation of judicial and administrative power is not merely a matter of
                verbal formulae and that is, of course, correct. If the nature or extent of the
                functions cast upon judges were such as to prejudice their independence or to
                conflict with the proper performance of their judicial functions, the principle
                underlying the Boilermakers‟ Case would doubtless render the legislation
                invalid. But the exercise of the functions conferred by s. 20 would not have
                that result. The section designates the judges as individuals particularly well
                qualified to fulfil the sensitive role that the section envisages, and confers on
                them a function which is not incompatible with their status and independence
                or inconsistent with the exercise of their judicial powers.

                        For these reasons we hold that s. 20 of the Telecommunications
                (Interception) Act is a valid enactment of the Commonwealth Parliament.”77


87              Mason and Deane JJ dissented. Their Honours said:

                “In the present case, the function of issuing warrants is conferred upon all the
                judges of the Federal Court indiscriminately. It is exercisable by a judge of
                that Court in circumstances in which he is not appointed to a separately
                constituted tribunal. If the function is exercisable by him otherwise than in his
                character as a judge it must be because he is intended to discharge the
                function personally, detached from his judicial office as a member of the
                Federal Court. In saying this we reject the notion that functions may be
                entrusted to a person as a judge, but not as a member of the court to which he
                belongs. The metaphysical notion of a judge acting in his character or
                capacity as a judge, at large, so to speak, detached from the court of which he
                is a member, cannot be supported as a matter of legal theory.

                        There are compelling reasons why the Court should strictly maintain
                and apply established principle by insisting upon a clear expression of
                legislative intention before holding that functions entrusted to a judge of a
                federal court are exercisable by him personally. The ability of Parliament to
                confer non-judicial power on a judge of a Ch. III court, as distinct from the
                court to which he belongs, has the potential, if it is not kept within precise
                limits,    to    undermine     the     doctrine     in   the    Boilermakers‟
                Casehttp://thomsonnxt4/links/Handler.aspx?tag=dfa5ddc2d21fc5b23e458845
                3beb53da&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=9d5484a30
                78e2b161a51702016be4398&product=cl. One may ask: what is the point of
                our insisting, in conformity with the dictates of the Boilermakers‟ Case, that

     77
          Ibid, 73–74 (footnotes omitted).
                                                      - 23 -


               non-judicial functions shall not be given to a Ch. III court, if it is legitimate
               for Parliament to adopt the expedient of entrusting these functions to judges
               personally in lieu of pursuing the proscribed alternative of giving the
               functions to the court to which the judges belong? The answer is that the
               independence of the federal judiciary which is protected by the Boilermakers‟
               Case will be preserved in a substantial way if, in accordance with the
               principle expressed by Dixon J. in Meyer, we continue to acknowledge that
               Parliament may confer non-judicial functions on a federal judge only where
               there is a clear expression of legislative intention that the functions are to be
               exercised by him in his personal capacity, detached from the court of which
               he is a member.

                       Nor is the point which we have just made necessarily dependent on the
               authority of the Boilermakers‟ Case. Even without that decision, there is much
               to be said for the view that the underlying concept of the separation of powers
               which the Constitution prescribes as “a safeguard of individual liberty” (see
               Reg.                                                                         v.
               Davisonhttp://thomsonnxt4/links/Handler.aspx?tag=2d38b802696b97827d64
               8b7f2a644ad0&product=cl) would itself support adherence to the principle
               which we have discussed.”78


88             Their Honours added:

               “Another reason for adhering to a strict application of settled principle is that
               when a function is entrusted to a judge by reference to his judicial office the
               legislators and the community are entitled to expect that he will perform the
               function in that capacity. To the intelligent observer, unversed in what
               Dixon J. accurately described — and emphatically rejected — as “distinctions
               without differences” (Meyer), it would come as a surprise to learn that a
               judge, who is appointed to carry out a function by reference to his judicial
               office and who carries it out in his court with the assistance of its staff,
               services and facilities, is not acting as a judge at all, but as a private
               individual. Such an observer might well think, with some degree of
               justification, that it is all an elaborate charade.”79


89             Given the 3-2 division of opinion in a five member court, it was hardly surprising that
     shortly     afterwards     the    High     Court     was     asked     to    reconsider      Hilton   v
     Wells.http://thomsonnxt4/links/Handler.aspx?tag=2ec35a7e5d6a01b1a95dfef4d59de2f8&pro
     duct=cl However, by a clear majority, it declined to do so.80


90             In 1987, the Telecommunications (Interception) Act was amended to make it clear that


     78
        Ibid, 81–82 (footnotes omitted).
     79
        Ibid, 83–84.
     80
        See Jones v Commonwealth (1987) 71 ALR 497. The vote against reopening Hilton v Wells was 6-1.
                                                         - 24 -


     a judge who authorised a telephone intercept was acting persona designata, and not in his or
     her judicial capacity. The amendment overcame any further issue of construction, but left
     open broader questions of principle.81


91              In Grollo v Palmer82 the 1987 amendments were held to be valid. However, the case
     raised a new twist. What was now contended was that the performance by a judge, acting
     persona designata, of any significant role in the process of a criminal investigation, even one
     limited to issuing telephonic interception warrants, was incompatible with judicial office. It
     was said that this rendered the doctrine of persona designata inapplicable.


92              In a joint judgment, Brennan CJ, Deane, Dawson and Toohey JJ rejected that
     contention. Their Honours said:

                “The applicant submits that the important principle of separation of powers
                expounded in Boilermakers should not be undermined by acceptance of the
                power of the legislative or the executive branches of government to repose
                non-judicial power in individual judges when that power cannot be reposed in
                the courts they constitute. The distinction which the conception of persona
                designata draws between judges and the courts to which they are appointed is
                said                  to                be              too                   fine
                http://thomsonnxt4/links/Handler.aspx?tag=285585d899fb4d76afb4c39c0054
                1cd8&product=cland specious to be supported. The distinction (so the
                argument runs) is formal not substantial and it is apt to convert the principle
                of            separation            of         powers            into            a
                mockeryhttp://thomsonnxt4/links/Handler.aspx?tag=4565877a7ca9c3db45d7f
                d8d679cd638&product=cl. In practice, the system of “eligible Judges” has
                resulted in the conferring of power to issue warrants on thirty of the thirty-five
                judges of the Federal Court; the warrants are signed by the judge as to
                indicate the judge's judicial status and the judges have, in respect of that
                function, a statutory immunity which is “the same protection and immunity as
                a Justice of the High Court ... in relation to proceedings in the High Court”.
                The conception of persona designata is said to serve as a charade concealing
                the reality that a non-judicial power has been conferred on the judges of a Ch
                III court. It is submitted that the conception of persona designata should be
                abolished to maintain the integrity of the Boilermakers principle. In Canada,
                Laskin CJ expressed agreement with the proposition that “the whole persona
                designata conception could be scrapped without the slightest inconvenience
                or the least distortion of legal principles”.

                       The submission that this Court should follow that lead must be
                rejected. The conception of persona designata has been invoked when the

     81
          Telecommunications (Interception) Amendment Act 1979 (Cth), which inserted a new s 6D.
     82
          (1995) 184 CLR 348.
                                                     - 25 -


                vesting of a non-judicial power, which could not be vested in a court
                consistently with Ch III of the Constitution, has been supported as a vesting of
                the power in individual judges detached from the courts they
                constitutehttp://thomsonnxt4/links/Handler.aspx?tag=2ec35a7e5d6a01b1a95d
                fef4d59de2f8&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=dda8e8
                0a70eec08ca55c38aa8aceeae5&product=flhttp://thomsonnxt4/links/Handler.a
                spx?tag=285585d899fb4d76afb4c39c00541cd8&product=clhttp://thomsonnxt
                4/links/Handler.aspx?tag=614c7cef7b69ad5f2373ea0e7b35b0bc&product=clh
                ttp://thomsonnxt4/links/Handler.aspx?tag=5553d009a95ed642972cd4fbb98dd
                e8c&product=cl. But the conception of “persona designata” is not always
                invoked in the same sense. Sometimes it is invoked as an aid to, or a
                descriptive expression in, statutory interpretation, connoting an individual
                judge detached from the court to which the judge is appointed. It is in this
                sense that the term is used when the question is whether the legislature has
                intended to vest the power in the court or in individual judges detached from
                the court. It was in that sense that the term was relevant to the question for
                determination in Hilton v Wells and it was in that sense that the usefulness of
                the term was disparaged by Laskin CJ. Sometimes the term is invoked as a
                shorthand expression of a limitation on the principle of Boilermakers,
                acknowledging that there is no necessary inconsistency with the separation of
                powers mandated by Ch III of the Constitution if non-judicial power is vested
                in individual judges detached from the court they constitute. It is in the latter
                sense that the term falls for consideration in this case.”83
93              The joint judgment continued:

                “The conditions thus expressed on the power to confer non-judicial functions
                on judges as designated persons are twofold: first, no non-judicial function
                that is not incidental to a judicial function can be conferred without the
                judge's consent; and, second, no function can be conferred that is
                incompatible either with the judge's performance of his or her judicial
                functions or with the proper discharge by the judiciary of its responsibilities
                as an institution exercising judicial power (“the incompatibility condition”).
                These conditions accord with the view of the Supreme Court of the United
                States in Mistretta v United States where the Court said:

                                 “This is not to suggest, of course, that every kind of
                         extrajudicial service under every circumstance necessarily accords
                         with the Constitution. That the Constitution does not absolutely
                         prohibit a federal judge from assuming extrajudicial duties does not
                         mean that every extrajudicial service would be compatible with, or
                         appropriate to, continuing service on the bench; nor does it mean that
                         Congress may require a federal judge to assume extrajudicial duties
                         as long as the judge is assigned those duties in an individual, not
                         judicial, capacity. The ultimate inquiry remains whether a particular
                         extrajudicial assignment undermines the integrity of the Judicial
                         Branch.”


     83
          Ibid, 362–364 (footnotes omitted).
                                                     - 26 -



                         The incompatibility condition may arise in a number of different ways.
                Incompatibility might consist in so permanent and complete a commitment to
                the performance of non-judicial functions by a judge that the further
                performance of substantial judicial functions by that judge is not practicable.
                It might consist in the performance of non-judicial functions of such a nature
                that the capacity of the judge to perform his or her judicial functions with
                integrity is compromised or impaired. Or it might consist in the performance
                of non-judicial functions of such a nature that public confidence in the
                integrity of the judiciary as an institution or in the capacity of the individual
                judge to perform his or her judicial functions with integrity is diminished.
                Judges appointed to exercise the judicial power of the Commonwealth cannot
                be authorised to engage in the performance of non-judicial functions so as to
                prejudice the capacity either of the individual judge or of the judiciary as an
                institution to discharge effectively the responsibilities of exercising the
                judicial power of the Commonwealth. So much is implied from the separation
                of powers mandated by Chs I, II and III of the Constitution and from the
                conditions necessary for the valid and effective exercise of judicial power.”84


94              The joint judgment further stated:

                “If the issuing of interception warrants were reasonably to be regarded as a
                judicial participation in criminal investigation, it would be a function which
                could not be conferred on a judge without compromising the judiciary's
                essential separation from the executive government. The judicial method of
                deciding questions in controversy has no application in exercising the power
                to issue an interception warrant. Not only is the application for an
                interception warrant made ex parte; the very issue of a warrant and the
                identity of the judge who issued it are not disclosed. Unlike a warrant to
                enter, search and seize, its execution may go undetected by the person against
                whom or against whose interests the warrant is executed. Unlike a warrant to
                enter, search and seize, there is no return made on the execution of the
                warrant which permits a determination of its lawfulness, a review of its due
                execution and a disposition of the fruit of the execution. Because of the
                secrecy necessarily involved in applying for and obtaining the issue of an
                interception warrant, no records are kept which would permit judicial review
                of a judge’s decision to issue a warrant. Nor are reasons given for such a
                decision. The decision to issue a warrant is, for all practical purposes, an
                unreviewable in camera exercise of executive power to authorise a future
                clandestine gathering of information. Understandably a view might be taken
                that this is no business for a judge to be involved in, much less the large
                majority of the judges of the Federal Court.

                        Yet it is precisely because of the intrusive and clandestine nature of
                interception warrants and the necessity to use them in today’s continuing
                battle against serious crime that some impartial authority, accustomed to the


     84
          Ibid, 364–365 (footnotes omitted).
                                                     - 27 -


                dispassionate assessment of evidence and sensitive to the common law’s
                protection of privacy and property (both real and personal), be authorised to
                control the official interception of communications. In other words, the
                professional experience and cast of mind of a judge is a desirable guarantee
                that the appropriate balance will be kept between the law enforcement
                agencies on the one hand and criminal suspects or suspected sources of
                information about crime on the other. It is an eligible judge’s function of
                deciding independently of the applicant agency whether an interception
                warrant should issue that separates the eligible judge from the executive
                function of law enforcement. It is the recognition of that independent role that
                preserves public confidence in the judiciary as an institution.”85


95              Gummow J agreed with the majority. McHugh J delivered a powerful dissent.


96              In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs86 the High




     85
          Ibid, 366–367 (footnotes omitted).
     86
          (1996) 189 CLR 1.
                                                 - 28 -


     Court finally applied the notion of incompatibility as an exception to the doctrine of persona
     designata. The Court held that the appointment of Justice Jane Mathews, a judge of the
     Federal Court, to prepare a report for the Minister for Aboriginal Affairs in relation to the
     Hindmarsh Island Bridge development was invalid. It held that the formation of the opinions
     specified under the relevant legislation, and the giving of advice involved in the making of
     the report, were incompatible with the independence of the judiciary from the executive
     government.

97          In a joint judgment, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said:

            “In the present case, the category of incompatibility that arises for
            consideration is “the performance of non-judicial functions of such a nature
            that public confidence in the integrity of the judiciary as an institution or in
            the capacity of the individual judge to perform his or her judicial functions
            with                                integrity                                 is
            diminished”http://thomsonnxt4/links/Handler.aspx?tag=f1910721e1960a7275
            dcab9c96e64632&product=cl.

                    Bearing in mind that public confidence in the independence of the
            judiciary is achieved by a separation of the judges from the persons
            exercising the political functions of government, no functions can be
            conferred on a Ch III judge that would breach that separation. The separation
            that is relevant here is separation in the performing of the particular non-
            judicial function; the principle does not touch personal relationships or
            relationships outside the area of governmental activity between judges and
            those who perform legislative or executive functions. Those relationships are
            matters for judicial sensitivity but not of constitutional significance.
            Constitutional incompatibility has the effect of limiting legislative and
            executive power. Where it has that effect, it is discovered on the face of the
            statute, or on the face of those measures taken pursuant to a statute, that
            purports or purport to confer a non-judicial function on a Ch III judge. That
            is not to say that constitutional incompatibility is a matter of mere form. The
            operation of the statute or of the measures taken pursuant to it is ascertained
            by looking to the circumstances in which the purported function might be
            performed. Where a non-judicial power is purportedly conferred,
            constitutional incompatibility is ascertained by reference to the function that
            has to be performed to exercise the power.”87


98          Kirby J dissented. His Honour concluded that there was no incompatibility between
     Justice Mathews‟ assumption of the role of reporter, and her judicial duties. Indeed, he
     concluded that the actual duties of a reporter were considerably closer to those of the holder
     of a judicial office than, say, the duties of an “eligible judge” in providing a warrant for
                                                    - 29 -


      telephone interception which the High Court had, of course, by then upheld.


99             It is important to note that there is nothing in Wilson which suggests that a federal
      judge cannot validly be appointed to conduct a Royal Commission. This will depend upon
      whether the particular inquiry can be carried out in a manner that is compatible with the
      ordinary exercise of judicial power by an independent judge. Likewise, there is nothing in
      Wilson to suggest that a federal judge cannot, at the same time, serve as a member of a body
      such as the Administrative Appeals Tribunal (as the Full Federal Court had held in Drake).
      The problem with the particular function conferred upon Justice Mathews was that it was
      seen “as an integral part of the process of the Minister‟s exercise of power”. 88          The
      performance of such a function by a judge would put a judge “firmly in the echelons of
      administration”, in a position equivalent to that of a ministerial adviser.89


100            Wilson plainly extended the notion of incompatibility as an exception to the doctrine
      of persona designata. However, it is important to note that it did not purport to overrule
      Grollo v Palmer. That remains the leading case on persona designata, and is still good law.


101            In Kable v Director of Public Prosecutions (NSW),90 which was decided several days
      after Wilson, the High Court dealt with the notion of judicial independence, and Ch III in an
      unusual context. For once, the issue in Kable did not involve the federal judiciary, or
      executive interference with the judicial process. Rather it involved an attempt on the part of
      the New South Wales Parliament to exercise or usurp judicial power by determining the
      result of an individual case in a way that amounted to legislative judgment.


102            Kable concerned a provision of the Community Protection Act 1994 (NSW) which
      empowered the Supreme Court to make “preventive detention” orders. Section 5 conferred
      upon the Court the power to order that a specified person be detained in prison for a specified
      period if the Court was satisfied, on reasonable grounds, that the person was more likely than
      not to commit a serious act of violence and that it was appropriate, for the protection of a
      member of the community, or the community generally, that the person be held in custody.


      87
         Ibid, 16–17 (footnotes omitted).
      88
         Ibid, 18.
      89
         Ibid, 18–19.
      90
         (1996) 189 CLR 51.
                                                          - 30 -


      The maximum period that could be specified in an order under that section was six months.
      However, more than one application could be made in relation to the same person.


103           Despite the general terms in which s 5 was drafted, the operation of the Act was
      limited by s 3 which made it clear that its object was simply to ensure the preventive
      detention of a particular individual who had been convicted in 1990 of the manslaughter of
      his wife.


104           One contention against the Act was that by singling out an individual person for
      detention, and making that detention “preventive”, the legislature had usurped judicial power.
      That contention, however, depended upon the notion that the doctrine of the separation of
      powers applied in New South Wales whereas, it was clearly established that the Constitution
      Act 1902 (NSW) embodied no such doctrine.


105           The High Court held, by majority, that the legislation was invalid. However, it did so
      upon an alternative basis. It held that the function conferred upon the Supreme Court by the
      Act was incompatible with that Court‟s occasional exercise of federal judicial power. The
      fact that the Court was not exercising such power in relation to Mr Kable made no difference.


106           Some commentators have noted that earlier discussions of “incompatibility” had
      treated that notion as nothing more than an exception to persona designata. However, in
      Kable, persona designata was irrelevant, as such, given that the case concerned state and not
      federal judges.91


107           In Nicholas v The Queen92 the High Court again dealt with incompatibility. In an
      earlier decision, Ridgeway v The Queen,93 the High Court had held that evidence of the
      importation of heroin obtained by entrapment should not have been admitted in the exercise
      of judicial discretion because it had been procured by unlawful conduct on the part of law
      enforcement officers.        In 1996, as a direct response to Ridgeway, a new Pt 1AB was
      introduced into the Crimes Act 1914 (Cth). It applied to “controlled operations” in which law
      enforcement officers engaged in otherwise illegal conduct to obtain evidence for prosecutions


      91
         See Blackshield and Williams, above n 63, 731.
      92
         (1998) 193 CLR 173.
      93
         (1995) 184 CLR 19.
                                                           - 31 -


      concerning the importation of narcotic goods.                    Importantly, the new part operated
      retrospectively. Section 15X provided that in determining whether evidence obtained in this
      way should be admitted, the fact that a law enforcement officer had committed an offence in
      importing the narcotic goods, or in aiding, abetting, counselling, procuring or being
      knowingly concerned in their importation, was to be “disregarded”.


108              In Nicholas the High Court held that s 15X was valid. It rejected a contention that the
      section violated Ch III because it directed a court to exercise a discretionary power in a
      particular manner. It held that the legislature could, lawfully, regulate certain aspects of the
      fact finding process by requiring particular matters to be disregarded, or given additional
      weight.


109              Brennan CJ, a member of the majority,94 put the matter succinctly:

                 “A law that purports to direct the manner in which judicial power should be
                 exercised                           is                          constitutionally
                 invalidhttp://thomsonnxt4/links/Handler.aspx?tag=ea725f52ac5a6cdc268d072
                 706065fb2&product=cl. However, a law which merely prescribes a court's
                 practice or procedure does not direct the exercise of the judicial power in
                 finding facts, applying law or exercising an available discretion. …

                         Section 15X does not impede or otherwise affect the finding of facts by
                 a jury. Indeed, it removes the barrier which Ridgeway placed against
                 tendering to the jury evidence of an illegal importation of narcotic goods
                 where such an importation had in fact occurred. Far from being inconsistent
                 with the nature of the judicial power to adjudicate and punish criminal guilt, s
                 15X facilitates the admission of evidence of material facts in aid of correct
                 fact finding.

                         … The rules of evidence have traditionally been recognised as being
                 an appropriate subject of statutory prescription. A law prescribing a rule of
                 evidence does not impair the curial function of finding facts, applying the law
                 or exercising any available discretion in making the judgment or order which
                 is the end and purpose of the exercise of judicial power.” 95


110              McHugh and Kirby JJ dissented. McHugh J‟s judgment is of particular importance.
      His Honour said that s 15X was “no mere evidentiary rule or rule of practice”. 96 In his view
      the section struck at the capacity of a court exercising federal jurisdiction to protect its


      94
           Toohey, Gaudron, Gummow and Hayne JJ were the other members of the majority.
      95
           Nicholas v The Queen (1998) 193 CLR 173, [20]–[21] and [23] (footnotes omitted).
                                                        - 32 -


      processes, and therefore impinged upon the independence of the judiciary.


111           During the past few years the notion of incompatibility, originally raised in both
      Wilson and Kable, has been invoked in support of various challenges to the validity of
      legislation authorising different forms of involuntary detention.


112           In Kruger v The Commonwealth (Stolen Generations Case),97 the issue was whether a
      power conferred upon the Chief Protector under the Aboriginals Ordinance 1918 (NT) to
      cause any “Aboriginal or half-caste” to be detained, or removed from one reserve or
      institution to another had entailed an exercise of the judicial power of the Commonwealth
      otherwise than by a Ch III court.


113           Brennan CJ (with whom Dawson and McHugh JJ agreed on this point) rejected that
      contention. This was primarily because, in their Honours‟ view, Ch III had no application to
      the territories.


114           Toohey J (with whom Gaudron J agreed) rejected the contention on a different basis.
      His Honour described the power to order involuntary detention as generally “an incident of
      judicial power” and part of the judicial power of the Commonwealth entrusted exclusively to
      Ch III courts.98     However, he noted that there were qualifications to that proposition,
      including detention in cases of mental illness or infectious disease, and committal to custody
      awaiting trial. He also noted that it could be argued that the defence power, in time of war,
      would support an executive power to make detention orders.99


115           Gummow J was of the opinion that the powers of the Chief Protector were not
      punitive in nature. In his Honour‟s view those powers therefore did not attract the operation
      of Ch III.


116           In Al-Kateb v Godwin,100 the High Court took a similar approach to that taken in



      96
         Ibid, [125].
      97
         (1997) 190 CLR 1.
      98
         He referred to Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176
      CLR 1 as authority for that proposition.
      99
         Kruger v The Commonwealth (Stolen Generations Case) (1997) 190 CLR 1, 84–85.
      100
          (2004) 219 CLR 562.
                                                        - 33 -


      Kruger. The majority in Al-Kateb (McHugh, Hayne, Callinan and Heydon JJ), held that, as a
      matter of statutory construction, the Migration Act 1958 (Cth) authorises detention even if a
      detainee has no prospect of being removed from Australia in the reasonably foreseeable
      future. The majority also held that the detention provisions were within power, describing
      them as “not punitive”, and therefore not contrary to Ch III.


117             The dissentients (Gleeson CJ, Gummow and Kirby JJ) differed primarily on the
      question of statutory construction. However, Gummow J, went further and noted that the
      focus of attention on whether detention was “penal or punitive in character” was apt to
      mislead.101 He referred in that regard to Hamdi v Rumsfeld102 where Scalia J stated that the
      very core of liberty secured by our Anglo-Saxon system of separated powers has been
      freedom from indefinite imprisonment at the will of the executive.103 Gummow J also
      referred to Witham v Holloway104 where the High Court rejected the notion that some
      proceedings for contempt could be characterised as punitive while others were remedial or
      coercive. He observed that it had been said in Witham that:

                “Punishment is punishment, whether it is imposed in vindication or for
                remedial or coercive purposes. And there can be no doubt that imprisonment
                and the imposition of fines, the usual sanctions for contempt, constitute
                punishment.”105


118             On the same day that Al-Kateb was decided, the High Court held, by a 6-1 majority,
      that it could not be said that conditions of migration detention were so obviously harsh as to
      render them punitive, and thereby justify an escape from immigration detention.106


119             Several months later, in Re Woolley; Ex parte Applicants M276/2003 (by their next
      friend GS),107 the High Court held that the mandatory detention of children did not violate
      Ch III.




      101
          Al-Kateb v Godwin (2004) 219 CLR 562, [137].
      102
          542 US 507 (2004).
      103
          Hamdi v Rumsfeld, 542 US 507 (2004), 554–555.
      104
          (1995) 183 CLR 525.
      105
          Witham v Holloway (1995) 183 CLR 525, 534 (per Brennan, Deane, Toohey and Gaudron JJ).
      106
          Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR
      486.
      107
          (2004) 210 ALR 369.
                                                      - 34 -


120               In Fardon v Attorney-General (Qld)108 an attempt was made to revive Kable. The
      issue was whether the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was valid.
      The suggested ground of invalidity was that the Act, contrary to the requirements of Ch III,
      involved the Supreme Court of Queensland in the process of deciding whether prisoners who
      had been convicted of serious sexual offences should be the subject of continuing detention
      orders, on the ground that they represented a serious danger to the community. It was argued
      that this was an attempt by the legislature to confer upon the Supreme Court a function which
      was incompatible with that Court‟s position under the Constitution as a potential repository
      of federal jurisdiction.


121               However, on this occasion the High Court upheld the relevant provisions. A clear
      majority of the Court held that the capacity of state legislation to undermine public
      confidence in the state judiciary was not, of itself, a criterion of its constitutional validity.
      Nor was the status that state legislation would have had if enacted by the Commonwealth
      Parliament. As Gleeson CJ observed, no one would doubt the power of the Queensland
      legislature to legislate for the detention of persons shown to constitute a serious danger to the
      community if such persons were mentally ill. The constitutional objection to the particular
      scheme was not based upon any suggested infringement of human rights. It was based rather
      upon the involvement of the Supreme Court of Queensland in the process.


122               Gleeson CJ observed that the challenge to validity raised a paradox. His Honour said:

                  “As Charles JA pointed out in R v Moffatt (a case in which there was an
                  unsuccessful challenge, on similar grounds, to Victorian legislation providing
                  for the imposition of indefinite sentences on dangerous persons convicted of
                  certain serious offences), it might be thought surprising that there would be
                  an objection to having detention decided upon by a court, whose proceedings
                  are in public, and whose decisions are subject to appeal, rather than by
                  executive decision.”109


123               Gleeson CJ accepted that there were important issues surrounding the legislative
      policy of continuing to detain offenders who had served their terms of imprisonment, and
      who were regarded as a danger to the community when released. However, Fardon itself
      was not concerned with these wider issues. The outcome turned upon a relatively narrow


      108
            (2004) 223 CLR 575.
      109
            Ibid, [2] (footnotes omitted).
                                                   - 35 -


      point, considering the nature of the function which the Act conferred upon the Supreme
      Court.


124            As Gleeson CJ observed Kable had determined that, since the Constitution established
      an integrated Australian court system, and contemplated the exercise by state courts of
      federal jurisdiction, any state legislation which purported to confer upon those courts
                                                    - 36 -


      functions which substantially impaired their institutional integrity, and which were therefore
      incompatible with their role as repositories of federal jurisdiction, was invalid.

125          However, the legislation held to be invalid in Kable differed significantly from that
      under challenge in Fardon. The Kable provisions dealt with the preventive detention of one
      person only, Mr Kable. That made the statute unique, and not a calculated legislative
      response to a general social problem. An important strand in the reasoning in Kable was that
      the appearance of institutional impartiality of the Supreme Court had been seriously damaged
      by a statute which drew it into what was in substance a political exercise.


126          Gleeson CJ added:

              “It might be thought that, by conferring the powers in question on the
              Supreme Court of Queensland, the Queensland Parliament was attempting to
              ensure that the powers would be exercised independently, impartially, and
              judicially. Unless it can be said that there is something inherent in the making
              of an order for preventive, as distinct from punitive, detention that
              compromises the institutional integrity of a court, then it is hard to see the
              foundation for the appellant's argument. As was noted above, there is
              legislation, in Queensland and elsewhere, providing for sentencing judges to
              impose indefinite sentences, or sentences longer than would be commensurate
              with the seriousness of a particular offence, by way of response to an
              apprehension of danger to the community. The validity of such legislation,
              when tested against the Kable principle, was upheld in Moffatt. We were not
              invited to hold that Moffatt was wrongly decided. The existence of legislation
              of that kind makes it difficult to maintain a strict division between punitive
              and preventive detention.

              …

                     It cannot be a serious objection to the validity of the Act that the law
              which the Supreme Court of Queensland is required to administer relates to a
              subject that is, or may be, politically divisive or sensitive. Many laws enacted
              by parliaments and administered by courts are the outcome of political
              controversy, and reflect controversial political opinions. The political process
              is the mechanism by which representative democracy functions. It does not
              compromise the integrity of courts to give effect to valid legislation. That is
              their duty. Courts do not operate in a politically sterile environment. They
              administer the law, and much law is the outcome of political action.

              …

                     Furthermore, nothing would be more likely to damage public
              confidence in the integrity and impartiality of courts than judicial refusal to
              implement the provisions of a statute upon the ground of an objection to
                                                      - 37 -


               legislative policy. If courts were to set out to defeat the intention of
               Parliament because of disagreement with the wisdom of a law, then the
               judiciary's collective reputation for impartiality would quickly disappear.”110


127            McHugh J went further in noting the substantial differences between the legislation
      which had been struck down in Kable, and that which was the subject of the proceedings in
      Fardon. First, the Act applicable in Fardon was not directed at a particular person, but rather
      at all persons serving imprisonment for “a serious sexual offence”.              Second, when
      determining an application under the Queensland statute, the Supreme Court was exercising
      judicial power, resolving an issue that had to be determined in accordance with the rules of
      evidence. Third, if the Court found that the statutory preconditions had been met it still had a
      discretion as to whether it should make an order under the Act and, if so, what kind of order.
      Finally, the Act was not designed to punish the prisoner but rather to protect the community
      against certain classes of offender who had not been rehabilitated during their period of
      imprisonment. There was nothing in the Act or the surrounding circumstances that suggested
      that the jurisdiction conferred was a disguised substitute for an ordinary legislative or
      executive function.          Nor was there anything that might lead to the perception that the
      Supreme Court was acting in conjunction with, and not independently of, the legislature or
      executive government.111


128            McHugh J was of course, acutely aware of the fact that the doctrine of the separation
      of powers did not apply as such in any of the states. Accordingly, it was only in very limited
      circumstances that Ch III might be invoked to invalidate state legislation that purported to
      invest jurisdiction and powers in state courts. These included those that had arisen in Kable.
      The fact that the Constitution provided for an integrated court system did not mean that that
      which could not be done by federal courts, could also not be done by state courts. The
      principle was that the Commonwealth Parliament must take state courts as it found them to
      be. As Gaudron J had pointed out in Kable, there was nothing to prevent state parliaments
      from conferring powers on their courts which were wholly non-judicial, so long as they were
      not repugnant to, or inconsistent with, the exercise by those courts of the judicial power of the
      Commonwealth.112


      110
          Ibid, [20]–[21], [23].
      111
          Ibid, [34].
      112
          Ibid, [37]–[40].
                                                           - 38 -


129            Gummow J focused upon the dangers associated with the use of indeterminate
      sentences. He rejected a submission, advanced on behalf of the Commonwealth, that the
      Commonwealth Parliament itself could validly confer upon a federal court the power to order
      preventive detention in the terms set out in the Queensland statute. He relied upon Chu
      Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs where in the
      joint judgment of Brennan, Deane and Dawson JJ it was said that there was a constitutional
      principle derived from Ch III that:

               “… the involuntary detention of a citizen in custody by the State is penal or
               punitive in character and, under our system of government, exists only as an
               incident of the exclusively judicial function of adjudging and punishing
               criminal guilt.”113


130            Gummow J regarded this formulation as consistent with the reasoning of the majority
      in Polyukhovich v The Commonwealth (War Crimes Act Case).114 He also regarded it as
      having been applied by the majority in Kable. However, he added that merely because a
      federal court could not be vested with the function of indeterminate sentencing, when based
      upon the need for preventive detention, did not mean that a state court could not be vested
      with that function.


131            Hayne J agreed with the orders proposed by Gleeson CJ. His Honour also agreed, in
      general, with Gummow J although he specifically indicated that he preferred to reserve his
      opinion as to whether federal legislation along the lines of the Queensland Act would be
      valid.


132            Callinan and Heydon JJ accepted that it might be possible, in some circumstances,
      validly to confer powers to authorise detention on both judicial and non-judicial bodies.115
      To determine whether detention under the Queensland statute was punishment, or rather
      intended for some legitimate non-punitive purpose, the approach taken by Gummow J in




      113
          Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27.
      114
          (1991) 172 CLR 501. Deane and Gaudron JJ, who dissented in that case, accepted that the relevant Statute
      was a law with respect to external affairs. However, their Honours would have struck it down on the basis that
      it was incompatible with Ch III. Polyukhovich represents the first occasion on which the current view of Ch III,
      as a safeguard of individual rights, appears to have surfaced.
      115
          For example in cases of infectious disease or mental illness.
                                                          - 39 -


      Kruger should be followed. The test was whether the detention was “reasonably capable of
      being seen as necessary for a legitimate non-punitive objective”.116

133           Callinan and Heydon JJ concluded that several features of the Queensland Act
      indicated that the purpose of the detention in question was to protect the community and not
      to punish. Its objects were stated to be to ensure protection of the community and to facilitate
      rehabilitation. The Act should be regarded as a “protective law authorising involuntary
      detention in the interests of public safety”.117 Their Honours said nothing about whether a
      federal court could be vested with the power of imposing indefinite sentences based upon a
      notion of preventive detention.


134           Kirby J dissented. Not surprisingly, he specifically agreed with Gummow J that a
      federal court could not be given the power to impose preventative detention as part of the
      overall sentencing process.


135           Recently, there have been other challenges to both federal and state legislation based
      upon Ch III. In APLA Ltd v Legal Services Commissioner (NSW),118 the High Court rejected
      a challenge to the validity of a particular regulation made under the Legal Profession Act
      1987 (NSW) which prohibited, subject to certain exceptions, a barrister or solicitor from
      publishing an advertisement that included any reference to, or depiction of, personal injury,
      or any legal service that related to recovery of money in respect of personal injury. By a 6-1
      majority it was held that this regulation did not prevent the effective exercise of judicial
      power conferred by Ch III.


136           In Vasiljkovic v Commonwealth,119 the plaintiff, a naturalised Australian citizen
      whose extradition was being sought by Croatia, challenged the validity of Pt II of the
      Extradition Act 1988 (Cth) on the basis that it purported to confer a power to deprive him of
      his liberty otherwise than in the exercise of the judicial power of the Commonwealth.



      116
          Kruger v The Commonwealth (Stolen Generations Case) (1997) 190 CLR 1, 162.
      117
          Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [217]. One might query whether the stated objects of
      the Act ought to be the be all and end all of the process. A person sentenced to an indefinite term of
      imprisonment, which is not proportionate to the gravity of the offence committed but is designed to “protect the
      community”, might have some legitimate difficulty in seeing how the treatment metered out to him or her was
      not punitive.
      118
          (2005) 224 CLR 322.
      119
          (2006) 228 ALR 447.
                                                         - 40 -


137           In determining a special case, Gleeson CJ held that the separation of powers inherent
      in the structure of the Constitution did not mandate that the decision to surrender a person be
      regarded as an exercise of judicial power, and therefore be given to the judicial branch of
      government. Nor did the Constitution mandate that the process of extradition be treated as
      part of the system of administration of criminal justice.


138           Gummow and Hayne JJ held that to the extent that there was no prior adjudication of
      guilt by a domestic court, and the detention was not with a view to the conduct of a trial by
      such a court, it could be said that the necessity and occasions for detention pending
      determination of surrender to a requesting state stood outside Ch III, rather than as an
      exception to its application. The fact that there was a scheme for judicial review of the
      relevant administrative action meant that detention, in accordance with the Act did not bypass
      the independent courts envisaged by Ch III.


139           In Forge v Australian Securities and Investments Commission120 another challenge
      was mounted to the validity of state laws, based upon Ch III. In that case the High Court was
      called upon to determine the validity of state laws allowing for the use of acting judges.
      Litigation under the Corporations Act 2001 (Cth) before an acting judge of the New South
      Wales Supreme Court was challenged on the basis that a state Supreme Court, invested with
      federal jurisdiction under Ch III, could not be constituted in that way. By a 6-1 majority the
      High Court held that the relevant section of the Supreme Court Act 1970 (NSW), which
      authorised the appointment of acting judges, did not violate the requirements of Ch III.121 In
      other words, the independence and impartiality of the Court was in no way compromised.
      Kable therefore had no application.


140           Gleeson CJ said:

              “The argument for the applicants invoked the principle in Kable v Director of
              Public Prosecutions (NSW) that, since the Constitution established an
              integrated court system, and contemplates the exercise of federal jurisdiction
              by state Supreme Courts, state legislation which purports to confer upon such
              a court a function which substantially impairs its institutional integrity, and

      120
         (2006) 229 ALR 223.
      121
         The judge in question was the Honourable Michael Foster. He had served for a number of years as a judge of
      the Federal Court. He retired at the age of 70, but was appointed thereafter an acting judge of the Supreme
      Court of New South Wales by a series of annual commissions each granted pursuant to s 37 of the Supreme
      Court Act.
                                       - 41 -


which is therefore incompatible with its role as a repository of federal
jurisdiction, is invalid. By parity of reasoning, it was said, s 37 is invalid. If,
according to the principle invoked, a state Supreme Court may not have
acting judges because they substantially impair its institutional integrity, then
the institutional integrity of all state Supreme Courts has been impaired since
federation. This is not a case about a conferral of a function on a court; it is
about state legislation providing for the constitution of a Supreme Court (and
providing for it in a manner that has remained substantially unchanged since
before federation). Even so, it is argued, the same principle applies. If the
conclusion for which the applicants contend truly followed from the principle,
then the principle would require reconsideration.

         It follows from the terms of Ch III that state Supreme Courts must
continue to answer the description of “courts”. For a body to answer the
description of a court it must satisfy minimum requirements of independence
and impartiality. That is a stable principle, founded on the text of the
Constitution. It is the principle that governs the outcome of the present case.
If state legislation attempted to alter the character of a state Supreme Court in
such a manner that it no longer satisfied those minimum requirements, then
the legislation would be contrary to Ch III and invalid. For the reasons given
above, however, Ch III of the Constitution, and in particular s 72, did not
before 1977, and does not now, specify those minimum requirements, either
for state Supreme Courts or for other state courts that may be invested with
federal jurisdiction.

       State legislation which empowers the governor of a state to appoint
acting judges to a state Supreme Court does not, on that account alone,
deprive the body of the character of a court, or of the capacity to satisfy the
minimum requirements of judicial independence. Before and since federation,
such legislation has been common.         Minimum standards of judicial
independence are not developed in a vacuum. They take account of
considerations of history, and of the exigencies of government. There are
sound practical reasons why state governments might need the flexibility
provided by a power to appoint acting judges.

         Judicial independence and impartiality is secured by a combination of
institutional arrangements and safeguards. It has already been explained that
acting judges of the Supreme Court of New South Wales are appointed by the
same authority which appoints permanent judges; they take the same judicial
oath; they may be removed only by the governor on an address of both houses
of parliament; and their remuneration is fixed by an independent tribunal.
They are now subject to the scrutiny of the Judicial Commission of New South
Wales and the Independent Commission Against Corruption.

        In the case of a retired federal judge such as Foster AJ, it is difficult to
imagine what doubts might reasonably have been entertained about his
independence or impartiality, except such as could arise from the renewability
of his temporary appointment. This consideration must be evaluated in the
wider context mentioned in the preceding paragraph. There are aspects of the
                                                        - 42 -


              position of many permanent judges that could raise questions of at least as
              much significance. Consider, for example, the matter of judicial promotion.
              Judges are commonly promoted (by executive governments) within courts or
              within the judicial hierarchy. Such promotions may involve increased status
              and remuneration. Throughout the history of this court, most of its members
              have arrived here by way of promotion. There may be some people who
              would say that could erode independence and impartiality. There may be
              permanent judges for whom judicial promotion would have at least as much
              attraction as an opportunity to spend another year as an acting judge would
              have to a 73 or 74-year-old former judge. The usual response to such
              concerns is that a ban on judicial promotion would result in inflexibility and
              inconvenience; and that the independence and impartiality of judges is shored
              up by so many systemic and personal factors that this is not, in practice, a
              decisive objection. The same may be said of the renewability of Foster AJ's
              appointments. It is not a matter to be dismissed lightly, but in the wider
              context it is not decisive. It is difficult to legislate against the pursuit of self-
              interest, and neither s 72 of the Constitution nor any state or federal Act seeks
              to do so. A permanent judge with prospects of advancement might be seen by
              some observers as being at least as likely to seek to please the executive as a
              temporary judge with prospects of re-appointment. Issues such as these are
              generally dealt with by standards of professional behaviour, not legislative
              prescription. As the Attorney-General of Queensland pointed out in written
              submissions, ultimately what stands between any judge and the temptation of
              executive preferment is personal character.

              …

                      It is possible to imagine extreme cases in which abuse of the power
              conferred by s 37 could so affect the character of the Supreme Court that it no
              longer answered the description of a court or satisfied the minimum
              requirements of independence and impartiality. It is, however, a basic
              constitutional principle that the validity of the conferral of a statutory power
              is not to be tested by reference to “extreme examples and distorting
              possibilities”. Possible abuse of power is rarely a convincing reason for
              denying its existence.

                     The challenge to the validity of s 37, and thus to the appointments of
              Foster AJ, fails.”122


141           Gummow, Hayne and Crennan JJ said:

              “Because Ch III requires that there be a body fitting the description “the
              Supreme Court of a State”, it is beyond the legislative power of a state so to
              alter the constitution or character of its Supreme Court that it ceases to meet
              the constitutional description. One operation of that limitation on state


      122
         Forge v Australian Securities and Investments Commission (2006) 229 ALR 223, [40]–[44], [46]–[47]
      (footnotes omitted).
                                       - 43 -


legislative power was identified in Kable. The legislation under consideration
in Kable was found to be repugnant to, or incompatible with, “that
institutional integrity of the state courts which bespeaks their constitutionally
mandated position in the Australian legal system”. The legislation in Kable
was held to be repugnant to, or incompatible with, the institutional integrity of
the Supreme Court of New South Wales because of the nature of the task the
relevant legislation required the court to perform. At the risk of undue
abbreviation, and consequent inaccuracy, the task given to the Supreme Court
was identified as a task where the court acted as an instrument of the
executive.

        The consequence was that the court, if required to perform the task,
would not be an appropriate recipient of invested federal jurisdiction. But as
is recognised in Kable, Fardon and North Australian Aboriginal Legal Aid
Service Inc v Bradley, the relevant principle is one which hinges upon
maintenance of the defining characteristics of a “court”, or in cases
concerning a Supreme Court, the defining characteristics of a state Supreme
Court. It is to those characteristics that the reference to “institutional
integrity” alludes. That is, if the institutional integrity of a court is distorted,
it is because the body no longer exhibits in some relevant respect those
defining characteristics which mark a court apart from other decision-making
bodies.

       It is neither possible nor profitable to attempt to make some single
all-embracing statement of the defining characteristics of a court. The cases
concerning identification of judicial power reveal why that is so. An
important element, however, in the institutional characteristics of courts in
Australia is their capacity to administer the common law system of
adversarial trial. Essential to that system is the conduct of trial by an
independent and impartial tribunal.

        It by no means follows, however, that the only means of securing an
independent and impartial Supreme Court is to require that the court is made
up of none other than full-time permanent judges with security of tenure. This
proposition, cast in absolute and universal terms, is not fundamentally
different from a proposition that a state Supreme Court must be constituted by
judges who have the same security of tenure as s 72 of the Constitution
provides in respect of the justices of this court and of the other courts created
by the parliament. Yet Ch III makes no explicit reference to the appointment,
tenure or remuneration of judges of state courts. Rather, s 71 refers to “such
other courts as it [the Parliament] invests with federal jurisdiction”, s 77(iii)
speaks of “investing any court of a State with federal jurisdiction”, and s 73
makes a number of references to the “Supreme Court” of a state. Questions
of appointment, tenure and remuneration of judges of state courts are dealt
with in Ch III only to whatever extent those subjects are affected by the
identification of the repositories of invested federal jurisdiction as “any court
of a State” and the identification of a court from whose judgments, decrees,
orders and sentences an appeal may lie to this court as “the Supreme Court of
                                                           - 44 -


               [a] State”.”123


142            Wilson and Kable both now appear to be increasingly out of line with recent Ch III
      jurisprudence.      Kable is seen by many as having been based upon an extreme set of
      circumstances, unlikely ever to be repeated. Wilson is seen by some as having taken too
      “precious” a view of incompatibility, though it may be regarded also as being based upon a
      most unusual set of facts. Recent cases, including Fardon, Vasiljkovic and Forge, all seem to
      represent a more robust view of Ch III. It may be that the wheel is now turning full cycle.


       V        ARE AUSTRALIA’S ANTI-TERRORISM PROVISIONS INVALID PURSUANT TO CH III?

      A        Control Orders

143            There are plainly viable grounds upon which Australia‟s control order regime, as set
      out in Div 104, can be challenged. As previously indicated, such orders can only be made by
      one or other of the three federal courts specifically designated. By reason of Boilermakers,
      they can only be validly made if they involve an exercise of judicial power.


144            The question of the validity of these orders is presently part heard before the High
             124
      Court.       In Proceeding No. M119 of 2006, Thomas v Mowbray, the plaintiff is challenging
      an interim control order made against him on or about 27 August 2006. He contends that
      Div 104 is invalid. He says that control orders do not involve the exercise of judicial power
      because they create new rights, not based on any past liability or norm of conduct required to
      be observed.125


145            The plaintiff relies upon the classic definition of judicial power given by Griffith CJ
      in Huddart, Parker & Co Pty Ltd v Moorehead,126 as further developed in R v Trade
      Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd.127 He submits that judicial
      power carries with it certain indelible features.                These include the determination and


      123
          Ibid, [63]–[65] (footnotes omitted).
      124
          See above n 24.
      125
          He also contends that, even if the power in question is judicial, control orders cannot be brought within any
      head of power under s 51 of the Constitution. There is also a challenge based upon the adequacy of the
      references by the States to the Commonwealth to support Div 104, but that is of no relevance to the topic of this
      paper.
      126
          (1909) 8 CLR 330.
      127
          (1970) 123 CLR 361.
                                                       - 45 -


      enforcement of existing rights and liabilities, based upon antecedent norms, and not the
      creation of new rights and liabilities. He argues that control orders lack this central feature,
      and must therefore be regarded as involving the exercise of non-judicial power.128


146           The Commonwealth has not yet presented its oral submissions.                     However, the
      legislation has plainly been drafted upon the footing that the power to make control orders
      involves an exercise of judicial power. The Commonwealth will no doubt argue that this is
      precisely what control orders entail. Alternatively, the Commonwealth will say that the
      regime falls within the category of powers described as having a “double aspect”, depending
      upon whether they are conferred upon a non-judicial body, or a Ch III court.129


147           This “double aspect” argument is based upon the proposition that there are functions
      which the legislature can commit to Ch III courts though much the same function might be
      performed administratively. Notwithstanding Boilermakers, such functions are regarded as
      being incidental to the exercise of strictly judicial powers. An extreme example of a function
      that may be given to courts as an incident of judicial power, or dealt with directly as an
      exercise of legislative power, is that of the making of rules of court.


148           If, as the plaintiff contends, the making of control orders does not involve the exercise
      of judicial power, or is not properly to be regarded as incidental thereto, the control order
      regime will almost certainly be struck down. That is because the power is vested in federal
      courts as such, and not in judges acting persona designata. Much will depend upon whether
      the High Court accepts the plaintiff‟s contention that the regime does not involve any
      ascertainment of pre-existing norms, but rather simply the creation of new liabilities.


149           Of course, an issuing court cannot confirm an interim control order without
      determining, after hearing from both sides, whether the statutory criteria for the grant of such
      an order, have been met. In order to resolve that question, the issuing court will need to
      consider the evidence relating to the involvement of the person, against whom such an order


      128
          Dr Andrew Lynch, Dr Ben Saul and Professor George Williams seem to agree with that approach in their
      Submission on the Anti-Terrorism Bill (No 2) 2005 (10 November 2005). However, regard should be had to
      Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189; and Luton v Lessels (2002) 210 CLR 333
      at [189] per Callinan J.
      129
          R v Davison (1954) 90 CLR 353 at 368–369. See also Precision Data Holdings Ltd v Wills (1991) 173 CLR
      167 at 188-189
                                                           - 46 -


      is sought, in terrorist related activities. In effect, the issuing court is doing no more than what
      courts traditionally do, namely satisfying itself that the conditions under which coercive
      powers can be exercised are present. Contrary to the plaintiff‟s argument in Thomas v
      Mowbray, this function does not seem to involve the creation by a court of new rights and
      obligations. Rather, it seems to involve nothing more than the application by a court of rights
      and duties prescribed by the legislature, to a set of facts that are determined by the court to be
      in existence.130


150            This may lead the High Court, in conformity with its orthodox Ch III jurisprudence, to
      conclude that the making of control orders involves an exercise of judicial power.
      Alternatively, the Court may regard the making of such orders as incidental to the exercise of
      such power, and therefore as valid. Certainly control orders differ markedly from purely
      legislative or administrative acts.


151            Some commentators have proffered the view that control orders cannot be validly
      granted by federal courts because they are made without any anterior finding of criminal
      guilt. They refer to Fardon where Gummow J said that “the involuntary detention of a
      citizen in custody by the State is permissible only as a consequential step in the adjudication
      of criminal guilt of that citizen for past acts”.131


152            Of course, Fardon concerned continuing detention of a prisoner who had already been
      convicted of a serious criminal offence. Control orders, while stopping short of incarceration
      in a government facility, can operate to restrict a person‟s freedom of movement, and impose
      other constraints upon his or her liberty. Whether or not, in their widest application, they fall
      within the parameters of “involuntary detention of a citizen in custody by the State” is a
      matter that will no doubt soon be resolved.


153            As previously indicated, the High Court has endorsed the notion that a person can be
      deprived of his or her liberty, pursuant to statute, provided that the executive acts for a non-




      130
          The fact that interim control orders are granted ex parte does not render them non-judicial. The same is true
      of Mareva injunctions, and Anton Piller orders, which no one has hitherto suggested involve the exercise of non-
      judicial power.
      131
          Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [80].
                                                           - 47 -


      punitive purpose.132        In addition, as has been seen, it has accepted that administrative
      detention may be justified in other circumstances.


154            The critical issue is whether federal judges can validly be authorised to make orders
      that curtail individual liberty on grounds that are purely protective, and not based upon
      findings of past wrongdoing.             If such powers are non-judicial, this cannot be done.
      Ironically, however, on that hypothesis almost anyone else, apart from federal judges, can be
      authorised to make such orders.


155            Notwithstanding some of the difficulties associated with the concept of judicial
      power, courts regularly exercise pre-emptive powers in order to protect individuals from
      apprehended violence or abuse.133 Of course, such orders are usually made by state courts.
      However, all else being equal,134 there is no reason to think that the Commonwealth
      Parliament cannot confer such powers upon federal courts. Indeed, the power to grant quia
      timet injunctions, which plainly involves an exercise of judicial power, can be used in order
      to achieve these very goals.


156            Recent authority seems to support this proposition. It will be recalled that Fardon
      held that state Supreme Courts can be vested with power to make orders of preventative
      detention. In Baker v The Queen,135 decided on the very same day as Fardon, the High Court
      rejected a challenge to the validity of a section of the Sentencing Act 1989 (NSW) which
      enabled a person serving an existing life sentence to apply to the New South Wales Supreme
      Court for the determination of a minimum term. A subsection provided that a person who
      was the subject of a non-release recommendation was not eligible for the determination of a
      minimum term unless the Court was satisfied that “special reasons” existed. It was held that
      this requirement was not repugnant to the notion of judicial power and did not vest functions
      in the Supreme Court that were incompatible with the exercise of federal judicial power.




      132
          For example, in Al-Kateb, it was held that indefinite detention of a non-citizen was permissible under the
      Migration Act 1958 (Cth).
      133
          For example, the orders which in Victoria are called Intervention Orders, in New South Wales Apprehended
      Violence Orders, and in most other States Restraining Orders.
      134
          There would, of course, have to be a head of power available, and a “matter” so that judicial power could be
      engaged.
      135
          (2004) 223 CLR 513.
                                                    - 48 -



157           In Baker the majority went on to say that if the provisions under challenge had been
      laws of the Commonwealth, they would have complied with principles found in Ch III for the
      exercise of federal jurisdiction by federal and state courts. This suggests that there is no
      Ch III impediment to the control order regime, as set out in Div 104.


158           Of course, in both Fardon and Baker those who were subject to the particular state
      legislative regimes that were challenged had been convicted of serious offences. It can be
      argued that this factor was critical to the validity of the legislation in question. Control orders
      operate without any such requirement. Moreover, they are available against persons who are
      not even suspected of involvement in any actual wrongdoing. Despite these differences, the
      likelihood is that the challenge currently being mounted against the control order regime will
      fail.


      B       Preventative Detention Orders

159           As previously indicated, preventative detention orders can be made by federal judges.
      However, when such orders are made, they are not made by courts exercising judicial power,
      but by individual judges acting persona designata.


160           Although there have been no reports of any such orders having been made to date,
      there is little doubt that they will, at some stage, be challenged. The argument will no doubt
      be the same as that unsuccessfully advanced in Grollo v Palmer, namely that federal judges
      have no business making orders of this type.           It will be contended that the notion of
      incompatibility, as expounded in Wilson, overrides the doctrine of persona designata. It will
      be further contended that preventative detention orders, to the extent that they can be made by
      federal judges, fall foul of the second limb of Boilermakers.


161           It should be noted that Ch III creates no impediment to the appointment of former
      state and federal judges, and suitably qualified deputy presidents of the AAT, as issuing
      authorities. The only Ch III difficulty arises in relation to serving judges. That difficulty is
      most acute in relation to federal judges, but may also arise in relation to serving judges of
                                                    - 49 -


      state or territory Supreme Courts.136


162           Critics of the preventative detention regime argue that Grollo v Palmer should be
      overruled. Failing that, they say that it can and should be distinguished. They say that the
      making of an order to detain a person, without any prior finding of wrongdoing, or even the
      laying of a criminal charge, is “significantly more confronting to the integrity of judicial
      office”137 than the power to issue telephone intercept warrants. Again, both Fardon and
      Baker seem to stand in the way of such an argument.


163           It should be noted that I have not dealt separately with the doubts that have been
      expressed regarding the constitutional validity of the amendments to the ASIO Act discussed
      earlier in this paper. However, it can fairly be said that if the preventative detention regime
      under the Criminal Code withstands challenge, so too will the warrant regime under the
      ASIO Act.


      C       National Security Information Act

164           In R v Lodhi,138 Whealy J rejected a challenge to the constitutional validity of Pt 3 of
      the National Security Information Act, and s 31 in particular.


165           It was submitted that these provisions impermissibly altered the character or nature of
      the New South Wales Supreme Court in its conduct of a criminal trial. It was further
      submitted that the Commonwealth Parliament had purported to direct the Supreme Court as
      to the manner and outcome of the exercise of its jurisdiction, in breach of the principles laid
      down by the High Court in both Lim and Nicholas.


166           Whealy J referred to, and adopted the test stated by Gummow J in Nicholas in holding
      that the system of mandatory adjournments contemplated by the Act did not amount to such
      an interference with the conduct of the trial, nor a distortion of its predominant
      characteristics, and therefore did not violate Ch III.




      136
          On the basis of Kable.
      137
          Lynch, Saul and Williams, above n 128.
      138
          [2006] NSWSC 571.
                                                         - 50 -



167           His Honour also rejected a submission that the fact that the National Security
      Information Act required the Court to give “greatest weight” to the Attorney-General‟s
      certificate that there would be a risk of prejudice to national security if the particular
      information were disclosed or the witness called,139 meant that any discretion to disregard
      those concerns was a “sham” or “mere window dressing”. He observed that it was clear, of
      course, that the Court must have regard to the Attorney-General‟s certificate. However, he
      was not persuaded that, on the proper construction of s 31(7) and (8), the certificate was
      conclusive or determinative of the issue. Nor was he persuaded that the legislation intruded
      upon the customary vigilance of the trial judge in a criminal trial, which required the Court to
      ensure that the accused was not dealt with unfairly.


168           Nicholas provides support for his Honour‟s reasoning and conclusions.140 If that case
      withstands challenge, the National Security Information Act is also likely to be upheld.
      However, that is far from being a certainty. There are a number of features of the Act that
      judges find disturbing, and it is an open question whether the High Court will accept the
      proposition that it goes no further that the legislation that (barely) survived in Nicholas.




                                  VI      BROADER QUESTIONS OF PRINCIPLE

169           Irrespective of whether the key provisions of Australia‟s anti-terrorism legislation
      withstand any Ch III challenge, there is a separate question of principle that must be
      addressed.


170           Federal judges have no choice when it comes to making control orders pursuant to
      Div 104 of the Criminal Code. This power is vested in the courts as such, and must,
      therefore, be exercised in accordance with its terms.                  However, the power to issue
      questioning, or questioning and detention, warrants under the ASIO Act, and to make
      preventative detention orders under Div 105 of the Criminal Code, is conferred upon serving
      judges acting persona designata, but only with their consent. Given that judges can refuse


      139
        National Security Information Act, s 31(8).
      140
        It must be remembered, however, that both McHugh and Kirby JJ dissented in Nicholas. See generally:
      Wendy Lacey, “Inherent Jurisdiction, Judicial Power and the Implied Guarantees under Chapter III of the
      Constitution” (2003) 31 Federal Law Review 57.
                                                          - 51 -


      consent, there is a lively debate, amongst judges of the Federal Court, as to whether or not
      they should do so.141


171            The position one takes in this debate depends at least in part upon how strictly the
      doctrine of the separation of powers is viewed. There are those who take a purist view, and
      favour a rigid separation. They tend to oppose any hint of judicial involvement in non-
      judicial functions. However, there are also those who take a less rigid view. While accepting
      that judicial independence must, at all costs, be maintained, they are more pragmatic about
      what judges can legitimately do.


172            As previously indicated, many commentators regard Boilermakers as having been
      wrongly decided. They see nothing wrong with federal judges (and by dint of Kable, state
      judges and possibly territory judges as well) exercising power that is not judicial, in the strict
      sense. They say that the reasoning in the second limb is “precious” and that judges can play
      an important, and indeed vital, role in a variety of non-judicial tasks. They say, for example,
      that judges should be prepared to conduct Royal Commissions provided that the subject
      matter of the inquiry is neither overtly political, nor too heavily policy oriented.


173            The same can be said of many other tasks that judges are, from time to time, asked to
      perform. Routinely, they serve on law reform bodies, and no one seems to complain.142
      They also lend their services to universities, in both teaching and administrative capacities.
      They act as trustees of various sporting and charitable bodies. They serve as members of
      merits review bodies such as the AAT. They also serve on specialist tribunals of various
      kinds.




      141
          There is a similar debate as to whether judges should issue telephone intercept warrants or exercise various
      other powers of a similar kind conferred upon them persona designata. There are also competing views as to
      whether judges should act as Royal Commissioners or as Chairpersons of Boards of Inquiry or preside over
      other non-judicial tribunals. The appointment of judges to such bodies has given rise to the question how far
      such appointments threaten or derogate from the independence of the judiciary and, in the Australian context,
      undermine the doctrine of the separation of powers. See, the discussion in, McInerney and Moloney, above
      n 50.
      142
          The Australian Law Reform Commission has three serving Federal Court judges as members. The author
      was for many years a member of the Commission.
                                                           - 52 -



174              So far as I can tell, public confidence in the independence of the judiciary is in no way
      diminished by the fact that judges regularly carry out tasks of this kind. The trouble with
      Boilermakers, and particularly the second limb, is that it diverts attention from what judges
      ought really to focus upon when they are invited to take on tasks that are not strictly judicial.


175              Were it not for Boilermakers, judges could ask themselves, quite simply, whether the
      particular power sought to be conferred upon them would impinge in any significant way
      upon judicial independence. They could ask whether public confidence in an independent
      and impartial judiciary would be lessened by their taking on the particular task in question.


176              Instead, judges are required to go through a highly elaborate process of first
      characterising the particular task as judicial or non-judicial, and next construing the
      legislation to see whether it is vested in the court or in the judge acting persona designata. If,
      as a matter of construction, the power is vested persona designata, the next question is
      whether the exercise of that power would be “incompatible” with judicial independence.
      This is all a rather convoluted way of arriving at the heart of the problem.


177              The second limb of Boilermakers seems to have as its foundation a somewhat narrow
      view of what judges should, and should not, do. It proceeds upon the basis that judges have
      no business being involved in anything other than deciding cases.                         Though there are
      undoubtedly a number of judges who share that view, it is by no means one that is universally
      held.143


178              There is much to be said for the proposition that the role of a judge should not be so
      constrained. For one thing, the role accorded to judges by this highly conservative theory of
      judicial restraint may be thought to elevate judicial deference to a point that impairs their
      ability to protect, in any meaningful way, individual rights and freedoms.




      143
         There is, for example, some support for the proposition that judges can properly act as mediators in matters
      over which they will not ultimately preside. There is also some support for the proposition that judges can and
      should engage in other forms of alternative dispute resolution. The use of advisory opinions, and guideline
      judgments, raise similar issues regarding the proper role of the judiciary.
                                                          - 53 -



179           Of course, it will often be right for the courts to defer, on democratic grounds, to the
      considered opinion of the elected body or person whose act or decision is impugned.
      However, there are surely limits. As one commentator has recently observed:

               “the courts’ non-interference with legislative, executive or administrative
               decisions “must be earned by the primary decision-maker by openly
               demonstrating the justifications for the decisions they have reached and by
               demonstrating the reasons why their decision is worthy of curial respect””.144


180           Democracy is not simply about majority rule. Judges and the courts have an essential
      role to play in protecting fundamental rights and freedoms which the common law has always
      recognised, even if only through the use of accepted techniques of statutory interpretation.
      The House of Lords has shown, in recent years, that even the threat of large scale terrorist
      attacks, and the enactment of legislation specifically designed to meet that threat, cannot
      override entirely basic values of this kind.145


181           Too rigid an approach to the doctrine of separation of powers can limit the scope of
      judicial review to a point beyond that which is appropriate. Indeed, it can render the role of
      the judiciary in protecting fundamental rights almost futile.                   Courts should not allow
      themselves to be rendered impotent in the face of plausible claims of illegality or abuse of
      power, particularly where human rights are at stake.


182           One difficulty with the second limb of Boilermakers is that it constrains judges from
      taking on the supervision of coercive powers legislatively conferred upon the executive. I am
      not persuaded by the assertion that by assuming that role, judges are in effect acting as police.
      Quite the contrary. Judges who monitor, and keep watch over those who are authorised to
      exercise such powers, and who ensure that they are exercised strictly according to statute, are
      in fact acting in accordance with the highest traditions of judicial office. They are promoting


      144
          Professor T R S Allan, “Human Rights and Judicial Review: A Critique of „Due Deference‟” (2006) 65
      Cambridge Law Journal 671, 673, citing with approval M Hunt, “Sovereignty‟s Blight: Why Contemporary
      Public Law Needs the Concept of „Due Deference‟” in N Bamforth and P Leyland (eds), Public Law in a Multi-
      Layered Constitution (2003) 339.
      145
          See, eg, A v Secretary of State for the Home Department [2005] 2 AC 68. The House of Lords accepted that,
      the assessment of the risk of terrorist attack was pre-eminently a matter for the executive and the parliament.
      However, when it came to implementation of a legislative response, discrimination on the basis of nationality
      violated the Human Rights Act 1998 (UK) and therefore rendered the entire scheme for dealing with this threat
      unlawful. See also: A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 in which their
      Lordships held that evidence obtained by torture could not lawfully be admitted in a United Kingdom court.
                                                              - 54 -


      and supporting the rule of law. They are doing what judges have always done, namely
      standing between the government and the citizen in order to protect individual rights and
      freedoms.146


183            There is something almost surreal about the notion that public confidence in an
      independent and impartial judiciary will be shaken if judges supervise and monitor the use of
      coercive powers. Rather, it seems to me that the public expects judges to perform such tasks.
      The fact that such powers cannot be exercised without a measure of judicial control provides
      some safeguard for the rights of the individual. That safeguard is important. It is not to be
      seen as mere camouflage.


184            I do not accept that judges are being cynically manipulated, by anti-terrorism laws,
      simply as a ploy to make a gullible public think that these laws accord due process. Rather, I
      think that the community is reassured by the fact that the wide ranging powers conferred by
      these laws cannot be exercised merely at the whim of politicians, bureaucrats or the police.147


185            Judges invariably act cautiously when obliged to make orders that seriously curtail
      individual liberty. They are, at least in this country, wholly independent. They are nobody‟s
      rubber stamps. They apply the law conscientiously, and without fear or favour.


186            At a national level, Australia does not have an entrenched bill of rights, or even a
      legislative charter of rights and freedoms. If anything, this makes it even more important for
      judges to be willing to take on the task of ensuring that individual rights are protected.


187            Of course, judges who are compelled by statute to make coercive orders may find
      aspects of the process distasteful. There is something unsatisfactory about having to accord
      less than complete procedural fairness when dealing with issues of individual liberty. Judges
      may also find themselves the subject of criticism for exercising this role, some of it ill-
      informed. However, that goes with the job. It is by no means a legitimate reason for refusing
      to undertake what seems to me to be an important task.


      146
          In essence, the process that they follow is similar to that which applies when judges grant ex parte orders in
      civil cases, such as Anton Pillar orders or Mareva injunctions. Such orders can, of course, have draconian
      effects.
      147
          If there is anything really disconcerting about preventative detention orders, it lies in the fact that they can be
      issued by police for a period of up to 24 hours without judicial approval.
                                                  - 55 -


188          When a democratically elected government enacts anti-terrorism laws because it
      regards such measures as essential, someone must take responsibility for ensuring that the
      powers conferred by these laws are exercised strictly in accordance with the statutory
      requirements. Who better to carry out that function than the judges?

				
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