Constitutional Law - Separation of judicial power - exceptions to boilermakers
Download as PPTX, PDF2 likes2,560 views
The document discusses exceptions to the rule against federal courts exercising non-judicial powers established in the Boilermakers' case. It examines cases that have established some judges may exercise administrative functions if appointed in a personal capacity (persona designata) rather than as a member of their court. However, the role must not be incompatible with judicial independence or integrity or undermine public confidence. Hilton v Wells established some judges could issue surveillance warrants persona designata but later cases set limits, finding roles too close to or directed by the executive could compromise the judiciary.
Constitutional Law - Separation of judicial power - exceptions to boilermakers
- 1. Topic 4 Separation of Judicial Power Part 2 Exceptions to the Boilermakers Doctrine
- 2. Exceptions to Boilermakers • Some incidental powers may be created in Chapter III courts • Courts may make rules of procedure, despite being a parliamentary function • Courts may exercise administrative function of winding up companies because it is incidental to judicial exercise of power
- 3. Judicial power in s 51 powers • Lane vMorrison(B&W p 619) Brian Lane charged for an act of indecency against a superior officer. • He brought proceedings in the High Court that the Australian Military Court was invalid on the grounds that its jurisdiction granted by s 51(vi) offended the judicial power in s71. • The Court found that the AMC was independent, was not an inquest, and could punish.
- 4. Concept of Persona Designata • A judge may act in their personal capacity in an office performing administrative or executive functions including quasi-judicial functions: Drake v Minister for Immigration (1979). • In Drake a judge was appointed to the AAT (an executive body) but it was found that the appointment was in a personal capacity, i.e. persona designata.
- 5. Persona Designata • The Commonwealth can confer non-judicial functions on a federal court judge if they are appointed in a personal capacity, i.e. detached from the court they sit in: GrollovPalmer (1995). • A judge may exercise their non-judicial functions in their chambers with assistance of their staff, as opposed to operating in an open court: Hilton vWells (1985).
- 6. Presumption of Persona Designata • If the Commonwealth confers a non judicial power then it is presumed that the judge is acting persona designata: Hilton vWells • If the legislation specifies that the appointment is “persona designata” then this militates heavily toward being legitimate • After Hilton v Wells, the legislation (TIA) was amended to remove any doubt as to whether the appointment was persona designata.
- 7. Construing the exception • To determine whether there is a persona designata exception, requires statutory construction. • Is the function conferred on a judge or a court: Hilton v Wells. • Does the law give all judges powers, or only some and under what circumstances: Hilton v Wells; Grollov Palmer
- 8. Hilton v Wells • Case related to evidence obtained by Federal Police using telephone tapping devices operating by way of warrants. • The issue was whether the Federal Court’s power to issue the warrants infringed the Boilermakers’ doctrine. • The judges’ powers to issue warrants were incidental to their role as judges.
- 9. Hilton v Wells (cont.) • The question was whether appointment of the judge ought to be construed as persona designata • Gibbs CJ, Wilson and Dawson JJ (3-2 majority): found that s 20 of the Telecommunications (Interception) Act was valid. • The judges were well qualified to issue warrants, the role was not incompatible with their status or independence, nor inconsistent with judicial power.
- 10. Hilton v Wells • Mason and Deane JJ: dissented saying that “all judges” were given the power, no separate body for issuing warrants, and therefore the powers were given as judges. • Legislation was subsequently amended to specify appointment as persona designata. • Hilton v Wells was criticised in Jones v Commonwealth (1987).
- 11. Grollov Palmer (facts) • Even though legislation (TIA) had been amended to provide persona designata appointment, the issue of whether the role is incompatible was raised. • Judges were given the power to issue phone tapping warrants, ex parte, no reasons provided, no openness, unreviewable, no transparency
- 12. Grollov Palmer (issues) • Raises the issue of incompatibility of the extra judicial role • Notwithstanding personal appointment, incompatibility of position creates invalidity • Practical incompatibility of the judge operating in the appointed role. • Relates to judicial independence and judicial integrity, and public perception.
- 13. Grollov Palmer (analysis) • Brennan CJ, Deane, Dawson and Toohey JJ: Public may view judges issuing phone tapping warrants as a clandestine affair, however, majority found that the eligible judge could validly issue a phone tapping warrant without creating incompatibility • Safeguards could be implemented within the courts procedures to prevent judge who issued the warrant from hearing the matter. i.e. recusal.
- 14. Grollov Palmer (cont.) • Majority also said that the role of issuing warrants needed to be undertaken by some one in society, and that judges were in the best position to do so. • McHugh J: dissenting said that there are other suitable persons to fill the role of issuing warrants, e.g. retired judges or other officials • Consider the impact on public perception
- 15. Wilson (1996) • Justice Jane Mathews, a federal court judge was required to provide a report to the Minister for Aboriginal and Torres Strait Island Affairs. • Specific directions given to the judge by the Minister. • Politically charged issue • Judge was appointed persona designa
- 16. Wilson (Issues) • Question the role the judge is appointed to. • Is the role too close to another arm of government? • Was the role politically controversial? • Was the judge directed or instructed by the executive?
- 17. Wilson (analysis) • Brennan CJ, Dawson, Toohey, McHugh and Gumow JJ: held that the judge’s role of issuing a report would have undermine the public perception of judicial integrity. • Distinguished judges in a Royal Commission as having to act judicially in procedural factfinding and application of law (B&W p 632). • Distinguished AAT judges who are not required to act on advice from the minister.
- 18. Wilson (cont.) • Majority: “The report may be prepared to accord with ministerial policy” • Kirby J: judge reporting was much less incompatible than the phone tapping role in Hilton and Grollo. • Kirby J: the judges skill to report on these issues, and the disinterested position in which they are suited for this role.