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 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 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 ongoing[6]. 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 involving terrorist acts.[13]
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.
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.
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 Judge[15]).
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. 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
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 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 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]
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.
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 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]
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 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’ Case[43] 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 Acts[45]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.
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 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. 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 Ltd[58] 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-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 Association[62]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 states[64] and territories.[65] Accordingly, state and territory judges are largely free from Boilermakers’ constraints.
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 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 Affairs.[71] 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]
82 In Hilton v Wells[73] 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]
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’ Case. 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’ Case. One may ask: what
is the point of our insisting, in conformity with the dictates of the Boilermakers’ Case, that 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. Davison) 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. 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 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 Palmer[82] 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 and 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 mockery. 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 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 constitute. 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.”
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 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 Affairs[86] the High 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”.
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 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. 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 Queen[92] 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 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 invalid. 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 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 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 Rumsfeld[102] 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 Holloway[104] 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.
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 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 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 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]
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 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.
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 Commission[120] 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 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 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 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 [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 Court.[124] 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 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 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-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.
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 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.
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 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.
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.
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 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.
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?
