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Gerangelos, Peter --- "The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases" [2002] FedLawRw 1; (2002) 30(1) Federal Law Review 1

It is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power ... Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.[5]

To that extent, legislative power may interfere with the courts' independent adjudication of a pending case without being unconstitutional. The critical proviso is that such an interference must be achieved by a proper exercise of legislative power; that is, by a change in the law. This principle has been referred to as the 'Changed Law Rule',[6] and shall be referred to as such hereafter. The corollary is that if such interference is achieved by a purported exercise of legislative power that is other than substantively legislative, it will be an unconstitutional interference with judicial functions.

The critical issue for determination is whether discrete and precise principles can be derived from the separation principle to define those elements of legislation which 'interfere' with a pending case in such a way as to render it not in substance a change in the law, and hence unconstitutional. Unlike the case of a clear usurpation of judicial power, such as a Bill of Attainder,[7] or with legislation which seeks to require the court to exercise that power in a way clearly inconsistent with judicial power or with its very nature as a court,[8] this is not an immediately obvious exercise. Nevertheless, examining the efficacy of the separation principle in this particular scenario does constitute a measure of the broader efficacy of the legal entrenchment of a principle whose origins lay in political theory. Such a transition from the realm of political theory into that of legal rule redefines the very principle itself. As Sir Anthony Mason has noted:

To Montesquieu, the separation of powers was a diffusion or dispersion of powers, rather than a division of functions. However, once the concept came to be translated into constitutional and legal terms, it was transformed into a division of functions ... The problem with the transformation from a diffusion to a division of powers is that it calls for a classification of functions. Yet Madison himself noted that it was impossible to define, with sufficient certainty, the three provinces of government, a view which has been endorsed by the Supreme Court of the United States and the High Court of Australia.[9]

The attempt to limit legislative power in the pending case scenario pursuant to the separation principle has not entirely succeeded in Australia. This article will argue that the reason is not the failure to define a discrete set of principles applicable to it. Rather, it has been the uncertain reception of and commitment to these principles by the High Court.


The elevation of the separation principle into the realm of constitutional and legal rules remains the original contribution of the United States Constitution,[10] reflecting the influence of Montesquieu in particular, who, in De L'Esprit Des Lois,[11] recognised the importance of the protection of the independence of judicial power in order to preserve liberal government. Such views found expansive articulation in The Federalist papers[12] at the moment of the framing of that nation's Constitution. Indeed, it was the Americans who advocated the higher protection afforded the judicial power—particularly from interference by the legislature—by this elevation. Moreover, in the context of the drafting of the Constitution, this was regarded as an issue of the highest priority.[13] Madison was concerned in particular that such legislative encroachments would mostly likely occur under the guise of otherwise properly enacted legislation:

[The legislature's] constitutional powers being at once more extensive, and less susceptible of precise limits, it can with greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.[14]

Madison, and indeed other contributors to The Federalist, were influenced by their own experience of colonial and post-revolutionary legislatures dominating and indeed usurping the adjudicative functions of the courts by acting institutionally as courts, indeed commonly functioning as courts of equity or appellate courts, and even hearing suits at first instance.[15] They made orders, as a court might, declaring the rights of the parties, setting aside judgments or ordering a new trial.[16] Reviewing the judicial activity of the Massachusetts legislature, the editor of the Harvard Law Review noted:

[T]he provincial legislature will often be found acting in a judicial capacity, sometimes trying causes in equity, sometimes granting equity powers to some court of the common law for a particular temporary purpose, and constantly granting appeals, new trials, and other relief from judgments, on equitable grounds.[17]

The inevitable reaction was noted by Edward Corwin: '[t]he period 1780-1787 ... was a period of 'constitutional reaction' [to these developments] which leaped suddenly to its climax in the Philadelphia Convention.'[18] The Pennsylvanian Report catalogued what were regarded as abuses of legislative interference with judicial functions; 'abuses' because the intervention of the legislature was often procured by the influence of faction and private interest.[19]

Thus, when the Americans were drafting the terms of the Constitution, the specific concern raised by such egregious interferences with the courts' adjudicative functions by legislatures was at the forefront. Jefferson referred to the existence of the practice in his state of Virginia, where its Assembly had 'in many instances decided rights that should have been left to judiciary controversy.'[20] In this context, Madison made his oft-cited remark that the '[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.' [21]

The solution was the adoption of a legal separation of judicial power whereby the 'interpretation of the laws' would be 'the proper and peculiar province of the courts'.[22] The judicial branch was to be the least dangerous branch in that 'though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter ... so long as the judiciary remains truly distinct from both the legislature and the executive.'[23] And as Powell J commented in INS v Chadha:

It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause.[24]

It was apparent that parliamentary supremacy, unrestrained by legally entrenched limitations, had lost the confidence of the American Framers.[25] Thus, the critical decision was made to establish a judicial department independent of the legislature in the constitutional provision that: 'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish',[26] an article which resonates in the terms of s 71 of the Australian Constitution.


Whilst the separation principle has been held to be legally entrenched in the Australian Constitution,[27] it is questionable whether the framers specifically intended to incorporate the doctrine as a legal imperative.[28] Moreover, unlike the American experience, there is nothing to suggest that the issue of legislative interference in pending cases played any part in their consideration of the separation principle. The earliest evidence of an Australian consciousness of the issue is found amongst the early constitutional scholars.

Harrison Moore explored the extent, and the definition, of restrictions on legislative power emanating from the separate vesting of the judicial power of the Commonwealth in Chapter III courts, noting that the 'restrictions upon the power of Parliament [are] more extensive than is at first realised.' [29] He made the very significant observation that these extended beyond the more egregious institutional usurpations of judicial power to include limitations on its powers with respect to otherwise properly enacted legislation:

It is not merely that the Legislature may not constitute itself or any other body unauthorised by the Constitution, a Court of justice with functions that might be validly performed by a Court regularly constituted, ie the determination, after hearing, of rights according to law. If this were all that is imported by the separation of powers, it would be of small importance legally, for a power of this nature is very rarely usurped by a Legislature. The temptation to which Legislatures are liable, to which American Legislatures have succumbed, and which American Courts have met by the allegation of an invasion of judicial power, is to apply a new rule to past acts or events, or to deal with a specific matter of injury or wrong independently of all rule. However mischievous and dangerous ex post facto laws and privilegia may be, their very mischief lies in the fact that they are something other than judicial acts; that what should have been done in a judicial way and according to law has been done by the assumption of arbitrary power.[30]

This recognition that Parliament may usurp judicial power under the guise of a prima facie legitimate exercise of legislative power should not be underestimated as it constitutes the cornerstone of all principle relating to the issue of legislative interference with judicial functions. However, he did not enumerate more precise principles.

Andrew Inglis Clark exhibited a greater awareness of the particular issue in the context of the pending case, positing the following particular limitations on the legislature: First, 'after a law has been made and promulgated the Parliament cannot control its operation otherwise than by altering it.'[31] This was an early recognition of the fundamental premise underlying the Changed Law Rule. Second, 'the alteration or repeal must be effected by an exercise of the legislative power, because that is the only power possessed by the Parliament, and any attempt on the part of the Parliament to do anything which would not be an exercise of legislative power would not be a law, and therefore would not be binding on the Judiciary.'[32]

Whilst it is trite to observe that the legislature is limited to exercising a power that is 'legislative', (a statutory change to the law), it is significant that Clark realised that the opposite might in fact have been a possibility. That is, Parliament might seek to control a law's operation by means other than amendment, by means that are other than legislative. It is in this failure to act in a substantively legislative manner that a breach of the separation principle may occur. The concern was not necessarily that Parliament might abrogate in any particular instance all, or any, of the hallmarks of judicial power; merely that it might exercise a power other than a legislative one.

Although Clark did not elaborate, this critical realisation indicated a more developed awareness of the foundations of the prohibition on legislative interference with judicial functions than the writings of Moore. It would be sufficient if Parliament merely exceeded the boundaries of legislative power for the constitutional validity of the legislation to be impugned. Clark gave the following highly pertinent example in relation to pending cases and in so doing, indicated a key indicator of unconstitutional legislation in this context – legislative prescription to the judiciary:

A new rule of conduct may be prescribed by the Parliament by the repeal or the alteration of an existing law, but any exposition of the purport of the language of an existing law, or any declaration of the existence of any rights or liabilities as the result of its enactment, is not an exercise of legislative power; and if any such exposition or declaration is made by the Parliament in the shape of apparent legislation, it is an attempted encroachment on the provinces of the Judiciary and is therefore invalid, if the explicit distribution of the legislative, the executive and the judicial powers made by the Constitution is to be enforced as part of the supreme law of the Commonwealth.[33]

This statement of principle would be applicable in any situation where the Parliament attempted to define, otherwise than by an exercise of substantively legislative power, the interpretation to be given to a statute. For, in effect, it would be prescribing the meaning that a court might give to it in any prospective case in which the law was applicable.

Quick and Garran made similar observations, but these were limited more to the integrity of final judgments: 'It cannot be doubted that any attempt by Parliament, under cover of a declaratory law or otherwise, to set aside or reverse the judgment of a court of federal jurisdiction, would be void as an invasion of the judicial power.'[34] Like Clark, they recognised that the cover of properly enacted legislation will not suffice to shield the purported exercise of legislative power from separation of powers scrutiny. Moreover, the constitutional offence did not lie in the fact that the legislation was exercising judicial power, but rather that it was interfering with its independent operation by the courts by prescribing the outcome of cases.

Implicit in the above observations from the early commentators was an imperative on the High Court to look beyond the form of otherwise properly enacted legislation to test its substantively legislative quality. The efficacy of the separation principle to regulate the pending case scenario is in large part a factor of this. It is significant to note that, because the separation principle is breached when Parliament exercises a power that is inconsistent with legislative power, it is therefore not necessary to establish that legislation impugned on this ground contains any or all of the hallmarks of judicial, or indeed executive, power. Elaborate attempts to bring the impugned activity totally within the definition of judicial power can therefore be avoided. It would appear that the critical factor in impugning the substantively legislative nature of an enactment in the pending case scenario – in the absence of other constitutional offences—is the existence of legislative prescription or direction to the judiciary.

As the jurisprudence of the High Court developed on this issue, these prescient observations of the early commentators eventually, though without express reference, informed the Court's slow evolution of principle in relation to legislative interference in pending cases. Given the influence of the United States' experience, it is curious that the early commentators did not appreciate the significance of the decision of United States v Klein,[35] a seminal decision of the United State Supreme Court in 1871, and authority for the proposition that the legislature would breach the separation principle if it were to 'prescribe a rule for the decision of a cause in a particular way.'[36] Moore referred to the case, but without appreciating its significance in this context.[37] But it did confirm the observation of Clark, and Quick and Garran, that the essence of the constitutional offence lay in this element of prescription or direction.


The earliest relevant High Court authority is Nelungaloo Pty Ltd v Commonwealth ('Nelungaloo').[38] In that case, the plaintiff claimed it had been inadequately compensated by the Commonwealth for the compulsory acquisition of wheat six years earlier pursuant to a Ministerial order under regulation 14 of the National Security (Wheat Acquisition) Regulations, arguing that such order was not authorised by these regulations. Whilst the matter was pending at first instance, Parliament enacted s 11 of the Wheat Industry Stabilisation Act (No. 2) 1946 (Cth) which provided that the order made pursuant to regulation 14

shall be deemed to be, and at all times to have been, fully authorized by that regulation, and shall have, and be deemed to have had, full force and effect according to its tenor in respect of wheat harvested in any wheat season up to and including the 1946-1947 season.

The plaintiff argued that this provision was unconstitutional on the basis that it was not, in substance, an amendment to the law but a legislative prescription as to the construction of an existing law that the court was required to adopt. The plaintiff highlighted the section's retrospectivity in this regard.

Prima facie, the validation of the ministerial order was achieved by an exercise of legislative power, by force of the enactment. The import of the deeming element in the provision was problematic. In the later case of Building Construction Employees & Builders Labourers' Federation of NSW v Minister of Industrial Relations ('BLF NSW'),[39] the New South Wales Court of Appeal held that a similar deeming provision constituted a direction to the court, and not an amendment to the law, such that the substantively legislative nature of the legislation was successfully impugned. Here, however, the deeming element was complemented by the phrase 'shall have ... full force and effect', suggesting that Parliament achieved the validation of the order by legislative force, as a change in the law; and not by directing the court to deem it so. Williams J, at first instance, emphasised this aspect in holding that any invalidity in the ministerial order was cured by force of the statute and not by any prescription to the Court in the pending case.[40] The new provision therefore had to be applied in the pending case and the Changed Law Rule was applied.

No reference, however, was made to the possible constitutional outcome if the deeming element stood alone. Nor was there any express—although perhaps it may be implied—recognition that the central element to any unconstitutional legislative interference with judicial functions was prescription or direction to the judiciary. The element of retrospectivity in the legislation was dismissed as an issue as there was no constitutional bar to the Parliament passing retrospective legislation.[41] On appeal to the Full Bench, Dixon J alone referred to the plaintiff's submission on legislative interference, only to dismiss it as 'an erroneous complexion to place upon the enactment.'[42] Did this mean that had it been the correct complexion, the statement of principle on which it was based was correct? The question was left unanswered.

Whilst countenancing, by virtue of the Changed Law Rule, an instance of constitutional interference with judicial functions, the High Court appeared to acknowledge the possibility of an unconstitutional one, even though it did not elaborate on what constituted the identifying features of such legislation. Left unresolved, it was possible that the rule against legislative interference might have been relegated to the status of an easy hurdle for deft legislative drafting. Nevertheless, the High Court remained silent in relation to it.

This reticence was also exhibited in R v Humby; Ex parte Rooney ('Rooney').[43] Applying Nelungaloo, Mason J observed that 'Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.'[44] Whilst thus clearly accepting the Changed Law Rule, there was no definition of criteria to determine when legislation became unconstitutional as a legislative interference. This was disappointing given that the decision post-dated the critically important decision in Commonwealth jurisdictions in this regard, Liyanage v The Queen ('Liyange'),[45] a decision of the Privy Council, to which detailed reference shall now be made before the Rooney case is examined in detail.


The facts of Liyanage exhibited a particularly egregious form of legislative interference with judicial functions. The Parliament of Ceylon enacted the Criminal Law (Special Provisions) Act No 1 1962 which purported to amend the Ceylonese Criminal Procedure Code in its application to some sixty persons accused of offences committed during an abortive coup in 1962. Whilst these persons and their trial were not expressly mentioned in the legislation, the legislation left no doubt it was directed to them.

The Act purported to:

Any hope of discovering in this case an exhaustive catalogue of precise criteria determinative of unconstitutional interference with judicial functions was dashed almost at once by the Privy Council's remark that it was not 'necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference.'[47] The Privy Council settled for the identification of indicia of unconstitutional interference, which indicia did not constitute a closed set, but rather were to be determined by the 'facts and circumstances of each case.'[48] These included: 'the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings.'[49] Whilst 'direction or restriction' of judicial discretion was mentioned, it was not quite clear from this statement whether it constituted the primary element or whether it was but one of the indicia of unconstitutional interference. That it was in fact the primary element emerged rather in the Council's consideration of the facts of the case.

First, it examined the ad hominem nature of the legislation.[50] The Council held that the legislation was clearly aimed at 'particular individuals who had been named in a White Paper and were in prison awaiting their fate'[51] because they were participants in the coup. The amendments 'were not intended for the generality of the citizens or designed as any improvement of the general law.'[52] The legislation was ad hominem not merely in its specificity in regard to persons, but also in regard to precise proceedings and the issues raised therein. Of the same effect was the element of retrospectivity in the legislation, which was not applicable to the generality of the citizenry.[53] The tendency to both legislative direction and restriction was obvious. It should be noted that, by contrasting this legislation with that designed to amend the law, the Privy Council was applying the Changed Law Rule and also suggesting that the rationale behind its examination of the legislation was to determine whether there had been in substance a proper exercise of legislative power.

The Privy Council was careful to stress that these two factors were not per se determinative of the issue.[54] It therefore had regard to other factors in order to determine whether, cumulatively, they indicated an unconstitutional direction. It also had regard to the fact that the legislation sought to interfere with matters that were traditionally matters reserved for the exercise of judicial discretion. Thus, it was highly pertinent that the legislation made provision for a trial without jury, legalised arrest without warrant, made admissible evidence which was otherwise inadmissible under the general law of evidence, and increased the sentence to be imposed on the particular accused. The Council's method in examining these indicia it described thus:

The true nature and purpose of these enactments was revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere.[55]

The Council thus concluded that the 'the pith and substance of [the legislation] was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals.'[56]

Thus, from Liyanage, it is possible to discern the foundations of a discrete set of principles applicable to the pending case scenario: First, unconstitutional legislative interference is defined by the existence of the element of direction or prescription to the judiciary, which element negates the substantively legislative nature of the legislation. This I will refer to as the 'Direction Rule'. Second, the existence of the requisite direction or prescription is to be determined by its effect on the actual pending proceedings, both in terms of the parties thereto and on the legal issues which the court must address. Third, this issue of direction determines the 'true nature' of the legislation, whether it is in substance a change in the law. This confirmed the observations of the early Australian commentators that the emphasis of the enquiry must be on the substantively legislative nature of the legislation, not only on whether the legislation is requiring the court to behave in a way inconsistent with 'judicial power'. This was regarded as a manifestation of a fundamental separation of powers value: preventing the legislature from treating the courts as a mere appendage, requiring them to decide issues in a way predetermined by it, all under the guise of otherwise properly enacted legislation. Fourth, whether the direction is of sufficient extent to amount to an unconstitutional interference is to be determined by the identification of indicia of direction based not on any predefined concept thereof, but on the facts of each case. Moreover, no individual factor is per se determinative of the issue. Rather it is the precise circumstances of the case and the relationship and cumulative effect of the various indicia in any particular case. I shall refer to this as the 'Relevance Principle'. Fifth, Liyanage also clearly confirmed that the Changed Law Rule will operate only if the legislation does not offend the Direction Rule applied with the Relevance Principle. In other words, the Direction Rule operates as the threshold test for the application of the Changed Law Rule.

Liyanage has significant value as a precedent in that it identified a number of relevant indicia, which have not been significantly expanded upon in subsequent cases: the ad hominem element; retrospectivity; the delineation of a precise time period and types of offences to which it is directed; an express or implied application in particular proceedings and in relation to particular legal issues in those proceedings; the very existence of pending proceedings and the extent to which the legislation appears to be designed with those proceedings in mind; relevance to the exercise of traditional judicial discretions such as those relating to sentencing or the admissibility of evidence, the weight and conclusions to be drawn from evidence, the legality of warrants and arrest procedures; and the true purpose of the legislation where this can be discerned.

Critically, Liyanage would suggest that the application of Direction Rule, Relevance Principle and Changed Law Rule must be concerned with substance and not form. The mere fact that the legislation is under the guise of properly enacted legislation should not deter the court from rigorously applying the Direction Rule. Indeed the very efficacy of these discrete principles is dependent on the extent to which this substance-over-form approach is followed.

Before proceeding, a clarification is needed. The point was made above that the issue relating to whether the legislation is preventing the court from exercising an element of judicial power, or requiring it to act inconsistently with the judicial power or its nature as a court, is not of primary importance here. This is not to deny that, where unconstitutional direction is established, a critical element of the judicial power is removed from the court, viz, the independent adjudication of a legal dispute pursuant to the application of existing law to facts. As the High Court stated in the oft-quoted passage from Fencott v Muller, an 'essential function of the judicial power is the quelling of ... controversies by ascertainment of facts, by application of the law, and by exercise ... of judicial discretion.'[57] Legislation that constitutes an unconstitutional direction breaches the separation principle both in that it is not substantively legislative and in that it prevents the court from exercising a critical element of the judicial power, that is, the independent adjudication of a legal dispute pursuant to legal principles. Legislation may in other ways offend against the integrity of the judicial power. However, if it offends in no other way than in seeking to affect the outcome of pending proceedings—whether it is regarded as an unconstitutional interference in the pending case or the removal of the element of independent adjudication from the court in a pending case—the underlying question for determination remains whether the legislation is in fact a change in the law or a mere direction to the judiciary.


One of the most significant aspects of Liyanage was the fact that the Council was concerned with 'the true nature and purpose' of the impugned legislation.[58] Given the rarity of such obvious examples of legislative interference as appeared in that case, the efficacy of the separation principle in this context will depend on the extent to which the High Court exhibits the same concern, and the same rigour in determining 'the true nature and purpose' of impugned legislation.

The concern to secure the development of principle emerging from Liyanage was not, however, immediately apparent in High Court jurisprudence. In the Rooney case that followed, the High Court considered retrospective legislation,[59] which purported 'by force of this Act'[60] to validate orders made by Masters of State Supreme Courts exercising federal jurisdiction in matrimonial causes that defined rights, liabilities and obligations.[61] The High Court had previously ruled that orders made by Masters were not valid.[62] The applicant sought to invalidate the legislation on the ground that it was a usurpation of judicial power. When the legislation was enacted, he was a party to pending proceedings in relation to which the validity or otherwise of the orders was a critical issue.[63]

With very little elaboration, the Court held that there was no unconstitutional interference with judicial functions. Mason J only briefly referred to Liyanage to confirm the centrality of legislative direction in determining unconstitutional interference, but distinguished it on the basis of the egregious nature of its facts which clearly 'circumscribed the judicial function and the discretions incidental to it.'[64] These were held not to exist in the present case, because the legislation, like that in Nelungaloo,[65] operated by its own force to achieve its purposes. His approach was therefore consistent with the position that the Changed Law Rule can apply only if the Direction Rule itself is not breached: 'It is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power.'[66] Whilst indicia of direction existed—such as retrospectivity and an effect on pending proceedings—in all the circumstances of the case, these did not work together to establish that the legislation was other than substantively legislative. The other judges made little reference to the issue of legislative interference, although Gibbs J agreed with the reasons of Mason J. Stephen J, with whom Gibbs J also agreed, as did Menzies J, went no further than to confirm that the legislation merely attached to the orders of Masters consequences which it declared them to have always had, ‘as acts in the law.’[67]

The Liyanage principles received a rather general affirmation in Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth ('BLF Cth')[68] even though the High Court did not embark upon an expansive discussion of them. The case achieved a greater significance as a counterpoint to the decision of the New South Wales Court of Appeal in BLF NSW[69] dealing with analogous State legislation which sought to effect the deregistration of the State branch of the Builders Labourers' Federation ('BLF'). Ironically, it was the latter court which examined in more detail the issue of legislative interference than any federal court to date, ironically because there was no legal separation of judicial power at the State level.[70] Indeed it was the judgments in the Court of Appeal which constituted the first decisive step toward a consolidation of principle in this area post-Liyanage.

The catalyst for the federal proceedings was a declaration made by the Australian Conciliation and Arbitration Commission[71] that the BLF had engaged in conduct which empowered the minister to order its deregistration.[72] The BLF sought orders in the High Court to quash this declaration and to prohibit the Minister from ordering the Registrar of the Commission to cancel its registration. Whilst these proceedings were pending, Parliament enacted the Builder's Labourers' Federation (Cancellation of Registration) Act 1986 (Cth), which, pursuant to s 3 thereof, cancelled the BLF's registration, 'by force of this section'. The BLF challenged the validity of this legislation on the ground, inter alia, that it was either an exercise of the judicial power of the Commonwealth or an interference with judicial process in breach of the separation of powers.[73] The Act, it was submitted, abrogated the function that would otherwise have been performed by the High Court in the pending proceedings in that Parliament itself had prescribed the outcome.[74]

The Court[75] unanimously rejected this submission on the basis that, relying on Rooney and Nelungaloo, 'Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.'[76] Appearing to confirm the High Court's previous tentative acceptance of the Direction Rule, and its essential role in testing the substantively legislative nature of the legislation, it further held that '[i]t is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings.'[77]

The distinction between a valid legislative act that constitutes a change in the law and an unconstitutional direction was maintained. Critically, the Court did not elaborate on what it meant by interference with 'judicial process'. It is possible, however, to discern in its reasoning the critical element of direction to the judiciary. In characterising the legislation as being substantively legislative and therefore constitutional, the court emphasised the fact that it expressly stated that the deregistration was achieved by the force of the statute; that is, by a change in the law. The Court considered the ad hominem nature of the legislation and the fact that it addressed an issue—the registration of the BLF—which was central to the pending proceedings. Neither was held, however, to negate the substantively legislative quality of the enactment. Moreover, the legislation did not attempt to address the particular legal issues that the court had to consider in those proceedings. It merely bypassed them.

The Court also stated that legislative purpose was irrelevant.[78] It is unclear whether the Court meant that it was an entirely irrelevant consideration as an indication of direction in all cases, or whether it was irrelevant on the present facts, or whether the critical question was not what Parliament actually intended, but rather the effect of the actual legislation. It is not necessary to resolve the issue at this point for, whatever view the Court took, it was consistent both with the Relevance Principle on the one hand, and with the Court's position of scrutinising the means adopted as the major determinative factor. Thus, legislative purpose was only relevant in so far as it may assist in determining, together with other factors, the existence or otherwise of interference.

Would the Court's position have altered if the legislation did not contain the words 'by force of this section'? As in the Rooney case, this raises the question as to whether this form of words will automatically resolve the issue in favour of constitutionality. It was clearly held that it did not do so, although it was a relevant factor. It is my view that the telling factor in this case was that the legislation did not seek directly and precisely to address each of the legal issues that were before the court in the pending proceedings. Parliament merely resolved the ultimate issue by sidestepping the judicial process by making the pending proceedings redundant. The procedure for deregistering the BLF under the previous law had been followed. All that was left to be done was for the minister to make the relevant order. And it was at this point that the BLF commenced its proceedings. Parliament merely exercised its undoubted legislative power to deregister the BLF.

The High Court's reticence in setting out a comprehensive definition of principle was thrown into sharp relief by the decision of the analogous state case, BLF NSW.[79] The Court of Appeal found that the impugned legislation was in breach of the separation principle as an interference with judicial functions, and would have declared it invalid if the separation principle was legally entrenched in the State.[80] The relevant minister had cancelled the registration of the State branch of the BLF pursuant to his powers under the Industrial Arbitration (Special Provisions) Act 1984 (NSW). The BLF unsuccessfully challenged the decision in the Supreme Court on natural justice grounds. In the week prior to the hearing of the BLF's appeal, Parliament enacted the Builders' Labourers Federation (Special Provisions) Act 1986 (NSW). Section 3(1) thereof provided that the union's registration 'shall, for all purposes, be taken to have been cancelled'[81] by the ministerial declaration made pursuant to the 1984 Act. Section 3(2) provided that the Minister's certificate pursuant to that Act as the prerequisite step in the deregistration process, 'shall be treated, for all purposes, as having been validly given from the time it was given or purportedly given.'[82] Section 3(3) provided that this shall be so notwithstanding any decision in any court proceedings relating to the certificate or to the executive declaration. In addition, s 3(4) provided that the costs in any such proceedings should be borne by the party 'and shall not be the subject of any contrary order of any court.' The difference between the wording used in the State Act—'for all purposes' – with the Commonwealth Act, which used the wording 'by force of this section', should be noted as the significant factor that led to the different conclusion by the State court.

The leading judgments of Street CJ and Kirby P[83] made approving reference to BLF Cth and the distinction drawn there between unconstitutional interference with the judicial process, and constitutional legislation which merely altered the substantive rights of parties in pending proceedings. Most significant was their express recognition of the vital constitutional issue at stake and the need for discrete principles to deal with it. Street CJ opined that:

For Parliament, uncontrolled as it is by any of the safeguards that are enshrined in the concept of due process of law, to trespass into this field of judging between parties by interfering with the judicial process is an affront to a society that prides itself on the quality of its justice. Under the Commonwealth Constitution it would ... attract a declaration of invalidity.[84]

In holding the legislation to breach the separation principle, Street CJ emphasised the wording of the legislation as an indicator of direction—in particular the phrase 'shall for all purposes'—as it did not exempt the court's adjudication in the pending proceedings.[85] The impugned provisions were 'cast in terms' that 'amount[ed] to commands to this Court as to the conclusion that it is to reach in the issues about to be argued before it.'[86] The corollary of course is that had the legislation been cast in other terms it may have achieved the same ends by constitutional means. But, '[r]ather than substantively validating the cancellation of the registration and the Ministerial certificate, Parliament chose to achieve its purpose in terms that can be more accurately described as directive rather than substantive.'[87] He expressly contrasted this legislation with the corresponding federal legislation that, validly, achieved its purpose by its own force. Street CJ examined all the facts and circumstances to locate indicia of direction; in particular, the fact that the legislation appeared to precisely address the issues in the pending case,[88] which he contrasted with the federal legislation that merely bypassed the pending proceedings. The ad hominem nature of the State legislation was also indicative, though not per se determinative of direction. He particularly noted that s 3(4) dealt precisely with the issue of costs, strongly reinforcing the perception of direction. He stated:

It is difficult to see any nexus at all in a legislative sense between the cancellation of the Federation's registration and the disposition of costs in the pending court proceedings. Section 3(4) amounts, in my view, to a direct interference with the ordinary operation of the judicial process in particular litigation pending before the Court. Likewise, it too can be appropriately described as directive to the Court rather than substantively legislative.[89]

In short, his Honour clearly endorsed the Direction Rule, the fact that it operated as a test of the substantively legislative nature of the legislation and that it operated as a threshold test that must be passed before the Changed Law Rule can apply.

Kirby P, in agreement, made some more detailed observations on this and ancillary issues.[90] His reasoning constituted a clear acceptance of the Direction Rule and indeed the need for a rigorous application thereof. He too recognised the critical distinction between a substantive amendment to the law and a direction to the judiciary.[91] He accepted that the enquiry was about means and not ends, noting that the High Court validated the federal legislation notwithstanding the 'motive [behind] enacting the legislation, even if it were to circumvent and frustrate the proceedings in the Court.'[92] Such motive was not relevant when Parliament acts within the proper bounds of legislative power. In relation to the State legislation, however, both the ad hominem nature of the legislation and 'the terms in which it was cast' indicated that it was 'more apparently a direct intrusion into the judicial process than was the case with the Federal Acts.'[93] Highly indicative of direction was the fact that the legislation appeared designed to deal with matters in issue in the pending appeal, including the question of costs,[94] whereas the federal legislation was 'in perfectly general terms' which did no more than cancel 'by legislative act, the registration of the Federal BLF'.[95]

Kirby P referred to the Rooney case to note that the critical point in relation to the legislation in that case[96] was the fact that, as Stephen J had stated, 'it did not effect a "validation" of the earlier purported orders. Instead, it attached to those orders, as acts in the law, consequences which it declared them always to have had.'[97] The Minister in the present case had argued that that was all that the legislation did: apply legal consequences to events in 1985, if those consequences did not already flow from the 1984 Act: '[f]ar from being an interference in the performance by the judiciary of its functions this was simply a clarification by the legislature of the matters upon which the judicial function was to operate.'[98] In addressing this submission, Kirby P noted that:

[W]hereas the Matrimonial Causes Act 1971 (Cth) [in the Rooney case] was addressed in terms of generality to all cases in respect of which the purported decrees had been made by a court officer, the 1986 Act has a much narrower focus. It is addressed to a particular legal person, namely the BLF. It deals, with specificity, with incidents of particular litigation involving the BLF. Thus, particular provision is made in respect of the costs incidental to the proceedings already on foot in the Court. Doubtless this provision was included to obviate argument, for the purpose of resolving costs, of the validity of the BLF's cancellation. But the result is that the legislature has passed ad hominem legislation. Its disclosed purpose is to remove doubts that had arisen in the argument of the cases before Lee J. Its plain object was to remove any risk of an adverse determination of the appeal from Lee J. It amounts, in effect, although not in its terms, to a legislative judgment.[99]

The significance of the phrase 'in effect, although not in its terms', must not be overlooked as it indicated that Kirby P, as with Street CJ, heeded the Liyanage imperative to look to substance and not mere form.

There remained, however, the issue of the efficacy of the legal entrenchment of the separation principle if Parliament could avoid the strictures of the principle merely by an appropriate wording of its legislation. As Street CJ recognised:

[I]t was plainly open to the ... Parliament without criticism—indeed probably with widespread acclaim—to cancel the Federation's registration by an express Act to that effect, as did the Commonwealth Parliament. But the method chosen ... was a legislative interference with the judicial process of this Court by directing the outcome of particular litigation.[100]

Did this then reduce the constitutional principle here to a mere guide for legislative drafting? Unless the doctrine is rigorously applied, perhaps this might be the case, and hence the vital significance of the Liyanage injunction to look to substance. However, any charge that the Direction Rule is blind to excessive legislative interference with judicial functions so long as there is a change in the law misunderstands the point of the Rule. In this regard, it should not be forgotten that the separation principle is not only concerned with the protection of the judicial process and the 'decisional independence' of the courts, but also with the protection of the legislative power: hence the Changed Law Rule. If Parliament, for example, has the power to deregister a union by force of legislation as it did in these cases, then it should not be prevented from doing so merely because there is pending legislation going to the very issue of that union's registration.[101] In short, the Direction Rule does not seek to foil the Changed Law Rule. Rather it seeks to ensure its proper application.

One issue that remained somewhat uncertain was the question of legislative purpose as an indication of direction. Street CJ referred to a passage in BLF Cth relegating the issue of legislative purpose to irrelevance[102] and found that he was bound by this.[103] The point is perhaps better put in this way: The court was not attempting to determine the intention of Parliament as an independent step. Rather it was seeking to identify the existence of unconstitutional prescription by a close scrutiny of the terms of the legislation, the issues with which it dealt and the nature of the pending proceedings as part of the rigorous search in all the circumstances for evidence that the legislature was directing the court, not changing the law. Thus, when Street CJ examined subsection 3(4) relating to costs, he saw all the hallmarks of direction.[104] Kirby P also made a determination of legislative purpose in the same way, finding that the 'disclosed purpose [of the legislation] is to remove doubts which had arisen in the argument' in the first instance decision and '[i]ts plain object was to remove any risk of an adverse determination of the appeal.'[105] The legislation, he stated, was 'enacted specifically for the purpose of terminating proceedings which had been brought in the court, ostensibly for the vindication of legal rights.'[106]

In conclusion, the BLF decisions confirmed the existence of discrete principles, which had developed from the tentative beginnings in Nelungaloo and Rooney and established more precisely by Liyanage. The difficulty, however, is that a clear statement of the Direction Rule, and the method by which it should be adopted, was found only in the State decision. At most, the High Court decision constitutes a rather general acceptance of these principles, leaving their precise status somewhat uncertain.


It was not until the High Court decision in Lim v Minister for Immigration, Local Government and Ethnic Affairs[107] that the Direction Rule was placed on a firmer footing as a critical separation of powers principle. This case involved a constitutional challenge to a number of amendments to the Migration Act 1958 (Cth). Prior to these amendments, the plaintiffs were held in custody as illegal immigrants and applied to the Federal Court for orders that they be released pending the reconsideration of their application for refugee status. Two days prior to the hearing, Parliament enacted the Migration Amendment Act 1992 (Cth). Section 54R provided that '[a] court is not to order the release from custody of a designated person'. The term 'designated person' was defined by s 54K to refer to illegal immigrants arriving by boat on Australian shores, thus making s 54R clearly applicable to the plaintiffs. Pursuant to ss 54L and 54N respectively, a designated person in custody must be kept in custody until either removed from the country or given an entry permit; and a designated person not in custody may be arrested without warrant, detained and kept in custody for the purposes of s 54L.

The plaintiffs argued,[108] relying on BLF Cth, Rooney and Nelungaloo, that these provisions breached the separation principle by interfering with the 'very judicial process involved in the release proceedings.'[109] They likened the legislation to that in BLF NSW. 'The present Act', it was submitted, 'is specifically directed to courts and their processes'.[110] Reliance was placed not only on the existence of the pending proceedings as indicia of direction, but also the ad hominem nature of the legislation:

The legislation selects particular persons and, without otherwise affecting their legal rights, provides for them what is in effect imprisonment ... Sections 54K, 54L and 54R are a legislative prejudgment in substitution of a deliberation and determination of the Federal Court that the plaintiffs had sought to invoke. The judicial process of the application of law to fact is thwarted.[111]

The Court unanimously upheld the validity of ss 54L and N, but by majority struck down s 54R.[112]

Significantly, constitutionality was determined by reference to 'known or prospective legal proceedings', the existence and nature of which was critical to the court's determination.[113] The issue of legislative interference was not determined by reference to any particular or precise power that the legislature was granting to itself in order to determine whether it was judicial in nature. Nor was it determined by reference to a particular power that it was requiring the courts to exercise, which itself was not judicial or inconsistent with judicial power; except that by directing an outcome, it was preventing an independent adjudication by the courts. Sections 54L and 54N were not regarded by the Court as constituting a legislative interference as they were held to be laws relating generally to executive powers of detention of non-citizens; and they did not address the precise legal issues that were to be addressed in the pending litigation.

The plaintiffs relied heavily on s 54N(2) which provided that a person must be taken into custody, or maintained in custody, even where their 'release was ordered by a court' prior to commencement of the Act. The Court held that this referred strictly to such situations occurring before the commencement of the Act, and did not purport 'to authorize an executive overriding of an order made by a court after the commencement of that division.'[114] Hence, the Changed Law Rule applied.[115] On the other hand, s 54R was held by majority to be a direction to the judiciary not to order the release of a designated person from custody 'regardless of the circumstances.'[116] That it was possible that there might be circumstances where such imprisonment may be unlawful was critical to the ultimate conclusion.[117] The Brennan, Deane and Dawson JJ in the majority stated that:

In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is quite a different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of jurisdiction. The former falls within the legislative power that the Constitution, including Chapter III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates.[118]

This confirmed the critical distinction between a substantive amendment to the law—which in this context would have been a statute that limited the jurisdiction of the courts subject to the Constitution[119]—and a statute that amounted to a direction to the courts as to the manner and outcome of its exercise of jurisdiction.

The fact that the majority did not examine in any detail the usual indicia of direction was perhaps a reflection of the fact that a clear indication of direction emerged from the face of the statute, as in the legislation considered in BLF NSW. Brennan, Deane and Dawson JJ made passing reference to that case and Liyanage only to dispose, correctly, of the submission that s 54R together with other related sections were of specific application and designed to address issues in pending proceedings, and that this, per se, was sufficient to make a finding of legislative interference.[120] Gaudron J was in agreement with this aspect of the judgment.[121]

The minority upheld the validity of s 54R only by reading it down to mean that a court may not release from custody a designated person lawfully detained.[122] Thus Mason CJ stated:

[Section] 54R does not preclude a court from making an interlocutory order for the release of a designated person who makes out a suitably strong prima facie case that he or she is not being held in custody pursuant to Div4B. The section operates only when the designated person is lawfully held in custody pursuant to that Division.[123]

Toohey J would otherwise have regarded it as 'clearly an interference with the judicial power' [which] 'cannot be sustained.'[124] McHugh J stated that in as much as 'it directs a court not to give effect to substantive rights while exercising federal judicial power, it would usurp the judicial power of the Commonwealth and be invalid.'[125] The minority judgments also referred specifically to the previous line of authority on pending cases. Toohey J did so in order to establish that it was constitutional for a legislature to enact legislation that affected substantive rights in pending proceedings, but not the judicial adjudication in those proceedings.[126] McHugh J also referred to the same passage from BLF Cth[127] relied on by Toohey J, adding that 'there is no automatic interference with the judicial process even when the motive or purpose of the Parliament in enacting the legislation is to circumvent or forestall the relevant proceedings.'[128] Nevertheless, s 54R was not such a provision that could be characterised as a change in the law if it were directing that a court could not order the release from custody of persons unlawfully detained.[129]

Accordingly, both majority and minority judgments confirmed the development of principle centred on the Direction Rule, and, following Lim, the principle appeared to have been more firmly established in the jurisprudence of the High Court.


The development of a discrete body of principles centred on the Direction Rule did not long survive Lim, however. It suffered a considerable setback, and indeed may have been undermined, in Nicholas v The Queen[130] where the High Court declined to apply the rule to circumstances which clearly warranted its application.[131] Only Kirby J applied the Direction Rule pursuant to the Liyanage method and held the impugned legislation to be unconstitutional. The problematic aspect of the majority judgments, and to a lesser extent that of McHugh J—(who agreed with Kirby J on the outcome)—was not that they upheld the validity of the legislation, but rather that they appeared impliedly to reject the interplay of Changed Law Rule, Direction Rule and Relevance Principle.

Nicholas was presented in the County Court of Victoria on an indictment for possession of a prohibited import (heroin) pursuant to s 233B of the Customs Act 1901 (Cth) and on two other counts of criminal breaches of other statutes. The narcotic had been deliberately imported by law enforcement officers as part of a 'controlled operation', although such conduct itself contravened s 233B. Whilst Nicholas' trial was pending, the High Court in Ridgeway v The Queen[132] rendered inadmissible as evidence the fact of importation of any prohibited substance where the importation, although part of a 'controlled operation', nevertheless remained illegal. In so doing, it broadened the Bunning v Cross[133] discretion to exclude evidence, in the public interest, where its existence was a consequence of the illegal conduct of law enforcement officers. The central rationale was the maintenance, by the court, of the integrity of the administration of justice and the protection of its own processes.[134]

Relying on Ridgeway, Nicholas applied successfully to the Victorian County Court to have the evidence of the importation of the heroin excluded at his trial and for orders permanently staying his trial on Customs Act offences; although he was still to be tried for other offences. Whilst the trial was pending, Parliament amended the Crimes Act 1914 (Cth) by inserting Part 1AB to secure the viability—post-Ridgeway—of 'controlled operations' and any resulting prosecutions.[135] Division 2 expressly removed the taint of illegality from future 'controlled operations'. More problematic, however, was Division 3 relating to past 'controlled operations' and which directly affected the pending Nicholas trial. Instead of removing the taint of illegality from such operations,[136] it expressly addressed the exercise of the relevant judicial discretion.

Pursuant to the critical s 15X, 'the fact that a law enforcement officer committed an offence in importing the narcotic goods, ... or being in any way knowingly concerned in, their importation is to be disregarded.'

As this amendment clearly affected Nicholas' position[137] in his pending trial by nullifying any advantage from Ridgeway, a critical issue was whether this section constituted an unconstitutional interference with judicial functions. The other issue was whether Parliament infringed or usurped the exercise of the judicial power of the Commonwealth on the basis that s15X undermined the integrity of the court's process, and public confidence in the administration of justice, by requiring the court to disregard illegal conduct. Pursuant to Ridgeway, the protection of the integrity of judicial processes was an essential aspect of the 'judicial power of the Commonwealth' exclusively to be exercised by the courts. Therefore, Parliament was purporting to require a court to exercise its discretionary power in a manner, or to produce an outcome inconsistent with the essential character of a court and with the nature of judicial power. It was this issue, not directly relevant for present purposes, which received the most judicial attention and, in the reasoning of six of the judges, it was this point which decided the case. By a majority of five to two,[138] s 15X was held to be constitutional.


It is my respectful view that Kirby J alone correctly applied the principles emanating from Liyanage and the post-Liyanage High Court decisions. In his reasoning alone, the existence of pending proceedings was a vital factor in the determination of constitutional validity. [139] 'Parliament,' he stated, 'may not enter into the activities properly belonging to the judicial power in a way inconsistent with its exercise by the courts.'[140] In the pending case scenario, it was not so much the case of the legislature requiring the courts to exercise non-judicial functions, or requiring them to act inconsistently with the exercise of judicial power, except to the extent that it was hindering their 'decisional' independence essential to judicial power. He emphasised the non-legislative nature of an exercise of power by the legislature entering into activities properly belonging to the courts.

The most obvious breach of the principle he regarded to be an institutional usurpation whereby the legislature purported 'to constitute itself ... a tribunal to perform functions reserved by the Constitution to the courts,'[141] even though such egregious conduct was highly improbable.[142] Such interferences were more likely to occur under the guise of otherwise properly enacted legislation that purported 'to prejudge an issue which is before a court affecting a particular individual and which required that court to exercise its functions in accordance with such pre-judgment.'[143] The nature of such legislation may range from, on the one extreme, a Bill of Attainder 'which amounts to a parliamentary finding of guilt and is thus offensive to the separation of powers' [144] to, at the other extreme, 'a law of general application', properly enacted legislation of general and prospective application[145] which does not offend constitutionally even if it has consequences in a pending case.[146] Thus his Honour confirmed the critical dichotomy between a constitutional change in the law and an unconstitutional direction, although he noted that between the two extremes 'lie a myriad of instances which fall on one side of the line of constitutional validity or the other,'[147] in relation to which, 'minds will reasonably differ.'[148] The clear imperative remained the determination of whether the legislature was acting beyond its competence in attempting to 'enter into the activities properly belonging to the judicial power.'[149]

The determination of a precise definition of the 'judicial power of the Commonwealth', a concept which has eluded such definition,[150] was not therefore fundamental to this enquiry.[151] Indeed, Kirby J expressly queried the value that could be derived from it in the present context.[152] The critical factor here was direction and its definition. The test was whether the legislation 'impermissibly seeks to dictate how the [judicial] power or discretion will operate in a particular case.'[153] He also clearly endorsed the application of the Direction Rule pursuant to the Relevance Principle; that is, by a rigorous scrutiny of the legislation in the context of the pending proceedings in order to locate the existence of relevant indicia of direction.[154]

He considered that four indicia of direction were present. First, the legislation was ad hominem. It was not necessary that individuals be named,[155] although the tendency to direction would be more pronounced if they were.[156] It was sufficient if it was 'highly selective and clearly directed at a particular individual or individuals.'[157] He did not treat this factor, or indeed any of the identified indicia, as per se determinative of the issue.[158] Second, the legislation was retrospective.[159] Whilst not unconstitutional per se,[160] this was nevertheless an important indicator. Third, there was the 'high particularity' of the legislation, that is, the fact that it precisely addressed issues in the pending case.[161] Finally, his Honour made specific reference to the legislation affecting the laws of evidence. This was relevant because s 15X could be characterised as dealing with a key judicial discretion that related to the admission of evidence. As Parliament had an 'undoubted' power to make and amend laws relating to the laws of evidence,[162] to the extent, therefore, that s 15X could be characterised as an amendment to the laws of evidence, the constitutional challenge to it on these grounds would not prevail. Nevertheless, because the issue of evidence was critical in any proceeding, and the admissibility thereof an important judicial discretion, Kirby J might have been indicating that this may raise sensitivities in relation to legislative interference.

Before examining these indicia, Kirby J explored the legislative background to the enactment for what light this might throw on the issue of direction.[163] It was clear from the parliamentary debates that Parliament was concerned that, following Ridgeway, a number of prosecutions would have to be abandoned, with the consequent community disapproval that this would entail. His Honour stressed that this was not determinative of the issue, as '[t]he only duty of the court is to measure Div 3, and specifically s 15X, against the requirements of the Constitution.'[164] But his Honour was troubled by the fact that it did not remove the taint of illegality from past 'controlled operations'. Instead, it addressed and attempted to prescribe the admission of evidence relevant to the public policy discretion that the court was to exercise:

By inference, s 15X is intended to limit the Bunning v Cross discretion and the power to stay criminal proceedings in the interests of justice on the basis of its exercise. Given the history, language and obvious purpose of the Act, I do not consider that s 15X, if valid, could be interpreted to preserve any residual discretion based upon the fact that narcotic goods were illegally imported as distinct from the offence thereby committed. Such a construction would also contradict the materials placed before the court relevant to the purposes of the parliament in enacting the provision.[165]

Therefore, Kirby J could only conclude that the legislation baldly directed the court to disregard illegality in past operations, notwithstanding that the High Court in Ridgeway had found that condoning and rewarding unlawful conduct by law enforcement officers was incompatible with the integrity of the courts and the maintenance of public confidence in their processes.[166] This reinforced the other indicia of direction to indicate that this was an unconstitutional direction to the court as to the exercise of a purely judicial discretion.

Although his Honour acknowledged that the present legislation was not as egregious as that in Liyanage, he found that 'in material respects' there were 'close parallels'.[167] Section 15X was addressed to particular offences on particular and identifiable occasions in the past: 'It is designed to make admissible evidence which, at the time it was gathered, and until the act came into effect, was likely to be held inadmissible as illegally obtained.'[168] And,

[m]ore importantly, it was designed to direct the court [to] disregard illegality on the part of law enforcement officers although no defence, immunity or excuse was provided by the Act to such officers to exempt them from the illegality which, in the case of the applicant, Ridgeway holds otherwise to require orders for a permanent stay.[169]

The retrospectivity of the legislation became relevant to the extent that:

[A]lthough prospective in the sense that it applies to trials held in the future, the effect of the direction to the courts in s 15X is undoubtedly retrospective in operation. That is its substance. It requires courts to disregard past illegality on the part of law enforcement officers although such illegality is admitted and, indeed, is a pre-condition to the operation of the section. [170]

It is of some significance that Kirby J recognised and endorsed the rigour with which the Privy Council in Liyanage examined the legislation for indications of unconstitutional direction, echoing the position he, and Street CJ, took in BLF NSW: 'In Liyanage, the Privy Council looked to substance not form. So should we.'[171] Kirby J also adopted this rigorous approach when he dealt with the issue of the 'high particularity' of the legislation:[172]

In their cases, and theirs alone, the law governing their pending trials has been changed in a way that seriously affects them. There could be few more significant changes of substance to the law affecting a person awaiting trial on criminal charges than the passage of particular provisions which, in effect deprive that person of a permanent stay of proceedings.[173]

In short, his Honour recognised that if a highly formalistic approach were to be taken, it would not allow for a proper discernment of the existence of an unconstitutional direction. He recognised the difficulties involved, particularly in hard cases and that '"[v]alue judgments" are inescapably involved in such questions.'[174] The setting up of boundaries between legislative and judicial powers was complicated by the fact that '[t]he boundary of judicial power defies, or transcends, purely abstract conceptual analysis'[175] Nevertheless, he clearly urged that these difficulties not hinder judicial attempts to discover whether the legislation was in fact substantively legislative. All the indicia referred to 'raise[d] serious concern that what has been attempted is an impermissible Parliamentary invasion of the judicial power.'[176] And yet, of all the judges, it was only Kirby J who addressed the question of legislative direction with any conviction.

However, he fell just short of deciding the case on this issue alone. The matter was put beyond doubt after his consideration of the separate, though related, set of principles concerning the integrity of 'judicial power'.[177] The court was being directed to disregard unexcused illegality or criminality on the part of law enforcement officers. This was a critical aspect of the 'judicial power of the Commonwealth' exercisable exclusively by the courts pursuant to the separation principle to protect the integrity of their own processes and to prevent the administration of justice falling into disrepute; which he regarded as being the essence of the Ridgeway discretion: 'It is a principle of public policy bound up in the self-regard of the courts constituted or invested with the judicial power of the Commonwealth.'[178] Thus, s 15X was also that type of interference that purported to prevent the judiciary from exercising this essential element of the 'judicial power of the Commonwealth,' and, on that fact alone, was unconstitutional. Nevertheless, that his Honour clearly endorsed, and accurately applied, the Direction Rule and related principles is beyond doubt. Had the other judges followed suit, the Rule would now be firmly established as an integral part of the separation of powers' armoury protecting the judicial power of the Commonwealth.


In relation to the Direction Rule, the reasoning of McHugh J is problematic in that, whilst he appeared to give some recognition to it, albeit based on a narrow reading of Liyanage, he did not regard it as applicable to the present facts. This was despite the fact that he acknowledged the existence of legislative direction in the critical s 15X, the 'plain effect' of which was 'to direct courts exercising the judicial power of the Commonwealth to disregard a fact that in Ridgeway was determinative of a decision to exclude evidence.'[179] However, he held the legislation to be unconstitutional because the subject matter of this legislative direction – elements within the judicial discretion as defined by Ridgeway – were essential aspects of the judicial power of the Commonwealth, exclusive to the courts.[180] Ridgeway '[made] it clear that this discretion depends on the necessity to preserve the integrity of the administration of justice and to protect the processes of the courts of justice.'[181] Accordingly, 'it is "an incident of the judicial powers vested in the courts in relation to criminal matters."'[182] Parliament therefore did not have the competence to remove it, or any element of it, from the exclusively judicial domain. Section 15X, to the extent that it purported to do this, was invalid.

The usual Boilermakers'[183] concerns were emphasised in his reasoning, not the more novel Liyanage principles.[184] Relying on Lim, he stated that it would be a usurpation of judicial power if legislation purported to remove from the federal courts 'their exclusive function "of the adjudgment and punishment of criminal guilt under a law of the Commonwealth."'[185] He did not, however, refer to the broader proposition to be found in Lim that it would also be a breach of the separation principle for the Parliament 'to direct the courts as to the manner and outcome of the exercise of jurisdiction'.[186] Similarly, he found relevance in Liyanage only in situations where legislation purported to directed the ultimate outcome of a particular pending case—as opposed to merely affecting the courts' consideration of legal and factual issues therein.[187] Liyanage, however, was not so limited. Unconstitutional legislative direction could occur even if the legislation merely affected the courts' consideration of legal and factual issues, without actually directing an ultimate outcome. While his Honour did make reference to Professor Lane's identification of discrete principles applicable in the pending case scenario, which indicated that the offence to the separation principle was not limited to the egregious scenario of a legislative judgment, his Honour did not draw out the broader implications from that reference.[188] Moreover, no reference was made to the BLF cases or Rooney. Therefore, his Honour limited the relevant constitutional principles to that aspect of Liyanage, taken up in Polyukhovich, which prevents a usurpation of—as opposed to interference with—judicial functions by means of a legislative judgment:

It [s 15X] does, however, direct courts exercising federal jurisdiction to disregard a fact [that is, the illegality of the conduct of law enforcement officers] that is critical in exercising a discretion that is necessary to protect the integrity of Chapter III courts and to maintain public confidence in the administration of criminal justice. That being so s 15X infringes the judicial power of the Commonwealth just as effectively as if it purported to change the direction or outcome of pending proceedings.[189]

The difference was subtle but clear. This was not a case of a breach of a Direction Rule, however formulated. This was a case of removing from the court a critical element of the 'judicial power of the Commonwealth.'

The majority, in finding the legislation to be valid, either discounted, seriously circumscribed, or otherwise completely overlooked the relevance of the Direction Rule. Brennan CJ held that the discretion the court was required to exercise pursuant to s 15X was not inconsistent with the essential character of a court or with the nature of judicial power.[190] Parliament had the power to make or amend the rules governing the discretionary exclusion of evidence. The impugned legislation did not affect the judicial function of fact-finding. It did not the affect the judicial power to be exercised in determining guilt or innocence.[191] Nor did it undermine public confidence in the administration of justice.[192] He examined the principles emanating from Liyanage in a very circumscribed way, that is, as being relevant only when the legislature was directing the court as to the guilt or innocence of an accused, or the final outcome of a case.[193] His Honour found 'no resemblance to the provisions ... which were held invalid in Liyanage.'[194]

Toohey J cited his reasoning in Polyukhovich[195] that '[i]t is only if a law purports to operate in such ways as to require a court to act contrary to accepted notions of judicial power that a contravention of Ch III may be involved'.[196] He held that s 15X was a mere 'evidentiary provision' and a valid exercise of legislative power.[197] Thus for Toohey J, the substantively legislative nature of the legislation was not the issue:

The proposition is that the legislature cannot direct a court exercising the judicial power of the Commonwealth as to the manner in which the power is exercised. If necessary, this is further refined to say, at least not in such a way as is inconsistent with the essential powers of a court or with the nature of judicial process.[198]

He also limited the application of Liyanage to its facts. Yet, the facts in Nicholas, whilst not as egregious as those in Liyanage, should have raised some concern that Parliament was seeking to do more than merely amend the law; namely, it was seeking to direct the outcome of pending prosecutions based on operations already commenced.

This limited approach was also taken by Hayne J. He held that as the legislature may amend the rules of evidence, it might also amend the rules governing the discretionary exclusion of evidence. It was this that he held to be the consequence of s 15X and it was, on that account, perfectly valid.[199]

Gaudron and Gummow JJ did not appear to recognise at all a discrete set of principles based on the Direction Rule as relevant to resolve the case. Their emphasis was purely on whether the provision usurped an element of the judicial power of the Commonwealth. Gaudron J stated that as s 15X affected the 'ancillary [to judicial] power to exclude evidence in the exercise of a discretion which permits that course'[200] it was not therefore an exercise by the Parliament of judicial power. These ancillary powers 'are not properly identified as judicial power for the purpose of Ch III of the Constitution.'[201] Therefore,

[t]he argument that s 15X infringes Ch III of the Constitution because it directs the manner in which the Ridgeway discretion is to be exercised and because it is specific and not general in its operation is, in effect, an argument that s 15X transforms the power to determine guilt or innocence in any case in which that section applies with the result that that power is not then properly characterised as judicial power. To understand that argument, it is necessary to say something as to the nature of judicial power.[202]

Even though s 15X dealt directly with the courts' discretion to exclude evidence—and indeed directed it to disregard illegality on the part of law enforcement officers—because the exercise of this discretion was ancillary to judicial power, it was a direction that was therefore not an infringement of the separation of judicial power. The balance of the judgment proceeded on the unchallenged assumption that the impugned legislation was a substantive change in the law. There followed an examination as to whether s 15X 'transforms the power to be exercised in determining guilt or innocence'[203] in a way which was inconsistent with the nature of judicial power as opposed to whether it constituted a direction to the court without amending the law. Her Honour's conclusion was that it did not.[204]

For Gummow J the only constitutionally relevant consideration was whether the court was being required, by the legislation, to exercise a power which was either not 'judicial' in nature, or otherwise inconsistent with the judicial power of the Commonwealth. It was assumed throughout his reasoning that s 15X was a change in the law. The critical question was whether the legislation constituted 'such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth.'[205] He held that it did not.


After Nicholas, it would appear that, at best, the Direction Rule is relevant only in egregious circumstances and that the threshold for its application is very high. However, as it appeared that the majority did not seem to emphasise, or indeed appreciate, the focus of the Rule in testing the substantively legislative of an exercise of legislative power, it may be that the Direction Rule itself was undermined. This would leave only those principles centred on the more established Boilermakers—based institutional concerns, the more recently identified principles emanating from Chapter III which deal with due process guarantees, and the principle of incompatibility between judicial and non-judicial functions.[206] Thus, it would be necessary to show that for example, the legislature was itself deciding the outcome of a case and thus exercising judicial power, that the legislature was removing an essential element of judicial power from the court, or requiring it to exercise a power inconsistent with judicial power.' Given that a critical aspect of the judicial power is independent adjudication of legal disputes, it could be argued that this was not problematic given that legislation that directed the courts to a conclusion without changing the law could still be invalidated on this ground. However, and herein lies the crux of the issue, by what test will this be determined if not something akin to the Direction Rule? Therefore, if it were being argued that particular legislation removed from the court its decisional independence—and it was not constitutionally offensive in any other way—it would still be necessary to fall back on principles which determined when such legislative interference was unconstitutional on this ground alone. To date, the High Court has developed only those principles based on the Direction Rule as explained above, and yet the High Court in Nicholas did not appear to appreciate their significance on the facts before it. Indeed, Gaudron and Gummow JJ did not even consider them relevant.

The extent to which Nicholas will influence future developments on the Direction Rule remains uncertain. It could be argued that it should not be regarded as strong precedent in relation to legislative interference because the case was primarily decided on other, though related, grounds; and hence the consideration of the Direction Rule was but cursory. That the Direction Rule was not entirely undermined, and that it may continue to play a significant role as a separation of powers principle, was borne out by the most recent High Court decision to consider the issue in any detail, H A Bachrach Pty Ltd v Queensland.[207]

In that case, an appeal was pending from a decision of the Supreme Court of Queensland upholding a decision of a local authority not to approve a major commercial development. The Queensland Parliament enacted legislation expressly relating to that development land, in effect permitting it. The High Court held the legislation to be constitutionally valid, and not an impermissible interference with judicial process, nor incompatible with Chapter III of the Constitution. In so finding, the Court recognised, but without much elaboration, the continuing importance and status of principles centred on the concept of unconstitutional legislative direction. Thus, having examined all the circumstances surrounding the enactment, the Court examined the nature of the legislation to conclude that 'both in form and in substance, the Act is legislation with respect to the use that may lawfully be made of the ... land. Its provisions are of general effect, for the future, and they bind ... any ... person who may have interest in, or claim to exercise rights in relation to, the use of the subject land.' [208] It held this despite the fact that the plaintiff claimed that the enactment was 'designed' to achieve a result in the pending case.

The High Court did acknowledge that '[a]n adequate appreciation of the operation of the Act, and its proper characterisation, as a matter of substance and not merely of form, may require consideration of the history of the plaintiff's pursuits of its legal rights.'[209] The Court considered the facts of this case to be analogous to those in BLF Cth in that Parliament changed the law which, because the court had to apply it, made the pending proceedings redundant.[210] It distinguished this case from the facts in BLF NSW because the legislation did not 'specifically address current litigation, prescribe ... that for the purposes of determining the issues in the litigation certain facts were taken as established, and dealt with the costs of the litigation'. [211] In other words, there were insufficient indicia of unconstitutional direction.

Again, the High Court did not set out a clear and comprehensive set of principles, particularly needful after Nicholas, to govern this issue. There was no comprehensive exploration of indicia of direction, no explicit examination of the precise relationship between Direction Rule, Relevance Principle and Changed Law Rule. However, the Court did still recognise, at least in a general way, that there is a prohibition on legislatures from interfering in pending proceedings by directing the courts' exercise of their functions. Nevertheless, the very high threshold that it placed on the application of the Direction Rule may be contrary to the imperative established in Liyanage to rigorously examine substance and not form. At most, it can be said that the High Court here gave some recognition to the principles underlying the Direction Rule. This is especially significant following the judgments of Gaudron and Gummow JJ in Nicholas, which failed to give recognition to them in circumstances that warranted their consideration. Their precise status and definition, however, remains uncertain.


The success of the separation principle as a constitutional rule and a source of precise legal principles to regulate the pending case scenario has been, at best, mixed. Beyond egregious cases such as Liyanage, its efficacy remains doubtful. Except for the judgment of Kirby J in Nicholas, the High Court has not consolidated earlier attempts to provide a solid foundation for future development. And yet, it has not rejected the existence of a form of a Direction Rule. The High Court's interpretation of the Rule, however, remains only part of the problem. Imprecision exists in the very nature of the principles identified. The Direction Rule suffers from uncertainty not only in definition, but also as to method of application. The inadequacies identified are problematic in light of the significant emphasis placed on the need to limit interference by the legislature in pending cases by those who originally advocated the legal entrenchment of the separation principle, particularly in the United States.[212] The foundations for a more precise and efficacious application of the principle may be achieved if the reasons for the current uncertainties and weakness are addressed. I shall, in conclusion, attempt to draw together those weakness in the current understanding of the separation principle that have become particularly apparent.

The first, as indicated, is the failure to give sufficient recognition and definition to the issue of legislative interference with judicial functions in the pending case scenario as a discrete area requiring the application of discrete principles. The issue is often confused with issues relating to the maintenance of the integrity of judicial power, and the due process concerns that have been mentioned, as noted more precisely in the fourth point below. The emphasis of the Direction Rule, because it is concerned with the particular pending case scenario, relates more to ensuring that the legislature limits itself to an exercise of substantively legislative power when amending the law.

This leads to the second factor: the failure of the Court to draw together precisely the principles that do exist in the various authorities in order that they be consistently understood or applied. There is no classic statement of principle. The decision of Kirby J in Nicholas, and those of Street CJ and Kirby P in BLF NSW come close; but they have certainly not been endorsed unconditionally by the High Court.

Third, even where the Direction Rule has been referred to and recognised, there is only an implied recognition, at best, of the precise relationship between the Direction Rule and the Changed Law Rule. I refer to the fact that the Changed Law Rule can only be applied if it has first been established, under the Direction Rule, that the legislation is in fact a substantive change in the law.

Fourth, there is no precise articulation of the method that should be adopted in the application of the recognised principles governing the pending case scenario. In Australia, the position has not moved much beyond the quandary expressed in Liyanage as to the difficulty in 'tracing where the line is to be drawn between what will and what will not constitute such an interference'.[213] In determining that the court is being directed by the legislature in such a way as to compromise its decisional independence, the outcome is that the very legislative nature of the legislation is being impugned. This needs to be stated far more precisely in order to prevent the melding of this issue with the other principles that are based on Chapter III, as happened in the majority judgments in Nicholas, particularly those of Gaudron and Gummow JJ.

The problem with this approach is that it might easily confuse, or indeed limit, the issue of legislative interference to the related though separate question of whether there is an abrogation of a critical element of the judicial power—an independent adjudication—which the courts is being required to exercise. The benefit of the Direction Rule is that, if properly applied, it lowers the threshold somewhat in determining whether a legislature may be overstepping the mark by impugning the very legislative nature of an enactment. That it be so impugned is imperative in this context, given the requirements of the Changed Law Rule. Like the other factors mentioned, the problem lies not in a total failure to recognise this but a failure, in many of the individual reasons for judgment that have been examined, clearly to articulate or indeed appreciate the importance of the principle.

A fifth factor is an inconsistent understanding of the operation of the Relevance Principle and the significance of the indicia of direction, particularly evident in the various majority judgments in Nicholas as outlined above.

These factors are compounded by the weaknesses inherent in the principles themselves. The first weakness lies in the fact that the set of indicia of direction is open-ended and that no indicator per se amounts to a legislative direction. The effect of each, and of their interrelationship in the determination of the existence of an unconstitutional direction, depends heavily on the precise circumstances of each case. This can lead to uncertainty and unpredictability in application.

The other major weakness, as evidenced in Nicholas, is that the efficacy of the principles depends on the extent to which individual judges are willing to be rigorous in looking beyond the form of the legislation to examine indicia of direction. The tendency in the Australian cases, from Nerulangaloo onwards, (with the exception of BLF NSW and Kirby J in Nicholas) has been to emphasise the imperatives of the Changed Law Rule and too readily to assume that legislation does in substance change the law, which tendency was clearly evidenced in Nicholas.[214] It is questionable whether, given the rationale underlying the separation principle to limit legislative power vis-à-vis the judiciary, such a degree of deference to Parliament in these circumstances is warranted.

This easy acceptance of impugned legislation as a change in the law is also evident in the United States. The United States version of the Direction Rule was established in the early case United States v Klein,[215] which has been interpreted as establishing[216] that Congress, as a consequence of the legal entrenchment of the separation principle, is prohibited from prescribing a rule of decision for pending cases without changing the underlying law.[217] In determining the existence of unconstitutional direction, reference is made to indicia of direction in accordance with a form of the Relevance Principle. These principles, however, were thrown into some uncertainty by the decision of the Supreme Court in Robertson v Seattle Audubon Society.[218] The Ninth Circuit[219] had previously applied the Klein test[220] and held the impugned legislation to be in breach of the Direction Rule. The Supreme Court, in an extraordinary judgment, appeared to decide, in a highly formalistic and, with respect, almost glib analysis, that the very same legislation, which contained very significant hallmarks of direction, was indeed a change in the law. But it did so without applying the Klein test and without even considering the Direction Rule's imperative to examine the legislation rigorously to identify the existence of indicia of direction. Indeed, it was not even held necessary to consider Klein.

As one commentator has put, this amounted to an implicit overruling of Klein.[221] The developments in the United States reveal the very fragile status of the Direction Rule, and the fact that, unless the courts themselves bestow a higher status and comprehensive definition to it, this very important limitation on legislative power may well be left lingering as a test that is applicable only in the most egregious of circumstances.

Accordingly, suggestions are now being made by some commentators to strengthen and make more rigorous the method of application of the rule by formalising the status of certain indicia of direction, or combination thereof. This approach[222] involves mandating a finding of unconstitutional interference with judicial functions where certain precise indicia, or combination thereof, are present.

One commentator, Amy D Ronner, has suggested a precise and viable test. According to Ronner, legislation should be regarded as an unconstitutional legislative direction where the following elements are clearly established: First, the legislation must purport to amend the law, or introduce new law, which affects the outcome of pending litigation, but it does so in such as way as to be 'so precisely tailored to address the issues in the pending matter that it can be said to fit glove-like around a living case or controversy'.[223]

Second, either one of the following factors must be found to exist in the circumstances: the government is a party, and the impugned legislation has the effect of favouring it in the litigation; or, the legislation infiltrates a domain that can be regarded as traditionally a judicial one (such as for example in Lim where it related to the issue of custody, or in Nicholas, to the exercise of the critical judicial discretion whether to admit legally obtained evidence).

In relation to the first factor, it could be said without difficulty that the facts ofcases like Liyanage, BLF NSW and Nicholas, would meet this requirement. And as the government was a party in the pending proceedings in each of those cases, the application of the test would be straightforward. The application of this test would certainly require that legislation such as that in Nicholas be at least scrutinised in a rigorous way in so far as the Direction Rule was concerned. Applying this test, it is clear that the minority judgment of Kirby J is indeed the preferable one, if not also the legally correct approach. The existence of the two alternatives in the second compulsory element would ensure that the provision is applicable in situations where the government is not a party; and at the same time incorporate the other Boilermakers' principles in such a way so as not to overshadow the Direction Rule.

This formalisation of the test would certainly improve the situation in relation to hard cases such as Nicholas. However, the difficulty of determining exactly when legislation is precisely tailored to fit 'glove-like' around the pending legislation still remains. It is in relation to this point that the ad hominem element becomes critical, as does the element of retrospectivity. It would also be necessary to show that the legislation was framed in such a way as to deal precisely with the legal issues applicable in the pending case. It would not be necessary to establish that the legislature dictated a particular final outcome. It would be enough if the legislation addressed particular legal issues that the court was required to address.

Thus, applying this rule it would still be possible to hold as constitutional, for example, the BLF Cth legislation which completely bypassed the legal issues in the pending case by an exercise of legislative power within the competence of Parliament. It would also make it far more difficult for legislation such as s 15X in Nicholas to be considered constitutionally valid on these grounds. In short, this rule would be able to accommodate the Direction Rule and the Changed Law Rule in a way that not only maintained an efficacious separation of powers principle, but also achieved the purpose of setting up a clearly identifiable principle that could be applied in these specific cases.

In conclusion, some formalisation of the indicia of unconstitutional direction is necessary if the Direction Rule is to survive as an efficacious principle limiting the power of Parliament in the pending case scenario. The factors indicated in the immediately preceding paragraphs should form the basis for a more precise definition of the Rule and its method of application. Whilst the issue of legislative interference in the pending case has largely been overlooked, it should be borne in mind that this precise concern to protect the decisional independence of the courts was a major catalyst for the entrenchment of the separation principle in the United States Constitution, the first constitution where this occurred.[224] It is not an issue of peripheral significance, even though it has arisen, and may arise, rarely. At the very least, a fuller appreciation of this issue is essential to supplement the very significant developments in Chapter III jurisprudence over the last decade in Australia.

[*] Lecturer, Faculty of Law, University of Sydney. The author acknowledges the valuable comments of Professor George Winterton on reading this article in draft.

[1] Or where any Commonwealth agency, or any entity in which the Commonwealth has an interest, is a party.

[2] Hereinafter referred to as 'the separation principle'. See R v Kirby; Ex Parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers'); aff'd sub nom Attorney-General for Australia v The Queen [1957] AC 288. The legal entrenchment in the Australian Constitution was inferred from the separate vesting of the executive, legislative and judicial powers pursuant to ss 1, 61 and 71. See Leslie Zines, The High Court and the Constitution (4th ed, 1997), Chapter 10.

[3] The phrase was coined by Martin Redish in 'Federal Judicial Independence: Constitutional and Political Perspectives' (1995) 46 Mercer Law Review 697. He defined it as 'the ability of the federal courts to interpret and apply... substantive legal principles in the specific context of an individual adjudication, free from control or interference by the purely political branches of the federal government.' Ibid 699.

[4] (1973) 129 CLR 231.

[5] Ibid 250.

[6] The term derives from American commentary on similar legal principles developed by the United States Supreme Court. The principle has been long established in United States jurisprudence, originally stated in United States v Schooner Peggy, 5 US [1801] USSC 9; (1 Cranch) 103 (1801). The term was originally used by Gordon C Young, 'Congressional Regulation of Federal Courts Jurisdiction and Processes: United States v Klein Revisited' [1981] Wisconsin Law Review 1189, 1240. See also J Richard Doigt, 'Is Purely Retroactive Legislation Limited by the Separation of Powers? Rethinking United States v Klein' (1994) 79 Cornell Law Review 911, 918.

[7] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.

[8] See , for example, ibid 606-607, 608, 613, 704; Leeth v The Commonwealth (1992) 174 CLR 455; Lim v The Minister for Immigration (1992) 176 CLR 1, 26-27, 36-37, 68; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173.

[9] Sir Anthony Mason, 'A New Perspective on Separation of Powers' (1996) 82 Canberra Bulletin of Public Administration 1, 2-3 (citations omitted).

[10] Although not expressly mentioned, the legal entrenchment of the separation of powers is implied from the exclusive and separate vesting of the executive, legislative and judicial power in the President, the Congress and the Supreme Court respectively: Article I, Sec 1; Article II, Sec 1; Article III, Sec I of the Constitution of the United States.

[11] Published 1748.

[12] Madison in particular wrote extensively on this issue. Jacob E Cooke (ed), The Federalist (1961). See for example Number 51.

[13] In The Federalist (48) Madison referred to the 'most difficult task ... to provide some practical security for each [of the three main arms of government] or each against the invasion of the others. What this security ought to be, is the great problem to be solved.' Ibid 332.

[14] Ibid 334.

[15] Gordon Wood, The Creation of the American Republic 1776-1787 (1996) 154-55.

[16] Mary P Clarke, Parliamentary Privilege in the American Colonies (1943) 49-51.

[17] 'Judicial Action by the Provincial Legislature of Massachusetts' (1908) 15 Harvard Law Review 208.

[18] Edward S Corwin, The Doctrine of Judicial Review (1914) 37.

[19] Cited in The Federalist No 48 above n 12 336-7.

[20] Thomas Jefferson, 'Notes on the State of Virginia' (1787) 196, cited in ibid 336. See also Edward S Corwin, 'The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention' (1925) 30 American Historical Review 511, 514-517.

[21] The Federalist No 48, above n 12 333.

[22] The Federalist No 78, ibid 523, 525 (Alexander Hamilton).

[23] Ibid 522-3.

[24] [1983] USSC 143; 462 US 919 (1982) 962.

[25] Corwin, above n 20.

[26] Article III, s 1 of the United States Constitution.

[27] See above n 2.

[28] This has been carefully explored in Fiona Wheeler, 'Original Intent and the Doctrine of the Separation of Powers in Australia' (1996) 7 Public Law Review 96. See also Geoffrey Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177.

[29] W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 322.

[30] Ibid (emphasis added). Note, however, that he did not elaborate as to whether retrospective laws were unconstitutional in Australia.

[31] Andrew Inglis Clark, Studies in Australian Constitutional Law (1901, reprinted 1997) 38.

[32] Ibid (emphasis added).

[33] Ibid 39 (emphasis added).

[34] Sir John Quick and Sir Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901, 3rd ed, 1995) 721. And elsewhere:

The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given ... That is to say, the legislature may overrule a decision, though it may not reverse it; it may declare the rule of law to be different from what the courts have adjudged it to be, and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned ... In other words, the sound rule of legislation, that the fruits of victory ought not to be snatched from a successful litigant, is elevated into a constitutional requirement.

Ibid 722.

[35] 80 US [1871] USSC 137; (13 Wall) 128 (1871).

[36] Ibid 146.

[37] Moore, above n 24, 323. However, the same can be said of the American commentators who did not draw out the full implications of Klein until one hundred years later. See Henry Hart, 'The Power of Congress to Limit the Jurisdiction of Federal Courts: an Exercise in Dialectic' (1953) 66 Harvard Law Review 1362; Young, above n 6. Despite its seminal status in the United States, Klein has not achieved any degree of prominence in Australian decisions.

[38] [1947] HCA 58; (1948) 75 CLR 495.

[39] (1986) 7 NSWLR 372. Although in that case it was held that the legislation could not be invalidated as the separation principle was not legally entrenched in the NSW Constitution. Cf Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth [1986] HCA 47; (1986) 161 CLR 88. See now also Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 in relation to the implications of Chapter III of the Constitution for State courts.

[40] [1947] HCA 58; (1948) 75 CLR 495, 503-504.

[41] Ibid 503.

[42] Ibid 579.

[43] (1973) 129 CLR 231.

[44] Ibid 250.

[45] [1967] 1 AC 259.

[46] As a preliminary step, the Privy Council dealt at some length with the issue of whether the separation principle was legally incorporated in the Ceylonese Constitution and held that it was. This it regarded as a prerequisite to its jurisdiction to invalidate the legislation on separation of powers grounds: Ibid 283ff. See T R S Allan, Law, Liberty, and Justice; The Legal Foundations of British Constitutionalism (1993) who argued (at 69ff) that the decision could stand without the need to establish as a prerequisite the legal incorporation of the doctrine in the constitution. He stated this in support of his broader thesis that the United Kingdom Parliament is bound by the separation principle to limit judicial interference even though it has an unwritten constitution. Such alternate basis for the doctrine's legal force is discussed in Liyange, ibid, 283 ff.

[47] [1967] 1 AC 259, 289-90.

[48] Ibid 290.

[49] Ibid.

[50] Ibid 289.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54] '[S]uch a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power.' Ibid.

[55] Ibid 290 (emphasis added).

[56] Ibid (emphasis added).

[57] (1983) 152 CLR 507, 608.

[58] [1967] 1 AC 259, 289.

[59] Matrimonial Causes Act 1971 (Cth).

[60] Ibid s 5.

[61] Pursuant to s 23 of the Matrimonial Causes Act 1959 (Cth).

[62] Knight v Knight [1971] HCA 21; (1971) 122 CLR 114.

[63] His submissions in the High Court in this regard were rather curious, indeed confused, as they appeared to be based on an assumption that the section was valid. As Mason J noted, '[w]hat the [constitutional] infringement is in the instant case, the argument did not condescend to make clear': (1973) 129 CLR 231, 250.

[64] Ibid.

[65] Above n 38.

[66] Ibid.

[67] Ibid 243.

[68] [1986] HCA 47; (1986) 161 CLR 88.

[69] BLF v Minister for Industrial Relations (1986) 7 NSWLR 372.

[70] See now Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 in relation to the possible consequences for the exercise of judicial power by State courts flowing from Chapter III of the Constitution.

[71] The declaration was made on an application by the relevant minister pursuant to s 4(1) of the Building Industry Act 1985 (Cth) that it was satisfied that the BLF had engaged in conduct that constituted a contravention of certain undertakings it had made and agreements to which it was a party.

[72] The BLF had previously sought relief by way of prohibition in relation to this ministerial application, which relief was refused: R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1985] HCA 84; (1985) 159 CLR 636

[73] [1986] HCA 47; (1986) 161 CLR 88, 93.

[74] Ibid 94.

[75] Gibbs CJ, Mason, Brennan, Deane, Dawson JJ.

[76] [1986] HCA 47; (1986) 161 CLR 88, 96.

[77] Ibid.

[78] Ibid 96 –7: 'It matters not that the motive or purpose of the Minister, the Government and the Parliament in enacting the statute was to circumvent the proceedings and forestall and decision which might be given in those proceedings.'

[79] (1986) 7 NSWLR 372.

[80] Following Clyne v East (1967) 68 SR (NSW) 385; see also in other states: Gilbertson v South Australia (1976) 15 SASR 66, 101 (Zelling J) and Nicholas v Western Australia [1972] WAR 168, 175. The Court considered extensively the possibility of establishing in the court a power to invalidate legislation based on fundamental common law principles, which was ultimately rejected. See Allan, above n 46, 71ff.

[81] Emphasis added.

[82] Emphasis added.

[83] (1986) 7 NSWLR 372, 375 and 387 respectively.

[84] Ibid 375-6. See also T R S Allan, 'Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism' (1985) 44 Cambridge Law Journal 1.

[85] BLF NSW 376.

[86] Ibid 378. (1986) 7 NSWLR 372.

[87] Ibid (emphasis added).

[88] Ibid.

[89] Ibid.

[90] Ibid 392.

[91] Ibid.

[92] Ibid.

[93] Ibid 394

[94] Ibid: 'The 1986 State Act ... deal[t] specifically with matters which were then within the judicial domain.'

[95] Ibid.

[96] Ibid 395

[97] See R v Humby; Ex Parte Rooney (1973) 129 CLR 231, 243.

[98] (1986) 7 NSWLR 372, 395.

[99] Ibid.

[100] Ibid 379.

[101] It should be noted that Kirby P also dismissed as irrelevant a whole host of legislation cited by the Minister which interfered with the judicial process, but remained on the statute books , saying that '[t]he fact that error has been oft repeated does not make it less an error. The failure of other litigants, perhaps with less at stake, to challenge the intrusion of the Parliament into matters before the courts does not relieve the Court of evaluating the challenge once made': ibid 392. Having made the above observations, concluding that there was indeed an interference with judicial process, he was unable to invalidate the legislation because there was no legal separation of powers in the New South Wales Constitution: ibid 394.

[102] [1986] HCA 47; (1986) 161 CLR 88, 97.

[103] (1986) 7 NSWLR 372, 377.

[104] Ibid.

[105] Ibid 395.

[106] Ibid 387.

[107] (1992) 176 CLR 1.

[108] Ibid 4.

[109] Ibid 5.

[110] Ibid.

[111] Ibid 5-6 (emphasis added).

[112] The majority in relation to the s 54R issue consisted of Brennan, Deane, Dawson JJ (in a joint judgment) and Gaudron J in a separate judgment. It should be noted that the majority first examined the impugned provisions from the point of view of classic Boilermaker's principles, stating (ibid 26-7) that the judicial power of the Commonwealth could not be conferred upon any organ of the Executive, nor was the legislature permitted to enact a law which 'requires or authorises the courts in which the judicial power of Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power'. As a consequence, the separation principle created a constitutional immunity from being imprisoned except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth, subject to some very important exceptions such as detention pending trial, or in the case of infectious diseases or mental illness (ibid 129, although see Gaudron J's reservations at 55). This aspect of the judgments, although of great significance, is not presently relevant and the article shall only discuss the Court's treatment of legislative interference with judicial functions.

[113] Ibid 34.

[114] Ibid.

[115] See ibid 35.

[116] Ibid 35.

[117] Ibid 36.

[118] Ibid 36-7.

[119] Parliament may legislate to limit the jurisdiction of the federal courts in relation to all matters, excepting the original jurisdiction of the High Court in s 75 of the Constitution and the appellate jurisdiction conferred by s 73.

[120] (1992) 176 CLR 1 34.

[121] Ibid 53.

[122] (1992) 176 CLR 1, 11-14 (Mason CJ), 50-51 (Toohey J), and 68 (McHugh J).

[123] Ibid 13.

[124] Ibid 50.

[125] Ibid 68.

[126] Ibid 49.

[127] Ibid 73.

[128] This passage is at [1986] HCA 47; (1986) 161 CLR 88, 96.

[129] Subsequent to Lim, the High Court in Leeth v Commonwealth (1992) 174 CLR 455 also confirmed in obiter that the developments in relation to the issue of legislative interference had been recognised by the court. It was regarded as a particular type of usurpation of judicial power by Mason CJ, Dawson and McHugh JJ:

[L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v The Queen). It is upon this principle that bills of attainder may offend against the separation of judicial power (see Polyukhovich v Commonwealth). But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.' (at 469-70).

[130] [1998] HCA 9; (1998) 193 CLR 173.

[131] By a majority of five (Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ), to two (McHugh and Kirby JJ). Although McHugh J in his minority judgment did not apply the rule as formulated.

[132] [1995] HCA 66; (1995) 184 CLR 19.

[133] [1978] HCA 22; (1978) 141 CLR 54. That discretion had hitherto been limited to excluding on discretionary grounds evidence obtained unlawfully.

[134] [1995] HCA 66; (1995) 184 CLR 19, 31-2 (Mason CJ, Deane and Dawson JJ, with whom Gaudron J agreed).

[135] See the Explanatory Memorandum, Crimes Amendment (Controlled Operations) Bill 1996 (Cth), Second Reading Speech to this Bill Commonwealth, Parliamentary Debates, House of Representatives, 20 June 1996, 2510ff (Daryl Williams QC Attorney-General).

[136] See s 15G.

[137] The Crown subsequently applied to vacate the orders permanently staying the Nicholas prosecution.

[138] Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ; Kirby and McHugh JJ dissenting.

[139] [1998] HCA 9; (1998) 193 CLR 173, 254 (Kirby J); although see also 219 (McHugh J).

[140] Ibid 254 (Kirby J) (emphasis added).

[141] Ibid.

[142] See above nn 10–26 and accompanying text in relation to the early United States experience where such practices were common.

[143] (1998) 193 CLR 254.

[144] Ibid 256. See also ibid 221-222 (McHugh J).

[145] Ibid 256 (Kirby J).

[146] Ibid. That is, the pending case may be affected without breaching the separation principle if that law is in substance an amendment to the law.

[147] Ibid.

[148] Ibid.

[149] Ibid 254.

[150] Ibid 219 (McHugh J) and 256 (Kirby J). See also R v Davidson [1954] HCA 46; (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J).

[151] They nevertheless confirmed that the central attributes relevant to the present enquiry were that the judicial power consisted of the exercise of that power required for the resolution of controversies between citizens or between citizens and the Crown, which resolution was a binding and authoritative decision based on the determination of existing rights and duties according to law. See the oft-quoted standard definitions in Huddart Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357 (Griffith CJ), Fencott v Muller (1983) 152 CLR 570, 608.

[152] Kirby J, in particular, queried whether any valuable assistance could be derived from a precise definition, in the present enquiry: '[S]uch generalities give scant guidance when, as here, a particular statutory provision is challenged and is said to be an impermissible legislative intrusion upon, or derogation from, the judicial power.' [1998] HCA 9; (1998) 193 CLR 173, 256.

[153] Ibid 257 (Kirby J)

[154] Ibid 221 (McHugh J) and 256 (Kirby J.)

[155] See Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 26-9.

[156] See Robertson v Seattle Audubon Society, [1992] USSC 38; 503 US 429 (1992) and Seattle Audubon Society v Robertson, [1990] USCA9 1016; 914 F 2d 1311, (9th Cir, 1990).

[157] [1998] HCA 9; (1998) 193 CLR 173, 257; See also Liyanage v The Queen [1967] 1 AC 259, 267; Leeth v Commonwealth, (1992) 174 CLR 455, 460-70; Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 650; cf Plaut v Spendthrift Farm [1995] USSC 32; 514 US 211 (1995)

[158] [1998] HCA 9; (1998) 193 CLR 173, 257. See also Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 and Liyanage v The Queen [1967] 1 AC 259, 280-290.

[159] (1998) 193 CLR 257, 259.

[160] See Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 533; Nelungaloo Pty Ltd. v Commonwealth [1947] HCA 58; (1948) 75 CLR 495, 503; R v Humby; Ex p Rooney (1973) 129 CLR 231, 250.

[161] [1998] HCA 9; (1998) 193 CLR 173, 260 ff.

[162] Ibid, 260; see Williamson v Ah On [1926] HCA 46; (1926) 39 CLR 95, 108-9; Milicevic v Campbell [1975] HCA 20; (1975) 132 CLR 307, 316; Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 298-9

[163] [1998] HCA 9; (1998) 193 CLR 173, 244. He examined the parliamentary debates, statements of the relevant minister, the explanatory memorandum to the bill, and other background materials relating to it.

[164] Ibid 249.

[165] Ibid 251. Relevant materials being Explanatory Memorandum, Crimes Amendment (Controlled Operations) Bill 1996 (Cth).

[166] [1998] HCA 9; (1998) 193 CLR 173, 264.

[167] Ibid 263.

[168] Ibid 263. He also stated that:

The number of persons who would be affected by s 15X can be no mystery. It is not as if 'controlled operations' pursuant to the Ministerial Agreement were a daily affair. By this time, the number of would be conclusively ascertained. Almost certainly, only five individuals are involved. The fact must therefore be faced that this is very special legislation addressed to the courts directly affecting five or so particular persons already charged and awaiting trial in those courts. In their cases, and theirs alone, the law governing their pending trials has been changed in a way that seriously affects them.

(Ibid 261).

[169] Ibid 263.

[170] Ibid.

[171] Ibid.

[172] Ibid 261.

[173] Ibid.

[174] Ibid 263.

[175] Ibid, citing R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 394.

[176] [1998] HCA 9; (1998) 193 CLR 173, 263-4.

[177] Ibid 264ff.

[178] Ibid 259.

[179] Ibid 215.

[180] Ibid 216ff.

[181] Ibid 216.

[182] Ibid 217-218.

[183] Boilermakers [1956] HCA 10; (1956) 94 CLR 254; aff'd sub nom Attorney-General for Australia v The Queen [1957] AC 288.

[184] [1998] HCA 9; (1998) 193 CLR 173, 219-220.

[185] Ibid 220.

[186] [1991] HCA 21; (1992) 172 CLR 1, 37.

[187] [1998] HCA 9; (1998) 193 CLR 173, 221.

[188] Ibid 221: 'Professor Lane has said that judicial power is usurped according to Liyanage when there is "(a) legislative interference 'in specific proceedings"; (b) the interference "affect[s]...pending litigation"...(c)the interference affects the judicial process itself, that is, "the discretion or judgment of the judiciary" or "the rights, authority or jurisdiction of [the] court." '

[189] Ibid.

[190] Ibid 185.

[191] Ibid 188-191.

[192] Ibid 193.

[193] Ibid.

[194] Ibid.

[195] [1991] HCA 32; (1991) 172 CLR 501, 689.

[196] [1998] HCA 9; (1998) 193 CLR 173, 202.

[197] Ibid.

[198] Ibid 200.

[199] Ibid 274.

[200] Ibid 207.

[201] Ibid 208.

[202] Ibid.

[203] Ibid 209.

[204] Ibid 210-211.

[205] Ibid 232.

[206] See Fiona Wheeler, 'The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview' (2001) 20 Australian Bar Review 283; Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia' [1997] MonashULawRw 18; (1997) 23 Monash University Law Review 248; George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994); Leslie Zines, 'A Judicially Created Bill of Rights?' [1994] SydLawRw 14; (1994) 16 Sydney Law Review 166; Christine Parker 'Protection of Judicial Process as an Implied Constitutional Principle' [1994] AdelLawRw 13; (1994) 16 Adelaide Law Review 341.

[207] [1998] HCA 54; (1998) 195 CLR 547. It should be noted that this case involved State legislation and proceedings of a State court. The reason Chapter III of the Constitution arose at all was as a result of Kable's case (above n 70) which held that State Parliaments are constrained in legislating in relation to their courts because they are part of an integrated system of State and federal courts invested, under s 77(iii) of the Constitution, with federal, as well as State jurisdiction. Hence, State Parliaments may not vest functions incompatible with the operation of State courts as repositories of federal judicial power.

[208] Ibid 560.

[209] Ibid 561.

[210] Ibid 564.

[211] Ibid.

[212] See above nn 10-26 and accompanying text.

[213] [1967] 1 AC 259, 289-90.

[214] The decision of the United States Supreme Court, Robertson v Seattle Audubon Society[1992] USSC 38; , 503 US 429 (1992), was also illustrative of this.

[215] 80 US [1871] USSC 137; (13 Wall) 128 (1871).

[216] See Young, above n 6, 1240. See also Doigt, above n 6, 918.

[217] Also, it may be authority for the more precise principle that the Congress may not mandate findings of fact or conclusions of law in pending cases.

[218] [1992] USSC 38; 503 US 429 (1992).

[219] Seattle Audubon Society v Robertson [1990] USCA9 1016; 914 F 2d 1311 (9th Cir, 1990).

[220] The status of Klein is analogous to that of Liyanage in Australia.

[221] Amy D Ronner, 'Judicial Self-Demise: The Test of When Congress Impermissibly Intrudes on Judicial Power After Robertson v Seattle Audubon Society' (1993) 35 Arizona Law Review 1037, 1041.

[222] See for example, ibid.

[223] Ibid 1071

[224] See the discussion at above nn 10-26 and accompanying text.

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