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The separation of judicial power from executive and legislative power has long been recognised as an important measure for guaranteeing individual liberty and for safeguarding against tyranny.[1] As Winterton has noted, '[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty'.[2] However, it has also been widely recognised, particularly in recent years, that by entrenching the separation of federal judicial power, Chapter III of the Australian Constitution may offer individual guarantees beyond the arbitrary exercise of executive or legislative power.[3] Consideration of exactly what these guarantees may include has significantly contributed to the recent interest in Chapter III of the Constitution. As one commentator proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the defining features of the last decade of Australian constitutional law'.[4] This trend has raised many questions relating to the nature of judicial power and judicial independence, and the extent to which it does, and can, protect individual liberties. The emergence of these questions has been influenced and shaped by developments in international law on human rights generally. In this respect, it reflects a broader trend in Australian law to consider the domestic relevance and application of international human rights standards,[5] despite the general absence of express statutory or constitutional protection of human rights.
Of central importance within this trend, has been the issue of what rights or guarantees are capable of implication from the specific sections of Chapter III. In grappling with this question, attention has largely centred on the right to a fair trial,[6] rights to due process or judicial process,[7] and the right to equality.[8] This 'rights-based' approach has tended to dominate analysis of implications drawn from Chapter III and, consequently, may have prevented the detailed consideration of alternative approaches more reflective of the actual text and structure of Chapter III. One such approach includes as its basis (and, therefore, its point of departure) the drawing of implications that relate to the powers and jurisdiction of federal courts, and specifically, what is commonly referred to as the 'inherent jurisdiction' of the courts.
In many respects, it should come as no surprise that commentators refer to 'rights' within the curial process and, particularly, within criminal procedure. The international instruments to which Australia is bound, together with guarantees at common law, are largely considered to be declaratory of specific individual 'rights'. Thus, we refer to the 'right' to a fair trial, the 'right' to silence, and the 'right' to legal representation. In some instances, we refer to negatively expressed rights in the sense of freedoms, including the freedom against self-incrimination and the freedom from arbitrary detention. Yet, in all cases we speak generally of the rights (whether positive or negative) of individuals, though rarely of absolute rights. While 'rights-based' language is common in modern legal settings, it often betrays the fact that individual rights (whether referred to as rights, guarantees, freedoms, protections, safeguards or liberties) are protected, and are capable of protection, through various means. Included within those means are methods more subtle than the legally enforced, and legally enforceable, positively expressed individual rights. The relative absence, however, of many such rights within Australian domestic law (whether under the Constitution, statute or common law)[9] appears to have influenced the debate regarding implied guarantees under Chapter III of the Constitution. Thus, we have witnessed a tendency to refer to the potential implied protection of various rights or guarantees under Chapter III: the right to a fair trial or the right to due process being the most prominent examples.
An alternative approach is one that focuses on the courts' inherent powers: powers that are developed and utilised on the basis of the inherent jurisdiction of courts. This jurisdiction involves the ability of superior courts to prevent an abuse of process and to develop rules that regulate and protect its procedures and process.[10] It has long been accepted that a court's inherent powers may be invoked by a court to ensure the integrity, efficiency and fairness of its process, and in a manner that protects, among other things, due process and the provision of a fair trial. Clearly there are links between individual rights within the curial process and the scope of a court's inherent jurisdiction. Yet, according to this alternative approach, the relationship with Chapter III rests on the implication of powers of the court rather than the implication of the rights of individuals.
That Chapter III may actually protect the inherent jurisdiction of federal courts and courts exercising federal jurisdiction, has yet to be fully explored. At least one case of the High Court,[11] however, includes judgments that touch upon the issue of inherent powers and their relationship with Chapter III, though that case did not offer any direct and detailed consideration of inherent jurisdiction as the basis of any constitutional implication. Notwithstanding this fact, support for such an approach can be drawn from various judgments of the High Court, most notably from the jurisprudence surrounding the exercise of federal judicial power. It is, in addition, arguable that, in some respects, certain decisions of the High Court give stronger support to the notion that it is indeed the inherent jurisdiction of Chapter III courts which is to be implied from that Chapter, and through which certain 'rights' may be protected. This is in contrast to the more common 'rights-based' approach, which has tended to focus on the direct implication of individual guarantees. It is submitted that the former approach is more in keeping with the actual text and structure of the Constitution,[12] both in respect of the general absence of express rights, and in the very nature of Chapter III as a section more concerned with the creation and functions of federal courts.
The question to be addressed is, therefore, what exactly is protected by Chapter III of the Constitution? Is it the specific right to due process or a fair trial (and all that that right encompasses), or is it that what is actually protected is the inherent power of federal courts to protect the judicial process in the administration of justice? While the former implication results in guarantees for individuals, the latter leads to the implication or recognition of a power or jurisdiction that may be exercised by federal courts. The distinction is clear, and while the former approach has commanded the attention of certain judges and commentators, the genesis of the latter approach is also to be found in recent decisions of the High Court. A preoccupation, however, with a 'rights-based' approach has perhaps stifled consideration of alternative approaches by the Court and commentators alike.
What are the practical implications of this alternative approach to the drawing of implications from Chapter III? In one sense, the inherent jurisdiction of a court is much broader than a right to due process, a fair trial, or any other individual right associated with the curial process. Inherent jurisdiction is both flexible and able to be expanded,[13] whereas rights tend to be fixed or defined in either or both their expression and protection. The inherent powers of a court are exercised in order to protect the integrity, efficiency and fairness of the curial process as a whole, and are thus able to be employed to ensure equities amongst all affected persons, whether parties to a dispute or not.[14] Rights, on the other hand, are (for the most part) individualist in nature, including in their concern for the defendant within the criminal process.
In another respect, inherent powers are concerned first and foremost with the 'processes' of a court rather than the interests of individuals. In protecting that process, however, inherent powers are exercised often for the benefit of individuals. For example, a court may exercise its power to stay proceedings if to continue with the matter would require the court to conduct a trial that was unfair. While the right to a fair trial is protected in a negative sense at common law, it has also been suggested that it is protected by implication under Chapter III. By adopting an approach based on the implied protection of the court's inherent powers, however, what is taken to be protected under Chapter III is the power of the court to stay the proceedings in order to protect its process, rather than the right to a fair trial as such. Yet, the fact that constitutional protection is afforded to the court's powers, rather than to individual rights or guarantees, does not mean that the latter is irrelevant for the purposes of Chapter III considerations. The essential features or attributes of the curial process that the court must protect are obviously influenced by society's understanding of a fair trial and the various guarantees that should ordinarily form a part of that process. To this end, individual rights (especially universally recognised human rights standards) relevant to the trial process are going to shape the exercise of a court's inherent jurisdiction in both the development and exercise of the court's inherent powers. Thus, individual guarantees will be relevant in shaping the content of inherent jurisdiction. In addition, constitutional protection of a court's inherent jurisdiction and powers could also potentially provide the legal basis upon which individual guarantees may be further implied.
The alternative approach posited in this paper assumes that the scope of judicial power under Chapter III extends to the implied powers of federal courts to protect their own processes. This is distinct from the more commonly expressed assertion that Chapter III includes an implied guarantee of due process. The fact that each of the federal courts has been created by statute and possesses limited jurisdiction, raises additional issues in relation to whether they actually possess 'inherent' jurisdiction. Inherent jurisdiction was initially possessed by the common law courts of Westminster, which were superior courts of record with unlimited jurisdiction.[15] While the state Supreme Courts are similarly described[16] and also possess inherent jurisdiction,[17] the federal courts are, however, differently situated. As superior courts of record created by statute and possessing limited jurisdiction, they appear to lack the necessary attributes of a court considered to possess inherent jurisdiction. Australian jurisprudence on this matter, however, reflects a relative absence of any major legal obstacle to declaring the possession of such jurisdiction by federal courts.[18] It appears though, at least from recent decisions of the High Court, that it is now considered to be more appropriate in law to refer to the 'implied' jurisdiction or powers of the federal courts, which is (or are) akin to the 'inherent' jurisdiction or powers of common law courts with unlimited jurisdiction.[19] For the purposes of this paper, however, the term inherent is used nonetheless. This is principally in order to avoid over-complication of the issues, and given the basic similarity in content between the 'implied' jurisdiction of the federal courts, and the 'inherent' jurisdiction of superior courts with unlimited jurisdiction. This similarity in content relates to the functional nature of the jurisdiction (which is the same for both state and federal courts), rather than the jurisdiction’s source (which may be considered as 'inherent' or 'implied', and which consequently differs between the state and federal courts).
Another practical legal consequence arising from an approach based on the implied protection of inherent jurisdiction under Chapter III, is the potential for certain discretionary powers of the court to be protected under the Constitution. This is by virtue of the fact that the inherent jurisdiction and the powers within its ambit are discretionary in nature. An obvious issue to arise, then, is the potential for limitations to restrict the ability of the legislature to regulate or remove specific instances of judicial discretion. In this respect, the power of federal Parliament to prevent or limit the consideration of human rights concerns, and specifically international human rights law, in the exercise of a discretion could be significantly curtailed by the constitutional implication. The extent of that limitation, however, would certainly be affected by the foundation for any implication, as well as the degree to which any enactment offended Chapter III. If, as is submitted with a 'rights-based' approach, the protection offered by Chapter III related to an 'implied freedom', like all such implications it may be limited by statute, provided that certain conditions are met and that the right is not altogether abrogated.[20] This is another important distinction between the two approaches, as the same may not necessarily apply to the court's 'inherent jurisdiction' and to Parliament's ability to regulate the court's process and procedures. This is a direct consequence of the actual nature and purpose of inherent jurisdiction in protecting the integrity of the curial process. There is a natural connection between the exercise of a power to preserve and protect the integrity of that process, and the desire to act 'judicially'. Of course, where compliance with a statute would require the court to act in a non-judicial manner, the enactment would be invalid by virtue of Chapter III.
The Commonwealth Constitution divides power between the Parliament, the Executive Government, and the Judicature in Chapters I-III respectively. While power cannot be said to be strictly separated between the two political institutions of government, as the Parliament also contains the members of the executive, Chapter III is considered to firmly entrench the separation of judicial power. That Chapter, which is headed 'The Judicature', contains 10 sections which include provision for the creation of federal courts, the conferral of federal jurisdiction and judicial tenure, as well as the right to trial by jury for indictable offences. Arguably the most significant of those 10 sections, at least in respect of the separation of federal judicial power, is s 71 which provides as follows:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
The words 'judicial power of the Commonwealth' have proved difficult to precisely and exhaustively define.[21] However, the courts have approached the concept as encompassing the traditional or primary functions of a court, such as the adjudication and settlement of disputes between parties according to law.[22] On this point, the oft-cited passage of Griffith CJ from Huddart, Parker & Co Pty Ltd v Moorehead is worth noting:
I am of opinion [sic] that the words 'judicial power' as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.[23]
The separation of judicial power under Chapter III of the Constitution has resulted in the development of two principles: (i) power, other than judicial power, cannot be conferred on a Chapter III court or a court exercising federal jurisdiction; and (ii) judicial power cannot be conferred on any body that is not a 'court' within the meaning of s 71.[24] According to Winterton, the first principle, espoused in the High Court's 1956 decision in the Boilermakers' case[25], is the most controversial.[26] It acts as a significant limitation on legislative and executive action, and was adopted to
protect the independence of federal judges, who must determine the legality of action by the political branches, by freeing them from the supposedly contaminating influence of involvement with government policy and other non-judicial issues.[27]
This principle, derived from the separation of judicial power under Chapter III, has assumed even greater significance in recent years, prompted in large part by the developing concern with the manner in which judicial power is exercised.[28] Rather than focusing on the nature of a particular power, or the institution that is empowered to exercise a particular power, such concern is directed at whether judicial power is exercised in an essentially judicial manner.
This development has also been influenced by the adoption of a doctrine of 'incompatibility' in relation to the persona designata exception to the Boilermakers' principle. That exception allows judges to perform non-judicial functions provided that they are appointed or assigned in their personal capacity.[29] The 'incompatibility' doctrine, however, will prevent a judge from performing non-judicial functions where they would be 'incompatible' with the holding of judicial office.[30] Originally developed in relation to the persona designata rule, since the High Court decision in Kable v Director of Public Prosecutions (NSW),[31] the doctrine now extends to the valid conferral of functions on Chapter III courts generally. In that case, it was considered that the Community Protection Act 1994 (NSW) conferred functions on the Supreme Court of New South Wales that were 'incompatible' with the potential exercise of federal judicial power by that Court. The function in question related to the preventive detention of one individual in the absence of a conviction for any specific or additional crime. Since the decision in Kable, it may now be said with confidence that Chapter III would prevent the exercise of judicial power in a manner that is incompatible with the essential attributes of the curial process. This development is considered in much greater detail below, together with the implication of guarantees under Chapter III. However, given that this paper articulates an alternative approach to implications based on inherent jurisdiction, it is first necessary to address the nature and scope of that concept before proceeding.
The term 'inherent jurisdiction of the court' is one that few lawyers would be unfamiliar with, though it is certainly one that most lawyers would struggle to adequately define. 'Inherent jurisdiction' falls within that category of legal terms often invoked in court, yet rarely understood in a tangible and well-defined sense. Described as a metaphysical and amorphous concept,[32] one commentator has even gone so far as to describe the term as involving a 'peculiar concept', so 'amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits'.[33] Part of the problem in obtaining a definition was aptly described by Justice Paul de Jersey as follows:
What is this species of jurisdiction? We have all heard Judges, anxious to make obviously just orders, but uncertain of an express statutory authority, resorting, sometimes—I have thought, rather coyly—to the inherent jurisdiction of the court. We have also heard inadequately prepared Counsel, inviting resort to the inherent jurisdiction, and being chided by a Judge who is acquainted with a specific statutory authorisation.[34]
Despite these problems, numerous definitions have been offered of the term from which an understanding of its nature and meaning can be understood. However, in order to appreciate the nature of this particular jurisdiction it is first necessary to understand its juridical basis. The jurisdiction was originally conferred on the superior courts of the common law in England, and was derived not by virtue of any statute or rule of law but by the very nature of such courts as superior courts of record—hence the term 'inherent'.[35] The link between inherent jurisdiction and superior courts of law is explained by the jurisdiction's historical beginnings, but also informs the nature and scope of the powers that fall within its ambit. As Jacob has explained:
... the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law, is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.[36]
The inherent jurisdiction may be seen as an independent and separate basis of jurisdiction possessed by superior courts of record.[37] Its essential function is to provide such courts with an array of powers necessary to protect their capacity to administer justice and to retain their very nature as superior courts.[38] According to Jacob, it constitutes that residual or reserve source of powers 'which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them'.[39]
That the powers falling within the scope of a court's inherent jurisdiction are ancillary or incidental to a court's general jurisdiction[40] and are, therefore, procedural in nature,[41] is widely recognised. As Abernathy describes, inherent jurisdiction 'is the power to decide the manner in which the Court will adjudicate upon a subject-matter, adjudicate between parties, decide upon relief or decide upon any combination of these factors.'[42] However, despite the extent to which statute now provides the multitude of rules governing the procedural aspects of a trial, a court's inherent jurisdiction continues to exist.[43] It does so by virtue of the fact that a superior court's inherent jurisdiction derives independently of statute or other rule of law, and arises from its very nature as a superior court of record. This distinction was discussed by Menzies J in R v Forbes as follows:
Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction', which as the name indicates, requires no authorizing provision.[44]
The fact that only superior courts of record with unlimited jurisdiction are said to possess inherent jurisdiction creates obvious problems when one begins to refer to the inherent powers of Australia's federal courts. The High Court, the Federal Court and the Family Court, all of which are superior courts of record,[45] possess limited jurisdiction granted by either the Constitution or statute. The general jurisdiction of each federal court, unlike the state Supreme Courts[46] and even the High Court of New Zealand,[47] is not defined by reference to the jurisdiction of the common law courts of Westminster. Accordingly, problems arise when attempting to apply the notion of 'inherent jurisdiction' to Australia's federal courts. This issue is addressed in greater detail below.
It is difficult to list in a comprehensive manner the array of powers that are taken to fall within the ambit of a court's inherent jurisdiction. They are many and varied, and are subject to variation in nature and scope, both over time and between different cases. However, several commentators have attempted to list some of the powers, and Keith Mason classified each power according to the particular function of inherent jurisdiction to which the power related.[48] This classification is helpful in analysing the functional aspect of each power, and so is replicated below. However, the list of inherent powers includes examples from other commentators, including Jacob[49] and de Jersey.[50] From these sources one may include within a court's inherent jurisdiction, classified according to Mason's four primary functions of the jurisdiction, the following powers:
(1) Ensuring convenience and fairness in legal proceedings:
(2) Preventing steps from being taken that would render judicial proceedings inefficacious:
(3) Preventing abuse of process:
(4) Acting in aid of superior courts and in aid or control of inferior courts and tribunals:
The actual content of a court's inherent jurisdiction becomes critical in determining the scope of any constitutional protection. Whether the High Court would accept all of the powers listed above as falling within the protective ambit of Chapter III is open to speculation. In this respect, debates such as that which Mason CJ detailed in Jago v District Court of New South Wales[51] take on a new significance. In that case, his Honour considered whether the notion of abuse of process could be broadened to include a general objective of preventing unfairness, or whether it was limited to its traditionally accepted categories including bad faith and oppression.[52] Yet, rather than adopting an expanded notion of abuse of process, Mason CJ preferred to state that the courts should be taken to 'possess an inherent power to prevent their processes being used in a manner which gives rise to injustice'. [53] While this represents a broad approach to the scope of inherent powers possessed by a court, narrow approaches which focus more closely on the traditional aspects of inherent jurisdiction (preventing an abuse of process and punishment for contempt) certainly remain open to adoption by the High Court.
As earlier mentioned, the federal courts occupy a unique position in relation to inherent jurisdiction and powers. As Wilson and Dawson JJ stated in Jackson v Sterling Industries Ltd,[54] 'federal courts differ from the supreme courts of the States which, although of statutory origin, are truly designated superior courts because they are invested with general jurisdiction by reference to the jurisdiction of the courts at Westminster.' The High Court, the Federal Court and the Family Court are each described by statute as constituting superior courts of record.[55] Their jurisdiction is, however, statutorily limited. The consequence with respect to the Federal Court was stated by Wilson and Dawson JJ as follows:
Ordinarily a superior court of record is a court of unlimited jurisdiction which means that, even if there are limits to its jurisdiction, it will be presumed to have acted within it. That is a presumption which is denied to inferior courts and is denied to a federal court such as the Federal Court.[56]
Despite this, the federal courts have all been considered to possess inherent jurisdiction, or at least a jurisdiction which is akin to inherent jurisdiction. In the same judgment, Wilson and Dawson JJ held that the declaration of the Federal Court as a superior court of record was to be given effect as far as it could be, and 'the vesting of judicial power in the specific matters permitted by the Constitution (see ss 75, 76, 77) carries with it such implied power as is necessarily inherent in the nature of judicial power itself'.[57] Accordingly, their Honours decided the matter as follows:
Having regard to the declaration of the Federal Court as a superior court and a court of law and equity, the implied power should be construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction.[58]
Justice Kirby considered the position of the High Court in the case of Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd:[59]
Although this Court was not created out of the Royal Prerogative but by the Constitution, it enjoys and has exercised the inherent or implied powers traditionally belonging to the Royal Courts of Justice of England and proper to a final court of appeal.[60] It also enjoys and has exercised large powers implied from its functions. Once this history is understood, the apparent lacuna in the Rules of the Court is explained.
In relation to the Family Court, Mason J stated in Taylor v Taylor that, '[a]lthough the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default.'[61] His Honour also went so far as to state that it was power inherent in every superior court unless displaced by statute.[62] In fact, this approach has also been adopted by other judges of the High Court.[63] It is, however, unlikely to be considered in this manner by the present High Court, who have rejected the notion that the federal courts possess jurisdiction that may be referred to as 'inherent'. In a joint decision of Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, in the case of DJL v The Central Authority, the following statements were made:
The Family Court is ... not a common law court as were the three common law courts at Westminster. Accordingly, it is 'unable to draw upon the well of undefined powers' which were available to those courts as part of their 'inherent jurisdiction'. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute 'has powers expressly or by implication conferred by the legislation which governs it' and '[t]his is a matter of statutory construction'; it also has 'in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'. It would be inaccurate to use the term 'inherent jurisdiction' here, and the term should be avoided as an identification of the incidental and necessary power of a statutory court.[64]
In the same case, Kirby J modified his earlier approach, and shared the concern of the majority in employing the phrase 'inherent jurisdiction' in relation to federal courts. His Honour made the following comments:
I agree with the joint reasons that it is desirable, in relation to courts created by statute, that the expression 'inherent powers' should not be used. That appellation may be appropriate to courts originally created out of the Royal Prerogative. It is not apt to a court, such as the Family Court, which is created by federal legislation. In such a case it is necessary to attribute the power (where it is not conferred expressly by or under such legislation) to an implication derived from the legislation establishing the body. It may also be implied from the character of the court as a court of the designated kind, and from the place which it enjoys in the Judicature of the Commonwealth for which the Constitution provides. There is no difficulty in ascribing these implications to the Family Court within the field of its jurisdiction.[65]
This approach had earlier been taken by Deane and Toohey JJ in Jackson v Sterling Industries Ltd.[66] In that case, Deane J quoted with approval the judgment of Bowen CJ in the Federal Court in the same litigation:
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.[67]
Justice Toohey adopted a similar line of reasoning, advocating the use of the phrase 'incidental and necessary power of a statutory court', rather than 'inherent power'.[68] Yet, the similarity between inherent jurisdiction and what is implied jurisdiction in relation to statutory courts has been identified in other judgments of the High Court. Justice Gaudron has actually considered the historical basis of certain inherent powers when considering an implied power, as 'statutory authority aside, [it would] commonly be identified as inherent power.'[69] In her view, having regard to that historical basis 'reveals the nature and effect' of such implied powers and 'may provide assistance in the future development of the law and practice' in the relevant area.[70]
Justice Dawson also highlighted the issue in his judgment in Grassby v The Queen, in which he offered the following analysis:
[N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is ... fundamental.[71]
While implied powers may be limited or affected in some way by statute, in most cases the difference between an inherent power, and an implied power akin to an inherent power, will be minimal if not absent altogether. As Gaudron J stated in Jago v District Court of New South Wales, 'a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings', and this will only be subject 'to any limitation or restriction to be found in statute'.[72] In addition, this power will not be restricted to defined and closed categories, 'but may be exercised as and when the administration of justice demands.'[73] It would appear that the so-called 'implied powers' of federal courts will be considered to include the powers normally associated as falling within the ambit of 'inherent jurisdiction' possessed by courts of unlimited jurisdiction. However, this will always remain subject to any statutory provisions to the contrary. On this point, the rule necessitating clear and unambiguous statutory language to remove the jurisdiction of superior courts applies.
In the 1944 case of Cameron v Cole, Rich J considered the power of the legislature to remove a court's inherent jurisdiction. He stated that:
[I]n the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.[74]
In the joint decision of Deane, Dawson, Toohey and Gaudron JJ in Wentworth v New South Wales Bar Association, this statement was considered to have application to every aspect of inherent jurisdiction and power.[75] However, their Honours also gave the principle a wider application:
There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication ... They include ... safeguards of individual rights and freedoms and the jurisdiction of superior courts (see Clancy v Butchers' Shop Employés Union [1904] HCA 9; (1904) 1 CLR 181 at pp 196-197, 204; Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 at pp 130, 142; Bropho v Western Australia (1990) 171 CLR at p 17; Public Service Association (SA) v Federated Clerks' Union of Australia (SA) Branch [1991] HCA 33; (1991) 173 CLR 132 at p 160).[76]
From the foregoing analysis it would appear that the federal courts do possess inherent jurisdiction or powers, but these should be appropriately referred to as the implied 'incidental and necessary powers of a statutory court'.[77] It may also be more appropriate to refer to the 'powers' of the federal courts rather than the 'jurisdiction', given the apparent unease of the current High Court with the notion of inherent jurisdiction being possessed by statutory courts.[78] If this represents the approach that is taken by the High Court to the powers of the federal courts, akin to inherent powers, then the principle espoused in Cameron v Cole[79] and Wentworth v New South Wales Bar Association,[80] may have no application. That principle applies to a court's 'jurisdiction' rather than its 'powers'. While the distinction between these two terms is often blurred, particularly in the context of inherent jurisdiction, it remains of significance in some respects for the High Court.[81] In this context, the relevance of Chapter III assumes even greater significance, and it is to this issue that the discussion now turns.
To date, no human right or individual guarantee has been implied by a majority of the High Court from Chapter III of the Commonwealth Constitution. For many, however, this circumstance belies the untapped potential within the constitutional separation of powers, and which remains to be fully explored and articulated by the High Court. Whether one speaks of the right to a fair trial, guarantees of due process, rights of equality, or judicial process, sentiment in recent years has largely reflected the view that Chapter III constitutes a potential source of significant guarantees for individual liberty. This sentiment has been spurred by the tentative judicial forays into this area made initially by Deane, Gaudron and Toohey JJ, and more recently by McHugh and Kirby JJ, of the High Court. No doubt influenced by the implication of a freedom of political communication derived from the system of representative government established under the Constitution, implications arising from Chapter III have tended to be considered from a 'rights based' approach. Consequently, references are readily made to 'implied rights' arising under the Constitution and, in respect of Chapter III, to the implied right to a fair trial and accompanying rights to due process.
There is, however, an alternative approach to rights or guarantees derived from the separation of powers, and one that does not adopt a strict 'rights based' approach. As earlier stated, that alternative is to view Chapter III as entrenching the 'inherent jurisdiction' of the Court to protect its processes, the effect of which may be to protect procedurally various rights or liberties where justice demands it. Such an approach would indeed be more in keeping with the absence of widespread rights or guarantees contained in the Constitution, and provides a preferable basis for drawing implications from the separation of judicial power. Put simply, inherent jurisdiction offers a more appropriate and logical basis upon which the protection of rights may be attained.
By entrenching the inherent jurisdiction of Chapter III courts, the ability of a court to protect its processes in the administration of justice and the exercise of judicial power is recognised, without the need to entrench certain specific individual rights. In adopting such an approach to Chapter III, any implications are more consistent with the structure of the Constitution and avoid the potential for allegations of the selective and artificial implication of specific individual rights. As George Williams has observed, the High Court 'cannot, without altering the balance of the Australian polity or undermining its own legitimacy, pronounce the existence of constitutionally enforceable freedoms unless such freedoms are derived from the Constitution by a sustainable interpretative scheme'.[82] The point is also aptly stated in the following extract:
[T]here can be only a limited scope for implications arising from the text itself. The text, understandably, speaks much more of responsible government and political institutions than it does of many other matters related to fundamental liberties of importance equal to or greater than rights to participate freely in the political processes of the Westminster system. It will be much more difficult to find implications in the text on matters on which it is substantially silent. It follows that implication from the text can only advance the cause of human rights to a limited extent.[83]
That Chapter III may protect the inherent jurisdiction of courts exercising federal jurisdiction already finds support in the decisions of several judges of the High Court. This support is derived from a general compatibility with the Court's view of 'judicial power', that the courts' inherent powers fall within its scope. In addition, specific statements included within the judgments of McHugh, Kirby and Hayne JJ in Nicholas v The Queen,[84] give express support to this position. Indeed, that case offers particular insight into the relationship between inherent jurisdiction and Chapter III, notwithstanding the fact that the decision was comprised of seven separate judgments (with McHugh and Kirby JJ in dissent). For these reasons, it is clear that Nicholas represents the most significant and recent case on point.
The issues in Nicholas involved a discretion, known as the Ridgeway[85] discretion, to exclude evidence illegally obtained based on public policy grounds. The accused had been charged with offences under the Customs Act 1901 (Cth) relating to the possession of heroin, which had been imported by law enforcement officers in contravention of the Act. Though a judge had granted a permanent stay of proceedings based on the Ridgeway discretion, an application was sought to vacate that stay based on amendments to the Crimes Act 1914 (Cth).[86] The effective consequence of the amendments was to exclude the fact of illegality on the part of officers (acting for the purposes of a 'controlled operation', and in respect of certain offences under the Customs Act) from the question of whether evidence of illegal importation of narcotics should be admitted. In essence, s 15X (the relevant provision) removed a significant fact from consideration by the court, and thereby sought to prescribe the exercise of the Ridgeway discretion in specific cases. Counsel for the defendant challenged the constitutional validity of the section on several bases, but most importantly on the ground that s 15X constituted an impermissible interference with, or usurpation of, the judicial power of the Commonwealth.
The majority of the Court, including Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ, dismissed the argument, upholding the validity of the section. Justices McHugh and Kirby gave dissenting, and separate, judgments, however, the majority judgments contained a number of elements compatible with some of the basic reasoning of the minority judges. Among these were: confirmation of the interpretation of 'judicial power' taken by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration;[87] acceptance of the discretion as an incident of the Court's inherent power;[88] and recognition of the Court's power to develop procedural rules for the protection of its own process.[89]
The High Court has chosen not to take a formalistic approach to the interpretation of 'judicial power' under Chapter III, focusing instead on the manner in which judicial power is exercised, in addition to the question of which institution of government should exercise a particular power.[90] In rejecting an approach based on form over substance, the Court has begun to develop its jurisprudence on the limits on legislative power arising as a consequence of rules regarding the manner in which judicial power is to be exercised. As Brennan, Deane and Dawson JJ pointed out in Chu Kheng Lim v Minister for Immigration,[91] the legislative powers of the Commonwealth contained in s 51 of the Constitution do not
extend to the making of a law which requires or authorizes the courts in which the judicial power of the 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.
This point was further expanded in a later statement by their Honours, and was also quoted with support by Brennan CJ in Nicholas v The Queen.[92] That statement was as follows:
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 a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch 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.[93]
Chu Kheng Lim was not the first case of the High Court in which some judges had begun to develop rules pertaining to the exercise of judicial power. Earlier, in the case of Polyukhovich v Commonwealth, Deane J had made the following statement:
The Parliament cannot, consistently with Ch III of the Constitution, usurp the judicial power of the Commonwealth by itself purporting to exercise judicial power in the form of legislation. Nor can it infringe the vesting of that judicial power in the judicature by requiring that it be exercised in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power.[94]
In addition, Deane J considered in that case that the objective for separating judicial power would only be achieved if judicial power was exercised 'in accordance with the essential attributes of the curial process'.[95] In the same case, Gaudron J adopted an approach to federal judicial power that invoked the use of the essential aspects of 'judicial process' to determine requirements for its exercise. She stated that:
An essential feature of judicial power is that it be exercised in accordance with the judicial process. I attempted to identify the features of that process in Harris v Caladine [(1991) [1991] HCA 9; 172 CLR 84, 150-2], and in Re Nolan; Ex parte Young [(1991) [1991] HCA 29; 172 CLR 460, 496]. To adopt the words of Kitto J in [R] v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [(1970) [1970] HCA 8; 123 CLR 361, 374], the essential features of that process include the determination of legal rights, obligations or consequences by the ascertainment of the facts as they are and as they bear on the matter for determination, and the identification of the applicable law, followed by an application of that law to those facts.[96]
For Toohey J, the limitations on legislative power rested on the fact that, 'only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Ch III may be involved'.[97]
In the decision of Leeth v Commonwealth,[98] Deane and Toohey JJ delivered a joint judgment taking their analysis further. They offered the following statements on the exercise of judicial power:
Those provisions [of Chapter III] not only identify the possible repositories of Commonwealth judicial power. They also dictate and control the manner of its exercise. They are not concerned with mere labels or superficialities. They are concerned with matters of substance. Thus, in Ch III's exclusive vesting of the judicial power of the Commonwealth in the 'courts' which it designates, there is implicit a requirement that those 'courts' exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially.[99]
The majority in Leeth did not consider it necessary to address the requirements of judicial process arising from Chapter III, considered by Deane, Toohey and Gaudron JJ.[100] However, the Court left open the possibility that implied guarantees would be identified at a later stage. In a joint judgment, Mason CJ, Dawson and McHugh JJ made the following statement:
It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case [[1957] AC 288 at 317], a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers.
From each of these earlier judgments it can be seen that the genesis for developing requirements for the exercise of judicial power were present. Cases such as Nicholas v The Queen illustrate that the court has taken up these early judicial attempts to develop jurisprudence in this area, although the implication of a principle of equality cannot be said to have been subsequently endorsed.[101] Support, however, for the statement of Brennan, Deane and Dawson JJ in Chu Kheng Lim, indicates the emergence of an approach to the exercise of judicial power that focuses on the essential characteristics of a court and its power. This point is of critical importance in considering the nature of any implied guarantees likely to be identified by the Court. The general principle underlying this approach was well stated by McHugh J in Nicholas v The Queen:
If the doctrine of the separation of powers is to be effective, the exercise of judicial power needs to be more than separate from the exercise of legislative and executive power. To be fully effective, it must also be free of legislative or executive interference in its exercise. As a result, legislation that is properly characterised as an interference with or infringement of judicial power... contravenes the Constitution's mandate of a separation of judicial from legislative and executive power.[102]
In considering what the essential nature of judicial power is, and what the essential characteristics of a court are, Brennan CJ stated that reference was to be made to both the Constitution and the common law.[103] His Honour considered that some characteristics could be derived from the court's function in fact-finding, including the duty to act, and to be seen to be acting, impartially.[104] For Gaudron J, other essential characteristics (in addition to impartiality) included, natural justice, equality before the law, the independent determination of the matter, and the determination of guilt or innocence by a fair trial in criminal proceedings.[105] However, Gaudron J also added a further statement that extended the limitations on legislative and executive power from interference with, or usurpation of, judicial power and its exercise. That statement was as follows:
[A] court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.[106]
Both McHugh and Kirby JJ also considered the power of the court to protect the integrity of its own processes and to maintain public confidence in the administration of justice as falling within the scope of judicial power under Chapter III.[107] Each considered s 15X of the Crimes Act 1914 (Cth) (the relevant provision in Nicholas v The Queen) to have constituted an impermissible interference with those powers of the court. These inherent powers of the court had been critical in the development of the public policy discretion in Ridgeway v The Queen,[108] and had been relied upon in argument by counsel in Nicholas. The significance of these considerations was critical in the dissenting opinions of McHugh and Kirby JJ, who viewed interference with the powers as going to the very core of the court's exercise of judicial power. For McHugh J:
The capacity of the federal courts to protect themselves from abuse of their processes and the necessity for those courts to maintain public confidence in the administration of justice is of the highest constitutional importance.[109]
However, Hayne J also considered the issue, holding that the Ridgeway discretion was one 'which is exercised by the courts to protect the integrity of their processes' and, when exercised, involved the court exercising judicial power.[110] Hayne J also accepted that the power of the court to protect the integrity of its own processes was an inherent power,[111] a point that had been endorsed by Mason CJ, Deane and Dawson JJ in Ridgeway.[112] Hayne J's support did not extend, however, to protection of the court's reputation in the administration of justice.
The views articulated by Gaudron, McHugh and Kirby JJ, dealing with the protection of the court's reputation in the administration of justice, must be considered in light of the views espoused by Brennan CJ and Hayne J in Nicholas. Their Honours rejected its use as a basis for constitutional validity, with Brennan CJ approaching the issue as follows:
To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion on the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative.[113]
The failure of counsel for the applicant to make this distinction led Toohey J to conclude that their argument went too far, in that it 'would seem to invalidate any legislative provision that bore on the exercise of the judicial power.'[114] From this perspective then, it may well be that the position endorsed by Gaudron, McHugh and Kirby JJ must be modified to focus on the power of the court to protect its processes only, rather than to protect the reputation of the court in administering justice—at least as a source of limitation on executive and legislative power.
While the inherent jurisdiction of the court clearly informs the rule regarding abuse of process, the protection of inherent powers is not incompatible with the views of the other judges. It remains for the court's inherent powers to be generally classed as falling within the scope of the court's 'essential characteristics', and as reflecting specific requirements for the exercise of judicial power. Indeed, the crucial point in distinguishing the minority and majority judgments in Nicholas, was not that the majority rejected that legislative interference in the exercise of the discretion could amount to an impermissible interference with judicial power. Rather, the point of distinction was that no such interference had occurred by the amendment to the Crimes Act 1901 (Cth). Crucial to the findings of the majority judges was the fact that the discretion to exclude the evidence was not removed entirely by the statutory amendment.[115]
When one considers the very nature and function of a court's inherent jurisdiction alongside the attempts of the High Court to articulate rules for testing the validity of legislation that affects the exercise of judicial power, the links are patently clear. A court's essential characteristics—those aspects of the curial process fundamental to the proper exercise of a court's power—have long been protected by resort to the inherent powers of the court to protect its own processes. In giving content to the rule articulated by the High Court in Chu Kheng Lim, there is a very strong basis for asserting that resort should be made to the rules and practice of the courts developed under the umbrella of its inherent jurisdiction. Such resort has already occurred in the judgments of Gaudron, McHugh, Kirby and Hayne JJ, on the issue of a court's power to prevent an abuse of its process. Whether inherent powers are simply part of judicial power for the purposes of Chapter III, or additionally the source of various implied guarantees, remains to be answered. It is an answer that will rest largely on the actual nature and scope of inherent powers. It is not, however, the intention of this paper to consider the further implication of individual rights based upon the constitutional protection of inherent powers. It is merely to consider the protection of inherent powers within the scope of judicial power itself. It must be acknowledged, however, that inherent jurisdiction offers a seemingly strong foundation for the further protection of various guarantees.
The case of Nicholas v The Queen provides wide support for the notion that a court's inherent powers, and specifically the power of the court to protect its own processes, fall within the scope of judicial power, given that they pertain directly to the manner in which a court exercises judicial power. In addition, inherent powers may also reflect essential features of a court, the interference with, or removal of, would require the court to act in a manner inconsistent with the very nature of a court. In these respects, therefore, inherent jurisdiction must impact on the test for validity of any enactment that affects the exercise of judicial power.
It is submitted that the test for validity may in fact include considerations beyond those that arise strictly by virtue of the separation of powers under Chapter III. Among these are questions of implied freedoms and proportionality. The significance, and indeed presence, of any additional requirements for validity rests ultimately, however, on the future articulation and acceptance of rules regarding legislation that affects the exercise of judicial power. In this context, the degree to which the court's inherent powers are considered to incorporate individual guarantees will affect this development. If judicial power includes an inherent power of the court that is exercised for the protection of individual liberty, any legislative interference with the exercise of that power may be subject to tests of proportionality and reasonableness.[116] Whether this view will find a place in the future jurisprudence of the High Court, however, remains to be seen. The principal criteria for validity—an Act's consistency with Chapter III—is, however, able to be derived from the available decisions of the Court.
As incidental powers implied under Chapter III, the inherent powers of federal courts, and courts exercising federal jurisdiction, are not outside the scope of legislative interference or prescription. It is this fact of implication that gives Parliament the power to regulate or prescribe inherent powers falling within the scope of judicial power, rather than the fact that these powers are generally procedural in nature. Indeed, this same reasoning was applied in Nicholas to find that the discretion did not offend the separation of powers under Chapter III,[117] having little to do with the fact that the discretionary power was procedural in nature.[118] The Chief Justice discussed the matter in the following way:[119]
The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction[120] but subject to overriding legislative provision governing that practice or procedure.
For Brennan CJ, the ultimate test of validity in respect of such implied powers is whether the legislative prescription reflects 'a reasonable approach to the assessment of the kind of evidence to which it relates.'[121] This approach needs to be distinguished from that of Gaudron J. Her Honour considered that the various ancillary powers of the court relevant to the exercise of judicial power, were not 'ultimate powers' of the kind to which Chapter III of the Constitution was directed.[122] By 'ultimate powers', Gaudron J referred to 'the kind involved in the making of binding determinations as to guilt or innocence or as to existing rights, liabilities, powers, duties, or status, or, in making binding adjustments of rights and interests'.[123] Consequently, ancillary powers were not to be treated as properly falling within the scope of judicial power for the purposes of Chapter III. This approach of Gaudron J appears to be a rather confusing treatment of the fact that ancillary powers regarding the admission of evidence is a subject accepted as falling within the legislature's competence. Other ancillary powers identified by her Honour include the power to grant an adjournment and to make procedural rulings.[124]
The approach of Gaudron J is only further confused by the fact that she expressly states that judicial power is 'a power which is exercised in accordance with the judicial process and, in that process, many specific and ancillary powers are also exercised'.[125] In addition, Gaudron J's support for the position that the court cannot be forced to proceed 'in any manner which involves an abuse of process',[126] is difficult to reconcile with her position on ancillary powers, given that abuse of process is generally prevented by the development and invocation of ancillary powers. For these reasons, it is submitted that the approach of Brennan CJ, acknowledging that implied judicial powers are susceptible to reasonable legislative regulation and prescription, is preferable to that of Gaudron J.
This approach finds support also in the judgment of Hayne J. Directly on this point, his Honour made the following comment:
The facts that the discretion is a creature of the common law and is concerned with the protection of the integrity of the courts' processes do not mean that the discretion cannot be affected by legislation.[127]
Justice Hayne also rejected the idea that simply because a discretion fell within the inherent powers of the court, the discretion was beyond legislative prescription by virtue of Chapter III. However, his Honour declined to consider whether other considerations would arise if Parliament had attempted to abolish the discretion altogether,[128] as well as the question of whether certain inherent powers of the court could not be abolished at all.[129] Notwithstanding this, Hayne J did make the following comments in respect of s 15X of the Crimes Act 1901 (Cth):
If the rejection of evidence of illegally procured offences had been held to be inevitably required in all cases because only in that way could the reputation of the courts be protected, the question whether Parliament might change or abolish that rule might (I do not say would) have arisen. But that is not the case with this rule.[130]
From this, it appears that removal of the discretion entirely would, therefore, have changed the issue somewhat before the Court. It would also appear from Hayne J's perspective that, although not comprising an independent test for constitutional validity, the reputation of the courts remains an important consideration in protecting the integrity of the court's processes.
The above statements indicate that the Court is yet to fully address the various matters that may touch upon the validity of legislation affecting the exercise of judicial power. Are certain inherent powers beyond legislative prescription altogether or, at the very least, unable to be removed or abrogated entirely? In addition, what will be the effect where the inherent power is exercised to protect individual liberty? Though it is unclear whether that liberty would be raised to the status of an 'implied constitutional freedom', it remains open to the Court to apply tests of reasonableness or proportionality in considering the validity of the legislation. This issue is, however, beyond the scope of this paper.
In considering an Act's constitutional validity, the issue arises as to when legislation will constitute an impermissible interference with, or usurpation of, federal judicial power. To hold that certain aspects of the court's judicial power are not beyond legislative prescription is not to hold that Parliament possesses a plenary power in this context. Not only may the legislative power itself be subject to certain requirements, but its exercise remains subject to Chapter III generally. Based on the rule established in Chu Kheng Lim,[131] Parliament cannot require the courts to exercise their judicial power in a manner that is inconsistent with the essential character of a court or with the nature of judicial power. The point may be illustrated through consideration of evidence laws and their relationship with Chapter III. Legislative prescription of the rules of evidence has previously been rejected by the High Court as constituting a usurpation of federal judicial power.[132] However, a rule of evidence that merely prescribes or regulates the admission of evidence will not impair 'the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power'.[133] There is a distinct difference, however, if a rule of evidence does in truth impair this curial function, as Isaacs J noted in Williamson v Ah On:
It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly.[134]
For the majority judges in Nicholas, the fact that the discretion to exclude the evidence was retained, despite the removal of a particular fact from consideration in exercising the discretion, contributed to the fact that the section did not offend the separation of judicial power under Chapter III.[135] However, Chapter III also places a specific requirement upon any legislative prescription affecting such implied and incidental powers. That requirement is that neither the Parliament nor the Executive can effectively direct the exercise of judicial power, nor can it attempt to usurp that power. The ultimate test is whether a legislative prescription affecting an implied power of the court would require the court to act in a manner 'which is inconsistent with the essential character of a court or with the nature of judicial power.'[136] Consideration of the actual content of this test, and of its application, marks significant points upon which the judges in Nicholas disagreed.
Chief Justice Brennan adopted a rather technical approach to the consideration of this principal question. He did this by focusing on the fact-finding function of a court in exercising its judicial power to determine guilt or innocence. In considering the essential aspects of judicial power, Brennan CJ referred to the statement he had made, together with Mason, Murphy and Deane JJ, in Fencott v Muller.[137] Their Honours had offered the following comments in order to identify the essential steps that a court is bound to take in exercising judicial power:
The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.[138]
Chief Justice Brennan was influenced by the wide power of the legislature to enact laws of evidence, and considered that s 15X did not impair the judicial function of fact-finding, nor the judicial power in determining guilt or innocence.[139] His Honour took the view that s 15X actually facilitated those functions by promoting the admission of evidence, and considered that even if the discretion had been removed entirely, these functions would not have been affected. This is a very technical approach, and highlights the fact-finding function of the court at the expense of judicial discretion. In doing so, it fails to adequately address the importance of judicial discretion as an essential step in the exercise of judicial power—something which Brennan CJ had earlier supported in Fencott v Muller, and later quoted with support in Nicholas. Brennan CJ's approach can be distinguished by the fact that each of the other majority judges considered the importance of a discretion being retained under the legislation in considering its validity.
For Justice Toohey, the point at which legislation would require a court to act in a non-judicial manner was not entirely clear. His Honour rejected the argument that the effect of s 15X of the Crimes Act 1914 (Cth) on the Rideway discretion required the Court to act in a manner which was inconsistent with its essential character.[140] However, he did indicate a particular instance where a question of an Act's compatibility with Chapter III may arise. In this context, Toohey J stated that:
It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence. Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved.[141]
In adding to this statement, Toohey J referred to his earlier statement in Polyukhovich v Commonwealth.[142] In that case, his Honour had held that Chapter III would be contravened only where a law 'purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power'.[143] The reference by Toohey J to the issue of a fair trial gives rise to the question of whether that right is actually protected through implication under Chapter III. The failure of Toohey J to fully consider whether this was indeed what he meant by those words, however, means that only qualified guidance can be taken from them. Additionally, it needs to be remembered that the impact on the provision of a fair trial is ultimately caused by interference with an aspect of 'judicial power', not with an implied right. This is consistent with the view previously outlined that Chapter III is concerned with protecting the judicial powers of federal courts, rather than individual liberties. The statement by Toohey J does, however, highlight the potential relevance of interference with certain due process rights in considering an Act's compatibility with Chapter III.
Justice Gaudron listed a range of characteristics that she felt were essential to a court in the exercise of judicial power. These characteristics included the following:
equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law.[144]
Attempting to bring these factors together, her Honour added the following statement:
It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.[145]
Though Gaudron J found that s 15X did not offend any of these characteristics, her Honour listed a number of important factors as to why that was not the case.[146] Among these were the fact that the Ridgeway discretion had not been negated, and that several relevant facts had not been excluded from the court's consideration of whether the evidence should be admitted. Included in these facts were: the consequences of the unlawful conduct; the consequences of admitting the evidence; the tendency of the evidence to bring the administration of justice into disrepute; and, whether the accused would have committed an offence but for the illegal conduct of officers.[147] Consequently, Gaudron J was able to make the following finding:
[I]t is clear that it does not prevent independent determination of the question whether that evidence should be excluded or, more to the point, independent determination of guilt or innocence. And so construed, it is also clear that it neither authorises nor requires a court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute.[148]
Justice Gummow, along with the rest of the majority judges, also held that s 15X did not contravene Chapter III. His Honour considered that preservation of a discretion to exclude evidence (apart from on the basis that the law enforcement officers had acted illegally) was significant.[149] Though Gummow J recognised that the case for the accused was made that much harder by the enactment of s 15X, he stated that:
[T]he section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed.[150]
Accordingly, Gummow J held that s 15X did not operate to prescribe the manner of exercise of judicial power.
The judgment of Hayne J is an interesting one, and one that sheds light on various aspects of other judgments in Nicholas. Some of these issues, including whether certain inherent powers are beyond legislative prescription and the reputation of the courts as a test for constitutional validity, have been considered elsewhere. However, in considering the validity of legislation that affects the exercise of judicial power, Hayne J articulated an element to that test based on a distinction between procedural laws, and laws dealing in a substantive manner with the determination of guilt or innocence.[151] This distinction was also directly considered by Brennan CJ and Gummow J.[152] In his judgment, Hayne J made a distinction between legislation which would 'affect only the procedures to be followed in litigation', from legislation which would affect 'the rights of the parties'.[153] While the former was unlikely to offend Chapter III, the latter most probably would. In determining which category legislation fell into, Hayne J offered the following comments:
The distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence is, of course, concerned with substance, not form,[154] and will not always be easy to draw, but it is a distinction of great importance.[155]
For Hayne J, the fact that s 15X did not deal with ultimate issues of guilt or innocence, but simply the reception of certain evidence, and did not deal with selective prosecutions, meant that it did not constitute an impermissible interference in the judicial process.[156] Both Hayne and Gummow JJ did, however, acknowledge the potential for a case to involve changes to evidence or procedure that would constitute such an interference.[157]
The approaches of the majority judges are, not surprisingly, quite different to that of McHugh and Kirby JJ. Certain similarities can be drawn, however, between Gaudron J's consideration of the court's power to prevent an abuse of its processes, and to prevent the administration of justice from falling into disrepute. Additionally, Hayne J's consideration of the inherent powers of the court has some bearing on the approach of the minority judges, despite the fact that his Honour declined to consider whether certain powers were beyond legislative prescription. These similarities should be borne in mind when analysing the minority judgments.
The decision of McHugh J contains a number of general statements of benefit that help illustrate the principal question in determining the validity of legislation in relation to its compatibility with Chapter III. The general limit on legislative power that applies by virtue of Chapter III was described by McHugh J as follows:
[L]egislation that is properly characterised as an interference with or infringement of judicial power, as well as legislation that purports to usurp judicial power, contravenes the Constitution's mandate of a separation of judicial from legislative and executive power.[158]
According to McHugh J, usurpation occurs 'when the legislature has exercised judicial power on its own behalf', whereas infringement occurs 'when the legislature has interfered with the exercise of judicial power by the courts'.[159]
His Honour acknowledged that s 15X did not fall within any of the factual situations involving an impermissible intrusion or interference with judicial power:
Section 15X does not contemplate a 'legislative judgment' against specified individuals, nor does it serve to inflict punishment on specified persons without a judicial trial or to adjudge criminal guilt. Nor does it direct the federal courts not to make a finding concerning rights or duties that an accused person would otherwise be entitled to under the existing law or to change the direction or outcome of pending judicial proceedings.[160]
In this respect, McHugh J was completely in agreement with the majority. Where, however, he adopted an alternative approach to those judges (with the exception of Gaudron J), was in the identification of an additional basis for invalidity. According to McHugh J, s 15X:
direct[s] courts exercising federal jurisdiction to disregard a fact that is critical in exercising a discretion that is necessary to protect the integrity of Ch 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.[161]
It was only once McHugh J came to consider the nature of the discretion itself that he parted company with Gaudron J. In her judgment, Gaudron J had considered the continued ability of a court to consider other relevant facts upon which the discretion to exclude the evidence could be based, thereby protecting the court from an abuse of its process, and its reputation in administering justice. For McHugh J, however, the fact of illegality on the part of the police officers that s 15X had removed from consideration by a court, was so significant in relation to the court's ability to determine whether its processes were being abused or demeaned, that it amounted to a direction that interfered with the exercise of judicial power.[162] In this respect, s 15X was distinct from those statutory provisions commonly found where judicial discretion is regulated by the listing of matters which are required to be taken into account. In contrast to such provisions, s 15X was 'a direction to a court exercising federal jurisdiction that it cannot have regard to a fact that is relevant and often critical in determining whether the court's processes are being demeaned.'[163]
For Kirby J also, s 15X amounted to a direction obliging a court to disregard a significant fact that was relevant to the court's ability to prevent an abuse of its own processes. Consequently, this meant that it amounted to 'an impermissible legislative intrusion upon, or derogation from, the judicial power committed by the Constitution to the courts.'[164] Unlike any of the other members of the court, however, Kirby J also considered that s 15X was too particularised and, in a material sense, was aimed at a limited number of identifiable individuals. On the basis of this fact and the authority in Liyanage v The Queen,[165] his Honour considered that an interference with judicial power had occurred.[166]
The approach taken in this paper towards the implication of guarantees arising out of the separation of judicial power under Chapter III appears at first to be novel. The reality is, however, that its very genesis can already be found in certain judgments of the High Court and, particularly, from the various judgments delivered in Nicholas v The Queen. That an approach based on the 'inherent jurisdiction' of Chapter III courts is closely related to existing approaches to implications drawn from that Chapter, is also reflected in the comments of at least one commentator.[167] Wheeler espouses the view that due process guarantees may be implied by expanding our understanding of 'judicial power' to include the manner in which it is exercised, and by drawing links between the compatibility doctrine and curial due process.[168] In doing so, she briefly considers the significance of inherent jurisdiction in her summation of the judgments of Gaudron J and Deane J in Dietrich. Indeed, she actually refers to inherent jurisdiction in establishing the link between the so-called right of an accused not to be tried unfairly and the implication derived from Chapter III that federal judicial power should be exercised in accordance with the judicial process.[169] While Wheeler accepts that both Justices failed to elaborate upon this link, she offered the following analysis to support their reasoning:
Their ... comments, taken in the context of the case as a whole, suggest, however, that Deane J and Gaudron J would regard the inherent power of a court exercising federal jurisdiction to stay or adjourn proceedings to prevent what would otherwise be an abuse of its process—an unfair trial of a criminal offence—as immune from legislative abrogation. To put matters another way, were Parliament to deprive a Chapter III court of this aspect of its inherent jurisdiction, then an unrepresented accused in the situation of Mr Dietrich would be forced to submit to an unfair exercise of federal judicial power.[170]
These words appear to reflect the view that it is the inherent powers of the court that are protected from legislative abrogation, where their removal or derogation would result in a Chapter III court acting in manner which is incompatible with federal judicial power. This is despite the fact that Wheeler's ultimate claim is that a guarantee of curial due process can and should be implied from Chapter III, rather than the inherent powers of the courts. Her argument, therefore, retains as its centrepiece 'due process', which is simply a generic term used to describe a host of individual rights and guarantees. Thus, Wheeler ultimately espouses a 'rights-based' approach, despite her brief acknowledgement that it is the inherent jurisdiction of the court which is effectively protected through implications drawn from Chapter III. Wheeler's reliance on the compatibility doctrine to provide the link in reasoning between implied guarantees and the exercise of federal judicial power is, however, persuasive. Where the present author departs from Wheeler's approach is in respect of what is actually impliedly guaranteed under Chapter III. Whereas Wheeler would assert that it is due process that is protected, here it is asserted that it is in fact the inherent powers of Chapter III courts that are impliedly guaranteed through the separation of powers.
Finally, an approach based on the implied protection of inherent jurisdiction under Chapter III bears some similarity to approaches that advocate the protection of procedural, as opposed to substantive, guarantees. Such an approach has been advocated by both Winterton[171] and Blackford.[172] Inherent powers are essentially procedural in nature, given their association with the curial 'process'. Consequently, there exists a point of comparison between the views of Winterton and Blackford that any implied guarantees should be limited to procedural guarantees and an approach based on the protection of inherent powers under Chapter III. The latter approach could, however, potentially form the basis upon which further substantive guarantees may be implied. Whether that is likely or desirable is not an issue addressed in this paper. In choosing to consider this matter, however, one would need to address the concerns raised by commentators such as Winterton and Blackford. In addition to their substantive arguments, it would appear that the very nature of inherent powers as 'procedural' tools must affect (at least to some extent) the nature of protection afforded to any individual right to which the exercise of inherent power is directed.
In conclusion, what may be said is that the question of implied guarantees arising from the separation of powers has been dominated by approaches that adopt human rights and freedoms as their centrepiece. Though not surprising, this trend has prevented the consideration of alternative bases for implications under Chapter III, in particular, the inherent powers of federal courts. It may well prove to be that what is protected under the provisions of that Constitutional Chapter is the capacity of the federal courts to protect the integrity, efficiency and fairness of their own processes, as the most basic and fundamental aspect of the judicial process. To unduly interfere with, or remove that capacity of, the courts, could potentially require the courts to act in a non-judicial manner in the exercise of their jurisdiction, and accordingly, could also violate the separation of powers under Chapter III. Whether a constitutionally guaranteed capacity of Chapter III courts to exercise their inherent powers could also involve the implied protection of individual liberties, or would merely be shaped and informed by such matters, remains to be addressed. Yet, what inherent jurisdiction offers this debate is a sound basis for the drawing of further implications, and an approach that more closely reflects the very text and structure of Chapter III itself.
* Lecturer, School of Law, University of Adelaide; PhD candidate, University of Tasmania[.]
1 James Madison wrote in The Federalist No 47, 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'
[2] George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 185.
[3] W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1997) 322; Winterton, above n 2, 187-8; George Williams, Human Rights Under the Australian Constitution (1999) 198.
[4] Fiona Wheeler, 'The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview' (2000) 20 Australian Bar Review 283, 283.
[5] See, eg, David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998).
[6] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 362 (Gaudron J) and 326 (Deane J); Re Tracey; Ex Parte Ryan [1989] HCA 12; (1989) 166 CLR 518, 579 (Deane J); Re Nolan; Ex Parte Young [1991] HCA 29; (1991) 172 CLR 460, 493 (Gaudron J).
[7] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 29 (Brennan, Deane and Dawson JJ); Re Tracey; Ex Parte Ryan [1989] HCA 12; (1989) 166 CLR 518, 580 (Deane J); Re Tyler; Ex parte Foley [1994] HCA 25; (1993) 181 CLR 18, 34 (Deane J); Polyukhovich v Commonwealth (‘War Crimes Act Case’) [1991] HCA 32; (1991) 172 CLR 501, 614–6 (Deane), 684–5 (Toohey J), and 703–4 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 502–3 (Gaudron J).
[8] Leeth v Commonwealth (1992) 174 CLR 455, 483–92 (Deane and Toohey JJ), and 502–3 (Gaudron J); Queensland Electricity Commission v Commonwealth [1985] HCa 56; (1985) 159 CLR 192, 247–8 (Deane J); Kruger v Commonwealth (‘Stolen Generations Case’) [1997] HCA 27; (1997) 190 CLR 1, 94–7 (Toohey J).
[9] See, eg, George Williams, 'Civil Liberties and the Constitution—A Question of Interpretation' (1994) 5 Public Law Review 82, 83.
[10] I H Jacob, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 51; Keith Mason, 'The Inherent Jurisdiction of the Court (1983) 57 Australian Law Journal 449, 458.
[11] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 196 (Brennan CJ), 201 (Toohey J), 216 (McHugh J), 259, 266 (Kirby J), 275–6 (Hayne J).
[12] While the constitutional text alone is recognised as being inadequate for the purposes of constitutional interpretation, it still remains fundamental. As Sir Anthony Mason has observed, 'There is a need to identify other reference points and indicators to supplement the text without deserting it, for fidelity to the text is generally regarded as the foundation of constitutional interpretation, a badge of legitimacy, so to speak': 'Theoretical Approaches to Constitutional Interpretation' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13.
[13] Justice Paul de Jersey, 'The Inherent Jurisdiction of the Supreme Court' (1985) 15 Queensland Law Society Journal 325, 330.
[14] Jacob, above n 10, 25: 'Because it is part of the machinery of justice, the inherent jurisdiction of the court may be invoked not only in relation to the litigant parties in pending proceedings, but in relation also to anyone, whether a party or not, and in respect of matters which are not raised as issues in the litigation between the parties.'
[15] De Jersey, above n 13, 330.
[16] See, eg, s 200 of the Supreme Court Act 1995 (Qld), which provides that the Supreme Court 'shall have the same jurisdiction power and authority as the superior courts of common law and the High Court of Chancery in England'. Differently worded provisions may be found in relation to the Supreme Courts of other states: Supreme Court Act 1970 (NSW) ss 22–24; Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s 16; Supreme Court Act 1935 (SA) s 6; for Tasmania see, Supreme Court Act 1856 (Tas) s 2, Supreme Court Act 1887 (Tas) s 9, Criminal Code Act 1924 (Tas) s 400(3), Australian Courts Act 1828 (Imp) 9 Geo 4, c 83.
[17] See, eg, Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 21 (Dawson J).
[18] See text accompanying nn 53-80.
[19] DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, 240–1 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[20] 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, 266.
[21] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188. See also Williams, above n 3, 202.
[22] See Leslie Zines, The High Court and the Constitution (4th ed, 1997) 171.
[23] [1909] HCA 36; (1909) 8 CLR 330, 357.
[24] Zines, above n 22, 171.
[25] [1956] HCA 10; (1956) 94 CLR 254, affirmed [1957] AC 288 (PC).
[26] Winterton, above n 2, 188.
[27] Ibid.
[28] Ibid.
[29] See Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 629–47.
[30] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1. See also Blackshield and Williams, above n 29, 638–47.
[31] [1996] HCA 24; (1996) 189 CLR 51.
[32] Mason, above n 10, 458; de Jersey, above n 13, 326.
[33] Jacob, above n 10, 23.
[34] De Jersey, above n 13, 326.
[35] Jacob, above n 10, 25.
[36] Ibid 27–8 (citations omitted).
[37] Ibid 51.
[38] Ibid.
[39] Ibid.
[40] P Twist, 'The Inherent Jurisdiction of Masters' [1996] New Zealand Law Journal 351; Jacob, above n 10, 24–5. It must be noted that Jacob actually views the court's inherent jurisdiction as being only a part or an aspect of its general jurisdiction, rather than as incidental or ancillary to it as Twist does. This point is, however, qualified by his assertion that inherent jurisdiction is certainly part of procedural rather than substantive law.
[41] See Twist, above n 40; Jacob, above n 10, 24–5.
[42] Seonaid Abernathy, 'The Status of the District Court' [1990] New Zealand Law Journal 360.
[43] Twist, above n 40, 351; De Jersey, above n 13, 326; Jacob, above n 10, 24; Mason, above n 10, 449.
[44] [1972] HCA 34; (1972) 127 CLR 1, 7.
[45] High Court of Australia Act 1979 (Cth) s 5; Federal Court of Australia Act 1976 (Cth) s 5(2); Family Law Act 1975 (Cth) s 21(2).
[46] De Jersey, above n 13, 326.
[47] Twist, above n 40, 351.
[48] Mason, above n 10, 449–58.
[49] Jacob, above n 10, 32–51.
[50] De Jersey, above n 13, 326–9.
[51] [1989] HCA 46; (1989) 168 CLR 23.
[52] Ibid 27-30 (Mason CJ).
[53] Such an approach had been adopted in the New Zealand case of Moevao v Department of Labour [1980] 1 NZLR 464, 470–1, 473–6, 478–82. Mason CJ quoted from the judgment of Richardson J in his decision in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 29–30.
[54] [1987] HCA 23; (1987) 162 CLR 612, 618.
[55] High Court of Australia Act 1979 (Cth) s 5; Federal Court of Australia Act 1976 (Cth) s 5(2); Family Law Act 1975 (Cth) s 21(2).
[56] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 618.
[57] Ibid 619.
[58] Ibid.
[59] [1998] HCA 41; (1998) 193 CLR 502, 511.
[60] Ibid n 39: cf General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 137; State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, 38–9 (Mason and Wilson JJ), 45 (Brennan J). (Kirby J’s footnote).
[61] [1979] HCA 38; (1979) 143 CLR 1, 16 (Mason J).
[62] Ibid.
[63] See Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 73 (Gaudron J); Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239, 251–2 (Deane, Dawson, Toohey and Gaudron JJ).
[64] [2000] HCA 17; (2000) 201 CLR 226, 240–1 (emphasis added, footnotes omitted).
[65] Ibid 268 (Kirby J) (footnotes omitted).
[66] [1987] HCA 23; (1987) 162 CLR 612.
[67] Ibid 623–4 (Deane J), quoting from the judgment of Bowen CJ in the same dispute: (1986) 12 FCR 267, 272.
[68] Ibid 630–1, quoting from a decision of the Federal Court in Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 241.
[69] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 640 (Gaudron J).
[70] Ibid.
[71] [1989] HCA 45; (1989) 168 CLR 1, 16–17 (Dawson J).
[72] [1989] HCA 46; (1989) 168 CLR 23, 74 (Gaudron J).
[73] Ibid.
[74] [1944] HCA 5; (1944) 68 CLR 571, 589.
[75] [1992] HCA 24; (1992) 176 CLR 239, 252.
[76] Ibid.
[77] DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, 240–1 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[78] See also the decision in ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 (Gleeson CJ, Gaudron and Gummow JJ).
[79] [1944] HCA 5; (1944) 68 CLR 571, 589.
[80] [1992] HCA 24; (1992) 176 CLR 239.
[81] ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 (Gleeson CJ, Gaudron and Gummow JJ).
[82] Williams, above n 9.
[83] D A Smallbone, 'Recent Suggestions of an Implied "Bill of Rights" in the Constitution, Considered as Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal Law Review 254, 267.
[84] [1998] HCA 9; (1998) 193 CLR 173 ('Nicholas').
[85] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19.
[86] Crimes Amendment (Controlled Operations) Act 1996 (Cth).
[87] (1992) 176 CLR 1, 27; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 185 (Brennan CJ), 208 (Gaudron J), 220–1 (McHugh J), 232 (Gummow J).
[88] [1998] HCA 9; (1998) 193 CLR 173, 196 (Brennan CJ), 201 (Toohey J), 216 (McHugh J), 259, 266 (Kirby J), 275–6 (Hayne J).
[89] Per 188–9, 196 (Brennan CJ), 209 (Gaudron J), 216, 224–6 (McHugh J), 258–9, 266 (Kirby J), 275–6 (Hayne J).
[90] Winterton, above n 2, 190, 199.
[91] (1992) 176 CLR 1, 27 ('Chu Kheng Lim').
[92] [1998] HCA 9; (1998) 193 CLR 173, 186. Brennan CJ also added his own statement that '[s]ubject to the Constitution, the Parliament can prescribe the jurisdiction to be conferred on a court but it cannot direct the court as to the judgment or order which it might make in exercise of a jurisdiction conferred upon it'.
[93] (1992) 176 CLR 1, 36–7.
[94] [1991] HCA 32; (1991) 172 CLR 501, 607 (Deane J).
[95] Ibid.
[96] Ibid 703–4.
[97] Ibid 689.
[99] Ibid 486–7.
[100] Gaudron J stated [at 502] that '[i]t is an essential feature of judicial power that it should be exercised in accordance with the judicial process', and that, '... the concept of equal justice—a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such—is fundamental to the judicial process.'
[101] See the decisions of Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.
[102] [1998] HCA 9; (1998) 193 CLR 173, 220.
[103] Ibid 185.
[104] Ibid 188.
[105] Ibid 208–9 (Gaudron J).
[106] Ibid 209.
[107] Ibid 224 (McHugh J), 258 (Kirby J).
[108] [1995] HCA 66; (1995) 184 CLR 19, 31.
[109] [1998] HCA 9; (1998) 193 CLR 173, 226 (McHugh J).
[110] Ibid 272 (Hayne J).
[111] Ibid 275.
[112] [1995] HCA 66; (1995) 184 CLR 19, 34.
[113] [1998] HCA 9; (1998) 193 CLR 173, 197 (Brennan CJ).
[114] Ibid 202 (Toohey J).
[115] See, eg, ibid 191 (Brennan CJ), 202 (Toohey J), 210–11 (Gaudron J), 238 (Gummow J), 273 (Hayne J).
[116] On proportionality see Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668; Jeremy Kirk, 'Constitutional Guarantees, Characterisation and the Concept of Proportionality' [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1, H P Lee, 'Proportionality in Australian Constitutional Adjudication', in Lindell (ed), above n 2, 126.
[117] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 188–9 (Brennan CJ).
[118] See, eg, ibid 234–8 (Gummow J).
[119] Ibid 188–9 (Brennan CJ).
[120] See Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 n 67 (Brennan CJ).
[121] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 190 (Brennan CJ).
[122] Ibid 208 (Gaudron J).
[123] Ibid.
[124] Ibid.
[125] Ibid 207.
[126] Ibid 209.
[127] Ibid 272 (Hayne J).
[128] Ibid.
[129] Ibid 276.
[130] Ibid.
[131] (1992) 176 CLR 1, 27.
[132] Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1, 12 (Knox CJ, Gavan Duffy and Starke JJ); Williamson v Ah On [1926] HCA 46; (1926) 39 CLR 95, 122 (Higgins J).
[133] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 189 (Brennan CJ).
[134] [1926] HCA 46; (1926) 39 CLR 95, 108.
[135] [1998] HCA 9; 193 CLR 173, 191.
[136] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).
[137] (1983) 152 CLR 570, 608.
[138] Ibid; quoted in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 187 (Brennan CJ).
[139] [1998] HCA 9; (1998) 193 CLR 173, 191.
[140] [1998] HCA 9; (1998) 193 CLR 173, 202 (Toohey J).
[141] Ibid.
[142] [1991] HCA 32; (1991) 172 CLR 501, 689.
[143] Ibid.
[144] [1998] HCA 9; (1998) 193 CLR 173, 208–9 (Gaudron J).
[145] Ibid 209.
[146] Ibid 210.
[147] Ibid.
[148] Ibid 211.
[149] Ibid 238 (Gummow J).
[150] Ibid.
[151] Ibid 277–8 (Hayne J).
[152] Ibid 191 (Brennan CJ), 234–7 (Gummow J).
[153] Ibid 278 (Hayne J).
[154] Ibid n 410: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). (Hayne J’s footnote).
[155] Ibid 278 (Hayne J).
[156] Ibid 277.
[157] Ibid 278 (Hayne J), 237 (Gummow J).
[158] Ibid 220 (McHugh J).
[159] Ibid.
[160] Ibid 222 (McHugh J).
[161] Ibid.
[162] Ibid 224–5.
[163] Ibid.
[164] [1998] HCA 9; (1998) 193 CLR 173, 266 (Kirby J).
[165] [1967] 1 AC 259.
[166] [1998] HCA 9; (1998) 193 CLR 173, 262–4 (Kirby J).
[167] 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.
[168] Ibid 265–6.
[169] Ibid 265.
[170] Ibid 265–6.
[171] Winterton, above n 2, 207.
[172] Russell Blackford, 'Judicial Power, Political Liberty and the Post-Industrial State' (1997) 71 Australian Law Journal 267, 283.
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