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A decade ago, members of the High Court recognised an implied guarantee of procedural due process in the exercise of federal judicial power. Polyukhovich v Commonwealth,[1]
Leeth v Commonwealth[2] and Chu Kheng Lim v Minister for Immigration[3] were the leading cases.[4] Thus in Lim's Case, Brennan, Deane and Dawson JJ said that the Commonwealth Parliament cannot require or authorise a Chapter III court 'to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.'[5] Opinions about the content of this due process principle varied. Most judges accepted that federal judicial power must be exercised consistently with the rules of natural justice.[6] Deane and Gaudron JJ went further, however. They argued that the due process principle guaranteed the fair trial of a federal offence,[7] a requirement that, among other things, would prevent abolition of the inherent power of a court to stay an unfair criminal trial.[8] In addition, they accepted that due process prohibited the application by courts of retroactive federal criminal laws[9] and required 'equal justice' in the exercise of federal judicial power.[10] These last two requirements were controversial and the High Court was divided over their existence.[11] In particular, commentators noted that they seemed to control the substantive law applied by a Chapter III court.[12]These developments occurred at a time when the High Court was taking an expansive approach to express and implied constitutional rights and freedoms as demonstrated by cases such as Street v Queensland Bar Association[13] and Australian Capital Television Pty Ltd v Commonwealth.[14] The constitutional climate today, however, has changed. Express and implied rights are no longer at the forefront of constitutional interpretation[15] and the High Court has sought to confine the scope of some of its earlier findings in this area.[16] Decisions such as Re Wakim; Ex parte McNally[17] and extra-judicial comments by members of the Court, notably Chief Justice Gleeson, have led to claims of a resurgence of legalism in constitutional reasoning.[18] As Professor Leslie Zines has shown, this 'new legalism'[19] is not necessarily a uniform trend. In particular, some recent High Court decisions are consistent with the 'more purposive or policy oriented form of jurisprudence'[20] that typified the Mason Court.[21] At the very least, however, many of the Court's judgments 'have become more difficult, technical and complicated.'[22]
In this uncertain legal environment, this paper explores the High Court's recent treatment of the due process principle. What have members of the High Court said about the principle? What developments have occurred since the early cases? As I show, the due process principle continues to be endorsed by the High Court, at least in its natural justice heartland. This is not surprising as the principle is not a radical one. It is simply an aspect of the increasingly influential doctrine of the separation of federal judicial power from legislative and executive power. The real issue is the scope of the principle and the controls it places on the way in which judicial power is exercised. In this regard, recent developments indicate that the due process principle is capable of reaching into non-federal jurisdiction and the common law to insulate key features of the Australian judicial system against governmental interference. However, the retirement of Gaudron J — for many years the High Court's chief supporter of due process — raises questions about the extent to which the outer limits of the principle will continue to be explored.
This paper is structured as follows. Part II briefly surveys the separation of federal judicial power as a prelude to an analysis of the interpretative basis of the due process principle. This analysis emphasises the secure foundation on which the principle is based. Part III then turns to recent developments, focusing on the scope of due process. The potential reach of the principle's core requirement that federal judicial power must be exercised consistently with the rules of natural justice is explored, primarily through an examination of the judgment of Gaudron J in Ebner v Official Trustee in Bankruptcy.[23] Recent insights into the evolution of the principle beyond natural justice are also explored.
The separation of federal judicial power developed by the High Court centres on two related prohibitions. First, that federal judicial power cannot be exercised by bodies other than the 'courts' identified in s 71 of the Constitution (the 'first limb' of the separation doctrine)[24] and, secondly, that federal courts cannot exercise legislative or executive functions unless those functions are incidental to judicial power (the 'second limb' of the separation doctrine).[25]
Sections 1, 61 and 71 of the Constitution read with the general provisions of Chapter III (ss 71–80) provide the textual foundation for the separation doctrine. The Constitution does not expressly incorporate the separation of powers, however.[26] The doctrine is an implication from the text and structure of the Constitution when interpreted in light of the traditional legal values of judicial independence and impartiality.[27] From a constitutional perspective, these values are 'vital for the rule of law, and integral to the federal state.'[28] As Dixon J said of the Constitution in Australian Communist Party v Commonwealth:
[it] is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.[29]
As I have explained elsewhere,[30] the first limb of the separation doctrine specifically promotes the independent and impartial exercise of judicial power by directing such power away from the legislative and executive branches to 'courts' (s 71) including 'federal courts' whose judges cannot be arbitrarily removed from office (s 72). The second limb of the doctrine reinforces this goal by distancing federal courts from the activities of the political branches.[31]
Two features of the separation of federal judicial power are of particular significance in understanding its role in giving effect to the due process principle. First, the separation doctrine is deeply embedded in the High Court's conception of the Constitution.[32] The doctrine, and the rule of law values it serves, was recognised as early as 1909.[33] Both limbs of the separation doctrine are now well-established.[34] The strength of the separation of powers has fluctuated over time, but it is presently in a period of expansion. Cases such as Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[35] and Re Wakim; Ex parte McNally[36] illustrate its present force.
The other feature of the separation of federal judicial power of importance here is its purposive nature. The High Court has recognised that the doctrine operates to promote the independent and impartial exercise of judicial functions and, more broadly, the supremacy of law over arbitrary power.[37] That the doctrine serves these objectives, and is not an end in itself, also reflects our legal traditions. Judicial power has historically been exercised by courts because of a belief that certain functions, like the trial of a person for a criminal offence, are best performed in a manner that is detached from government and free from bias.[38] This in turn helps preserve the ideal of 'freedom under law'.[39] As five judges said in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs: '[t]he separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges.'[40]
As the next section shows, the rule of law objectives served by the separation of federal judicial power and the idea of due process are closely linked.
The cases disclose two alternate theories for derivation of the due process principle. One theory, espoused by Deane J, is based on the first limb of the separation doctrine.[41] The other theory, advocated by Gaudron J, is based on the second limb.
In Polyukhovich and Leeth, Deane J argued that to give effect to the first limb of the separation doctrine, it was not enough that federal judicial power was exclusively vested in Chapter III courts. The rule of law objectives supporting this requirement would only be met if 'the judicial power so vested is exercised by those courts in accordance with the essential attributes of the curial process'.[42] As his Honour pointed out, 'to construe Ch III of the Constitution as being concerned only with labels and as requiring no more than that the repository of judicial power be called a court would be to convert it into a mockery, rather than a reflection, of the doctrine of separation of powers.'[43] Thus, Deane J's approach was explicitly based on substance over form and the purposive character of the separation doctrine.[44]
By contrast, Gaudron J consistently argued that it was part of the definition of judicial power in s 71 of the Constitution that it must be exercised in accordance with the 'judicial process'. Under this approach, a function not exercised in accordance with the judicial process is not judicial power and thus, under the second limb of the separation doctrine, cannot be exercised by a federal court[45] or invested by the Commonwealth in a state court.[46] Of course, the Constitution does not define judicial power. As a consequence, the definitions of judicial power developed by the High Court have drawn largely from the historical functions of courts. Gaudron J's approach to the due process principle is an extension of this mode of analysis.[47] Thus, in Nicholas v The Queen,[48] discussed below, her Honour said that:
[j]udicial power is not adequately defined solely in terms of the nature and subject matter of determinations made in exercise of that power. It must also be defined in terms that recognise it is a power exercised by courts and exercised by them in accordance with the judicial process.[49]
It is unclear which of these approaches has prevailed. Many High Court judgments that discuss the due process principle do not explore the foundations of the requirement. Arguably, this is indicative of confidence in the legitimacy of the implication either way. On both views, the implication is a modest one. Indeed, on Gaudron J's view, it is no more than what judges have been doing since Griffith CJ in Huddart, Parker and Co Pty Ltd v Moorehead[50] first attempted to define judicial power for the purposes of s 71. As Christine Parker has explained, all that Gaudron J has done is insist that judicial power is characterised not only by a particular functional outcome (for example, the conclusive determination of disputes about existing legal rights[51]) but also by the process by which that outcome is achieved (such as impartially and having heard both sides).[52]
Despite the persuasiveness of Gaudron J's view, I prefer that of Deane J. It is notorious that the High Court has been unable to frame a universal definition of judicial power. Experience has shown that the terms 'legislative', 'executive' and 'judicial' must largely be defined by reference to historical and social practice considered in light of the general purposes of the separation doctrine.[53] In this context it seems unwise to place further emphasis on the abstract meaning of judicial power. By contrast, Deane J's approach goes to the heart of the matter by explicitly invoking the values served by vesting federal judicial power in Chapter III courts. It too is a modest and persuasive implication, insisting that the separation doctrine is concerned with 'who' is given judicial power because of an ultimate concern with 'how' that power is exercised.[54] A further reason for preferring Deane J's approach is that the second limb of the separation doctrine has not historically been as stable as the first. In the 1970s and 1980s it appeared that the High Court might overturn the second limb and replace it with an incompatibility test.[55] As Professor George Winterton has observed, this would not be fatal to Gaudron J's approach.[56] Williams J's dissent in the Boilermakers' Case[57] and Kable[58] show that functions exercised in a non-judicial manner may be incompatible with judicial power. Nonetheless, the first limb of the separation doctrine provides a more secure foundation for the due process principle.
On either view, it is important to bear in mind the basis of the due process principle when considering its scope and application. The 'due process' label, although convenient, can obscure the implication's foundations in the separation doctrine and suggest unwarranted parallels with United States due process jurisprudence.[59] When the objects and purposes of the exclusive vesting of federal judicial power in Chapter III courts are examined, however, it is evident that whatever else due process may mean, judges in federal jurisdiction must resolve disputes by legal reasoning — in most situations by finding the facts and applying the relevant law.[60] In addition, the rules of natural justice must be observed.[61] These are the core due process requirements, for unless judges find facts and apply law impartially and having heard both sides, the constitutional rationale for investing judicial power in courts is significantly undermined.[62]
What then is the present status of the due process principle? The High Court could have chosen to retreat from the early cases. The due process principle was not essential to the majority decisions in Polyukhovich, Leeth and Lim’s Case.[63] The principle featured in the majority judgments in Kable but a conservative court might decide to interpret this controversial case narrowly.
High Court judgments have continued to recognise the due process principle, however. As a consequence, the legitimacy of the principle — whether based on the Deane J or Gaudron J view — must surely be regarded as settled. In a speech in 2001, Justice McHugh claimed that '[f]ew would now doubt that Ch III protects some procedural rights' and described the passage from Lim's Case quoted at the start of this paper as supported by authority.[64] The four recent cases discussed below underscore this assessment. They are Nicholas,[65] Bass,[66] Ebner[67] and Cameron v The Queen.[68] The first three cases are discussed in the context of the general notion of due process and its operation in its natural justice heartland. The fourth case, Cameron, shows that even in the absence of Gaudron J there may be continuing support from some members of the High Court for the idea that federal judicial power must be exercised in accordance with 'equal justice'.
In Nicholas, decided in 1998, Brennan CJ, Toohey, Gaudron and Gummow JJ in separate majority judgments each acknowledged the due process principle.[69] The case concerned the validity of s 15X of the Crimes Act 1914 (Cth). Section 15X had been enacted in 1996 in response to the High Court's decision on entrapment in Ridgeway v The Queen.[70] Ridgeway found that courts have a discretionary power, exercisable on public policy grounds, to exclude evidence of an offence, or an element of an offence, if law enforcement officers were unlawfully involved in its commission. Section 15X regulated this discretion in federal drug prosecutions by providing that if certain conditions were met, a court was to disregard the fact that a law enforcement officer had committed an offence in bringing the drugs into Australia. Thus, s 15X eliminated a ground for the exercise of the discretion. Section 15X only applied to importations organised prior to its commencement.
It was found that s 15X was valid and did not infringe Chapter III. In so concluding, the majority emphasised its limited effect. In particular, s 15X simply widened the facts potentially before a court and did not interfere with the determination of guilt or innocence in individual cases.[71] Several overlapping Chapter III arguments were rejected in reaching this conclusion, including a due process submission that s 15X required a court to act in a manner contrary to the essential character of a court or the nature of judicial power. The various arguments before the Court were difficult to separate and possibly for this reason the judges did not specifically discuss the due process principle at length. Gaudron J nonetheless took the opportunity to restate her broad view of the scope of the implication:
In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure 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.[72]
She added: '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.'[73]
Subsequently in Bass,[74] the due process principle was endorsed in a joint judgment of six members of the Court. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said that judicial power involved 'proceedings conducted in accordance with the judicial process.' This required 'the application of the relevant law to facts as found' and that 'parties be given an opportunity to present their evidence and to challenge the evidence led against them.'[75] The passage from Gaudron J's judgment in Nicholas quoted above was among the authorities cited.[76]
Bass did not involve the validity of legislative or executive action. However, the majority used the due process principle to show why answers to questions formulated by a single judge of the Federal Court for consideration by the Full Court of that Court should be set aside. No facts had been agreed or found in the case. Nonetheless, the answers given by the Full Court were based on certain factual assumptions made by it. In these circumstances, the High Court said the Full Court's answers had a hypothetical quality which did not 'assist the efficient administration of justice.'[77] In addition, to let the answers stand 'would be to sanction departure from the judicial process'. This was because there would be 'a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.'[78] Kirby J dissented from this finding, arguing that the procedures adopted by the Federal Court had been an appropriate response to complex litigation. He pointed out that the parties were given ample opportunity to object to the course taken by the Federal Court, but had not done so prior to reaching the High Court.[79]
Reflecting on these cases, neither Nicholas nor Bass significantly develops the due process principle. Each adds to our understanding of it, however. In particular, Nicholas suggests that the High Court regards Parliament as having a legitimate role, consistent with the separation of powers, in regulating the rules of evidence that courts apply in federal jurisdiction. In finding s 15X of the Crimes Act 1914 (Cth) valid, several judges emphasised that evidence has traditionally been regarded as an appropriate area for legislative intervention.[80] On the other hand, these remarks did not preclude the possibility that specific evidentiary provisions might breach Chapter III by requiring a court to act contrary to the judicial process or by usurping judicial power in some way.[81] The fact that s 15X did not impinge on a court's determination of guilt or innocence in specific cases was a significant factor in its validity.[82]
In contrast to Nicholas, the issues in Bass as perceived by the majority fell directly within the core of the due process requirement. The principle that a federal court cannot affect rights 'by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case'[83] can be seen as an aspect of the hearing limb of natural justice.[84] Thus, Bass underscores the strength of the due process requirement in this area. Later, in Re Refugee Review Tribunal; Ex parte Aala,[85] Gaudron and Gummow JJ reiterated that 'procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in [a] federal court' adding that in this regard 's 75(v) operates to maintain s 71 of the Constitution.'[86] It is significant, however, that the joint judgment in Bass did not comment on the broader reach of the due process principle or, for example, specifically endorse all that Gaudron J said in Nicholas about its scope. It is unlikely the six judges would have agreed, especially in relation to Gaudron J's insistence that federal judicial power must be exercised in such a way as to 'ensure equality before the law'.[87]
Whatever the eventual limits of the due process principle, it would be a mistake to assume that its natural justice application — on which all judges seem to concur — is of limited significance to Australian law. The third recent case for discussion, Ebner,[88] shows the opposite is the case.
In Ebner, the High Court heard two appeals concerning the principles governing judicial disqualification for apprehended bias in situations where it is claimed that a judge has some form of pecuniary interest in a case. One appeal was from a decision in federal jurisdiction, the other in non-federal jurisdiction. Gleeson CJ, McHugh, Gummow and Hayne JJ in a joint judgment said the test to be applied was whether 'a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question'.[89] They denied there was a separate rule that automatically required a judge with a 'direct pecuniary interest' in the outcome of litigation to step aside.[90] Callinan J agreed.[91] Gaudron J also agreed, but identified specific situations where a judge's pecuniary interest would inevitably result in disqualification under the reasonable apprehension of bias test.[92] Kirby J disagreed, arguing that the reasonable apprehension of bias test operated in parallel with a separate rule requiring the automatic disqualification of any judge with 'a direct pecuniary interest in the outcome of the proceedings.'[93]
The joint judges and Callinan J approached these issues from the perspective of the common law. They did not discuss the Constitution. However, both Gaudron J and Kirby J regarded the Constitution as relevant. In particular, Gaudron J found that the principles of impartiality under consideration were 'constitutional requirements'[94] whether federal or non-federal jurisdiction was concerned. As in Nicholas, she reasoned that impartiality and the appearance of impartiality were essential features of federal judicial power. It followed that Chapter III impliedly guaranteed 'that matters in federal jurisdiction are determined by a court constituted by a judge who is impartial and who appears to be impartial.'[95] Kable then transmitted this guarantee to non-federal jurisdiction. Invoking Kable, Gaudron J said that the need to uphold public confidence in state courts as repositories of federal judicial power required 'they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction.'[96] Territory courts were in the same position because they too could exercise federal judicial power.[97] Thus, she concluded that Chapter III 'guarantee[s] impartiality and the appearance of impartiality throughout the Australian court system.'[98]
Applying this reasoning to the questions before her, Gaudron J found that the common law reasonable apprehension of bias test conformed to the Constitution's impartiality standards.[99] However, in her opinion these standards demanded a strict approach to the necessity exception to the apprehended bias test. The exception did not arise on Gaudron J's view of the facts in Ebner, but influenced by constitutional considerations she expressed a narrow view of its scope:
[N]otions of necessity should be resorted to only in a case where, if the judge in question does not sit, a court cannot be constituted to hear and determine the matter in issue. Constitutional requirements cannot yield to expediency or convenience. Certainly that is so with respect to the requirements of Ch III of the Constitution.[100]
By contrast, Kirby J's discussion of the 'implied constitutional requirement of due process of law'[101] was more limited than that of Gaudron J. He seems to have shared the gist of Gaudron J's views, stating that:
in my view, in Australia, the ultimate foundation for the judicial requirements of independence and impartiality rests on the requirements of, and implications derived from, Ch III of the Constitution. And it does as much in the case of a State Supreme Court as it does in a federal court.[102]
Kirby J declined to comment further, however, saying the parties had not argued the case as a constitutional one. Thus, he analysed the issues in terms of the common law without direct reference to constitutional requirements.
Despite the other judges in Ebner adopting a common law approach, Gaudron J's view that the rules governing judicial disqualification for bias in Australia are constitutional requirements is surely correct in federal jurisdiction.[103] Under the due process principle, all judges would agree that federal judicial power must be exercised, both in actuality and appearance, in an impartial manner.[104] A number of interlocking rules and institutional arrangements help preserve public confidence in judicial impartiality.[105] But on any view, if judicial power is to be exercised with confidence in its complete detachment, a judge must step aside from a case when actual or apprehended bias is established. Significantly, there is support for Gaudron J's conclusion in earlier cases. In Grollo v Palmer,[106] Gummow J said that 'the rules as to reasonable apprehension of bias in their application to the courts have, at their root, the doctrine of the separation of the judicial from the political heads of power.'[107] In Gummow J's opinion,[108] the Privy Council in the Boilermakers' Case had understated matters when it observed that the principle that makes the union of the functions of actor and judge 'appear contrary to natural justice' was 'not remote from that which inspires the theory of the separation of powers.'[109]
Judicial disqualification for bias thus provides a further illustration, along with the law of defamation considered in Lange v Australian Broadcasting Corporation,[110] of a situation in which the common law must conform to the Constitution.[111] Alternatively (although it may amount in substance to the same thing) it may be that the general law of apprehended bias should now be seen as 'an attribute of the judicial power of the Commonwealth' with its source directly in Chapter III of the Constitution.[112] In Ebner, Gaudron J noted that the High Court had developed the reasonable apprehension of bias test 'by reference to common law principles and without regard to ... the Constitution.'[113] Her conclusion that the test 'properly reflects the requirement of Ch III'[114] is not surprising, however. Chapter III has long been read in light of the common law. For example, and as already noted, the meaning of judicial power in s 71 has been strongly influenced by the historical functions of English and colonial courts.[115]
Nonetheless, the introduction of a constitutional standard may lead to development of a stricter doctrine of apprehended bias in specific respects. Gaudron J's discussion of the necessity exception in Ebner provides one possible example. The issue of waiver of bias may provide another. Professor Enid Campbell has suggested that if impartiality and the appearance of impartiality are constitutionally guaranteed in federal jurisdiction, then arguably the Constitution 'does not allow disqualifying causes to be waived by parties.'[116] She points out that the rules governing judicial disqualification for bias exist to maintain public confidence in the judicial process, not simply to benefit individual litigants.[117] Gaudron J did not discuss waiver in Ebner, but she recognised that the purpose of Chapter III impartiality was to promote public confidence in the judiciary.[118] On this basis, and bearing in mind Gaudron J's comments in Ebner concerning the scope of the necessity exception ('[c]onstitutional requirements cannot yield to expediency or convenience'[119]) there is logical force in Professor Campbell's suggestion.[120]
Does this general reasoning extend to non-federal jurisdiction, however? Gaudron J's view that Kable transmits to the states the impartiality limb of the due process principle is consistent with the finding in that case that the Community Protection Act 1994 (NSW) was invalid. In Kable, Gaudron, McHugh and Gummow JJ held that under Chapter III neither the Commonwealth nor the states can 'undermine'[121] the constitutionally ordained role of state courts as recipients of federal judicial power by giving them functions 'incompatible with'[122] or 'repugnant to'[123] the exercise of such power.[124] The Community Protection Act 1994 (NSW) was accordingly invalid because the function it purported to confer on the Supreme Court of New South Wales (making a preventive detention order in relation to a single named individual) was liable to weaken public confidence in the impartiality of the Court and required it to act contrary to traditional judicial process.[125] Several specific features of the Community Protection Act 1994 (NSW) contributed to this outcome, including its ad hominen nature, the basis on which a detention order was to be made and the evidentiary rules to be applied. It is hard to believe, however, that if a state legislated to impair the operation of the reasonable apprehension of bias test in state jurisdiction that a different result would follow.[126] Thus, unless a future High Court seeks to confine Kable to its facts or limit its effect on some other basis, it seems that judicial impartiality is, as Gaudron J and Kirby J suggest, an entrenched requirement of both federal and state jurisdiction.[127] The extension of this to the territories turns on the unresolved question whether territorial courts exercise, at least in part, federal jurisdiction.[128] But if they do, as Gaudron J believed, the Kable incompatibility doctrine must apply to them.[129]
The finding that 'Ch III of the Constitution operates to guarantee impartiality and the appearance of impartiality throughout the Australian court system'[130] clearly has significance beyond the rules governing actual and ostensible bias. As already noted, many other rules and institutional arrangements contribute to actual and perceived judicial impartiality. Examples include guaranteed judicial tenure and conditions of service,[131] adequate court funding[132] and judicial control over 'the assignment of judges, court listings, and sittings'.[133] Impartiality is also promoted by judicial immunity from 'actions undertaken or words spoken in the course of carrying out judicial duties'[134] and even the principle that, save in exceptional circumstances, judicial proceedings take place in public.[135] Whether and to what extent these and related rules and practices have a constitutional dimension in federal and non-federal jurisdiction must be an open question.
In relation to judicial tenure, the question whether states and territories can continue to use the services of acting judges consistently with the principles in Kable has been much discussed.[136] The statements of Gaudron J and Kirby J in Ebner squarely raise this issue because they were there concerned with individual judicial impartiality, rather than the grant of functions to a court potentially incompatible with such impartiality. There are strong arguments that the use of acting judges is inconsistent with public confidence in judicial impartiality.[137] On the other hand, as the Federal Court recognised in North Australian Aboriginal Legal Aid Service Inc v Bradley,[138] there are barriers to the due process principle affecting state and territorial judicial tenure.[139] In particular, the High Court recently held in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[140] that appointments to the Supreme Court of the Australian Capital Territory are not governed by s 72 of the Constitution. Thus on the facts of the case it was found that the use of an acting judge was not invalidated by that provision.[141] In her majority judgment in Eastman, Gaudron J noted that if territory courts exercise federal jurisdiction, a question might arise whether Kable limits 'the manner in which [such a court] is constituted before federal jurisdiction can be vested in it'.[142] She did not develop this point. However, a finding that due process prevents the states and territories from appointing acting judges would require the High Court to revisit the outcome in Eastman. It would also deepen Kable-based incursions into conventional understandings associated with the requirement that the Commonwealth must take a state court 'as it finds it' when investing federal jurisdiction.[143]
If the High Court declined to recognise a general constitutional prohibition on state and territory acting judges, it is possible that due process-based challenges to particular acting appointments in specific circumstances may still be open. Although not directly concerned with the situation of acting judges, the forthcoming decision of the High Court in North Australian Aboriginal Legal Aid Service Inc v Bradley[144] may cast light on some of these issues.
In summary, the due process principle continues to feature in High Court judgments and should now be regarded as a settled implication from Chapter III. Even if its scope is confined to what I have termed its 'heartland' area of operation, its potential impact on the Australian legal system is significant. The discussion of Ebner has fleshed out some of these potentialities in relation to the impartiality limb of the natural justice obligation. However, the natural justice hearing rule and the basic requirement that courts proceed by finding facts and applying the law are replete with similar potentialities.[145]
At the start of this paper it was noted that in the early due process cases, Deane J and Gaudron J argued that the due process principle had several extended applications. They said it guaranteed the fair trial of a federal offence, prohibited the application by courts of retroactive federal criminal laws and required 'equal justice' in the exercise of federal judicial power. None of these applications has been decisively accepted or rejected by the High Court. Moreover, since the first half of the 1990s, case law concerning them has been sparse.
Of the three, the notion that there is an implied guarantee of a fair trial of a federal offence has the greatest prospect of future development. Elsewhere I have shown that there are strong links between key elements of this idea and the requirement that federal judicial power must be exercised consistently with the rules of natural justice.[146] Speaking extra-judicially, Justice McHugh has directly supported the fair trial guarantee.[147] Kirby J has also kept its acceptance alive in dicta in recent cases.[148]
By contrast, the retroactivity and equal justice manifestations of the due process principle espoused by Deane J and Gaudron J in Polyukhovich and Leeth attracted opposition at the time from within the Court.[149] Following Gaudron J's retirement in early 2003, one might have thought these implications would recede from view. In particular, the retroactivity guarantee has not been endorsed by any member of the current High Court. However, it is possible that the equal justice due process requirement may survive in some form given recent comments of McHugh J in Cameron.
Cameron was an appeal by a prisoner against the sentence imposed by the District Court of Western Australia. The prisoner had pleaded guilty to possession of a prohibited drug with intent to sell/supply contrary to the Misuse of Drugs Act 1981 (WA). As the offence occurred in a 'Commonwealth place' under s 52(i) of the Constitution (Perth Airport), the District Court sentenced the prisoner in federal jurisdiction. The question before the High Court was whether the sentencing judge had erred in not sufficiently reducing the sentence in light of the prisoner's guilty plea. Gaudron, Gummow and Callinan JJ, with Kirby J concurring, found in favour of the prisoner. McHugh J dissented taking a different view about the timing of the prisoner's guilty plea.
In their judgments, all members of the Court discussed how the practice of 'discounting' the sentence of a defendant who pleads guilty should be reconciled with the principle that 'a convicted person may not be penalised for having insisted on his or her right to trial'[150] (that is, for having pleaded not guilty).[151] In this regard, it was recognised that courts should generally proceed in a non-discriminatory way in exercising their sentencing discretion.[152] The case was not argued as a constitutional one, but in a passage under the heading 'Federal jurisdiction', McHugh J seemingly elevated this discussion of non-discrimination in sentencing practice to constitutional status. He said:
It is ... one thing for courts, exercising State jurisdiction, to give a discount for a bare plea of guilty even though it results in persons who plead guilty receiving shorter sentences than persons in similar circumstances who plead not guilty. But it is another matter whether, consistently with the exercise of the judicial power of the Commonwealth, courts exercising federal jurisdiction can give 'discounts' in such cases. If there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth. And it is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that one group has been convicted on pleas of guilty and the other group has been convicted after pleas of not guilty.[153]
Curiously, McHugh J did not cite Leeth for this proposition.[154] Kirby J noted that Leeth had been raised in argument,[155] but he declined to consider the point noting it was not formally before the Court as a ground of appeal.[156] For the same reason, McHugh J concluded that 'whether the discount principle applies in federal jurisdiction must ... be left for another day.'[157] The remaining judges in Cameron were silent on this aspect of the case.
It is hard to know what to make of the quoted passage from McHugh J's judgment in Cameron, particularly as it seems contrary to his position in Leeth.[158] Leeth concerned the validity of Commonwealth legislation that required a court sentencing a federal offender to set a non-parole period according to the law of the state or territory where the offender was convicted. The relevant state and territory laws were not the same. Accordingly, persons convicted of the same federal offence in different parts of the country could have different non-parole periods. McHugh J was in the majority that upheld the legislation. Deane and Toohey JJ dissented, finding the legislation infringed a guarantee of equality implied from the Constitution as a whole.[159] They did not need to consider a separate argument that the legislation violated Chapter III.[160] Deane and Toohey JJ nonetheless accepted that federal judicial power must generally be exercised in a non-discriminatory manner.[161] Gaudron J also dissented, but relied on Chapter III. She said that 'equal justice ... is fundamental to the judicial process.' In her opinion the legislation infringed the due process principle by directing a court to exercise federal jurisdiction in a discriminatory fashion.[162]
It has been widely assumed that the joint judgment of Mason CJ, Dawson and McHugh JJ in Leeth rejected both the broad, generalised equality guarantee applied by Deane and Toohey JJ and the narrower equal justice manifestation of the due process principle applied by Gaudron J.[163] In particular, Mason CJ, Dawson and McHugh JJ seemed to reject Gaudron J's approach on the basis that it amounted to a restriction on the substantive law to be applied in federal jurisdiction, as opposed to a control on the manner in which federal judicial power is exercised.[164] The discrete basis upon which the fourth member of the majority, Brennan J, dealt with the case meant these were not majority findings, however. Subsequently the existence of the wider equality guarantee was rejected by a majority in Kruger.[165] By contrast, McHugh J's judgment in Cameron suggests he regards the narrower implication as surviving in some form consistently with the decision on the facts in Leeth and the joint majority judgment in that case.[166] As has been seen, Gaudron J remained committed to the 'equal justice' due process requirement throughout her time on the Court.[167] Kirby J may also support it.[168]
More recently, in Putland v The Queen[169] a majority of the High Court (Gleeson CJ and Gummow, Callinan and Heydon JJ) rejected an argument that s 68 of the Judiciary Act 1903 (Cth) could not 'pick up' a Northern Territory provision enabling a court to set an aggregate sentence where an offender had been convicted of two or more offences joined in one indictment. The claim that this application of s 68 of the Judiciary Act would result in unconstitutional discrimination between persons convicted of the same federal offence — not all states and territories had such an aggregate sentencing provision — was quickly rejected on the authority of Leeth.[170] The majority did not discuss the reasoning in Leeth, however, or specifically elaborate upon their conclusion.[171] As a result, whether they have any sympathy for the views expressed by McHugh J in Cameron is unclear.
There are good reasons for accepting that the due process principle requires a degree of procedural equality in the exercise of federal judicial power and this may be what McHugh J had in mind in Cameron. After all, procedural equality is a key concern of the rules of natural justice.[172] In addition, it is probably fair to say that courts have historically sought to exercise their discretionary powers in a consistent and non-arbitrary way, albeit that our notions of what constitutes non-discrimination have evolved over time with social change. Bearing in mind the origins of the due process principle in the rule of law rationale for the exclusive vesting of certain functions in courts, there may be justification for a form of due process guarantee that, as Gaudron J claimed in Kruger, prevents 'the conferral on courts of discretionary powers which are conditioned in such a way that they must be exercised in a discriminatory manner.'[173] The problem though is how to set boundaries on this notion to prevent due process expanding into an unprincipled form of judicial merits review of the activities of Parliament. After all, the separation of powers also obliges the courts to recognise the authority of the elected Parliament.[174]
In Roberts v Bass,[175] Kirby J remarked that the implied guarantee of 'due process in judicial proceedings ... [is] still in the course of evolution.'[176] Moreover, the constitutional implication of 'judicial impartiality' in Ebner had, in his words, 'only just begun ... [its] journey to acceptance.'[177] As these remarks imply, the recent development of the due process principle has been characterised by a process of evolution, not revolution or radical shifts in direction. There has been a consolidation of what I have described as the 'core' or 'heartland' requirements of the due process principle, especially those associated with natural justice. The due process principle has also begun to penetrate new spheres — state and territorial jurisdiction and the common law. In the current judicial climate, cautious development across both these constitutional axes is likely to be the order of the day. The legacy of Deane J and Gaudron J in this regard seems assured, even if not all elements of their due process vision come to pass.
[*] Faculty of Law, ANU.
[1] [1991] HCA 32; (1991) 172 CLR 501 ('Polyukhovich'), 607 (Deane J), 685, 689 (Toohey J), 703–4 (Gaudron J).
[2] (1992) 174 CLR 455 ('Leeth'), 470 (Mason CJ, Dawson and McHugh JJ), 486–7 (Deane and Toohey JJ), 502 (Gaudron J).
[3] (1992) 176 CLR 1 ('Lim's Case'), 27 (Brennan, Deane and Dawson JJ).
[4] But see also, eg, Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496 (Gaudron J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 22 (Gaudron J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 ('Kable'), 98 (Toohey J), 108 (Gaudron J). See generally, Christine Parker, 'Protection of Judicial Process as an Implied Constitutional Principle' [1994] AdelLawRw 13; (1994) 16 Adelaide Law Review 341; Leslie Zines, 'A Judicially Created Bill of Rights?' [1994] SydLawRw 14; (1994) 16 Sydney Law Review 166; George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185; 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.
[5] (1992) 176 CLR 1, 27 (footnote omitted).
[6] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496 (Gaudron J); Leeth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ), 487 (Deane and Toohey JJ) referring to 'the obligation to act judicially'; Kable [1996] HCA 24; (1996) 189 CLR 51, 116 (McHugh J).
[7] Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496 (Gaudron J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 326 (Deane J) and 362 (Gaudron J).
[8] See generally, Wheeler, 'Constitutionally Entrenched Due Process in Australia', above n 4, 263–79. See also Wendy Lacey, 'Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution' [2003] FedLawRw 2; (2003) 31 Federal Law Review 57.
[9] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 612–14 (Deane J), 704–8 (Gaudron J). See also at 689 (Toohey J).
[10] Leeth (1992) 174 CLR 455, 487 (Deane and Toohey JJ), 502–3 (Gaudron J); Kable [1996] HCA 24; (1996) 189 CLR 51, 107 (Gaudron J).
[11] Cf the judgments of Mason CJ, Dawson J and McHugh J in Polyukhovich [1991] HCA 32; (1991) 172 CLR 501 and the joint judgment of Mason CJ, Dawson and McHugh JJ in Leeth (1992) 174 CLR 455.
[12] See, eg, Winterton, 'Implied Bill of Rights', above n 4, 201–4.
[13] [1989] HCA 53; (1989) 168 CLR 461.
[14] [1992] HCA 45; (1992) 177 CLR 106.
[15] George Williams, 'Implied Rights under the Gleeson Court' (1999) 2 Constitutional Law and Policy Review 44.
[16] In relation to the implied freedom of political communication, see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. On the implied guarantee of equality recognised by Deane and Toohey JJ in Leeth (1992) 174 CLR 455, see Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 ('Kruger'), 63–8 (Dawson J), 112–13 (Gaudron J), 142 (McHugh J), 153–5 (Gummow J).
[17] (1999) 198 CLR 511.
[18] See Leslie Zines, 'Legalism, Realism and Judicial Rhetoric in Constitutional Law' (2002) 5 Constitutional Law and Policy Review 21, especially 26–9 (referring to Chief Justice Gleeson's extra-judicial observations); Sir Anthony Mason, 'The Centenary of the High Court of Australia' (2003) 5 Constitutional Law and Policy Review 41, 45. See also Justice J D Heydon, 'Judicial Activism and the Death of the Rule of Law' (2003) 23 Australian Bar Review 1 (noting, however, that this paper does not deal directly with constitutional and statutory interpretation: at 4).
[19] Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 26.
[20] Sir Anthony Mason, 'Trends in Constitutional Interpretation' [1995] UNSWLawJl 13; (1995) 18 University of New South Wales Law Journal 237, 245.
[21] Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 28.
[22] Ibid 26.
[23] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').
[24] New South Wales v Commonwealth ('Wheat Case') [1915] HCA 17; (1915) 20 CLR 54 and Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434. In relation to the 'first' and 'second' 'limbs' of the separation doctrine, see Cheryl Saunders, 'The Separation of Powers' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 3, 11.
[25] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers' Case') affirmed on appeal to the Privy Council in A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529.
[26] For a constitution that adopted an express doctrine of separation of powers, see the discussion of the Virginia Constitution of 1776 in M J C Vile, Constitutionalism and the Separation of Powers (1967) 119.
[27] This has been repeatedly recognised by commentators. See, eg, Leslie Zines, The High Court and the Constitution (4th ed, 1997) 169–70, 212–18.
[28] Justice Michael Kirby, 'Australia' in Shimon Shetreet and Jules Deschênes (eds), Judicial Independence: The Contemporary Debate (1985) 8, 12.
[29] [1951] HCA 5; (1951) 83 CLR 1, 193.
[30] Fiona Wheeler, 'The Boilermakers Case' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 160, 168.
[31] George Winterton, 'Judges as Royal Commissioners' [1987] UNSWLawJl 8; (1987) 10 University of New South Wales Law Journal 108, 124.
[32] See generally Wheeler, 'The Boilermakers Case', above n 30. See also Fiona Wheeler, 'The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview' (2001) 20 Australian Bar Review 283, 284.
[33] Huddart, Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 381–5 (Isaacs J).
[34] There were signs in the 1970s and 1980s that the High Court might overturn the second limb of the separation doctrine, but subsequent developments have affirmed it: see Wheeler, 'The Boilermakers Case', above n 30, 172–3.
[35] [1996] HCA 18; (1996) 189 CLR 1.
[36] (1999) 198 CLR 511.
[37] See, eg, Huddart, Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 382–3 (Isaacs J); Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 469–70 (Isaacs and Rich JJ); R v Davison [1954] HCA 46; (1954) 90 CLR 353, 380–2 (Kitto J); Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 267–8 and 275–6 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) and in the Privy Council A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529, 540–1; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 390–3 (Windeyer J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 10–13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
[38] Stephen Parker, 'The Independence of the Judiciary' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 62, 67–71; Huddart, Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 382–3 (Isaacs J discussing the views of Sir William Blackstone).
[39] Zines, The High Court and the Constitution, above n 27, 212.
[40] [1996] HCA 18; (1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
[41] I have previously discussed Deane J's approach to derivation of the due process principle in Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 250–1, 254.
[42] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 607 (footnote omitted).
[43] Ibid. To the same effect, see Leeth (1992) 174 CLR 455, 486–7 (Deane and Toohey JJ).
[44] Cf Parker, 'Protection of Judicial Process', above n 4, 354. See also Russell Blackford, 'Judicial Power, Political Liberty and the Post-Industrial State' (1997) 71 Australian Law Journal 267, 283.
[45] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 703–4 (Gaudron J); Leeth (1992) 174 CLR 455, 501–3 (Gaudron J); Ebner [2000] HCA 63; (2000) 205 CLR 337, 362–3 (Gaudron J). See also Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 150 (Gaudron J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 22 (Gaudron J).
[46] Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144.
[47] See Parker, 'Protection of Judicial Process', above n 4, 346–7, 354–5.
[48] [1998] HCA 9; (1998) 193 CLR 173 ('Nicholas').
[49] Ibid 208 (footnote omitted).
[50] [1909] HCA 36; (1909) 8 CLR 330, 357.
[51] Zines, The High Court and the Constitution, above n 27, 171–2.
[52] Parker, 'Protection of Judicial Process', above n 4, 347, 354–5.
[53] Zines, The High Court and the Constitution, above n 27, 173. See also E D Elliott, 'Why Our Separation of Powers Jurisprudence is so Abysmal' (1989) 57 George Washington Law Review 506, 527.
[54] Adapting Parker, 'Protection of Judicial Process', above n 4, 354.
[55] See R v Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation [1974] HCA 8; (1974) 130 CLR 87, 90 (Barwick CJ), 102 (Mason J); Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57.
[56] Winterton, 'Implied Bill of Rights', above n 4, 202 n 117.
[57] [1956] HCA 10; (1956) 94 CLR 254, 314–15 (referred to in Winterton, 'Implied Bill of Rights', ibid).
[58] [1996] HCA 24; (1996) 189 CLR 51. See also Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 703 (Gaudron J).
[59] For a brief comparison of the Australian and United States doctrines, see George Williams, 'Due Process' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 226–7.
[60] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 607 (Deane J), 704 (Gaudron J). See also, eg, Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496–7 (Gaudron J).
[61] See the authorities above n 6. See also Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 394–5 (Gummow J); Nicholas [1998] HCA 9; (1998) 193 CLR 173, 188 (Brennan CJ), 208 (Gaudron J); Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 ('Bass'), 359 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 101 (Gaudron and Gummow JJ); Ebner [2000] HCA 63; (2000) 205 CLR 337, 362–3 (Gaudron J), 372–3 (Kirby J); Justice Michael McHugh, 'Does Chapter III of the Constitution Protect Substantive as Well as Procedural Rights?' (2001) 21 Australian Bar Review 235, 238–9.
[62] Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 253–4.
[63] The finding in Lim's Case that s 54R of the Migration Act 1958 (Cth) was invalid is best regarded as an application of the principle that the Commonwealth Parliament cannot interfere with the exercise of federal judicial power: see Winterton, 'Implied Bill of Rights', above n 4, 193–4. This is the same principle that was applied by the Privy Council in Liyanage v The Queen [1967] 1 AC 259.
[64] McHugh, above n 61, 237 and 238–9. See also at 241.
[65] [1998] HCA 9; (1998) 193 CLR 173.
[66] [1999] HCA 9; (1999) 198 CLR 334.
[67] [2000] HCA 63; (2000) 205 CLR 337.
[68] (2002) 209 CLR 339 ('Cameron').
[69] [1998] HCA 9; (1998) 193 CLR 173, 185 (Brennan CJ), 202 (Toohey J), 207–9 (Gaudron J), 232 (Gummow J). Hayne J, also in the majority, was silent on the issue. Kirby J, one of the dissentients in Nicholas, has also recognised the generalised due process principle: see, eg, Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 592 and Ebner [2000] HCA 63; (2000) 205 CLR 337, 372–3.
[70] [1995] HCA 66; (1995) 184 CLR 19 ('Ridgeway').
[71] [1998] HCA 9; (1998) 193 CLR 173, 191, 193 (Brennan CJ), 202 (Toohey J), 208, 210–11 (Gaudron J), 236, 238–9 (Gummow J), 276–9 (Hayne J). McHugh J dissented finding that s 15X infringed Chapter III by interfering to an unacceptable extent with the capacity of a Chapter III court 'to protect the integrity of its processes' (at 222–6). Kirby J dissented on a similar basis (at 264–6).
[72] Ibid 208–9.
[73] Ibid 209.
[74] [1999] HCA 9; (1999) 198 CLR 334.
[75] Ibid 359 (footnotes omitted).
[76] Above, text accompanying n 72.
[77] [1999] HCA 9; (1999) 198 CLR 334, 357.
[78] Ibid 359.
[79] Ibid 363–71.
[80] [1998] HCA 9; (1998) 193 CLR 173, 189–91 (Brennan CJ), 202–3 (Toohey J), 234–6 (Gummow J), 273–4 (Hayne J). See also, albeit in dissent, at 225 (McHugh J).
[81] See generally Enid Campbell, 'Rules of Evidence and the Constitution' [2000] MonashULawRw 12; (2000) 26 Monash University Law Review 312.
[82] See also ibid 315.
[83] [1999] HCA 9; (1999) 198 CLR 334, 359.
[84] See generally Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 435–6, 438–41.
[85] [2000] HCA 57; (2000) 204 CLR 82.
[86] Ibid 101. See also Kruger [1997] HCA 27; (1997) 190 CLR 1, 63 (Dawson J).
[87] Nicholas [1998] HCA 9; (1998) 193 CLR 173, 208. See also Justice Douglas Drummond, 'Towards a More Compliant Judiciary? – Part I' (2001) 75 Australian Law Journal 304, 306.
[88] [2000] HCA 63; (2000) 205 CLR 337.
[89] Ibid 344, 350.
[90] Ibid 356.
[91] Ibid 396.
[92] Ibid 366–7.
[93] Ibid 390 quoting Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 75 (Deane J) (footnote omitted).
[94] Ebner [2000] HCA 63; (2000) 205 CLR 337, 368.
[95] Ibid 362–3.
[96] Ibid 363.
[97] Ibid.
[98] Ibid.
[99] Ibid 363–4.
[100] Ibid 368. Cf at 359 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[101] Ibid 373.
[102] Ibid (footnote omitted). See also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 500 (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 10; (2001) 206 CLR 128, 147 (Kirby J); Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 55 n 196 (Kirby J); Austin v Commonwealth (2003) 195 ALR 321, 392, 401, 409 (Kirby J).
[103] See also Enid Campbell, 'Waiver of Judicial Disqualification for Bias or Apprehended Bias — A Constitutional Issue' (1999) 2 Constitutional Law and Policy Review 41; Enid Campbell and H P Lee, The Australian Judiciary (2001) 144–5, 151.
[104] In addition to the authorities collected above n 61, see also R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 588–9 (Dixon and Evatt JJ).
[105] See, eg, Parker, 'The Independence of the Judiciary', above n 38, especially 88–92.
[106] [1995] HCA 26; (1995) 184 CLR 348.
[107] Ibid 394 (footnote omitted).
[108] Ibid.
[109] A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529, 542. See also McHugh, above n 61, 240.
[110] [1997] HCA 25; (1997) 189 CLR 520.
[111] See also the discussion in Campbell, 'Rules of Evidence and the Constitution', above n 81, 328–9.
[112] Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, 395 (Gleeson CJ and Gummow J) describing the power of the High Court to deal with contempts as deriving from s 71 of the Constitution.
[113] [2000] HCA 63; (2000) 205 CLR 337, 363.
[114] Ibid 364.
[115] For a good example, see the joint judgment of Dixon CJ and McTiernan J in R v Davison [1954] HCA 46; (1954) 90 CLR 353. See also, eg, Nicholas [1998] HCA 9; (1998) 193 CLR 173, 185 (Brennan CJ); Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, 395 (Gleeson CJ and Gummow J).
[116] Campbell, 'Waiver of Judicial Disqualification for Bias', above n 103, 42.
[117] Ibid 42. See also Campbell and Lee, above n 103, 146, 151.
[118] [2000] HCA 63; (2000) 205 CLR 337, 363, 364, 368.
[119] Ibid 368.
[120] See also ibid 393 (Kirby J).
[121] [1996] HCA 24; (1996) 189 CLR 51, 116 (McHugh J).
[122] Ibid 103 (Gaudron J), 116 (McHugh J).
[123] Ibid 103 (Gaudron J).
[124] Ibid 103, 106 (Gaudron J), 116, 118–19 (McHugh J), 126, 128 (Gummow J).
[125] Ibid 106–8 (Gaudron J), 121–4 (McHugh J), 132–4 (Gummow J). The reasoning of the fourth member of the Kable majority, Toohey J, was somewhat narrower than the others. For a summary of his approach, see Leslie Zines, Federal Jurisdiction in Australia (3rd ed, 2002) 244–5.
[126] See the view of Zines, Federal Jurisdiction in Australia, above n 125, 245 ('It is clear that Kable would restrict State legislative power to control the judicial process so as to impair the principles of natural justice and due process'). See also Enid Campbell, 'Constitutional Protection of State Courts and Judges' [1997] MonashULawRw 24; (1997) 23 Monash University Law Review 397, 416–17; John Fairfax Publications Pty Ltd v A-G (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, 701 (Spigelman CJ); Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249; [2004] 1 Qd R 40.
[127] The scope of the Kable doctrine is currently before the High Court in the appeal in Fardon v A-G (Qld) (B104/2003 and B105/2003, judgment reserved 2 March 2004).
[128] The present state of the law in this regard is discussed in Zines, Federal Jurisdiction in Australia, above n 125, 172–86. There appears to be a growing acceptance that territory courts exercise some federal jurisdiction, however: see, eg, Putland v The Queen [2004] HCA 8; (2004) 204 ALR 455, 456 (Gleeson CJ), 472, 473–4 (Kirby J).
[129] Cf North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297; (2002) 192 ALR 701, 724–9 (Black CJ and Hely J), 732 (Drummond J) rejecting an argument that Kable applies to territory courts. This was because Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 and Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 established that territory courts do not exercise federal jurisdiction. The Federal Court noted it was bound by these decisions, despite recent suggestions from some High Court judges that territory courts may exercise federal jurisdiction.
[130] Ebner [2000] HCA 63; (2000) 205 CLR 337, 363 (Gaudron J).
[131] Parker, 'The Independence of the Judiciary', above n 38, 76–9, 89–90. Of course, s 72 of the Constitution protects the tenure and remuneration of judges of federal courts. Whether Chapter III of the Constitution impliedly protects the tenure and remuneration of state judges is discussed in Peter Johnston and Rohan Hardcastle, 'State Courts: The Limits of Kable' [1998] SydLawRw 10; (1998) 20 Sydney Law Review 216, 236–42. See also Austin v Commonwealth (2003) 195 ALR 321, 390 (Kirby J).
[132] Parker, 'The Independence of the Judiciary', above n 38, 79–81, 91.
[133] Ibid 91.
[134] Ibid 90.
[135] A number of judges have indicated that 'open justice' is a requirement of the due process principle. However, the reasons for courts being open to the public are wider than the need to safeguard the appearance of impartiality in judicial proceedings. Thus, 'open justice' is probably a freestanding aspect of due process. See the authorities collected in Wheeler, 'Constitutionally Entrenched Due Process in Australia', above n 4, 261–3. See also McHugh, above n 61, 239; John Fairfax Publications Pty Ltd v A-G (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, 707 (Spigelman CJ), 721 (Priestley JA).
[136] See, eg, Justice Michael Kirby, 'Acting Judges — A Non-theoretical Danger' (1998) 8 Journal of Judicial Administration 69, 72; Drummond, above n 87, 313.
[137] Kirby, 'Acting Judges', above n 136, 72–5.
[138] [2002] FCAFC 297; (2002) 192 ALR 701.
[139] Ibid 729–31 (Black CJ and Hely J), 732 (Drummond J).
[140] (1999) 200 CLR 322 ('Eastman').
[141] Ibid 333 (Gleeson CJ, McHugh and Callinan JJ), 340 (Gaudron J), 348–50 (Gummow and Hayne JJ). Cf at 356, 383–4 (Kirby J) (dissenting).
[142] Ibid 340. See also at 353 (Gummow and Hayne JJ), 364–5 (Kirby J).
[143] On this principle see Zines, Federal Jurisdiction in Australia, above n 125, 204–9, 242–3. See also Kable [1996] HCA 24; (1996) 189 CLR 51, 102 (Gaudron J), 110, 115 (McHugh J) and the expressio unius argument based on s 72 of the Constitution discussed in Johnston and Hardcastle, above n 131, 241. This expressio unius argument seems to have been accepted by the Federal Court in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297; (2002) 192 ALR 701, 730 (Black CJ and Hely J), 732 (Drummond J).
[144] D2/2003 (judgment reserved 8 October 2003).
[145] See, eg, Drummond, above n 87, for a discussion of whether the movement towards externally imposed 'judicial performance' standards offends core aspects of the due process principle, especially the natural justice requirement.
[146] Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 263–70.
[147] McHugh, above n 61, 240–1. See also KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 227 (McHugh J).
[148] See, eg, Bull v The Queen (2000) 201 CLR 443, 483; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 208; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 254; Cameron (2002) 209 CLR 339, 370; Ng v The Queen [2003] HCA 20; (2003) 197 ALR 10, 27.
[149] On the retroactivity aspect of the due process principle, see the judgments of Mason CJ, Dawson J and McHugh J in Polyukhovich [1991] HCA 32; (1991) 172 CLR 501. On Gaudron J's view that 'equal justice ... is fundamental to the judicial process', see Leeth (1992) 174 CLR 455, 469–70 (Mason CJ, Dawson and McHugh JJ), 502 (Gaudron J).
[150] Cameron (2002) 209 CLR 339, 343 (Gaudron, Gummow and Callinan JJ) (footnote omitted).
[151] Ibid 343–4 (Gaudron, Gummow and Callinan JJ), 350–1 (McHugh J), 358–61 (Kirby J).
[152] Ibid 343–4 (Gaudron, Gummow and Callinan JJ), 350–4 (McHugh J).
[153] Ibid 352–3 (emphasis in third and fourth sentences added).
[154] At the end of the quoted passage, he referred to Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 (Gaudron, Gummow and Hayne JJ).
[155] Cameron (2002) 209 CLR 339, 368.
[156] Ibid 369.
[157] Ibid 353.
[158] See also Milat v The Queen [2004] HCA 17; (2004) 205 ALR 338, 342–3 (McHugh J).
[159] (1992) 174 CLR 455, 486–8, 490–3.
[160] Ibid 493.
[161] Ibid 487.
[162] Ibid 502–3.
[163] Ibid 467–71. See Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 281–2; Parker, 'Protection of Judicial Process', above n 4, 353; Winterton, 'Implied Bill of Rights', above n 4, 203; Zines, The High Court and the Constitution, above n 27, 205–6.
[164] (1992) 174 CLR 455, 469–70; Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 281–2; Parker, 'Protection of Judicial Process', above n 4, 353; Winterton, 'Implied Bill of Rights', above n 4, 203; McHugh, above n 61, 251; Zines, The High Court and the Constitution, above n 27, 205–6.
[165] [1997] HCA 27; (1997) 190 CLR 1, 63–8 (Dawson J), 112–13 (Gaudron J), 142 (McHugh J), 153–5 (Gummow J).
[166] Mason CJ, Dawson and McHugh JJ said in Leeth that even assuming the existence of Gaudron J's equal justice due process requirement, the legislation in question was not relevantly discriminatory: (1992) 174 CLR 455, 470–1. See also at 493 (Deane and Toohey JJ). Speaking extra-judicially, Justice McHugh seems to have expressed at least some support for Gaudron J's equal justice due process guarantee (see McHugh, above n 61, 251: 'the more limited Ch III doctrine proposed by Gaudron J, and at least partially endorsed in Kruger by Dawson J and myself, appears to be still open'). The judgments of Dawson J and McHugh J in Kruger support a procedural due process guarantee, but reject a doctrine of substantive due process. It may be then that McHugh J supports a guarantee of procedural equality in the exercise of federal judicial power. As he has acknowledged, however, the distinction between procedure and substance is far from clear: McHugh, above n 61, 237.
[167] Kable [1996] HCA 24; (1996) 189 CLR 51, 107–8 (Gaudron J); Kruger [1997] HCA 27; (1997) 190 CLR 1, 112 (Gaudron J); Nicholas [1998] HCA 9; (1998) 193 CLR 173, 208 (Gaudron J).
[168]/a> See his comment in the New South Wales Court of Appeal in Ngoc Tri Chau v Director of Public Prosecutions (Cth) (1995) 132 ALR 430, 445. See also Putland v The Queen [2004] HCA 8; (2004) 204 ALR 455, 484–5 (Kirby J) and, for a more specific commitment, Muir v The Queen [2004] HCA 21 (Unreported, McHugh, Hayne and Kirby JJ, 2 April 2004) [28] (Kirby J). Cf, however, Cameron (2002) 209 CLR 339, 369 (Kirby J).
[169] [2004] HCA 8; (2004) 204 ALR 455.
[170] Ibid 462 (Gleeson CJ), 470–1 (Gummow and Heydon JJ), 486 (Callinan J). Cf at 483–5 (Kirby J) (dissenting). The case arose from the trial by the Supreme Court of the Northern Territory of offences under the Crimes Act 1914 (Cth) and the Bankruptcy Act 1966 (Cth). Gleeson CJ said that the Supreme Court was exercising federal jurisdiction here (at 456). Kirby J said that 'the existence of federal jurisdiction was not challenged by either party to this appeal' (at 474). The other members of the High Court did not directly comment on whether federal jurisdiction was attracted.
[171] However, Gleeson CJ observed that '[s]ection 68 of the Judiciary Act reflects a permissible legislative choice, and one which, for a century, has resulted in some differences in the sentencing of federal offenders according to where they are sentenced': ibid 462 (footnote omitted).
[172] Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 282–3. See also Geoffrey Kennett, 'Individual Rights, the High Court and the Constitution' [1994] MelbULawRw 4; (1994) 19 Melbourne University Law Review 581, 603 where a similar argument is made; Jeremy Kirk, 'Constitutional Implications (II): Doctrines of Equality and Democracy' [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24, 39; Kruger [1997] HCA 27; (1997) 190 CLR 1, 66 (Dawson J), 155 (Gummow J); Muir v The Queen [2004] HCA 21 (Unreported, McHugh, Hayne and Kirby JJ, 2 April 2004) [23]–[28] (Kirby J).
[173] [1997] HCA 27; (1997) 190 CLR 1, 112 (footnote omitted). See also Kennett, above n 172, 594; Melissa Castan and Sarah Joseph, Federal Constitutional Law: A Contemporary View (2001) 159.
[174] See Kruger [1997] HCA 27; (1997) 190 CLR 1, 68 (Dawson J). Cf Kennett, above n 172, 604 commenting on the application of the broader equality guarantee recognised by Deane and Toohey JJ in Leeth.
[175] [2002] HCA 57; (2002) 212 CLR 1.
[176] Ibid 55 (footnote omitted).
[177] Ibid (footnote omitted).
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