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

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Constitutional Law - Separation of judicial power - exceptions to boilermakers

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