A purposive formalist interpretation of

Chapter III of the Australian Constitution

Rebecca Ananian-Welsh

A thesis in fulfilment of the requirements for the degree of

Doctor of Philosophy

Faculty of Law

January 2014

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ACKNOWLEDGMENTS

The experience of writing a thesis can be lonely and isolating. Mine was anything but. The professional and personal support I have received over the last few years has been incredible. It is thanks to a host of colleagues, friends and family that I have been able to write this thesis and, to some extent, maintain my sanity. There are too many people to thank, though there are a few who deserve particular mention.

First and foremost, I am immensely grateful to my supervisors, Professors George

Williams and Andrew Lynch. George and Andrew have not only been diligent and challenging discussants, editors and advisors, but also mentors, role models and friends.

They really are a dream-team.

Members of the Laureate Fellowship ‘Anti-Terror Laws and the Democratic

Challenge’ and the Gilbert + Tobin Centre of Public Law have provided invaluable support – from reading and giving feedback on drafts, to being constant companions on the long road to thesis completion. The Laureate crew of George Williams, Nicola

McGarrity, Fergal Davis, Jessie Blackbourn, Svetlana Tyulkina, Tamara Tulich, Keiran

Hardy and Sangeetha Pillai made an amazing team that I am truly proud to have been a part of. Thank you for making the PhD fun.

I am grateful to the members of my review panel – Professor Theunis Roux, Sean

Brennan and Fergal Davis, as well as Ed Santow and Ben Golder– for patiently reading countless thousands of words and providing the insightful and vital feedback that pushed me to shape and focus my ideas.

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My thanks also go to Jenny Jarrett and Belinda McDonald, for whom nothing ever seems too much, to Professor Janet Chan for her encouragement, and to Erin Mackay,

Rodrigo Sales, Jackie Hartley and the whole community of UNSW Law PhD students, without whose support and friendship this thesis would have been impossible.

Finally, I thank my husband David Ananian-Cooper. Without David’s immeasurable patience, strength and love I would have lost sight of the worthwhile things in life long before reaching this point. Thank you David, this thesis is the result of your efforts as much as mine.

Rebecca Ananian-Welsh Sydney 10 January 2014

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The following publications and presentations arose from the writing of this thesis:

Articles

Rebecca Welsh, ‘A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality’ (2013) 39(1) Monash University Law Review 66.

Rebecca Welsh, ‘“Incompatibility” Rising?: Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259.

Book Chapter

Rebecca Welsh, ‘Anti-Terror Preventive Detention and the Independent Judiciary’ in Patrick Keyzer (ed) Preventive Detention: Asking the Fundamental Questions (Intersentia, 2013) 137.

Conference Papers

Rebecca Welsh, ‘Interpreting Chapter III’ (Paper presented at the ‘Sydney Law School Postgraduate Conference’, Sydney University, Sydney, Australia, 1-2 November 2012).

Rebecca Welsh, ‘Interpreting the Separation of Judicial Power: Fusing Form with Function’ (Paper presented at the ‘National Graduate Law Conference’, Australian National University, Canberra, Australia, 18 October 2012).

Rebecca Welsh, ‘Interpreting Ch III: The Case for Purposive Formalism’ (Paper presented at the ‘Gilbert + Tobin Centre of Public Law 2012 Postgraduate Workshop in Public Law’, University of New South Wales, Sydney, Australia, 12 July 2012).

Rebecca Welsh, ‘Control Orders and Judicial Independence: The Legacy of Thomas v Mowbray’ (Paper presented at the ‘Anti-Terror Laws and Preventive Justice Postgraduate Workshop’, Oxford University, Oxford, United Kingdom, 5 December 2011).

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TABLE OF CONTENTS

Acknowledgments ...... ii

Abstract ...... vii

Part One Introduction ...... 1

I Interpreting The Separation of Judicial Power ...... 1 II Scope ...... 5 III Determining a Preferable Method: A Doctrinal Analysis ...... 7 IV Two Case Studies: Control Orders and Preventative Detention Orders ...... 12 V Conclusions and Broader Themes ...... 19

Part Two A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality ...... 22

I Introduction ...... 22 II The Difficult Task of Interpreting Chapter III...... 27 III The Purposive Nature of the Separation of Federal Judicial Power ...... 31 IV Formalism: The Separation Rules ...... 43 V Functionalism: The Incompatibility Test ...... 73 VI Purposive Formalism: A Two-Tiered Approach ...... 104 VII Conclusion ...... 121

Part Three Testing Boilermakers’: Anti-Terrorism Control Orders and the Telling Case of Thomas v Mowbray ...... 126

I Introduction ...... 126 II Anti-Terrorism Control Orders ...... 130

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III Interpretations of Judicial Power in Thomas ...... 141 IV The Weaknesses in the Separation Rules ...... 172 V Fair Process Considered in Thomas ...... 175 VI A Purposive Formalist Approach to Control Orders ...... 188 VII Conclusions: The Advantages of Purposive Formalism...... 200

Part Four Testing Incompatibility: Preventative Detention Orders and Judicial Independence ...... 206

I Introduction ...... 206 II Anti-Terrorism Preventative Detention Orders ...... 209 III The Incompatibility Test ...... 217 IV Is the Power to Issue PDOs Incompatible? ...... 232 V Incompatibility and Preventive Incarceration: A Special Case? ...... 239 VI The Strengths and Weaknesses of the Incompatibility Test ...... 250 VII Purposive Formalism and PDOs ...... 257 VIII Conclusions: The Advantages of Purposive Formalism...... 266

Part Five Conclusion: Purposive Formalism A preferable Approach ...... 272

I Overview ...... 272 II Main Findings ...... 276 III Conclusion: A Preferable Approach ...... 299

Bibliography ...... 305

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ABSTRACT

The question driving this thesis is how should the separation of federal judicial power, derived from Chapter III of the Australian Constitution, be interpreted to best achieve the independence and impartiality of federal courts? The interpretation of

Chapter III is as hotly debated as it is fundamentally important. Two key viewpoints have emerged in this debate: formalism and functionalism. A formalist test – strictly separating government powers according to definition – limits the permissible powers of federal courts. A functionalist test – hinging validity on whether a power is incompatible with institutional independence and integrity – limits the powers of State courts and of judges in their personal capacities (‘personae designatae’).

A rare point of consensus between the two viewpoints is that the separation of judicial power derived from Chapter III should be interpreted in a manner that achieves its core purpose. This thesis identifies this purpose as judicial independence and impartiality and queries which interpretive approach can best achieve this aim, with a view to contributing to contemporary debates and guiding future developments in the area. The central argument of the thesis is that a new, hybrid approach called purposive formalism presents a legitimate and preferable interpretation of Chapter III, better able to achieve judicial independence and impartiality than either the existing formalist or functionalist tests.

The thesis tests the strengths and weaknesses of formalist, functionalist and purposive formalist interpretations of Chapter III in two case studies. The first case study concerns powers conferred on federal courts under the anti-terrorism control order provisions of the Commonwealth Criminal Code (the ‘Code’), and contrasts formalist

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and purposive formalist approaches to assessing the Chapter III validity of these provisions. The second case study concerns similar powers conferred on judges personae designatae under the anti-terrorism preventative detention order provisions of the Code, and assesses the relative strengths and weaknesses of purposive formalism and the functionalist incompatibility test in this context.

The study as a whole reveals serious weaknesses in the existing approaches.

Purposive formalism is consistently supported, not as a perfect or ideal approach, but certainly as a preferable interpretation of Chapter III better able to achieve the independence and impartiality of federal courts.

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Part One: Introduction

PART ONE

INTRODUCTION

The question at the heart of this thesis is how should the separation of federal judicial power, derived from Chapter III of the Constitution, be interpreted to best achieve the independence and impartiality of federal courts? In an effort to answer this question I critique the existing formalist and functionalist interpretations of Chapter III and advocate a new, hybrid approach called ‘purposive formalism’. Purposive formalism combines the strengths of the existing models so as to ameliorate their respective weaknesses. In doing so, purposive formalism presents a preferable method of interpreting Chapter III in order to achieve the core purpose of the separation of judicial power.

I INTERPRETING THE SEPARATION OF JUDICIAL POWER

The ideals of judicial independence and impartiality form the core of this study. Well before the concept of a separation of judicial power was introduced into political thought people sought to have their disputes resolved by an independent arbiter, unmoved by personal bias or motivations.1 This idea is central to the rule of law – it encompasses the notion of rule through objective and impartial application of laws as opposed to by subjective and partial human beings.2 With the development of courts and the rise of

1 For a sophisticated history of the separation of powers see, MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998) chapters 1-2. 2 See, Cheryl Saunders and Katherine Le Roy, ‘Perspectives on the Rule of Law’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (The Federation Press, 2003) 1, 2, 9- 10; Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 114-126, wherein the author identifies three overarching themes of the rule of law: ‘rule of law, not man’, formal legality and limited government.

1 Part One: Introduction

modern democratic constitutionalism, the independence and impartiality of the judicature has evolved to be seen as so basic, so fundamental, that its existence is generally considered a requirement for any society aspiring to rule of law values. Today, the importance of independent and impartial courts is universally recognised,3 even if the achievement of this ideal varies across social and cultural boundaries.4

The Australian constitutional framework is strongly rooted in a commitment to judicial independence and impartiality and the rule of law. Constitutional protections for the independence and impartiality of the federal judicature, and in particular of the High Court, were inevitably considerations in the move towards federation. To this end the Framers of the Constitution discussed the importance of judicial independence and impartiality and ensured fundamental protections for judicial tenure and remuneration were constitutionally enshrined.5 The constitutional separation of judicial power has since been recognised as

3 See, eg, Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity (2002); Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan (26 August 1985), endorsed by GA Res 40/32 (29 November 1985) and 40/146 (13 December 1985). 4 See, eg, Leandro Despouy, Special Rapporteur, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, submitted in accordance with Commission on Human Rights resolution 2004/33, Addendum: Situations in specific countries or territories, UN Doc E/CN.4/2005/60/Add.1 (18 March 2005); Leandro Despouy, Special Rapporteur, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, UN Doc A/HRC/11/41 (24 March 2009). 5 Australian Constitution s 72. Discussed in Part Two, section II.

2 Part One: Introduction

part of the ‘lifeblood of the Australian Constitution’6 and lauded for its role in promoting individual liberty and freedom under the law.7

Despite recognising the vital importance of an independent and impartial federal judicature, the Framers of the Constitution shed little light on the degree of separation required between the judicial and non-judicial powers of government.8 This issue was thus left to the determination of the High Court. A range of interpretational approaches was open to the Court in determining how the separation of judicial and non-judicial powers would operate. The approaches that the Court adopted in respect of Chapter III have developed into one of the most hotly debated aspects of contemporary Australian constitutional law. Two key viewpoints have emerged in this debate, and they frame the present analysis. These viewpoints are formalism and functionalism.9

Formalists advocate the strict separation of functions based on their identification as judicial, legislative or executive. In Australia, the formalist approach is embodied in the

6 Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University, 1999) 2. 7 R v Davison (1954) 90 CLR 353, 381 (Kitto J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 574 (Brennan and Toohey JJ). 8 Fiona Wheeler, ‘Original Intent and the Separation of Powers in Australia’ (1996) 7 Public Law Review 96; Fiona Wheeler, ‘The Boilermakers Case’ in HP Lee and George Winterton, Australian Constitutional Landmark (Cambridge University Press, 2003) 161-162; James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 69-72; JM Finnis, ‘Separation of Powers in the Australian Constitution’ (1968) 3 Adelaide Law Review 159. 9 Rohan Hardcastle, ‘A Chapter III Implication for State Courts: Kable v Director of Public Prosecutions’ (1998) 3 Newcastle Law Review 13, 27; Peter Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1.

3 Part One: Introduction

prevailing interpretation of Chapter III which rests upon two rules (which I refer to as the

‘separation rules’). The first separation rule requires that judicial powers be vested only in courts. This rule reflects a fairly straightforward reading of section 71’s conferral of judicial power on courts and is relatively well-accepted.10 The second separation rule restricts the federal Parliament from conferring non-judicial powers on courts and, accordingly, it requires that federal courts be limited to the exercise of judicial and incidental powers. This rule arises from the High Court’s 1956 4:3 decision in R v Kirby; Ex parte Boilermakers’

Society of Australia11 and has long been controversial.12

Functionalist approaches to the separation of powers permit the conferral of powers on institutions regardless of questions of definition, unless the conferral infringes some other standard. In Australia, the functionalist approach is embodied in an incompatibility test, whereby the judiciary is prevented only from exercising powers that are incompatible with its independence or integrity. Since the cases of Grollo v Palmer13 and Kable v Director of

Public Prosecutions14 in the mid-1990s, an incompatibility test has limited the permissible functions of federal judges personae designatae and of State courts respectively.

10 Australian Constitution s 71; The Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 442 (Griffith CJ); R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar, Kitto JJ); James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113, 120-121. 11 (1956) 94 CLR 254. 12 See, eg, R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ). 13 (1995) 184 CLR 348. 14 (1996) 189 CLR 51.

4 Part One: Introduction

This thesis critiques these formalist and functionalist approaches to interpreting the separation of judicial power by investigating the strengths and weaknesses of each in achieving judicial independence and impartiality. The parallel development of both of these approaches by the High Court, albeit in different jurisprudential contexts, provides a valuable opportunity to assess the success of each method in achieving constitutional values.

II SCOPE

Before outlining the structure and methodology of the thesis it is necessary to make three brief comments on its scope. First, separation of powers debates around the globe tend to focus as much, or more, on the division between the legislative and executive branches of government.15 The Australian context calls for a more court-focussed analysis.

Reflecting the strong influence of Australia’s Westminster inheritance, the separation between Parliament and the executive government is deliberately blurred. This is primarily due to constitutional provisions and conventions concerning responsible government16 and the accepted place of delegated legislation.17 Some of the executive oversight measures seen in other jurisdictions, such as those with presidential systems, simply do not exist in

Australia. The entwined relationship between the legislative and executive branches has heightened attention to the independence of the federal judicature. In this context, Chapter

III of the Constitution, dealing with ‘The Judicature’, has been increasingly appreciated as a

15 See, eg, Martin Redish, The Constitution as Political Structure (Oxford University Press, 1995). 16 Australian Constitution s 64. For discussion see, Hugh Emy and Owen Hughes, Australian Politics: Realities in Conflict (MacMillan, 2nd ed, 1991) 338-340. 17 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

5 Part One: Introduction

key limit on government powers, as well as a source of rights protection for citizens and

States.18 Thus, the scope of this thesis is limited to the separation of the judicial branch, a prime concern in the Australian constitutional context. I do not consider or assess mechanisms for achieving institutional independence more broadly.

Secondly, the thesis focuses on the achievement of judicial independence and impartiality in the context of federal courts. While jurisprudence regarding State powers and the personal capacities of serving judges play a significant role in this study, the scope of this thesis is limited to an assessment of the available methods of interpreting Chapter III as it applies to federal courts. The purposive elements driving this study are context specific. The independence of federal courts is protected for similar yet distinct reasons to the independence of their State counterparts or of federal or State judges in their personal capacities. The arguments developed in this thesis would require separate and involved reconsideration if they were to be extended beyond the federal court context.

Lastly, I acknowledge that judicial independence and impartiality are protected by a range of mechanisms. Of primary importance are the protections afforded to judicial tenure and remuneration in section 72 of the Constitution. This thesis considers but one mechanism, namely, the limits on the powers that may be conferred on the judicature and on the allocation of judicial powers. I adopt this focus on the powers of each branch of government because this facet of the separation of judicial power has fuelled both litigation

18 See, Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 10, 119-120; 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 (Federation Press, 1994) 185.

6 Part One: Introduction

and academic debate concerning the interpretation of Chapter III. Other mechanisms for protecting judicial independence serve a pivotal role in achieving this aim and I do not suggest otherwise by excluding them from consideration.

III DETERMINING A PREFERABLE METHOD: A DOCTRINAL ANALYSIS

This thesis has three main parts, in addition to this introduction and a conclusion in

Part Five. The logical starting point in determining how to best interpret the separation of federal judicial power in order to achieve the purposes of Chapter III is to identify and articulate those purposes. Part Two introduces issues surrounding the interpretation of

Chapter III and the separation of judicial power derived from it. Judicial independence and impartiality are posited as the core purpose of the separation of judicial power, to be understood not as an end in itself, but as a means by which a range of constitutional aims are achieved. These aims include: equality before the law, the preservation of the rights of citizens and of States in a federation, and freedom from arbitrary government action.

Having established the achievement of judicial independence and impartiality as a primary purpose of the separation of federal judicial power, Part Two then introduces the formalist and functionalist interpretations of Chapter III and critiques each for its capacity to achieve this purpose.

The critique in Part Two suggests two key weaknesses in the capacity for the formalist separation rules to achieve judicial independence and impartiality. First, the rules overestimate the susceptibility of all powers to identification as either judicial or non- judicial. By failing to specify how the validity of so called ‘penumbral powers’ that defy clear definition is to be assessed, the rules permit a range of problematic factors to play a

7 Part One: Introduction

determinative role in the analysis and ultimately risk the independence and impartiality of federal courts. Secondly, the separation rules fail to provide a clear and substantive avenue for the protection of fair process in judicial proceedings, despite the centrality of fair process to judicial independence and impartiality.

The functionalist incompatibility test also suffers serious weaknesses. Despite directly engaging the notions of judicial independence and impartiality and rendering them determinative of constitutional validity, the incompatibility test has developed into an insubstantial protection for this constitutional aim, permitting all but gross infringements and clear usurpations of judicial independence and impartiality. In Part Two, I trace the development of the incompatibility test and argue that it fails to deliver on its considerable potential as a substantive mechanism for achieving judicial independence and impartiality. I contend that the test enables the incremental, even rapid, erosion of the separation of judicial power, and suggest why this is the case.

Many leading constitutionalists have called for a functionalist incompatibility test to replace the formalist separation rule preventing federal courts from exercising non-judicial powers. James Stellios19 and Gabrielle Appleby20 have echoed earlier cries from Fiona

Wheeler21 and former Chief Justice of the High Court Sir Anthony Mason,22 amongst

19 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 10. 20 Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law Journal 265. 21 Wheeler, ‘The Separation of Federal Judicial Power: A Purposive Analysis’, above n 6, 156. 22 Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1.

8 Part One: Introduction

others, to overrule R v Kirby Ex parte Boilermakers’ Society of Australia23 and replace the second separation rule with a functionalist incompatibility test.24 These fires are fuelled by the almost constant criticism the second separation rule has attracted since its inception. An

‘inconsistency’ test was advocated cogently by Williams J in dissent in Boilermakers’.25

Almost twenty years later, Barwick CJ famously invited the second separation rule to be challenged, criticising it as:26

unnecessary ... for the effective working of the Australian Constitution or for the maintenance of the

separation of the judicial power of the Commonwealth or for the protection of the independence of

courts exercising that power.

As recently as 2007, then Solicitor General for the Commonwealth David Bennett QC submitted to the High Court that the Boilermakers’ rule has been so whittled down by exceptions ‘that it does not matter much anymore’.27

On the other hand, the functionalist incompatibility test has also attracted strong criticism. In upholding the High Court’s decision in Boilermakers’, the Privy Council described the incompatibility standard as ‘vague and unsatisfactory’.28 With the adoption of

23 (1956) 94 CLR 254. 24 See also, George Winterton, Parliament, the Executive and the Governor-General (Melbourne, 1983) 60, 62-63. 25 R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 313-315. 26 R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90. 27 Thomas v Mowbray (2007) 233 CLR 307, 316. 28 Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 542. See also, Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399, 445 (Brennan J); Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182; Gabrielle Appleby, ‘State Law and Order Regimes and the High

9 Part One: Introduction

an incompatibility test to limit the permissible powers of judges personae designatae and of

State courts, many commentators have echoed this criticism. The earliest incompatibility cases, Grollo and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,29 have been criticised as ‘difficult, if not impossible, to reconcile’.30 Similar criticisms have been made of later cases such as Kable and Fardon v Attorney-General for the State of

Queensland.31 In a recent paper, Jeffrey Goldsworthy persuasively argued that the Kable incompatibility doctrine lacks legal coherence and has no plausible basis in constitutional law.32

Commentators and courts have recognised that the incompatibility standard provokes a host of ‘unanswered questions’ and is difficult to predict or apply in different fact scenarios.33 Building on these criticisms, Denise Meyerson suggests that ‘the flexible

Court: A Study in Federalism and Rights Protection’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 23 October 2013) 2; Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 167. 29 (1996) 189 CLR 1. 30 Walker, above n 28, 159. See also, Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 196. 31 (2004) 223 CLR 575; Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 100. Gabrielle Appleby has extended this criticism to more recent cases developing the Kable doctrine: Appleby, ‘State Law and Order Regimes and the High Court’, above n 28, 18- 27. 32 Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 15 August 2013). See also, Meagher, above n 28, 182-183. 33 Chris Steytler and Iain Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35 University of Western Australia Law Review 227, 228-229; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261 (Weinberg, Bennett and Edmonds JJ).

10 Part One: Introduction

concept of incompatibility is ill-suited to protect the rule of law interests served by the separation of judicial power’.34 Meyerson is joined by commentators such as Kristen

Walker in advocating the rejection of the functionalist incompatibility test and the adoption of a uniformly formalist approach to the interpretation of Chapter III.35

Having argued that both the formalist separation rules and the functionalist incompatibility test are subject to serious weaknesses in their capacity to achieve judicial independence and impartiality, in the final sections of Part Two I contribute a new perspective to the debate. The analyses of the strengths and weaknesses of the formalist and functionalist tests underpin the introduction of a new interpretive approach called purposive formalism. Purposive Formalism is a two-tiered method that aims to harness the strengths of the existing tests in a manner that ameliorates their weaknesses.

The first tier of purposive formalism inquires whether a power is judicial or non- judicial. If a clear answer arises at this tier then the power is allocated according to its definition. Thus the test is fundamentally formalist in nature. Powers of a penumbral nature are allocated at the second tier of analysis, the ‘compatibility’ limb. These powers may only be conferred on federal courts if they are demonstrably compatible with judicial independence and impartiality. The compatibility limb bears clear resemblance to the functionalist incompatibility test, but it also has important differences which I introduce in

34 Denise Meyerson, ‘The Independence of the Judiciary in Australia and South Africa: Comparative Lessons’ in Penelope E Andrews and Susan Bazilli (eds), Law and Rights: Global Perspectives on Constitutionalism and Governance (Vandeplas Publishing, 2008) 79, 79. 35 Ibid 88; Walker, above n 28, 167. For similar arguments made in the United States context see, eg: Martin Redish and Elizabeth Cisar, ‘”If Angels were to Govern”: The Need for Pragmatic Formalism in Separation of Powers Theory’ (1991) 41 Duke Law Journal 449.

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Part Two and expand upon in Part Four of the thesis. Purposive formalism may not be an infallible method, but I submit that it effectively improves upon both the formalist separation rules and the functionalist incompatibility test, and offers a better chance of achieving the independence and impartiality of federal courts.

IV TWO CASE STUDIES: CONTROL ORDERS AND PREVENTATIVE DETENTION ORDERS

In order to determine which interpretation of Chapter III best achieves judicial independence and impartiality I move beyond the abstract doctrinal analysis of Part Two to consider my arguments in the context of existing laws. Parts Three and Four are case studies, undertaking more focussed analyses to assess whether the strengths and weaknesses of the formalist, functionalist and purposive formalist tests discussed in Part

Two are borne out in practice.

The laws which form the basis for the two case studies are Divisions 104 and 105 of the Commonwealth Criminal Code (the ‘Code’),36 that is, the federal anti-terrorism control order and preventative detention order (‘PDO’) schemes respectively. These schemes provide valuable case studies by which to assess the capacity of constitutional tests to achieve judicial independence and impartiality. They are essentially similar schemes, conferring similar powers on courts and judges respectively. The schemes pose clear challenges to judicial independence and impartiality and strike at the weakest aspects of the relevant tests.

36 Criminal Code Act 1995 (Cth).

12 Part One: Introduction

The control order provisions in Division 104 of the Code empower federal courts to impose a wide variety of potentially onerous obligations and restrictions on persons for the purpose of protecting the community from the threat of terrorism.37 A court must also be satisfied that imposing a control order on the person will either substantially assist in preventing a terrorist act or that the person has been involved in training with a listed terrorist organisation.38

The PDO provisions in Division 105 of the Code provide a scheme by which the

Australian Federal Police may obtain an interim PDO for the incarceration of a person for up to 24 hours issued by a senior police officer. This order may be ‘continued’ by an

Issuing Authority, enabling up to 48 hours detention. Consenting judges may be appointed personae designatae to the position of Issuing Authority for continued PDOs. Like control orders, PDOs are issued on the basis of an assessment that the order and its terms are reasonably necessary to prevent terrorism. In the case of PDOs the relevant act of terrorism must be imminent or, alternatively, the detention must be reasonably necessary to preserve evidence of a recent terrorist act.39

The powers conferred on federal courts under Division 104, and on judges under

Division 105, involve judges in unusual roles. The court or judge, as the case may be, is charged with predicting how particular restraints on liberty may contribute to the prevention of future harm to the community. The fundamental similarity between the

37 Criminal Code Act 1995 (Cth) s 104.4. 38 Criminal Code Act 1995 (Cth) s 104.4(1)(b)-(c). 39 Criminal Code Act 1995 (Cth) s 105.4.

13 Part One: Introduction

powers of federal courts in control order proceedings, and Issuing Authorities with respect to PDOs, prompts important Chapter III questions. For instance, the overlapping nature of these judicial and administrative powers may reflect the amorphous nature of judicial power and the insusceptibility of those powers to precise definition. In this way, the schemes throw into question the primary formalist assumption that all powers are susceptible to precise and enforceable identification as judicial or non-judicial.

Of central importance to this thesis is the manner in which both schemes challenge the purposive aspect of the separation of judicial power. Control orders and PDOs have the capacity to directly and severely impact the rights and liberties of citizens in the absence of criminal charge or trial. Both orders are issued in proceedings that seriously compromise basic hallmarks of fair process and natural justice. As just two examples, both interim control orders and PDOs are issued in ex parte proceedings and are likely to involve a substantial amount of information being withheld from the person subject to the order.

The parallels between control orders and PDOs makes it possible to effectively compare and contrast the strengths and weaknesses of the three interpretive approaches that frame the thesis, without resorting to hypothetical legislation. In this way the thesis discusses real and relevant constitutional questions, undertaking a legitimate assessment of the constitutional validity of control orders and PDOs under the appropriate Chapter III test.

In the case of control orders this assessment is assisted by the case of Thomas v Mowbray

(‘Thomas’),40 in which a majority of the High Court upheld the validity of Division 104,

40 (2007) 233 CLR 307.

14 Part One: Introduction

finding that the power conferred on federal courts is judicial in nature and therefore not in breach of the second separation rule.

Part Three of the thesis considers whether the second separation rule is capable of achieving judicial independence and impartiality. I address this question by focussing upon the control order provisions of the Code and the 2007 case of Thomas. A close consideration of the judgments in Thomas demonstrates the weaknesses of the second separation rule in practice. In particular, the case highlights the generous flexibility with which the defining characteristics of judicial power may be interpreted and the awkward place of basic fair process protections within the definition-focussed formalist framework.

A further key weakness of the separation rules revealed in this analysis is their failure to clarify how the validity of penumbral powers is assessed. These observations have serious implications for the capacity of the rule to protect the independence and impartiality of federal courts.

Part Three concludes with a purposive formalist analysis of the control order provisions. Purposive formalism overcomes the weaknesses in the separation rules by recognising the existence of penumbral powers and delineating a clear method for assessing the constitutional validity of these powers, that enhances judicial independence and impartiality. Moreover, the compatibility limb provides a direct avenue by which the impact of a power on fair process may be considered. Crucially, purposive formalism also retains the rigidity and strictness that formalism claims as its strength.

15 Part One: Introduction

Part Four undertakes a similar case study analysis contrasting the functionalist incompatibility test and the two-tiered purposive formalist test. This Part considers the

PDO provisions of the Code, enacted alongside the control order scheme discussed in Part

Three. In contrast to control orders that are issued by federal courts, continued PDOs may be issued by serving judges in their personal capacities, thus invoking the incompatibility limit on the permissible powers of judges persona designata.

Against this backdrop, Part Four considers the incompatibility test in action, applying the test to the PDO provisions in order to assess its strengths and weaknesses as a mechanism for achieving judicial independence and impartiality. This analysis reveals the incompatibility test to be highly unpredictable and difficult to follow or apply. Not only is incompatibility a flexible standard subject to differing, arguably contradictory, interpretations, but it is far from clear how the test intersects with other constitutional notions, such as the essential features of courts, public confidence and fair process. Those principles that emerge clearly from the authorities suggest an essentially narrow, minimalistic conception of incompatibility that is easily avoided by the preservation of some degree of arms-length independence and overarching discretions. On this basis, the test provides little scope for considering the most troubling aspects of PDOs, such as their departure from fair process and their severe imposition on the rights and liberties of citizens. The incompatibility test directly engages the purposes of Chapter III and renders them determinative of constitutional validity. This gives the test considerable potential as a mechanism to achieve judicial independence and impartiality, but the incompatibility test has not delivered on this potential.

16 Part One: Introduction

As PDOs effect the incarceration of citizens outside the criminal trial process, an argument may be made for the existence of a special case under the incompatibility test. In

Part Four I consider arguments supporting the existence of such a special case, whereby a judge or court may only be involved in a scheme for preventive incarceration if that scheme complies with the basic tenets of fair process. This special case would recognise the specific threat to constitutional values posed by the preventive incarceration of citizens and it would result in the invalidity of PDOs. However, the existence of a special case for preventive incarceration under the incompatibility test is far from clear. At best, it would be strictly limited to a very narrow set of circumstances.

Part Four concludes with a purposive formalist analysis of the PDO provisions. By relegating the purposive inquiry to a second tier relevant only to penumbral powers, purposive formalism minimises the impact of the deficiencies in the functionalist incompatibility test. Purposive formalism is a clearer test. By commencing with the formalist inquiry it lends greater predictability and consistency to the interpretation of

Chapter III, avoiding the difficulties arising from a direct application of the flexible, broadly-encompassing functionalist analysis at first instance. This formalist starting point also recognises the importance of preserving the characteristics of judicial power, a feature absent from the functionalist test.

Purposive formalism relegates the purposive inquiry to a second tier, but it also reframes this inquiry and requires a fresh jurisprudence of compatibility. Vitally, purposive formalism’s compatibility inquiry is positively framed to compel engagement with the meaning of compatibility rather than focussing upon offensive incompatible features. Thus,

17 Part One: Introduction

purposive formalism actively facilitates the development of fresh and substantive understandings of judicial independence and impartiality, and the evolution of fair process jurisprudence. Any decision engaging purposive formalism’s compatibility limb would be openly and accountably justified by reference to the purposes underpinning the separation of federal judicial power. In these ways purposive formalism is designed to harness the strength of the incompatibility test whilst minimising its weaknesses.

Purposive formalism avoids the need to argue a ‘special case’ in order to engage a substantive notion of compatibility. It recognises the importance of considering the impact of a power on judicial independence and impartiality in all contexts, not just those resulting in incarceration. In all, purposive formalism strikes a balance between the direct purposive engagement of a compatibility test and the rigidity of the formalist separation rules, thus protecting judicial independence from the incremental erosion apparent in the incompatibility authorities.

Throughout the case study analyses in Parts Three and Four I am careful to refrain from instrumentalist arguments. Indeed, the purposive formalist test does not produce a clear result as to the Chapter III validity of either control orders or PDOs. The advantage of purposive formalism is not that it produces particular results in particular cases, but that it better ensures that courts engage predictably, consistently, accountably and openly with the purposive aspect of Chapter III in reaching decisions as to constitutional validity.

Ultimately these case studies can do no more than illustrate how purposive formalism might play out in practice. But they do support the central contention that purposive

18 Part One: Introduction

formalism is a preferable method for achieving the independence and impartiality of federal courts.

V CONCLUSIONS AND BROADER THEMES

Part Five concludes this work by drawing together the doctrinal analysis in Part Two with the focussed case studies in Parts Three and Four, so as to make broader conclusions and comment briefly on some of the themes that arise from this study. The strengths and weaknesses of each method proposed in Part Two are, to a large extent, borne out in the case studies. Purposive formalism is consistently supported as a preferable method of interpreting Chapter III in order to achieve independent and impartial federal courts.

The study as a whole highlights the inherent limitations of Chapter III as a mechanism for the protection of rule of law values, including the fairness and equality of judicial proceedings. Essentially the separation of judicial power is an awkward mechanism for the protection of fair process, it focuses narrowly on the court rather than on the impact particular proceedings may have on the parties.

The study also refutes the common-sense conclusion that directly harnessing the purpose of a rule to determine cases is the best option for achieving that purpose. In this light, the thesis goes some way to explaining the disappointing evolution of the incompatibility test from a triumph of purposive functionalism to an unpredictable and thin protection for judicial independence and impartiality. Though the focus of the present inquiry rests narrowly upon the separation of federal judicial power, it may have broader implications on the adoption or development of functionalist tests in other areas, and may

19 Part One: Introduction

fit within a broader literature dealing with the relationship between rules and their purposes.41 These themes suggest avenues for future research.

By acknowledging and developing the purposive aspect of an essentially formalist test, this thesis highlights the common ground between formalist and functionalist viewpoints on the interpretation of Chapter III. It develops the observation by Peter Gerangelos that, ‘[t]he fact that the [separation of powers] doctrine itself is clearly purposive, relegates the dispute between formalism and functionalism to a narrower sphere of relevance’.42 The debate between advocates of formalist and functionalist approaches to determining the powers of federal courts has raged for well over half a century. Purposive formalism may offer a bridge between these factions, a method of resolving the debate, or at least narrowing its scope.

Purposive formalism has much to commend it as the preferred approach to interpreting

Chapter III. It avoids the doctrinal inconsistencies and weaknesses of the existing tests and delivers more robust protection for judicial independence and impartiality. The test directly engages with the purposes of Chapter III, but retains the rigour, caution and prophylactic strength of the separation rules. Crucially, purposive formalism compels courts to be more consistent, open and accountable in their approaches to interpreting Chapter III of the

Constitution, particularly with respect to the purposive aspect of the separation of judicial power. Purposive formalism is by no means a perfect or infallible method. However, those

41 See, eg, Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rules-Based Decision-Making in Law and in Life (Clarendon Law Series, 1991); Meyerson, ‘The Independence of the Judiciary in Australia and South Africa’, above n 34, 82-84. 42 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 9, 9.

20 Part One: Introduction

risks it does pose to judicial independence and impartiality are consistently demonstrated to be less than the risks posed by the formalist separation rules or functionalist incompatibility test. In essence, purposive formalism strikes a balance between strict rules and the principles at which they aim. In doing so, it arises as a more effective mechanism for the achievement of independent and impartial federal courts, and as a preferable interpretation of Chapter III of the Constitution.

21 Part Two: Interpreting Ch III

PART TWO

A PATH TO PURPOSIVE FORMALISM:

INTERPRETING CHAPTER III FOR JUDICIAL

INDEPENDENCE AND IMPARTIALITY

I INTRODUCTION

From its earliest stages the Constitution was intended to create and maintain independent and impartial federal courts. The Framers of the Constitution discussed the importance of judicial independence and impartiality and ensured fundamental protections for the tenure and remuneration of judges were constitutionally enshrined.1 However, the

Framers shed little light on the degree of separation required between judicial and non- judicial powers under the new Constitution.2 The constitutional text does little to clarify this ambiguity.

From these rather enigmatic foundations – briefly explored in section II, below – the

High Court came to interpret Chapter III of the Constitution as requiring a particularly strict separation of federal judicial powers, forbidding judicial and non-judicial powers from being vested in the same institution except in strictly limited circumstances. The separation

1 Australian Constitution s 72. 2 Fiona Wheeler, ‘Original Intent and the Separation of Powers in Australia’ (1996) 7 Public Law Review 96; Fiona Wheeler, ‘The Boilermakers Case’ in HP Lee and George Winterton, Australian Constitutional Landmark (Cambridge University Press, 2003) 160, 161-162; James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 69-72.

22 Part Two: Interpreting Ch III

of judicial power has now evolved as one of the most litigated aspects of Australian constitutional law.3

Against this background the strict separation of federal judicial power has been widely criticised as unnecessary and overly technical.4 It has also been undermined by an increasingly flexible approach to distinguishing judicial from non-judicial functions. The controversy of how Chapter III ought to be interpreted in light of the text, structure, objects and purposes of the Constitution has been hotly debated for a substantial part of Australia’s constitutional history, and a growing appreciation of Chapter III as a source of implied protections has only served to heighten this debate.5 Today, calls for the strict approach to

3 Statistical analyses of High Court decisions conducted by Andrew Lynch and George Williams over the last decade have consistently shown that Chapter III is the most frequent subject of constitutional litigation in the High Court: Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2012 Statistics’ (2013) 36 University of New South Wales Law Journal 514, 521; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2011 Statistics’ (2012) 35 University of New South Wales Law Journal 846, 854; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2010 Statistics’ (2011) 34 University of New South Wales Law Journal 1030, 1038; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2009 Statistics’ (2010) 33 University of New South Wales Law Journal 267, 275; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2008 Statistics’ (2009) 32 University of New South Wales Law Journal 181, 187; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2007 Statistics’ (2008) 31 University of New South Wales Law Journal 238, 244; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: the 2006 statistics’ (2007) 30 University of New South Wales Law Journal 188, 195; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2005 Statistics’ (2006) 29 University of New South Wales Law Journal 182, 189; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law - the 2004 Statistics’ (2005) 28 University of New South Wales Law Journal 14, 18. 4 R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ); James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113; Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1. 5 See, eg, Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32 Federal Law Review 205.

23 Part Two: Interpreting Ch III

the separation of federal judicial power to be overruled and replaced with a more flexible test continue to gather ground.6

The primary aim of this Part is to determine a preferable method of interpreting

Chapter III in light of its core purpose of achieving judicial independence and impartiality.

Specifically, I focus on the degree of separation required between federal judicial and non- judicial powers of government by the Constitution. The widely acknowledged purposive nature of Chapter III – discussed in section III – presents a rare point of convergence between the main interpretational viewpoints. Accordingly it provides a valuable basis from which existing interpretations may be assessed, and from which a preferable method may evolve. The question addressed in this Part is thus: which approach to interpreting

Chapter III optimises the achievement of judicial independence and impartiality?

Some of the themes in this Part of the thesis are expansive. For instance, the separation of powers is far more complex, multifaceted and expansive than my focus on the permissible functions of federal courts may suggest. However, both the scope of my analysis and the nature of my conclusions are confined. My aim in this thesis is merely to seek to determine how Chapter III of the Australian Constitution may be interpreted to affect the allocation of powers of government in a manner that best achieves the independence and impartiality of federal courts.

6 See, eg, Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4; Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law Journal 265.

24 Part Two: Interpreting Ch III

Formalism and functionalism are two key schools that have emerged to analyse the interpretation of the constitutional separation of judicial power, and they frame the present analysis.7 As introduced in Part One, formalism advocates the strict separation of functions based on their identification as judicial, legislative or executive. In Australia, the formalist approach is embodied in the prevailing interpretation of Chapter III. This interpretation requires, first, that judicial power be vested only in courts and, secondly, that federal courts be limited to the exercise of judicial and incidental powers (these requirements I refer to as the two separation rules).

Functionalism is more flexible and therefore more difficult to define at-large.

Essentially functionalism permits the conferral of powers on institutions regardless of questions of definition, unless the conferral infringes some other standard. In Australia the functionalist approach is embodied in the adoption of an incompatibility test, whereby the judiciary is prevented only from exercising powers that undermine its independence or integrity. An incompatibility test limits the permissible functions of State courts and of judges acting in a personal capacity (‘persona designata’). Many of Australia’s leading constitutionalists have called for a functionalist incompatibility test to replace the formalist separation rule preventing federal courts from exercising non-judicial powers.8

7 Rohan Hardcastle, ‘A Chapter III Implication for State Courts: Kable v Director of Public Prosecutions’ (1998) 3 Newcastle Law Review 13, 27. See also, Denise Meyerson, ‘Extra- judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 193-194. 8 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4; Mason, above n 4; Appleby, ‘Imperfection and Inconvenience’, above n 6; George Winterton, Parliament, the Executive and the Governor-General (Melbourne, 1983), 60, 62-63; Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University,

25 Part Two: Interpreting Ch III

In sections IV and V I critique the success of the formalist separation rules and functionalist incompatibility test respectively in achieving judicial independence and impartiality. To some extent this analysis fits within a far broader literature dealing with the complex relationship between rules and their justifications.9 There is certainly scope for further research deconstructing the Australian methods of interpreting Chapter III along these lines. My task in this Part is, however, narrowly confined and relatively pragmatic.

Unsurprisingly, my critique of the formalist separation rules and the functionalist incompatibility test reveals each approach to have significant strengths and weaknesses. It is argued that, unlike the weaknesses of the formalist approach, the weaknesses of the incompatibility test are inherent and insurmountable, arising from functionalism’s characteristic flexibility and permissiveness.

The critique of formalism and functionalism in their separate contexts underpins the identification of a fresh approach I call purposive formalism, introduced in section VI.

Purposive formalism harnesses some of the strengths of the functionalist test to overcome key weaknesses in the formalist separation rules. In doing so, purposive formalism also addresses the weaknesses inherent in the functionalist test. The proposed approach is

1999) 156; Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 299, though Peter Gerangelos notes that despite Zines appearing to favour a ‘purposive functionalist approach ... it would be inaccurate to locate Zines within any precise “school”: Peter Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1, 5. 9 See, Frederick Schauer, Playing by the Rules (Clarendon Law Series, 1991), in particular at 73-85; HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593; Lon L Fuller ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630; PS Atiyah and Robert S. Summers, Form and Substance in Anglo- American Law (Clarendon Press, 1987); Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 7, 198.

26 Part Two: Interpreting Ch III

presented not as an ideal method, but as a stronger protection for judicial independence and impartiality than the existing tests discussed. Thus purposive formalism presents a step forward in the development of Chapter III jurisprudence and in the achievement of independent and impartial federal courts.

II THE DIFFICULT TASK OF INTERPRETING CHAPTER III

The Commonwealth Constitution creates and allocates three kinds of government power. Chapter I confers legislative power on the Federal Parliament.10 Chapter II confers executive power on the Crown and Her representatives.11 Chapter III confers the judicial power of the Commonwealth on properly constituted courts.12 Prima facie the Constitution thus facilitates a traditional tripartite separation of powers,13 famously theorised by Charles-

Louis de Secondat, baron de Montesquieu,14 passionately adopted by James Madison15 and popularised through the spread of democratic values and international institutions.16

10 Australian Constitution s 1. 11 Ibid s 61. 12 Ibid s 71. 13 Wheeler, ‘Original Intent’ above n 2, 98-99; Brendan Gogarty and Benedict Bartl, ‘Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters’ (2009) 32 University of New South Wales Law Journal 75, 85. 14 Charles-Louis de Secondat, Baron de Montesquieu, L’Espirit des Lois, Book XI, (1748) in Michael Curtis (ed) The Great Political Theories, vol 1 (Avon Books, 1981) 433-438. 15 James Madison, The Federalist, no. 51 (1788), 347-353. 16 Gogarty and Bartl, above n 13, 78-80; HP Lee and Enid Campbell, The Australian Judiciary (Cambridge University Press, 2nd ed, 2012) 7-9.

27 Part Two: Interpreting Ch III

Whilst the basic constitutional adherence to a tripartite conception of government power is clear,17 the exact nature of the separation between each of the three arms of government is considerably murkier. The uniquely Australian ‘Washminster’ blend of constitutional elements drawn from the United States and the United Kingdom makes resolving the intended separation of powers particularly difficult.18 On the one hand, the structure of the Australian Constitution mirrors that of the United States Constitution and confers branch functions according to their definition.19 On the other hand, the strong influence of Westminster constitutionalism, seen in the adoption of the convention of responsible government, implies blurred distinctions between the branches of government.20 Thus, the Constitution at once defines three distinct forms of government power and blurs the distinction between branches by, for example, providing that Ministers must be parliamentarians21 and vesting both adjudicative and administrative functions in the Interstate Commission.22

The Convention Debates offer little to illuminate the nature of the Australian separation of powers and are inconclusive as to the existence or nature of the separation of

17 R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 275 (Dixon CJ, McTiernan, Fullagar, Kitto JJ). Sir Robert Garran recollected that the Constitution’s structural allocation of power was merely a ‘draftsman’s neat arrangement, without any hint of further significance’: Robert Garran, Prosper the Commonwealth (Angus & Robertson, 1958) 194. However, this was refuted by the High Court relatively quickly, and directly contradicted in the Boilermakers’ case: 275 (Dixon CJ, McTiernan, Fullagar, Kitto JJ). 18 Cheryl Saunders, ‘The Separation of Powers’ in Fiona Wheeler and Brian Opeskin (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 3, 8. 19 Australian Constitution ss 1, 61 and 71. 20 Saunders, above n 18, 8. 21 Australian Constitution s 64. 22 Ibid s 101.

28 Part Two: Interpreting Ch III

federal judicial power.23 The separation of judicial power was largely undiscussed by the

Framers,24 though concepts such as judicial independence did feature in the Debates.25 The

Framers’ writings after the fact do little to clarify their intentions.26 In 1958, Sir Robert

Garran recollected that the Constitution’s structural allocation of power was merely a

‘draftsman’s neat arrangement, without any hint of further significance’.27 This stands in contrast to his much earlier writings with Sir John Quick asserting that a strict separation of federal judicial power was intended and may properly be derived from the text and structure of the Constitution.28 The strict separation was also advocated by Quick writing with Sir Littleton Groom.29 Quick and Groom’s text in turn influenced the ‘shifting opinion’ of Harrison Moore, whose assertions that the Constitution enshrined a strict separation only gained confidence in the 2nd edition of his The Constitution of the

Commonwealth of Australia.30

23 Wheeler, ‘Original Intent’, above n 2; JM Finnis, ‘Separation of Powers in the Australian Constitution’ (1968) 3 Adelaide Law Review 159. 24 Wheeler, ‘The Boilermakers Case’, above n 2, 161-162; Wheeler, ‘Original Intent’, above n 2, writing: ‘the doctrine of separation of powers was barely mentioned at the Conventions of the 1890s, and, that on the one occasion that the doctrine was discussed at length, it was in defence of a clause ultimately omitted from the Constitution. The primary historical material simply does not support the conclusion that the framers expressly intended to adopt, as a principle of their Constitution, a doctrine of separation of powers – be that doctrine narrowly or broadly conceived.’: 103. 25 Stellios, The Federal Judicature, above n 2, 69-72. 26 See discussion in, Gerangelos, ‘Interpretational Methodology’, above n 8, 9. 27 Robert Garran, Prosper the Commonwealth (Angus & Robertson, 1958) 194. 28 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, 1901). 29 John Quick and Littleton E Groom, The Judicial Power of the Commonwealth (Maxwell, 1904). 30 (Maxwell, 2nd ed, 1910); Wheeler, ‘Original Intent’, above n 2, 99; Gerangelos, ‘Interpretational Methodology’, above n 8, 9.

29 Part Two: Interpreting Ch III

As neither the Convention Debates, nor the Framers, nor the Constitution itself renders clear the extent to which a separation of federal judicial power exists, there is an appealing logic in Fiona Wheeler’s conclusions that the Framers themselves were divided and may have purposefully avoided the issue. Wheeler suggests that:31

Such convention luminaries as Barton, Isaacs and Higgins … may nonetheless have been

mindful that to initiate a discussion on this technical legal issue in a forum in which time

was so often pressing would only serve to distract the mass of delegates from the key

political issues confronting them … in relation to which compromise between the colonies

(and the agreement of the people) was vital if federation was ever to become a reality.

The meaning of the Constitution as to the degree of separation required between the judicial and non-judicial powers of government was thus left to the High Court’s interpretation.32

A range of approaches was available to the early High Court in its interpretation of

Chapter III. The adopted method would impact enormously on the fundamental mechanics of the Australian government, including on its own powers and processes. In light of its crucial importance, the question of interpretational approach was fraught and remains so.

For instance, an originalist approach looking to the intentions of the Framers was likely to be inconclusive, but offered little to suggest a strict separation was envisaged.

Alternatively, a textualist approach focussing upon the constitutional document may support a strict separation, citing the clear allocations of power in sections 1, 61 and 71, but

31 Wheeler, ‘Original Intent’, above n 2, 103. 32 Ibid 104.

30 Part Two: Interpreting Ch III

this approach too is ultimately insufficient to frame a clear picture of the degree of separation intended for the federal judicature.

The inconclusiveness of originalist or textual approaches opened the way for the theoretical preferences of particular justices to come into play.33 Wheeler has written insightfully on the impact of particular judicial perspectives on the interpretation of

Chapter III;34 in this Part I take a step back from these observations.

For present purposes it is important to recognise that the text, structure, objects and purposes of the Constitution are capable of supporting a range of interpretive methods, including both formalist and functionalist approaches. The question then becomes, which approach ought to be adopted? This normative inquiry may of course invite different perspectives. My analysis is grounded in the contention that the separation of judicial power is a purposive doctrine, and that it ought to be interpreted in a manner that best achieves its purposes.

III THE PURPOSIVE NATURE OF THE SEPARATION OF FEDERAL JUDICIAL POWER

The tripartite separation of powers does not exist simply for its own sake. It is appreciated as a key means of avoiding the concentration of government power in one body and a situation of unrestrained power, risking tyranny and arbitrary rule. As democratic

33 See discussion below in section V; Wheeler, ‘The Boilermakers Case’, above n 2, 162; Leslie Zines, ‘2002 Sir Maurice Byers Lecture: Legalism, Realism and Judicial Rhetoric in Constitutional Law’ Summer 2002/2003 Bar News 13, 15. 34 Wheeler, ‘The Boilermakers Case’, above n 2; Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis, above n 8, especially chapter two focussing on the contribution of Sir Isaac Isaacs, and chapter four on that of Sir Owen Dixon.

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values evolved to create modern systems of government, the separation of powers between three governing branches – the executive, legislature and judiciary – took on a fundamental role in fulfilling the key task of Western constitutions, namely, the creation and constraint of power.

In his seminal work on the topic MJC Vile introduces the separation of powers as ‘the most effective embodiment of the spirit which lies behind’ Western systems of government, and explains:35

Western institutional theorists have concerned themselves with the problem of ensuring that

the exercise of governmental power, which is essential to the realisation of the values of

their societies, should be controlled in order that it should not be destructive to the values it

was intended to promote. The great theme of the advocates of constitutionalism ... has been

the frank acknowledgment of the role of government in society linked with the

determination to bring that government under control and to place limits on the exercise of

its power. Of the theories of government which have attempted to provide a solution to this

dilemma, the doctrine of the separation of powers has, in modern times, been the most

significant both intellectually and in terms of its influence upon institutional structures.

In a similar vein George Winterton concisely observed that ‘[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty’.36

35 MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998) 2. 36 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 (Federation Press, 1994) 185.

32 Part Two: Interpreting Ch III

Similar considerations underpin the separation of the judicial powers from the non- judicial powers of state. The Australian system has been grounded in an accepted overlap between the executive and legislative branches. This overlap heightens the necessity for a strongly independent judicial arm to avoid the undue concentration of power in a substantially singular political class. The central aim of the Australian separation of federal judicial power is to create and maintain an independent and impartial judicature.

The centrality of judicial independence and impartiality to the Australian Constitution was identified by the Framers and has remained a consistent theme of the High Court’s decisions on Chapter III issues.37 It is through judicial independence and impartiality that the separation of judicial power achieves fundamental constitutional aims. These aims include: providing a judicial check and balance on government power, preserving representative and responsible government; maintaining equality and the rule of law, and upholding the rights and liberties of citizens. Each of these aims is developed briefly below.

It must be recognised that these aims are interconnected and are by no means an exhaustive list. As is so common in constitutional law, each aim raises a host of complex and controversial questions regarding the meaning of its central concepts and the exact nature of its impact. Nonetheless, each example represents a prime justification for the preservation of judicial independence and impartiality through the separation of judicial power in Australia.

37 Stellios, The Federal Judicature, above n 2, 69-72, 96-102. See, eg, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 382 (Isaacs J); The Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 469-470 (Isaacs and Rich JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 73 (Gummow, Hayne and Crennan JJ).

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The protection of judicial independence and impartiality prevents arbitrary exercises of government power by maintaining constitutional checks and balances on that power.

Separating the judicial powers of government prevents the political branches from usurping or controlling the powers of courts and thus avoiding or limiting their legal accountability.

A judicature subject to unrestricted control by Parliament would struggle to maintain its actual independence or community faith in the legitimacy of its decisions.

The separation of the judicial power enables courts to provide an effective check on government action by preventing officials from having the last word on the legality of their actions.38 The capacity of the court to exercise this accountability role, as well as its most direct check on government power – effective judicial review – depends upon its independence from the other branches of government. As HP Lee and Enid Campbell note:39

In performing the role of judicial review of the validity of legislation and of the legality of

executive action, there will arise occasions when there will be tensions between the

judiciary and the executive. Hence, it is vital that the judiciary be fully independent in order

for it to carry out its role with fidelity to the oath of judicial office.

The preservation of judicial independence and impartiality further necessitates that courts do not exercise political powers. To do so would align the judicature with the political branches and risk subjective and partial decision-making. In this way, judicial

38 Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1, 2. 39 Lee and Campbell, above n 16, 3.

34 Part Two: Interpreting Ch III

independence preserves representative and responsible government by ensuring the political branches cannot avoid accountability to the electorate by delegating their political powers to the unaccountable, unelected judiciary.40 Moreover it ensures the integrity of judicial decision-making by ensuring that courts decide legal controversies according to the law, not according to their personal moral or political opinions.41

Courts play an important constitutional and social role in adjudicating disputes between citizens, and between citizens and the state. Federal courts play an additional role in resolving legal disputes between the various polities in the federation.42 The Framers of the Australian Constitution may not have discussed the separation of powers as such, but they emphasised the importance of an independent and impartial federal judicature to the equal administration of justice throughout the federation. In particular, independent federal courts, unswayed by political concerns and thus capable of maintaining peace and the constitutional compact, were emphasised throughout the Convention Debates as vital to the new Commonwealth.43 In essence, the Framers’ concerns highlight the role of independent and impartial courts in maintaining equality before the law.

Just as federal courts play a vital role in upholding the Constitution, the apolitical, independent and impartial judiciary presents a key means of upholding citizens’ rights, even when those rights conflict with political interests. The role of courts in upholding

40 Martin Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta’ (1989) 39 DePaul Law Review 299, 303. 41 Meyerson, ‘The Rule of Law and the Separation of Powers’, above n 38, 3. 42 Lee and Campbell, above n 16, 3; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11 (Brennan CJ, Deane, Dawson and Toohey JJ). 43 Stellios, The Federal Judicature, above n 2, 69-72.

35 Part Two: Interpreting Ch III

citizens’ rights has gained increasing attention since the global proliferation of human rights interests, though this role was also acknowledged in the course of the Convention

Debates of the 1890s. As Josiah Symon said during the 1897 Adelaide Convention:44

The Federal High Court is placed in a position to safeguard the liberties of the subject and

the rights of the individual States against encroachment of the Legislature. It is placed in a

position in which its independence must be absolutely assured.

As Martin Redish (whose formalist views on judicial independence are not uncontroversial) observed, it is the judiciary’s ‘carefully protected unrepresentativeness’ that enables it to

‘serve as an effective check and enforcer of counter-majoritarian constitutional norms against the representative branches’.45

Expanding on this theme of equality and citizens’ rights, Laws LJ claimed in a recent extra-judicial address that the representative arms of government exist to strive for the utilitarian greater good whilst it is left solely to the judiciary, insulated from the political branches, to embody and maintain the ‘morality of law’. This counterpoint to the utilitarian morality of government Laws LJ described as being concerned with:46

[C]onsistency, proportionality, fair process and the presumption of liberty [which] are by

their nature bound to condition the administration of individual rights and duties very

closely, and to that extent direct the outcome of judicial decisions.

44 Convention Debates, vol III, Adelaide, 1897, 950 (Symon). 45 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 302. 46 John Laws, ‘The Good Constitution’ (2012) 71 Cambridge Law Journal 567, 575.

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The details of Laws LJ’s morality of law may be subject to debate,47 but the basic idea of a judicial concern for individual rights counter-balancing the populist political concerns of government is relatively uncontentious. The theme of an independent judicature upholding the law in an apolitical and impartial manner speaks to the strong link between judicial independence and impartiality and the rule of law.

By maintaining an independent and impartial court system, the separation of judicial power provides an avenue for equality before the law, the impartial administration of justice, judicial review, checks and balances on government power, the avoidance of arbitrariness and the protection of rights and liberties. These may be appreciated as facets of the rule of law and would certainly accord with the conception advanced by, for example, Trevor Allan and Lord Bingham of Cornhill QC.48 Even AV Dicey’s relatively minimalist conception of the rule of law as ‘the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’ emphasises the basic equality and legality achievable through the administration of justice by independent courts.49

47 Laws LJ’s views were expressed in response to earlier papers debating the limits of judicial review in the United Kingdom, namely: Jonathan Sumption ‘Judicial and Political Decision- Making: The Uncertain Boundary’ (Speech delivered at the FA Mann Lecture, Lincoln’s Inn, 9 November 2011) 19; Stephen Sedley, ‘Judicial Politics’ (2011) 34 London Review of Books 15, 15-16. 48 TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001); Tom Bingham, The Rule of Law (Penguin, 2011). 49 Which HP Lee and Edith Campbell suggest is a ‘prevailing meaning’: Lee and Campbell, above n 16, 5.

37 Part Two: Interpreting Ch III

The rule of law is a notoriously uncertain and debated concept, but it has an undeniably close relationship with judicial independence and impartiality. As Cheryl Saunders and

Katherine Le Roy observe: ‘perhaps the central purpose [of judicial independence] – is the maintenance of the rule of law, however defined’.50 For Ralf Dahrendorf, judicial independence51

may indeed be regarded as the very definition of the ‘rule of law’: it is certainly an

important part of it …. [T]he partisan administration of law is in fact the perversion of law,

and the denial of the rule of law.

Similarly, former Chief Justice of the High Court Sir Anthony Mason broadly identifies the purposes of the separation of judicial powers as:52

[T]o maintain and enhance the system of representative and responsible government

brought into existence by the Constitution and to ensure the maintenance of the rule of law

by an independent judiciary whose responsibility it is to determine justiciable controversies.

Rule of law language pervades many discussions of the purposes behind the separation of judicial power.53 Regardless of one’s perspective on the rule of law, it may be seen that a

50 Cheryl Saunders and Katherine Le Roy, ‘Perspectives on the Rule of Law’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (The Federation Press, 2003) 1, 2. 51 Ralf Dahrendorf, ‘A Confusion of Powers: Politics and the Rule of Law’ (1977) 40 Modern Law Review 1, 9, quoted in, Meyerson, ‘The Rule of Law and the Separation of Powers’ above n 38, 3. 52 Mason, above n 4, 2; A view echoed by Peter Gerangelos, ‘Interpretational Methodology’, above n 8, 3. 53 See, Robert French, ‘Executive Toys – Judges and Non-Judicial Functions’ (Speech delivered at the District Court Judges’ Conference, Joondalup, 11 April 2008); Michael Kirby, ‘Australia’ in S Shetreet and J Deschenes (eds), Judicial Independence: The Contemporary Debate (Springer, 1985) 8, 12; Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193

38 Part Two: Interpreting Ch III

purpose of the separation of judicial power is to protect core constitutional values such as equality, the legal limitation of government power, the prevention of arbitrariness and the protection of rights. To adopt the words of the New Zealand Law Commission, judicial independence and impartiality ‘are the pillars on which justice according to the law stands’.54

In sum, the separation of federal judicial power is concerned with achieving the independence and impartiality of the judicature. Through judicial independence and impartiality a range of further constitutional aims are attained. These aims are varied and may attract debate as to their meanings and content. For example, the separation of judicial power may protect representative and responsible government – but what exactly do these powerful concepts entail? What role does Chapter III play in protecting them as compared to the maintenance of free and fair elections, freedom of information laws, or the implied freedom of political communication? These kinds of questions are important, but they do not detract from the purposive nature of Chapter III or from the identification of its core purpose as the achievement of judicial independence and impartiality. The separation of judicial power protects constitutional values by creating and maintaining an independent and impartial judicature. A judiciary enjoying protections over its independence and impartiality will be in a position to fulfil its constitutional duty to apply the Constitution and in doing so resolve difficult questions of interpretation with authority and legitimacy.

(Dixon J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 39-40 (Kirby J). 54 New Zealand Law Commission, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? Issues Paper No 1 (2011) 4.

39 Part Two: Interpreting Ch III

Having identified the maintenance of judicial independence and impartiality as a core purpose behind the separation of judicial power, Stephen Parker deepens this understanding by observing that ‘the core value protected by judicial independence – perceived impartiality in adjudication – is vital for the survival and cohesion of social groups’.55 As

Parker identifies, it is not merely the actuality of independence and impartiality that the separation of powers is designed to achieve, but the perception of the same.

The importance of perceived impartiality to Chapter III has been acknowledged by the

High Court in its references to the need to maintain public confidence in the independent judicature.56 It must be emphasised that public confidence in this context cannot mean actual public perception.57 As Brennan CJ warned in Nicholas v R (‘Nicholas’),58

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.

55 Stephen Parker, ‘The Independence of the Judiciary’ in Fiona Wheeler and Brian Opeskin (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 62, 63. 56 Nicholas v R (1998) 193 CLR 173, 256-257 (Kirby J); Kable v DPP (NSW) (1996) 189 CLR 51, 116 (McHugh J); International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319, 354 (French CJ); Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). 57 Nicholas v R (1998) 193 CLR 173, 197 (Brennan CJ), 275 (Hayne J); cf, the opinions of the Gaudron, McHugh and Kirby JJ (two of whom were in dissent) opined that the court’s power to protect its own processes and maintain public confidence in the administration of justice was central to the constitutional conception of judicial power: 209 (Gaudron J), 224, 226 (McHugh J), 258 (Kirby J). 58 Nicholas v R (1998) 193 CLR 173, 197 (Brennan CJ), 275 (Hayne J).

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Public confidence must therefore be understood as an objectively assessable standard.

An inquiry concerning public confidence looks to whether the judicial institution is capable of objectively maintaining its appearance of independence and impartiality, or whether this appearance would be unsustainable if a particular power was vested in the judicature. For example, the exercise of political power by judges or the effective control of judicial proceedings by the legislature would naturally impede the perception of judges as impartial arbiters of equal justice. Gaudron, McHugh and Kirby JJ in Nicholas emphasised the role of fair process in this context, observing that courts’ power to protect their own processes and thus maintain public confidence in the administration of justice is central to the constitutional conception of judicial power.59

Wendy Lacey surmised that following Nicholas, courts bear a power to protect their processes rather than to protect their reputation as such.60 This discussion demonstrates the vital importance of maintaining public confidence in the independence and impartiality of the judicature whilst remaining mindful of Brennan CJ’s fears arising from judicial considerations of ‘repute’. In this vein, the High Court has adopted an expansive notion of institutional integrity which appears to incorporate the ideas of perceived independence and impartiality emphasised by Parker.61

59 Nicholas v R (1998) 193 CLR 173, 209 (Gaudron J), 224, 226 (McHugh J), 258 (Kirby J). 60 Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution’ (2003) 31 Federal Law Review 57, 76. 61 Wainohu v New South Wales (2011) 243 CLR 181, 208 (French CJ and Kiefel J); Chris Steytler and Iain Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35 University of Western Australia Law Review 227, 231-232.

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Notwithstanding differences in interpretational method, the ‘indisputable’ purpose of the separation of judicial power ‘is to protect judicial independence and the rule of law’.62

The purposive element of the separation of judicial power may be clear when that element was clearly emphasised by the Framers, or when the separation of powers forms a part of an unwritten constitutional system. However, the purposive nature of the separation of powers is not diminished when the doctrine is implied textually from a written constitution, rather it ‘follows with it’.63 Likewise, this purposive nature does not fall by the wayside when a formalist separation is adopted, despite formalism’s apparently narrow focus on definitional characteristics discussed below.64 As the separation of judicial power is designed to achieve judicial independence and impartiality a method of constitutional interpretation should be adopted that best achieves this aim. In the next two sections I critique the two dominant approaches to the interpretation of Chapter III – the formalist separation rules and functionalist incompatibility test – for their capacities to meet this objective.

62 Gerangelos, ‘Interpretational Methodology’, above n 8, 10. 63 Ibid 8; MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998) 2. 64 See, eg, Redish’s defence of formalism: Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40. As Gerangelos notes: ‘to neglect the purposive element in the separation of powers doctrine in any attempt at definition of functions would be clearly repugnant to the doctrine’s history, development and application in many polities’: Gerangelos, ‘Interpretational Methodology’, above n 8, 8-9.

42 Part Two: Interpreting Ch III

IV FORMALISM: THE SEPARATION RULES

‘Long live formalism. It is what makes a government a government of laws

and not of men.’ – Justice Antonin Scalia65

Formalist approaches to the separation of powers contend that functions are capable of sufficiently precise definition as legislative, executive or judicial to enable them to be assigned on that basis, and that powers ought to be allocated according to their definition.66

Compromises or exceptions to the formalist allocation of powers based on public policy concerns such as government efficiency are rejected. Thus, formalists propose a system by which a strict separation of functions and personnel can be achieved, building ‘high walls’ between the branches of government.67

Formalism is often supported by textualist approaches, drawing attention to a written constitution’s creation and allocation of power based on definition.68 But, as John F

Manning has identified, there is a parallel aspect to formalist reasoning: ‘formalists also assume that the Constitution embodies a freestanding separation of powers doctrine’.69 This aspect of formalism reflects its purposive nature. Formalism is grounded in the rationale

65 Antonin Scalia, ‘Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws’ in Amy Gutmann (ed), A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997) 3, 25. 66 For concise discussion of formalism’s key traits, see: Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 304-305; John F Manning, ‘Separation of Powers as Ordinary Interpretation’ (2011) 124 Harvard Law Review 1939, 1943-1944; Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 7, 194. 67 Plaut v Spendthrift (1995) 514 US 211, 239-40 (Scalia J), see full quote below at n 73. 68 Manning, above n 66, 1943. See, eg, R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 288; Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 540 (PC). 69 Manning, above n 66, 1944 (emphasis in original).

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that only a strict separation of functions can achieve judicial independence and impartiality.

This inflexible nature is justified by its underlying supposition that the greatest danger facing the separation of powers is presented by minor threats of incremental erosion. By restricting the judicature to judicial powers and the political branches to their own powers, formalists claim to guard against the gradual ‘attrition of the structural integrity … through minor incursions’ and the ‘erosion of previously accepted barriers to legislative and executive interference’.70 In the words of Redish:71

Generally, the danger [to fundamental political values of self-determination and

constitutionalism] is an incremental one: eventually the judicial branch will either have

acquired an excess of authority or will have lost much of its requisite integrity, but no

single breach could be attributed responsibility for the overall harm. It is presumably for

this very reason that separation of powers protections are largely prophylactic in nature:

they are designed to prevent damage to the political framework before the truly serious

harm intended to be avoided can occur.

In a similar vein Scalia J has claimed that ‘The rule of law is about form’72 and, in Plaut v

Spendthrift, his Honour said:73

70 Gogarty and Bartl, above n 13, 98, 84; Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 161. 71 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 303. See also, Gogarty and Bartl, above n 13, 84. 72 Scalia, above n 65, 25 (emphasis in original). 73 (1995) 514 US 211, 239-40 (emphasis in original). For discussion of this case as a classic instance of formalist reasoning, see: Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process (Hart, 2009) 17.

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The separation of powers is a structural safeguard ... it is a prophylactic device,

establishing high walls and distinctions because low walls and vague distinctions will not

be judicially defensible in the heat of interbranch conflict.

In even more illustrative language, formalism claims to avoid a creeping tyranny and the

‘death by a thousand cuts’ of the separation of powers.74

Formalism is thus characterised by caution. It presumes that a function may not be vested in a particular branch of government unless it is demonstrated to have the necessary defining characteristics, that is, a power may only be vested in the legislature once demonstrated to be legislative, vested in the judiciary once demonstrated to be judicial, and so on. The formalist rejection of more flexible approaches to determining the allocation of government powers is based on the belief that flexibility and permissiveness facilitate the feared incremental erosion of branch independence. As Gerangelos observed:75

If the rigours of this [formalist] approach are ameliorated, even for the best of policy

reasons, these values will be threatened by the gradual yet inexorable erosion of the

essential boundaries, even though this may not be apparent in a particular case.

74 Martin Redish and Elizabeth Cisar, ‘”If Angels were to Govern”: The Need for Pragmatic Formalism in Separation of Powers Theory’ (1991) 41 Duke Law Journal 449, 453; Gerangelos, ‘Interpretational Methodology’, above n 8, 3. 75 Gerangelos, ‘Interpretational Methodology’ above n 8, 3.

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It is also argued that formalism’s rigid approach to the separation of powers enhances the potential for predictability and consistency, assisting separation principles in becoming more susceptible to precedent and objective application.76

The primary approach to interpreting the federal separation of judicial powers in

Australia is quintessentially formalist. The maintenance of the independence of the federal judicature stands upon two rules drawn from Chapter III. The first separation rule is that the judicial power of the Commonwealth is vested exclusively in federal courts. This rule was suggested in some of the High Court’s earliest cases,77 but was first given authority in the

1918 decision of Waterside Workers’ Federation of Australia v JW Alexander Ltd.78 The first separation rule reflects a fairly straightforward reading of section 71’s conferral of judicial power on courts.79 As James Stellios, an advocate of the functionalist method, has observed,80

76 See, eg, Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40. 77 Huddart Parker & Co v Moorehead (1909) 8 CLR 330; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (Tramways Case ( No 1)) (1913) 18 CLR 54; New South Wales v Commonwealth (1915) 20 CLR 54. 78 (1918) 25 CLR 434. 79 The Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 442 (Griffith CJ); R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar, Kitto JJ). Section 71 provides: ‘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 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’: Australian Constitution s 71. 80 Stellios, ‘Reconceiving the Separation of Judicial Power’ above n 4, 120-121. The approach advocated by Stellios couples the functionalist test with limitations derived from the conventions of representative government and responsible government.

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[T]he rationale for the [first separation rule] is readily apparent, and no-one has suggested it

be revisited. Judicial power must be exercised by courts with the Ch III protections,

otherwise independence and impartiality in the exercise of those functions would be clearly

undermined.

The second separation rule arises from the 1956 case of R v Kirby; Ex parte

Boilermakers’ Society of Australia (‘Boilermakers’)81 and has proved far more problematic.82 The second rule elevates the negative implications of section 71’s conferral of judicial powers on federal courts – it restricts the power of federal Parliament to vest powers in courts beyond ‘judicial’ powers and incidental or ancillary non-judicial functions.83 The second separation rule has been controversial since its inception,84 but it has also been applied in a multitude of matters and has given rise to a number of implied doctrines. As Saunders contended, for these reasons the second separation rule is ‘now firmly entrenched’.85

81 (1956) 94 CLR 254. 82 See, R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ) (‘Joske (No 1)’). More recently, some have suggested that the second limb of Boilermakers’ be ‘reconceived’ as an incompatibility test: Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4; Mason, above n 4. 83 R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 296 (Dixon CJ, McTiernan, Fullagar, Kitto JJ). Affirmed on appeal to the Privy Council: Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 540-541. 84 See, discussion below in section V. 85 Saunders, above n 18, 13.

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The result of the two separation rules is that there may be no mingling of judicial and non-judicial powers in the same body, except in strictly limited circumstances.86 In this way the separation rules embody the formalist position, separating branch functions strictly according to their definition as judicial or non-judicial. Although primarily resting their conclusions on the text and structure of the Constitution, the High Court in Boilermakers’ referred to the role of the judiciary in maintaining the federal compact as supporting the existence of the second separation rule.87 The Privy Council on appeal was more explicit in stating that its support for the second separation rule was based in part on purposive considerations, saying:88

[I]n a federal system the absolute independence of the judiciary is the bulwark of the

constitution against encroachment whether by the legislature or by the executive. To vest in

the same body executive and judicial power is to remove a vital constitutional safeguard.

The perception of the separation rules as providing a vital constitutional safeguard has been reinforced by the High Court in subsequent Chapter III cases.89

86 Such as in the case of ancillary or incidental functions mentioned above and certain historical functions: see, Zines, The High Court and the Constitution, above n 8, 272-3. 87 R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar, Kitto JJ); Attorney-General (Cth) v The Queen (1957) CLR 529, 540- 541; Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis, above n 8, 127-129. 88 Attorney-General (Cth) v The Queen (1957) CLR 529, 540-541. 89 See, eg, R v Davison (1954) 90 CLR 353, 381 (Kitto J); R v Quinn; Ex parte Consolidated Food Coop (1977) 138 CLR 1, 11 (Jacobs J); Thomas v Mowbray (2007) 233 CLR 307, 413 (Kirby J); Nicholas v R (1998) 193 CLR 173, 201 (Kirby J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 14 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).

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The formalist separation rules thus claim to provide a strong protection for the actual and perceived independence and impartiality of federal courts by preventing courts from exercising non-incidental non-judicial functions and by reserving judicial functions for the judiciary alone. The success of the rules in living up to this claim hinges on the validity of formalism’s two key underlying assumptions. These assumptions are, first, that branch functions are capable of precise and enforceable definition and, secondly, that the adoption of a rigid separation of functions is sufficient to achieve judicial independence and impartiality.

If the first assumption is flawed then the separation of branch functions will not be capable of predictable, consistent or objective enforcement. The separation rules will risk losing legitimacy and becoming a mere façade for the actual bases on which Chapter III decisions are reached. The second assumption may also be flawed. If the separation rules are divorced from purposive considerations, they risk developing in a formalistic manner that is at odds with the values underlying Chapter III, including judicial independence and impartiality.90 A further criticism often levelled at the separation rules is that they pose an unnecessary obstacle to proper and efficient government functioning.91

The extensive development of the separation rules in Australia presents an opportunity to assess the success of a formalist approach in achieving judicial independence and impartiality. Considering each of the three criticisms outlined above reveals that formalism has significant – but perhaps not insurmountable – limitations.

90 Mason, above n 4, 2. 91 See, Appleby, ‘Imperfection and Inconvenience’, above n 6, 274-280.

49 Part Two: Interpreting Ch III

A Defining Judicial Power

As Sir Anthony Mason observed in the year following his retirement as Chief Justice of the High Court:92

The lesson of history is that the separation of powers doctrine serves a valuable purpose in

providing safeguards against the emergence of arbitrary or totalitarian power. The lesson of

experience is that the division of powers is artificial and confusing because the three powers

of government do not lend themselves to definition in a way that leads readily to a

classification of functions.

The potential for the separation rules to provide a strong, even unyielding, protection for judicial independence and impartiality depends primarily upon whether functions are capable of being defined as judicial or non-judicial with sufficient and enforceable precision.93

The starting point for defining the meaning of judicial power in the Constitution is

Griffith CJ’s ‘classic’ definition in the 1908 case of Huddart Parker & Co v Moorehead:94

[Judicial power means] the power which every sovereign 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

92 Mason, above n 4, 2. 93 Manning, above n 66, 1943. 94 Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ) (emphasis added). See also, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-375 (Kitto J).

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tribunal which has power to give a binding and authoritative decision (whether subject to

appeal or not) is called upon to take action.

As Griffith CJ’s definition suggests, judicial power is indicated essentially by the conclusive determination of a controversy about existing rights.95 The presence of these characteristics indicates a function is exclusively judicial. The absence of any or all of these characteristics may indicate a power is non-judicial.

At this point judicial power appears to be a reasonably clear concept, identifiable by a series of characteristics. However, these characteristics are not considered to be determinative. Ultimately, a determination of whether a function is judicial or not will take the form of an often unpredictable balancing exercise, weighing present indicia against absent and contrary indicia and incorporating references to principled and historical considerations.96 For example, functions that lack the characteristics of judicial power – such as the issuance of bankruptcy sequestration orders – may nonetheless be judicial if they are of a kind traditionally exercised by courts.97

95 Zines, The High Court and the Constitution, above n 8, 220. 96 Dominique Dalla-Pozza and George Williams, ‘The Constitutional Validity of Declarations of Incompatibility in Australian Charters of Rights’ (2007) 12 Deakin Law Review 1, 9-10; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, 15 (Aitkin J); R v Davison (1954) 90 CLR 353, 366-367 (Dixon CJ and McTiernan J); Tony Blackshield and George Williams, Australian Constitutional Law and Theory (The Federation Press, 5th ed, 2010) 608. 97 R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J); Zines, The High Court and the Constitution, above n 8, 256; Stellios, The Federal Judicature, above n 2, 138-141.

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The High Court has repeatedly acknowledged the difficulty in defining judicial power with predictability and precision,98 observing that the concept defies and transcends abstract conceptual analysis.99 DC Thomson went so far as to criticise the High Court and Privy

Council decisions in the Boilermakers’ cases on the basis that: ‘[s]ince neither court made any real attempt to define what it meant by a “court” or “judicial power”, it is very difficult to extract any meaningful principle from their decisions’.100

The ambiguity and unpredictability in defining functions are enhanced by regularly invoked categories of exceptions, attributable to what Geoffrey Sawer poetically described as courts’ ‘general power of ignoring definitions’.101 The regular use of the qualifier

‘quasi’, and distinctions between core and primary functions, and between incidental and secondary functions, demonstrate the substantial grey areas between judicial and non- judicial powers.102 Some functions are even capable of being vested in multiple branches of government. These classes of functions include innominate powers, dependent on

98 See, R v Davison (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 373 (Kitto J); Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 188-189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Mason CJ, Brennan and Toohey JJ), 267 (Deane, Dawson, Gaudron and McHugh JJ). 99 See, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 (Windeyer J); Nicholas v R (1998) 193 CLR 173, 219 (McHugh J), 207 (Gaudron J); Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 188 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Gerangelos, ‘Interpretational Methodology’, above n 8, 5. 100 DC Thomson, ‘The Separation of Powers Doctrine in the Commonwealth Constitution: The Boilermakers Case’ (1958) 2 Sydney Law Review 480, 492. 101 Geoffrey Sawer, ‘Judicial Power Under the Constitution’ in Rae Else-Mitchell (ed) Essays on the Australian Constitution (The Law Book Co of Australia, 1961) 71, 76. 102 Gerangelos, ‘Interpretational Methodology’, above n 8, 1.

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Parliament for their ultimate characterisation, and so-called ‘chameleon powers’ which take their character from the body in which they are vested.103 Indeed, in argument before the

High Court in 2007, then Commonwealth Solicitor General David Bennett QC argued that the recognition of chameleon powers ‘removed much of [the second separation rule’s] rigidity so that it does not matter much anymore’.104

As HLA Hart famously observed:105

[Concepts must have] a core of settled meaning, but there will be, as well, a penumbra of

debatable cases in which words are neither obviously applicable nor obviously ruled out.

These cases will each have some features in common with the standard case; they will lack

others or be accompanied by features not present in the standard case.

Hart’s acknowledgment of difficult ‘penumbral’ cases applies aptly in the Chapter III context. Adopting Suri Ratnapala’s illustrative approach, the concept of judicial power may be understood as having an umbra of certainty (for example, functions involving the conclusive determination of a controversy about existing rights), ‘surrounded by … the penumbra’ of uncertain functions (including innominate and chameleon functions), ‘and an exteriority of non-judicial power beyond’ (including clearly legislative and executive functions).106

103 For a valuable discussion of these two classes of functions see: Suri Ratnapala, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 2007) 136-143. 104 Thomas v Mowbray (2007) 233 CLR 307, 316. This was an argument given short shrift by the dissenting members of the Court: 426 (Kirby J), 467 (Hayne J). 105 Hart, above n 9, 607. 106 Ratnapala, above n 103, 124.

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Formalism’s first underlying assumption – that powers are capable of precise definition

– is valid with respect to the core of judicial power. For example, functions such as the conduct and determination of a criminal trial and the authoritative adjudication of disputes arising under tort or contract law are of a clearly judicial nature. The assumption is also valid with respect to the exteriority of non-judicial functions, such as the undertaking of criminal investigations or policy development.

Formalism’s basic assumption runs into difficulty when the function lies in the considerable penumbra of uncertainty. For example, the issuing of control orders discussed in Part Three involves the creation of rights and obligations according to legal criteria, but absent a controversy107 – the adjudication of disputes arising from industrial awards may involve broad, highly discretionary standards.108 In these kinds of penumbral cases, the characteristics that distinguish judicial from non-judicial functions are simply inadequate to produce a clear result and risk being stretched and contorted to resolve the constitutional question at hand. These cases make clear that something more, beyond the accepted list of characteristics, is needed to determine whether the function may be conferred on the judiciary in keeping with Chapter III. Two factors to which the court has looked to provide this additional criterion are the historical functions of courts and the will of Parliament.

107 See, Thomas v Mowbray (2007) 233 CLR 307, and critique of the majority’s decision to uphold the issuance of control orders as a valid exercise the judicial power in, eg, Andrew Lynch, ‘Thomas v Mowbray: Australia’s "War on Terror" Reaches the High Court’ (2008) 32 Melbourne University Law Review 1182; Denise Meyerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray’ (2008) 36 Federal Law Review 209. 108 See, R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277; R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368.

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The fact that a function has been traditionally exercised by courts generally indicates it is judicial and that its continued conferral on courts is in keeping with broader notions of judicial independence and impartiality.109 This is clear enough when the function has been exercised by the judicature for an extended period, such as in the abovementioned example of bankruptcy sequestration notices upheld as judicial in R v Davison.110 However, when the function is novel, a court may rely on reasoning by analogy to establish that the power is of a kind traditionally exercised by courts.111

Reasoning by analogy is a familiar and valuable judicial approach, but the method is far from ideal in determining Chapter III cases. As Sawer observed, to define judicial power as the power exercised by courts and to take its meaning from ‘what courts do and the way they do it’ is circular and ultimately unconvincing.112 Reasoning by analogy also risks becoming a cherry-picking exercise if imprecise or inappropriate analogies may be relied upon to determine the definition of a power. For example, analogues may be drawn from different jurisdictions such as the United Kingdom or the Australian States, each subject to much more flexible separation rules that permit courts to exercise non-judicial

109 Zines, The High Court and the Constitution, above n 8, 256; R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J). Though care must be taken in drawing such conclusions: Patrick Lane, Lane’s Commentary on the Australian Constitution (The Law Book Company, 2nd ed, 1997) 467; R v Quinn; Ex parte Consolidated Food Coop (1977) 138 CLR 1, 11 (Jacobs J); Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ). See also, discussion in Part Three, section III.E. 110 (1954) 90 CLR 353. 111 R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J); Zines, The High Court and the Constitution, above n 8, 256. 112 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 179-180. See, also, Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ).

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functions.113 References to the powers of courts in such jurisdictions would not necessarily demonstrate the judicial nature of a function. Functions vested in federal courts on the basis that they are ancillary or incidental to an exercise of judicial power also risk being harnessed as judicial power analogues simply because they are exercised by courts, notwithstanding their non-judicial and exceptional nature.114

Reliance on loose analogy to determine cases is troubling where the characteristics of judicial power are insufficient to determine the nature of the power. Even more alarming is reliance on such analogies to render a function judicial that would otherwise be non- judicial. This kind of reasoning opens the way to a broadening of the strict separation and enables the kind of incremental erosion that formalism is designed to prevent.115

Judicial reliance on imprecise analogy ultimately serves to highlight the inadequacy of the characteristics of judicial power in defining a function with enforceable precision. This kind of reasoning also demonstrates the challenging position a decision-maker is placed in when determining a Chapter III case according to the separation rules – he or she is bound to enforce the strict separation according to definition, but lacks sufficient criteria by which to complete the task.

113 See, eg, Thomas v Mowbray (2007) 233 CLR 307, 328-329, 334 (Gleeson CJ). 114 See, Kirby J’s dissenting critique of Gleeson CJ’s reasons in Thomas v Mowbray (2007) 233 CLR 307, 422-423, 425 (Kirby J). Discussed in Part Three. 115 Denise Meyerson, ‘The Independence of the Judiciary in Australia and South Africa: Comparative Lessons’ in Penelope E Andrews and Susan Bazilli (eds), Law and Rights: Global Perspectives on Constitutionalism and Governance (Vandeplas Publishing, 2008) 79, 161.

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Courts have also relied upon legislative intention to fulfil the task of defining a power as judicial or non-judicial.116 Parliamentary intent has an important place in any exercise of statutory interpretation.117 In deciding whether a power is judicial or otherwise the intention behind the relevant Act ought to play some part. However, reliance on legislative intent to determine whether a power is judicial or not risks the independence and impartiality of the judiciary in a number of ways. For instance, it introduces an avenue for judicial deference into the analysis. Deference is appropriate in many scenarios, but it must be constrained.118

Excessive deference suggests that a court may not be performing its role as an independent check on government power; minimal deference indicates that a court may be exercising functions belonging to the representative, political arms of government.119

In Chapter III cases deference is particularly worrying. Utilising parliamentary intent to define government powers risks enabling parliament to determine the outer limits of judicial power and, in turn, the limits on legislative power too. Moreover, functions that do not conform to the characteristics of judicial power may compromise rights or process protections, or achieve particularly controversial government policies.120 In these contexts

116 Zines, The High Court and the Constitution, above n 8, 258-261. 117 See, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ); Acts Interpretation Act (Cth) 1901 s 15 AA. 118 Sumption, above n 47, 19-20. 119 See Redish’s attack on the ‘total deferential’ model of interpreting the separation of powers: Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 307. 120 See, eg, Australia’s anti-terrorism control orders and preventative detention orders in the Criminal Code Act 1995 (Cth) Divs 104 and 105 respectively, discussed in detail in Parts Three and Four of this thesis, and also critiqued in, eg: Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10 Flinders Journal of Law Reform 105. See also, the Chapter III challenge to aspects

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there is a particular need for robust judicial review. The purposes of the separation of powers drive at the necessity for the individualistic, rights-focussed ‘morality’ of law to counterbalance the majoritarian nature of politics, and emphasise the need for robust judicial oversight to provide an avenue for individual rights and liberties to be upheld.121

Thus, harnessing parliamentary intent as the determinative factor in Chapter III cases presents a real risk of handing ultimate responsibility for the boundaries of the penumbra of judicial power to Parliament, rather than maintaining the strong sense of judicial oversight required to prevent the erosion of constitutional limits. Parliamentary intent ought to play some role in determining Chapter III questions, but judicial independence and impartiality are risked if it provides the determinative criterion in penumbral cases.

The basic formalist assumption that judicial power is capable of judicially enforceable definition is subject to serious limitations.122 Judicial power is capable of definition, but in many cases concentrating on definitional characteristics alone will not be sufficient to provide the rigidity, predictability, consistency or certainty that formalism claims as its strengths. The High Court has sought out additional factors to provide the determinative

of the fair criminal trial in Nicholas v R (1998) 193 CLR 173, discussed in Lacey, above n 60, 72-77. 121 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 307;.Laws, above n 46, 575-576, cf Sumption above n 46; Sedley, above n 46; My discussion of the roots and purposes of the separation of powers is necessarily limited. A diversity of views exists on these complex and controversial topics, see, eg: Nicholas Barber, 'Prelude to the Separation of Powers' (2001) 60 Cambridge Law Journal 59; Jeremy Waldron, ‘Separation of Powers in Thought and Practice’ (2013) 54 Boston College Law Review 433. For a valuable Australian discussion of the multifaceted way in which the separation of powers serves to protect particular rule of law values, including rights and liberties, see: Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis, above n 8, chapter 4. 122 See, Mason, above n 4, 5-6; Appleby, ‘Imperfection and Inconvenience’, above n 6, 271-273.

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criterion in these cases, including the traditional functions of courts and legislative intent.

These factors should be approached with caution as they present risks to the ultimate utility of the separation rules if they are relied upon to a determinative extent.123

Clearly, defining a function as judicial or non-judicial is not always a simple exercise.

The separation rules fail to indicate which characteristics outweigh others, how heavily historical analogy and legislative intent play into the equation, and the extent to which the purposes of the separation rules may become determinative. The overall lack of clarity in the definition of judicial power has caused the separation rules to become unpredictable.

Unpredictability gives judicial power the appearance of a malleable concept, capable of wildly different interpretations. This in turn negatively affects the perception of the judiciary as administering objective legal standards. In this light, it can be seen that Sawer’s

1961 observation that ‘the law is full of bad logic, serving to cloak the exercise of a judicial discretion’, continues to reflect a reasonable impression of Chapter III’s interpretation.124

In essence, formalism’s primary contention that judicial power is capable of sufficiently precise definition is valid in some, but not all, cases. The proper method of resolving cases in which the characteristics of judicial power are insufficient to produce a clear result is itself unresolved. If a means of determining those cases in a consistent, appropriate and relatively straightforward manner could be adopted that did not risk actual or perceived judicial independence or impartiality, the limits of formalism’s basic assumption could be addressed and the separation rules may find renewed legitimacy.

123 Lane, above n 109, 467. 124 Sawer, ‘Judicial Power Under the Constitution’, above n 101, 75.

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Purposive formalism, introduced in section VI below, may go some way to addressing this concern. However, the difficulty in defining judicial power is by no means the only weakness in the capacity of the formalist separation rules to achieve judicial independence and impartiality.

B Is Formalism too Formalistic?

A second criticism made of formalism is that its narrow focus on definitional characteristics produces technical decisions that do nothing to achieve the purposes of the separation of judicial power. As Mason warned, ‘if taken too far, the identification of those characteristics [of judicial power] may inhibit the development of judicial process’.125

The formalist approach is built upon the view that the allocation of functions based on definition will naturally produce outcomes that maintain judicial independence and impartiality, in the longer term if not in the immediate case. The rules indicate that the entire role of a court in deciding a Chapter III challenge is to define the function at hand; they do not suggest a need to engage with purposive arguments. As a result, robust engagement with considerations outside the list of definitional criteria becomes difficult or may appear tangential for a court applying the separation rules.

Fair judicial process is closely connected to the independence and impartiality of federal courts. As former Chief Justice of the High Court Sir Gerard Brennan observes: ‘If judicial procedure were to fall short of ensuring fairness, public confidence in the courts’

125 Mason, above n 4, 2.

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authority would be eroded’.126 Gaudron J provided the following description of fair process in Re Nolan; Ex parte Young:127

[O]pen and public enquiry (subject to limited exceptions), the application of the rules of

natural justice, the ascertainment of the facts as they are and as they bear on the right or

liability in issue and the identification of the applicable law, followed by an application of

that law to those facts.

These features go to the equality and objectivity of judicial proceedings and thus form integral aspects of the independence and impartiality of courts.128 For example, if a court was given the power to determine a criminal case in circumstances that removed one party’s rights of representation, evidence and argument, the power may well be judicial, but it would be incapable of being exercised without affecting the independence and impartiality of the court. Thus, one measure of whether the formal separation rules achieve judicial independence and impartiality is the extent to which they are capable of protecting fair process from legislative incursion. If the separation rules merely separate powers but say nothing about the manner and procedures of their exercise they may indeed be too formalistic, too focussed on technical characteristics rather than substantive factors to achieve the purposes of Chapter III.

126 Gerard Brennan, ‘Lessons from a Life in the Law’ (Paper presented at The Annual Hal Wootten Lecture, Faculty of Law, University of New South Wales, 23 August 2012) 18, see also, 16-17. 127 (1991) 172 CLR 460, 496 (Gaudron J), endorsed in, eg, Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 615 (Gummow J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 491 (Hayne, Crennan, Kiefel and Bell JJ). 128 See, Wheeler, ‘Due Process’ above n 5, 211; Polyukovich v Commonwealth (1991) 172 CLR 501, 703-704 (Gaudron J); Steytler and Field, above n 61, 255-259. See also discussion above in section III.

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The High Court has acknowledged that Chapter III prohibits the exercise of functions in a manner repugnant to judicial independence and impartiality.129 That said, fair process fits awkwardly, even tangentially, within the formalist framework created by the separation rules.130 Some justices have envisaged process protections within the second separation rule even though fair process is not mentioned in the classic characteristics of judicial power.131

Gaudron J suggested that ‘[a]n essential feature of judicial power is that it be exercised with judicial process’.132 Other justices, such as Deane J, have placed fair process protections within the first separation rule by including them within the essential features of a court.

Under this approach judicial powers may not be vested in a body incapable of exercising powers in accordance with fair process.133

It is worthwhile to note that Gaudron and Deane JJ’s respective conceptions may exist alongside one another. It is conceivable that fair process may inform the essential characteristics of both judicial power and of courts.134 Each approach succeeds in

129 See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106-107 (Gaudron J); Re Nolan; Ex parte Young (1991) 172 CLR 460, 496-497 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 487-488 (Deane and Toohey JJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 494 (Hayne, Crennan, Kiefel and Bell JJ), 497 (Gageler J); Will Bateman, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411. 130 Bateman, above n 129, 432. 131 Wheeler, ‘Due Process’ above n 5, 209-210. 132 Polyukovich v Commonwealth (1991) 172 CLR 501, 703. For critique of this approach, see, ibid 210-211; Bateman, above n 129, 432. 133 Bateman, above n 129, 433-441; Wheeler, ‘Due Process’, above n 5, 209. 134 Wheeler, ‘Due Process’, above n 5, 211. Though this may have consequences in the context of State courts, capable of exercising non-judicial powers but requiring the defining characteristics of courts (see discussion of the principles concerning State courts below in section V).

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interpreting the separation rules in a manner that not only focuses on definitional characteristics but also looks more substantively at the manner in which the function is exercised.

There are weaknesses in both Gaudron and Deane JJ’s approaches to protecting fair process within the separation rules framework.135 Both have received varied authoritative support. Both have therefore failed to produce a consistent set of principles. Rather, the approaches have been harnessed to determine in an ad hoc manner whether one feature or another is a defining characteristic.136

By focussing on singular defining or essential features both approaches conceive of process protections in a minimalist fashion. In order to qualify for constitutional protection the feature must qualify as a defining feature of judicial power or what it is to be a court.

This sets a high bar.137 The giving of reasons, for example, may be an essential feature of a court.138 On the other hand, secret evidence and ex parte hearings withhold important material from a party and impact the fairness of judicial proceedings, but have an accepted place in some proceedings. Therefore these mechanisms may not inhibit the defining

135 For critique of the approach conceiving of due process as within the second separation rule, see: Bateman, above n 129, 433-441; Wheeler, ‘Due Process’, above n 5, 209. 136 Bateman, above n 129. 137 Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 15 August 2013) 13. 138 Wainohu v New South Wales (2011) 243 CLR 181, 192 (French CJ and Kiefel J), 229-230 (Gummow, Hayne, Crennan and Bell JJ).

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features of courts or their powers – even where they are used in unusual contexts and result in severe impositions on the rights and liberties of a citizen.139

In this way, the essential features approach to protecting fair process lends itself to allowing cumulative compromises to the fairness and equality of proceedings, when each individual compromise fails to qualify as a defining feature of judicial power or of courts.140 Jeffrey Goldsworthy succinctly identified the problem with the latter approach focussing on the defining features of courts when he observed that, ‘a court’s defects must be extreme indeed before we can plausibly say it is no longer a court’.141 Hence, the risk of incremental damage to the integrity of judicial proceedings feared by formalists is enhanced by the indirect way in which the separation rules protect fair process.

Would conceiving of judicial independence and impartiality as fundamental features of judicial power or of courts overcome this threshold issue?142 This interpretive technique may permit broader, more substantive consideration of whether a power or its exercise

139 See, Thomas v Mowbray (2007) 233 CLR 307; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501. 140 See, Meyerson’s critique of the High Court’s decision in Thomas v Mowbray on this basis, amongst others: Meyerson, ‘Using Judges to Manage Risk’, above n 107, 224-225. See also, Jeffrey Goldsworthy’s scathing critique of the essential features approach to considering Chapter III validity in a paper delivered to the Australian Association of Constitutional Law: Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 15 August 2013) 11-14. 141 Goldsworthy, above n 140, 13, citing in support: Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 69 (Gleeson CJ), 87 (Gummow, Hayne and Crennan JJ). 142 See the approach adopted in: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 466, 470-471 (French CJ), 488 (Hayne, Crennan, Kiefel and Bell JJ).

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inhibits judicial independence or impartiality. However, it does little to give clarity to the area and ultimately risks circular reasoning.

This weakness in the capacity of the separation rules to achieve judicial independence and impartiality is serious, but perhaps not insurmountable. If the formalist separation rules were to accommodate a direct avenue whereby the manner in which a function is exercised could be taken into account, process protections would no longer need to be conceptualised through the prism of the defining features of judicial power or of courts. A direct avenue of consideration would allow for more substantial development of fair process protections. For as long as formalism limits itself solely to a consideration of defining characteristics, it will remain susceptible to the criticism that it is simply too formalistic to protect fair process and thus to achieve judicial independence and impartiality.

C The Enemy of Innovation

In 1974 Barwick CJ famously criticised the second separation rule limiting the non- judicial powers of courts as leading to ‘excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit’.143 The Chief

Justice’s views on the second separation rule have been reiterated by others, often coupled

143 Joske (No 1) (1974) 130 CLR 87, 90. With whom Stephen and Mason JJ agreed. In the same case Mason J said that ‘a serious question arises as to the course which this Court should adopt in relation to the principle conclusion reached in Boilermakers’: 102.

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with the general rebuke that the rules unnecessarily impede the development of administrative, industrial and other areas of law.144

The efficiency and effectiveness of a number of areas of law and of government action would undoubtedly benefit from a mixing of judicial and non-judicial powers in certain institutions. This is increasingly the case as government broadens the scope of administrative powers, develops the so-called ‘integrity branch’ responsible for oversight of executive action, and further desires to utilise judicial expertise in non-judicial contexts.145

Similar arguments have arisen in the human rights context. In 2011 the High Court determined that the power to issue declarations of incompatibility with legislatively expressed human rights was non-judicial.146 This obiter dictum finding suggests any national rights instrument based on the dialogue model of human rights protection would be unconstitutional insofar as it conferred this power on federal courts.147 The essential thrust of these arguments is that the formalist separation of judicial powers has impeded the

144 Stellios, ‘Reconceiving the Separation of Judicial Power’ above n 4, 124; Mason, above n 4, 5; Appleby, ‘Imperfection and Inconvenience’, above n 6, 274-279. 145 Mason, above n 4, 6; James Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724. See also, on the development of government beyond the traditional tripartite conception of government power: Eoin Carolan, The New Separation of Powers: A Theory for the Modern State (Oxford University Press, 2011). 146 Momcilovic v R (2011) 245 CLR 1. 147 Momcilovic v R (2011) 245 CLR 1, 257 (French CJ), 404–5 (Bell J). See discussion in, Appleby, ‘Imperfection and Inconvenience’, above n 6, 279; and prior to the decision in, Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4, 124; Dalla-Pozza and Williams, above n 96; cf, Michael McHugh, ‘A Human Rights Act, the Courts and the Constitution’ (2009) Constitutional Law and Policy Review 86; Jim South, ‘The Campaign for a National Bill of Rights: Would “Declarations of Incompatibility” be Compatible with the Constitution?’ (2007) 10 Constitutional Law and Policy Review 2.

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development of mechanisms by which executive and legislative power may be effectively overseen and subject to challenge.

The separation of functions along strict formalist lines indisputably impedes government efficiency and innovation. But, if one accepts the prophylactic justification for the strictness of the formalist approach these innovations must be seen for their capacity to ultimately undermine institutional independence and impartiality, even if their immediate consequence is to provide an additional check on the political branches.

Administrative and industrial tribunals determine policy issues, they are intrinsically bound up in the interpretation of the political aspects of government action. Tribunal decision-makers even ‘stand in the shoes’ of government agents. To couple judicial power with such tribunals would be tantamount to doing away with the separation of powers. This is particularly the case in Australia where the legislature and executive are already so entwined. The conferral of judicial power on executive bodies may present a vast improvement in efficiency. For instance, empowering Tribunals to at once review the merits and legality of administrative decisions would streamline and simplify the review process considerably. However, in certain contexts (including the Tribunal example), this would effectively permit a single entity to interpret policy, exercise broad executive discretions and issue binding orders and remedies with respect to both political and rights- based subject matters. The perceived impartiality and integrity of judicial decision-making would be challenged to its core by such an allowance.

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Declarations of incompatibility under human rights instruments are particularly controversial. It may appear remarkable that the power to declare legislation to be incompatible with specific human rights under a dialogue model of rights protection could violate the proper place of courts and present a threat to Australian constitutionalism. In

Momcilovic v R (‘Momcilovic’),148 the High Court unanimously determined that the power to issue declarations of incompatibility was non-judicial on the basis it had no impact on the resolution of the justiciable controversy between the parties to the dispute.149 Only

Kiefel and Crennan JJ said the power was also incidental to the judicial task of determining the primary controversy concerning legal rights.150 This decision potentially rules out the option of human rights protection at the national level based on the dialogue model adopted in the United Kingdom, New Zealand, the Australian Capital Territory and Victoria.

Counter-arguments exist to the Court’s obiter dictum finding that the power is non- judicial.151 That said, the decision in Momcilovic demonstrates the capacity for the separation rules to prevent government innovations that may assist in the protection of

148 (2011) 245 CLR 1. 149 (2011) 245 CLR 1, 60, 65 (French CJ), 94 (Gummow J), 123 (Hayne J), 185 (Heydon J), 222 (Crennan and Kiefel JJ), 241 (Bell J). 150 Momcilovic v R (2011) 245 CLR 1, 227 (Crennan and Kiefel JJ). 151 See, eg, Dalla-Pozza and Williams, above n 96, 9-27, who argue that the dialogue model of human rights protection complies with relatively expansive interpretations of each characteristic of judicial power. For instance the authors adopt Lacey and David Wright’s ‘more expansive understanding’ of enforceability [at 17] as requiring the power ‘is conclusive of the controversy regarding consistency’: Wendy Lacey and David Wright, ‘Highlighting Inconsistency: The Declaration as a Remedy in Administrative Law and International Human Rights Standards’ in Chris Finn (ed), Shaping Administrative Law for the Next Generation: Fresh Perspectives (Australian Institute of Administrative Law Inc, 2005) 32, 55. See also, Lisa Burton and George Williams, ‘Australia’s Exclusive Parliamentary Model of Rights Protection’ (2013) 34 Statute Law Review 58, 89-90.

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rights against legislative infringement. This appears to emphasise the technical, formalistic, problematic nature of the separation rules.

There is an alternative implication that may be drawn from the High Court’s decision in Momcilovic. Declarations of incompatibility compromise key features of judicial power and are not of a kind traditionally exercised by courts. A finding that declarations are in keeping with Chapter III may set a precedent that the powers of courts do not necessarily need to be binding, authoritative, or result in any right or remedy. Such a precedent would risk gutting the core of judicial power and enabling the legislature to compromise these integral features of judicial decisions. The threat such a precedent would pose to judicial independence and impartiality is clear.

In this vein, former Justice of the High Court Michael McHugh argued, prior to

Momcilovic, that the dialogue model of human rights protection is not in keeping with the constitution, is ‘suboptimal’ and should be rejected.152 McHugh contended that those aspects of the model that bring its constitutionality into question – and ultimately led to the classification of the power as non-judicial in Momcilovic – also form weaknesses in the model’s capacity to protect human rights. In essence, McHugh argued that bringing the model into line with accepted notions of judicial power would also strengthen the model’s capacity to protect rights. For example, empowering the court to issue a binding and enforceable remedial order following a finding of incompatibility would both assist in

152 McHugh, above n 147, 95.

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aligning the power with the core characteristics of judicial power, and also present an improvement in human rights protection.153 This is a compelling argument.

The separation rules may have precluded the adoption of a dialogue model of rights protection at the national level, but in doing so they simply reflect that the Constitution requires that courts issue conclusive, binding determinations capable of being the subject of remedial order.154 It is notable that the High Court’s analysis of declarations of incompatibility under the incompatibility test, discussed in section V below, was by no means exemplary of clear, concise or accessible decision-making. The ratio of the decision is disparate between the judgments. Whilst the justices came to a clear, obiter dictum, conclusion as to the definition of the power, it was ultimately unclear whether the power was incompatible or not. Others have engaged expertly with the complicated issues around human rights instruments in Australia and their impact on constitutional values, and I do not explore these questions further in this thesis. 155

In short, the formalist separation rules acknowledge the slippery slope that follows if courts are permitted to re-make government decisions, interpret policy or exercise functions lacking fundamental characteristics of judicial power. Efficiency is no excuse for undermining judicial independence or impartiality, as the ends achieved by the separation of judicial power are fundamental to the maintenance of core aspects of Australian

153 See, McHugh J’s proposed ‘preferred model’: Ibid 96. 154 Ibid. 155 See, eg, Dalla-Pozza and Williams, above n 96; Ibid 97; James Stellios, ‘Federal Dimensions to the ACT Human Rights Act’ (2005) 47 AIAL Forum 33; Geoffrey Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?’ (2006) 17 Public Law Review 188, 204-207.

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constitutionalism. If government desires innovation it is proper that the proposed development comply with the strongest protections for judicial independence and impartiality.

It is entirely justified, in fact crucial, that judicial independence and impartiality presents a considerable obstacle to government innovation and efficiency. That obstacle ought to arise from whichever doctrine is capable of best achieving the purposes of

Chapter III, so as to protect the constitutional compact and the values that underpin it. If that doctrine is the formalist separation discussed in this section, then it is no criticism of it that it impedes government innovation – in doing so it will also guide innovation in a path that accords with judicial independence and impartiality. Likewise, if it is the functionalist test discussed below which best achieves judicial independence and impartiality, it would be expected that test would also impede innovation and efficiency as it maintained appropriate boundaries between the branches of government. The rules governing the separation of powers may be criticised on many bases. But, from the perspective of constitutional values, efficiency and innovation arguments hold little weight.

D Does the Formalist Approach Achieve Judicial Independence and Impartiality?

Considering three key criticisms of the formalist separation rules has not produced a straightforward answer to the question ‘do the formalist separation rules achieve judicial independence and impartiality?’. The strict approach has much to commend it as a means of achieving the purposes of Chapter III. The success of the separation rules in building high walls and setting clear boundaries depends upon the precision with which judicial

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functions may be distinguished from non-judicial functions. Many functions may be defined as judicial or non-judicial according to the established set of criteria, but many are insusceptible to precise definition, presenting a structural weakness in the walls between branches. The separation rules would be greatly assisted by a candid acknowledgment that not all functions are susceptible to precise definition and that in those cases some other standard or factor is required to determine the allocation of power. Admittedly this concession goes against the formalist grain. Of course any other factor introduced to assist the proper allocation of penumbral powers would need to accord with the maintenance of judicial independence and impartiality, which I submit historical analogies and parliamentary intent fail to do.

Likewise, if a clear avenue for the development of fair process jurisprudence were opened within the strictures of the separation rules, the rules would no longer be as susceptible to the criticism that they are overly formalistic. Such a development would enable the rules to evolve in a manner more clearly and accountably engaged with the purposes of Chapter III. It seems then that the formalist separation rules could provide the prophylactic device aspired to if they develop an appropriate means of determining the allocation of innovative and ambiguous functions, and a clearer avenue by which the court may address functions that challenge constitutional values such as fair process.

Rather than seeking to iron out the weaknesses in the capacity of the separation rules to achieve independence and impartiality, perhaps the approach ought simply be rejected and replaced with a wholly substantive test, one that focuses on the purposes of Chapter III rather than technical questions of defining characteristics? In the next section I consider

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how such a test has fared at achieving judicial independence and impartiality in the contexts of State courts and personae designatae.

V FUNCTIONALISM: THE INCOMPATIBILITY TEST

‘[W]hat possible reason can there be for invalidating conferral of a particular non-judicial function on a judge when the function is not a threat to these values? Would this not involve

what Peter Strauss calls “technical positivism” – elevating form above substance, or

making a fetish of a rule for the sake of doctrinal purity?’ – Denise Meyerson156

Functionalists advocate a more dynamic approach to the separation of powers than formalists, contending that considerations beyond mere definition ought to determine the allocation of government powers. Functionalism is susceptible to many variations. In

Australia the prevailing functionalist approach is characterised by an incompatibility test, by which the branches of government may exercise any powers except those demonstrably incompatible with the maintenance of institutional independence and integrity. In the

Chapter III context the incompatibility test elevates the core purpose of the separation of judicial power – judicial independence and impartiality – to a determinative level.

Advocates of the incompatibility test claim this direct engagement with the concepts of judicial independence and impartiality offers the ideal mechanism for their achievement, and that this test is ‘flexible enough, at least in theory, to suggest a wide range of

156 Meyerson, ‘The Independence of the Judiciary in Australia and South Africa’, above n 115, 82, quoting Peter L Strauss, ‘Bowsher v Synar: Formal and Functional Approaches to Separation- of-Powers Questions – A Foolish Inconsistency?’ (1987) 72 Cornell Law Review 488, 512.

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limitations on ... legislative power’.157 The incompatibility test is also supported by the functionalist claim that focussing attention on the nature of the powers themselves and the manner of their exercise avoids the technical and arguably distracting focus on definitional characteristics which has proved so problematic for the separation rules.158

Functionalist criticisms of the formalist separation rules are substantially limited to the second rule, limiting the permissible powers of courts. The first separation rule restricting judicial powers to the judiciary has been applied uncontentiously on numerous occasions and ‘never questioned’.159 Perhaps this acceptance of the first separation rule acknowledges that judicial power is capable of some degree of precise definition and judicial enforceability. More likely, it indicates that either test would produce similar outcomes, as the conferral of judicial functions on non-judicial bodies would necessarily undermine the purposes of the separation of powers.

The adoption of an incompatibility test to replace the second separation rule is by no means a new proposition. Prior to the introduction of the second separation rule in

Boilermakers’ there had been some indication that a functionalist approach would determine the permissible functions of federal courts. A functionalist-style inconsistency test was suggested in the opinions of four justices in the 1938 case of R v Federal Court of

157 Fiona Wheeler, ‘The Kable Doctrine and State Legislative Power over State Courts’ (2005) 20 Australian Parliamentary Review 15, 22. See also, Mason, above n 4, 2. 158 Fiona Wheeler, ‘The Rise and Rise of Judicial Power Under Chapter III of the Constitution: A Decade in Overview’ (2000) 20 Australian Bar Review 1, 6; Mason, above n 4, 2, 5. 159 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4, 114, cf, Appleby, ‘Imperfection and Inconvenience’, above n 6, 280 in which the author recommends replacing the first and second separation rules with a functionalist style test.

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Bankruptcy; Ex part Lowenstein.160 Dixon and Evatt JJ dissented in that matter, Dixon J already having revealed his formalist leaning in Victorian Stevedoring & General

Contracting Co Pty Ltd v Dignan, as well as later, in extra-judicial speeches.161 Changes to the composition of the High Court, including Dixon J’s promotion to Chief Justice, meant that when Boilermakers’ came before it in 1956 the second separation rule had gained majority support.162

Despite the authoritative adoption of the second separation rule and the unanimous validation of the decision by the Privy Council on appeal, both the High Court and the broader academic community remained divided as to whether an alternative test ought to govern the permissible functions of federal courts. The popular alternative proposition was the incompatibility (or inconsistency) test suggested in Lowenstein and advocated cogently by Williams J in dissent in Boilermakers.163 In 1974, Barwick CJ revealed his preference for a functionalist approach and invited the second separation rule to be challenged, criticising it as unnecessary for the maintenance of judicial independence.164 With this as encouragement, leave was sought and granted in a later case to re-argue the ruling in

160 (1938) 59 CLR 566; Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4, 115; Wheeler, ‘The Boilermakers Case’, above n 2,163. 161 (1931) 46 CLR 73; Owen Dixon, ‘The Separation of Powers in the Australian Constitution’, American Foreign Law Association, Proceedings No. 24 (December 1942) 1, 5; Wheeler, ‘The Boilermakers Case’, above n 2, 163. 162 Wheeler, ‘The Boilermakers Case’, above n 2, 163-164. 163 R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 313-315 (Williams J). 164 Joske (No 1) (1974) 130 CLR 87, 90, this passage is quoted in Part One, section III.

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Boilermakers, but the High Court reached its decision without reconsidering the second separation rule.165

The incompatibility test did not, however, fall away as an historical anomaly. Not only have many eminent constitutionalists continued to advocate the replacement of the second separation rule with an incompatibility test,166 but the test found favour with the High Court in the 1990s when questions arose concerning Chapter III limits on the permissible functions of State courts and of federal judges acting personae designatae. It was about this period of the High Court that Leslie Zines claimed: ‘In constitutional law an assault was made on what was seen as one aspect of legalism, namely formalism’.167

The persona designata doctrine is an important and long-standing exception to the second separation rule restricting judges to judicial tasks. This doctrine is based on the assertion that Chapter III does not bind federal judges in their personal capacities, and so non-judicial functions may be conferred on judges individually. Despite the artificial flavour of the doctrine,168 it has been extensively used and upheld as in keeping with the

165 R v Joske; Ex parte Shop Distributive & Allied Employees Association (1976) 135 CLR 194.. 166 Winterton, above n 18, 60, 62-63; Mason, above n 4; Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis, above n 8, 156; Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4; Appleby, ‘Imperfection and Inconvenience’, above n 6, 280- 286. 167 Zines, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’, above n 33, 15. 168 Hilton v Wells (1985) 157 CLR 57, 84 (Mason and Deane JJ); Medical Board (Vic) v Meyer (1937) 58 CLR 62, 97 (Dixon J); Grollo v Palmer (1995) 184 CLR 348, 377 (McHugh J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 12-13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Mason, above n 4, 5; Appleby, ‘Imperfection and Inconvenience’, above n 6, 273-274.

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Constitution.169 In order to prevent the exception from overwhelming the rule, an exception to the persona designata exception was proposed. In 1995 the High Court in Grollo v

Palmer (‘Grollo’)170 gave authority to the existence of an incompatibility limit on the non- judicial functions capable of being vested in judges personae designatae.171 The incompatibility limit prohibits non-judicial powers from being conferred on a judge persona designata if the power is incompatible with the independence or integrity of the judge or of the judicial institution. Thus, a functionalist style test determines Chapter III limits on the permissible powers of judges in their personal capacities.

Grollo concerned a challenge to provisions enabling telecommunication interception warrants to be issued by judges.172 Despite the intrusive nature of the warrants, the secretive, in camera nature of the proceedings in which they were issued, and the fact that this administrative power was exercised in furtherance of a police investigation, a majority of the High Court upheld the provisions as compatible with judicial independence and integrity.173

169 Hilton v Wells (1985) 157 CLR 57; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 13-15 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 43 (Kirby J). For a history of this practice and its controversy, see AJ Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge’ (1992) 21 Federal Law Review 48. 170 (1995) 184 CLR 348. 171 Grollo v Palmer (1995) 184 CLR 348, 376 (McHugh J), 365 (Brennan CJ, Deane, Dawson and Toohey JJ). 172 Telecommunications (Interception) Act 1979 (Cth) ss 6D, 6H. 173 (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ).

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The incompatibility limit was applied to invalidate a conferral of power on a federal judge for the first (and to date only) time the following year in Wilson v Minister for

Aboriginal and Torres Strait Islander Affairs (‘Wilson’).174 In Wilson, the appointment of

Justice Jane Mathews as reporter to the Minister on whether certain areas should be classified as Aboriginal heritage sites was held to be invalid. Incompatibility was established on the basis that the appointment conferred an essentially political function and involved powers so entwined with the executive as to diminish public confidence in the judicial institution as a whole. In essence the appointment gave ‘the appearance that the judge is acting, not in any independent way, but as a servant or agent of the Minister’.175

Six days following Wilson the High Court introduced a second field of application for the incompatibility test. In Kable v Director of Public Prosecutions (NSW) (‘Kable’),176 the

High Court invalidated State legislation providing for the New South Wales Supreme Court to order the preventive incarceration of a named individual at the completion of his sentence for serious offences.177 The decision was grounded in the ad hominem nature of the Act in question and in the various ways in which the Supreme Court proceedings departed from fair process.178

174 (1996) 189 CLR 1. 175 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 26 (Gaudron J). 176 (1996) 189 CLR 51. 177 Community Protection Act 1994 (NSW). 178 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 98 (Toohey J), 106-8 (Gaudron J), 122-123 (McHugh J), 131, 132 (Gummow J); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655 (Callinan and Heydon JJ). Discussed further below, and in detail in Part Four, section V.

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Kable must be considered in light of the High Court’s later decision in Fardon v

Attorney-General for the State of Queensland (‘Fardon’).179 In Fardon the Court upheld the capacity of the Queensland Supreme Court to issue preventive detention orders almost identical to those considered in Kable. The constitutional validity of the Supreme Court’s powers in Fardon rested primarily on the general application of the Act in contrast to the incompatible ad hominem Kable Act.

The revolutionary aspect of Kable was that it determined Chapter III limits on the permissible functions of State courts. State courts are outside the direct ambit of the federal separation of powers. Prior to Kable it had been generally accepted that there were few restrictions on the Parliaments’ powers with respect to State courts.180 A majority of the

High Court in Kable found that, to the extent that State courts are vested with limited federal jurisdiction and form part of an integrated national court system, their independence and integrity are entitled to constitutional protection.181 Accordingly, State courts may not be vested with functions that are incompatible with the independence or integrity of the judicial institution. Subsequent case law has clarified that the Kable incompatibility test is aligned with that introduced in Grollo, as the rulings ‘share a common foundation in

179 (2004) 223 CLR 575. 180 See, eg, S (a child) (1995) 12 WAR 392; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372; City of Collingwood v Victoria (No 2) [1994] 1 VR 652; Mabo v Queensland (No 1) (1988) 166 CLR 186, 202 (Wilson J); Steytler and Field, above n 61, 230; Hardcastle, above n 7, 13. 181 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103 (Toohey J), 82 (Dawson J). See also, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655 (Callinan and Heydon JJ), 591 (Gleeson CJ); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 529 (French CJ); Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, 579-581 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

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constitutional principle’ which ‘has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or

State’.182

The functionalist incompatibility test has thus been subject to substantial jurisprudential development in Australia, despite the predominance of the formalist separation rules in determining Chapter III challenges with respect to federal courts. This provides an important opportunity to consider whether the incompatibility test has been more successful than the separation rules in achieving judicial independence and impartiality.

At first blush it may seem incontrovertible that elevating the purposes of the separation of judicial powers to a determinative level presents the ideal means of achieving those aims. After all, judicial independence and impartiality are directly engaged to determine constitutional validity. Direct engagement presents an opportunity to develop clarity, precedent and substantive understandings around the meaning of judicial independence and impartiality. However, critics of the incompatibility test suggest the test fails to provide a workable or predictable standard and that the permissiveness and flexibility underpinning the test have facilitated its development into a grievously insubstantial limit on legislative

182 Wainohu v New South Wales (2011) 243 CLR 181, 228 (Gummow Hayne, Crennan, Bell JJ); Rebecca Welsh, ‘Incompatibility Rising? Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259. See also, the application of the Wilson test in: Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J).

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power.183 By considering how the notion of incompatibility has been developed in the

Grollo and Kable lines of cases, one can assess the strength of these criticisms and the success of the functionalist incompatibility test in achieving judicial independence and impartiality.

A Defining Incompatibility

Just as the definition of judicial power lies at the heart of the separation rules, the meaning of incompatibility is central to the success of the functionalist incompatibility test.

In upholding the High Court’s decision in Boilermakers’ the Privy Council described the incompatibility standard as ‘vague and unsatisfactory’.184 The development of the incompatibility test since Grollo suggests incompatibility may be inapt for exhaustive definition and may hold deliberately to its characteristic flexibility, but it does have a core of precise and enforceable meaning.185

In Grollo the majority justices described three ways in which incompatibility may arise. First, incompatibility may arise when the actual performance of the judge’s judicial functions are significantly compromised as a result of a non-judicial function. Secondly, the personal integrity of the judge may be compromised or impaired by the non-judicial

183 Walker, above n 70, 161; Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 306; Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 7, 197-200. 184 Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 542. See also, Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182; Gogarty and Bartl, above n 13. 185 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4.

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function.186 Neither of these first two bases of incompatibility have been applied in the cases to date. On the basis of his actions persona designata the trial judge was required to excuse himself from the trial of Bruno Grollo without giving reasons to the parties. Despite this scenario presenting clear arguments for personal integrity incompatibility,187 a majority of the High Court upheld the provisions on the basis that the conflict could hypothetically have been avoided by ‘the adoption of an appropriate practice’.188 In consequence the first two grounds of incompatibility will only arise in rare cases where conflict is incapable of being avoided.

The third form of incompatibility described in Grollo is public confidence incompatibility. Public confidence incompatibility arises where the conferral of the non- judicial function diminishes public confidence in the independence and integrity of the judicial institution as a whole.189 Despite varying judicial acceptance of public confidence as an enforceable consideration,190 it is this form of incompatibility that has supported findings of invalidity and has come to characterise incompatibility jurisprudence.

The High Court in Wilson suggested a three-stage process to assist a determination of public confidence incompatibility. First, incompatible functions are ‘an integral part of, or

186 Grollo v Palmer (1995) 184 CLR 348, 364-365 (Brennan CJ, Deane, Dawson and Toohey JJ). 187 Walker, above n 70, 161. 188 Grollo v Palmer (1995) 184 CLR 348, 366 (Brennan CJ, Deane, Dawson and Toohey JJ). 189 Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). 190 Nicholas v R (1998) 193 CLR 173, 197 (Brennan CJ), 275 (Hayne J), cf, 209 (Gaudron J), 224, 226 (McHugh J), 258 (Kirby J).See discussion above in section III.

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[are] closely connected with, the functions of the legislative or executive government’.191 In addition to this characteristic incompatibility is indicated by either reliance upon non- judicial instruction, advice or wish, or the exercise of discretion on political grounds – that is, on grounds not expressly or impliedly confined by law.192

The three-stage Wilson test focuses squarely on the independence with which the function is performed. The first stage looks for integration between the branches of government. This was present in Wilson, but in Grollo incompatibility was avoided by the judge maintaining an arms-length distance from the executive, despite issuing the warrant in secretive, ex parte proceedings.193 The second and third stages of the Wilson test look to the basis for the judge’s decision, specifically, whether the decision relies upon executive instruction or on political factors. Grollo suggests, and subsequent cases have confirmed, that these criteria are also interpreted narrowly.194 The exercise of discretion on political grounds must be an express requirement of the role and is not established where the judge’s decision is simply unrestrained and may involve administrative concerns.195 Reliance on

191 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 192 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 193 See, McHugh J’s compelling dissent in Grollo v Palmer (1995) 184 CLR 348, emphasising these aspects of the process: 378-384 (McHugh J). 194 See discussion below, in section V.B. 195 See, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 338 (French CJ), 384, 385, 386 (Heydon J), 366-367 (Gummow and Bell JJ); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 551-552 (Gleeson CJ, referring to the judgments of Gummow, Kiefel, Hayne, Heydon and Crennan JJ). See also discussion in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 269 (Weinberg, Bennett and Edmonds JJ); Totani v South Australia (2010) 242 CLR 1, 56, 66 (Gummow J);

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executive instruction must also be an express requirement and is not indicated by the condition that a decision is based only on information received from the executive, or the withholding of executive evidence from the other party so it may not be tested.196 The key to compatibility again appears to lie in the judge’s capacity to exercise an arms-length independent review of the information presented.197

The High Court’s guidance in Grollo and Wilson provides the foundations for the development of an enforceable notion of incompatibility.198 As recently as 2011, Stellios argued that an incompatibility test ‘similar to that developed in Wilson’ ought to be adopted in the federal sphere to replace the second separation rule.199 In keeping with the inherent flexibility of this functionalist approach, the guidance in Grollo and Wilson was not intended to provide a test as such, but merely to assist the development of this new standard. This is reflected in the incompatibility cases that followed. At the core of the incompatibility standard lies the test’s functionalist dedication to flexibility. In contrast to the emphasis on discernible characteristics by the formalist separation rules, the High Court

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ). 196 Grollo v Palmer (1995) 184 CLR 348; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501. 197 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 (Gummow, Hayne, Heydon and Kiefel JJ); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 542-543 (Gummow, Hayne, Heydon, Crennan and Kiefel JJ); Wainohu v New South Wales (2011) 243 CLR 181, 225 (Gummow, Hayne, Crennan and Bell JJ). 198 See, eg, Wainohu v New South Wales (2011) 243 CLR 181, 225-226 (Gummow, Hayne, Crennan and Bell JJ), 196-208, particularly 206-207 (French CJ and Kiefel J); Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J). 199 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4, 135.

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has described determining incompatibility as an evaluative process,200 ultimately considering whether the function infringes the ‘minimum requirement’ that the judiciary be independent and impartial.201 No all-embracing description of what is necessitated by this elusive standard has been offered by the Court.202 The High Court has repeatedly acknowledged that exhaustive definition of incompatibility is neither possible nor desirable.203

Gummow J described the incompatibility test’s flexibility as a ‘strength rather than a weakness’ enabling it to respond to ‘complex and varied statutory schemes’.204 The rigid definition of incompatibility by a strict set of criteria would carry the risk that parliaments could avoid invalidity by careful drafting, rendering this functionalist standard susceptible to formalistic application. Indeed, the formalist attempt to settle a core definition of branch powers has caused much of the controversy surrounding the separation rules outlined above.205 In interpreting the incompatibility test courts have been careful to confine their decisions to the facts presented. It can only be said that this or that kind of provision

200 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 529 (French CJ). 201 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 67-68 (Gleeson CJ); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 575 (Kirby J). 202 Steytler and Field, above n 61, 235; Hardcastle, above n 7, 37. 203 See, eg, Nicholas v R (1998) 193 CLR 173, 256 (Kirby J); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ); North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618-619 (Gummow J); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 530 (French CJ). 204 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618-619 (Gummow J). 205 Bateman, above n 129, 441.

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produces incompatibility whilst a general conception remains elusive. As the Federal Court observed in 2008, ‘while the idea of incompatibility is familiar, its application to different factual situations is not’.206

Acknowledging the court’s dedication to maintaining a flexible standard, the development of a core meaning of incompatibility may be observed. The cases suggest incompatibility is established by the usurpation or control of a feature of the courts’ decisional independence. As French CJ stated in South Australia v Totani (‘Totani’): 207

At the heart of judicial independence, although not exhaustive of the concept, is decisional

independence from influences external to proceedings in court. ... Decisional independence

is a necessary condition of impartiality.

The applications of the incompatibility test in International Finance Trust Co Ltd v New

South Wales Crime (‘International Finance Trust’) 208 and Totani each hinged upon provisions purporting to direct the court as to the manner and outcome of the exercise of its powers. International Finance Trust concerned legislation allowing the NSW Crime

Commission to dictate whether restraining order proceedings would take place ex parte and without notice to the respondent.209 The inability of the Supreme Court to remedy this

206 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261 (Weinberg, Bennett and Edmonds JJ). 207 (2010) 242 CLR 1, 43 (French CJ). 208 (2009) 240 CLR 319. 209 Criminal Assets Recovery Act 1990 (NSW) s 10; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 355 (French CJ), 366-7 (Gummow and Bell JJ), 385-6 (Heydon J). Hayne, Crennan and Kiefel JJ dissented, adopting a different interpretation of the Criminal Assets Recovery Act: 375 (Hayne, Crennan and Kiefel JJ).

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direction indicated a usurpation of the court’s decisional independence and, thus, incompatibility.210

Similarly, incompatibility was established in Totani on the basis that South Australian control order legislation obliged the Magistrates’ Court to issue an order upon finding an individual was a member of a declared organisation, the latter classification having been determined solely by the executive.211 The Court suggested that replacing the obligation on the Supreme Court with a discretion (ie, providing the court ‘may’ issue the order, rather than ‘must’) would avoid incompatibility.212

In 2013 the High Court unanimously upheld Queensland’s organised crime control order scheme in Assistant Commissioner Condon v Pompano Pty Ltd (‘Condon’),213 on the basis that the Supreme Court retained sufficient independence to remedy the likely unfairness in those proceedings. The grounds of challenge focussed primarily on the involvement of secret ‘criminal intelligence’ evidence as compromising the procedural fairness in the proceedings. Rather than looking to the persona designata cases or to broader notions of independence, the High Court in Condon upheld the impugned provisions on the basis they did not substantially impair the defining or essential characteristics of the

210 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 355 (French CJ), 364 (Gummow and Bell JJ), 385 (Heydon J). 211 Serious and Organised Crime Control Act 2008 (SA) s 14(1); Totani v South Australia (2010) 242 CLR 1, 21 (French CJ), 67 (Gummow J), 153, 159-160 (Crennan and Bell JJ), 171-172 (Kiefel J). 212 Totani v South Australia (2010) 242 CLR 1, 56 (Gummow J), 88–89 (Hayne J), 160 (Crennan and Bell JJ). 213 (2013) 87 ALJR 458.

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Supreme Court.214 Hayne, Crennan, Kiefel and Bell JJ conceived of independence and impartiality as one of these essential characteristics, and in this way their Honours’ invoked a more general concept of incompatibility that suggests their reasons may apply in the persona designata context.215

French CJ and Gageler J adopted a more particular approach, describing procedural fairness as a defining characteristic of courts and assessing incompatibility in this respect.216 Gageler J went so far as to assert that ‘No court in Australia can be required by statute to adopt an unfair procedure’ and that, ‘“[A]brogation of natural justice” … is anathema to Ch III of the Constitution’.217 Gageler J’s approach presents a significant development in understandings of incompatibility, particularly considering Heydon J’s

2009 observation that the fair process implications of the incompatibility test were

‘apparently dormant’.218 That said, Gageler J reasoned that incompatibility only arises in cases where the compromise of an essential feature is obligatory and unable to be remedied by the court;219 a view also expressed by the other members of the bench.220 In this way the

214 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ), 497 (Gageler J). 215 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 488 (Hayne, Crennan, Kiefel and Bell JJ). 216 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ), 497 (Gageler J). French CJ described these characteristics as including ‘the reality and appearance of decisional independence and impartiality; the application of procedural fairness; adherence to the open court principle; and the provision of reasons’: 477 (French CJ). See also, French CJ’s similar comments in Totani v South Australia (2010) 242 CLR 1, 43 (French CJ). 217Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 500 (Gageler J), quoting the explanatory notes that accompanied the Bill for the relevant Act: Queensland, Legislative Assembly, Criminal Organisation Bill 2009, Explanatory Notes, 3. 218 Totani v South Australia (2010) 242 CLR 1, 95 (Hayne J). 219 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 503 (Gageler J).

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case may reflect a broad understanding of judicial independence and impartiality, but it nonetheless aligns with existing authorities indicating that the preservation of the judge’s overarching discretions is sufficient to avoid invalidity.221

In a joint judgment Hayne, Crennan, Kiefel and Bell JJ embraced a more general concept of incompatibility.222 Their Honours drew upon precedent indicating that secret evidence is not necessarily at odds with Chapter III, and that the maintenance of the court’s abilities to independently review the relevant executive direction will avoid incompatibility.223 This precedent, in particular K-Generation Pty Ltd v Liquor Licensing

Court (‘K-Generation’)224 and Gypsy Jokers Motorcycle Club Inc v Commissioner of

Police (‘Gypsy Jokers’),225 had also supported the Court’s reasons in International Finance

Trust and Totani.226

In K-Generation and Gypsy Jokers the High Court upheld the use of secret evidence in judicial proceedings on the basis that the court was able to independently review the secret

220 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 482, 483 (French CJ), 495 (Hayne, Crennan, Kiefel and Bell JJ). 221 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 480 (French CJ), 499 (Gageler J). 222 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 488 (Hayne, Crennan, Kiefel and Bell JJ). 223 See, Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 492-493 (Hayne, Crennan, Kiefel and Bell JJ). 224 (2009) 237 CLR 501. 225 (2008) 234 CLR 532. 226 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 354-355 (French CJ); Totani v South Australia (2010) 242 CLR 1, 36 (French CJ), 60-61 (Gummow J).

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classification of the information.227 The preservation of the courts’ residual discretions enabled the judge to overcome potential incompatibility in each case. These findings align to some extent with the High Court’s decision in Grollo, rejecting arguments of personal integrity incompatibility on the basis that compatibility could be hypothetically preserved by the implementation of appropriate measures.228

Another relatively recent case highlights both the incompatibility test’s flexibility and continuity. In Wainohu v New South Wales (‘Wainohu’),229 New South Wales’ control order provisions were challenged on Chapter III grounds.230 The provisions compromised fair judicial process in a number of respects. An organisation could be ‘declared’ by a judge on the basis of undisclosed information in administrative proceedings not governed by the rules of evidence.231 Incompatibility was established, solely on the basis of a provision removing the judge’s duty to give reasons for his or her decision to declare an organisation.232 The Court referred to the Wilson test in its reasons, as well as to its decisions resting incompatibility on the limitation of a single facet of the courts’ decisional independence. The Wainohu scheme was distinct from cases such as K-Generation, Gypsy

Jokers and Totani as the judge could have exercised his or her discretion to give reasons.

227 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 (Gummow, Hayne, Heydon and Kiefel JJ); K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 542-543 (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) 228 Grollo v Palmer (1995) 184 CLR 348, 366 (Brennan CJ, Deane, Dawson and Toohey JJ). 229 (2011) 243 CLR 181. 230 Crimes (Criminal Organisations Control Act) 2009 (NSW). For the author’s analysis of this case, see, Welsh, above n 182. 231 Ibid ss 8, 28, 29, 13(1). 232 Ibid s 13(2); Wainohu v New South Wales (2011) 243 CLR 181, 192 (French CJ and Kiefel J), 229-230 (Gummow, Hayne, Crennan and Bell JJ).

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Nonetheless, for a majority of the Court the giving of reasons was so fundamental to the judge’s actual and perceived decisional independence that the removal of the obligation was sufficient to create incompatibility.233

Crucial to the Court’s decision in Wainohu was the fact that the declaration was issued by a judge acting persona designata in proceedings with the appearance of open court. The judge’s decision to declare an organisation involved important determinations of fact and enlivened the Supreme Court’s jurisdiction to issue control orders in relation to the declared organisation and those associated with it.234 It is not clear whether removing the appearance of open court from the declaration proceedings and allowing the judge to issue the declaration behind closed doors (as in Grollo) would have avoided incompatibility.235

The incompatibility cases demonstrate that the concept is certainly flexible, context specific and inapt for exhaustive definition or tests. This presents a conceptual challenge.

Heydon J notes that ‘intermediate and appellate courts have found [the incompatibility test] difficult to understand’.236 Chris Steytler and Iain Field likewise observe that ‘practitioners, lawmakers, students and teachers of constitutional law alike have struggled to make sense’ of the concept of incompatibility.237 This lack of clarity around incompatibility does not

233 Wainohu v New South Wales (2011) 243 CLR 181, 192, 215, 213, 219-220 (French CJ and Kiefel J), cf, Heydon J’s dissenting views: 238-239. 234 Wainohu v New South Wales (2011) 243 CLR 181, 192, 215, 218-220 (French CJ and Kiefel J). It was on this basis that the Court concluded s 13(2) effectively rendered the entire Crimes (Criminal Organisations Control) Act 2009 (NSW) invalid: 220 (French CJ and Kiefel J), 231 (Gummow, Hayne, Crennan and Bell JJ). 235 Welsh, above n 182. 236 Totani v South Australia (2010) 242 CLR 1, 95-6 (Heydon J). 237 Steytler and Field, above n 61, 228; Goldsworthy, above n 140.

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necessarily mean the standard is unworkable. The cases show that refinement of the meaning of incompatibility has been possible. Specifically, incompatibility appears to require that the essential characteristics of an independent court are retained, and that the judicature is not required to make a political decision or act at the whim of the executive.

Many questions remain unanswered as to the meaning of incompatibility.238 In trying to make sense of the incompatibility test, decision-makers have harnessed the narrow interpretation of incompatibility for which Grollo laid the foundations. Under this narrow interpretation independence is the touchstone for compatibility, rather than broader notions of integrity or perceived impartiality. This narrow interpretation has been reinforced in subsequent decisions, giving rise to the strongest critique of the incompatibility test, namely, that it is too constrained to prevent the erosion of the separation of judicial power and to achieve the purposes of Chapter III.

B Is Incompatibility Insubstantial?

The incompatibility test engages the purpose of Chapter III to determine the allocation of powers. However, the test has been interpreted narrowly, prompting the questions: has the incompatibility test developed into an insubstantial and inadequate protection for judicial independence and impartiality? And if so, why?

The incompatibility test’s functionalist dedication to flexibility gives the court considerable room to manoeuvre in its decisions interpreting incompatibility and constitutional validity. This flexibility may preserve the substantive nature of the test.

238 For an investigation into some of these ‘unanswered questions’ see, ibid 251-264.

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Incompatibility may be interpreted widely, giving substantive protection to fair process and equality considerations and taking public confidence in courts and changing community values into account.239 However, incompatibility may also be interpreted narrowly, preventing only clear usurpations of judicial independence and aligning institutional integrity with a minimalist conception of the essential or defining features of courts.240

Despite commentators emphasising the doctrine’s potential breadth, High Court decisions have tended to lean strongly towards the latter approach.241

The Court in Kable indicated that incompatibility may be established by circumstances in which the rights and liberties of citizens were severely affected by judicial proceedings lacking the hallmarks of fair process.242 This substantive conception of the incompatibility test in which fair process values found clear articulation was not further applied and extended. In fact the incompatibility test was not applied again until International Finance

Trust in 2010, despite a string of attempts to rely on the rule. In an oft-quoted statement,

Kirby J suggested the Kable rule may be ‘a constitutional guard dog that would bark but once’,243 and Gageler J, some years prior to his elevation to the High Court bench, put to

Kirby J in argument that any furtherance of the Kable rule was like asking the dog ‘to turn

239 Mason, above n 4, 8; Bateman, above n 129, 440-441; Wheeler, ‘Due Process’, above n 5, 220- 224. 240 Steytler and Field, above n 61, 234. 241 See, the Federal Court’s lengthy description of the development of the incompatibility test in: Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261-273, 261 (Weinberg, Bennett and Edmonds JJ). 242 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 98 (Toohey J), 106-7 (Gaudron J), 122-123 (McHugh J), 131, 132 (Gummow J); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655 (Callinan and Heydon JJ). 243 Baker v The Queen (2004) 233 CLR 513, 535 (Kirby J).

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on the family’.244 In 2008 the Federal Court reflected that Wilson and Kable had come to

‘represent the high point in the development by the High Court of the notion of incompatibility’, a comment that arguably remains true today despite a resurgence in the test’s application.245

The minimal scope of Kable incompatibility was confirmed in 2004 when the High

Court in Fardon upheld a substantially similar preventive detention regime.246 As noted above, a key point of distinction relied upon to support the different outcomes in the two cases was that the New South Wales Act in Kable was ad hominem,247 whereas the

Queensland Act was of general application.248 The substantial overlap in the facts of

Fardon and Kable indicated, for McHugh J, that Kable was a decision of ‘very limited application’ and the combination of circumstances that gave rise to incompatibility in that case was ‘unlikely to be repeated’.249 The distinctions between the Acts considered in

Kable and Fardon were relatively minor. Together the cases appeared to demonstrate that

244 Transcript of Proceedings, Forge v Australian Securities and Investments Commission [2006] HCATrans 25 (8 February 2006). 245 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 266 (Weinberg, Bennett and Edmonds JJ). 246 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 247 Community Protection Act 1994 (NSW) s 3(3). 248 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 591 (Gleeson CJ), 595-596 (McHugh J), 658 (Callinan and Heydon JJ). Kirby J also acknowledged this distinction, referring to the Queensland Act as ‘one of apparently general application’, but commented that it was ‘unthinkable’ that Kable was a ‘stand-alone decision … limited to one case’: 629. 249 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 601 (McHugh J). See also, Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261 (Weinberg, Bennett and Edmonds JJ).

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incompatibility is indeed reserved for extreme cases, such as the judicial implementation of ad hominem legislation or the appointment of a judge as Ministerial advisor.250

Following Fardon, decisions of the High Court reinforced the narrowness of the incompatibility test.251 It appeared as though nothing but the most egregious affront to judicial independence would qualify as incompatible. K-Generation, Gypsy Jokers,

International Finance Trust, Totani and Condon confirmed that preserving an arms-length degree of decisional independence was sufficient to overcome potential incompatibility, even in the context of biased or closed proceedings impacting seriously on rights. In

Condon, Gageler J upheld the provisions despite identifying that the only option available to a judge to remedy unfairness was to order a stay of proceedings.252 In those cases where incompatibility was established, the decision rested on a single provision, in Totani on a single word. Broader fair process implications of the incompatibility test have not gathered ground with the High Court and appear to be, at best, in abeyance for the time being.253 As

250 See, critique of Fardon in: Anthony Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventative Detention Laws’ (2005) 10 Deakin Law Review 177; Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 100. 251 Gabrielle Appleby and John Williams, ‘A New Coat of Paint: Law and order and the Refurbishment of Kable’ (2012) 40 Federal Law Review 1, 8-9. 252 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 503 (Gageler J). 253 Totani v South Australia (2010) 242 CLR 1, 95 (Heydon J), cf, Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 500 (Gageler J).

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Kirby J observed in Gypsy Jokers, the incompatibility test has been ‘under-performing’ in this respect.254

It is difficult to say whether Wainohu presented a slight widening of the incompatibility standard or was simply a decision based on particular, rare, contextual considerations (such as the exercise of functions by a judge with the appearance of open court as a precursor to Supreme Court proceedings). In any case, incompatibility in

Wainohu also rested on a single provision compromising an essential feature of the court’s independence. Ultimately the case law demonstrates that only clear usurpations or severe intrusions into the independence of the judiciary will cause incompatibility.255

The other side of this coin is that since the inception of the test, compatibility has proved relatively easy to maintain. Grollo and Wilson suggested that maintaining a relatively formal sense of independence by which the judge was not forced into an unavoidable conflict, integrated into the political branches or instructed to make political decisions would ensure constitutional validity. This narrow interpretation was reinforced and in fact narrowed further by the cases that followed, each of which turned on singular usurpations of essential features of the courts’ independence. In recent cases the Court has been unusually explicit about how the provisions in question could be amended to remedy the incompatibility.256 None of the Court’s suggested changes would alter the schemes in a

254 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 563 (Kirby J). 255 Steytler and Field, above n 61, 238. 256 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 355 (French CJ), 364 (Gummow and Bell JJ), 385 (Heydon J); Totani v South Australia (2010)

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substantive manner; they would merely reinstate the minimum standard of judicial control over proceedings or, in Wainohu, the giving of reasons for a decision made with the appearance of open court.

The narrowness with which incompatibility has been interpreted is demonstrated by its relationship with fair process and equality. As discussed in respect of the formalist separation rules, judicial independence and impartiality are closely connected to fair process.257 The potential for the incompatibility test to protect fair process has not been realised.258 In circumstances where citizens’ rights and liberties are seriously affected, even to the point of imprisonment, it seems the preservation of arms-length independent review avoids constitutional invalidity.259 Intrusions into openness, fairness and equality have been permitted under the incompatibility test.260 For example, ex parte proceedings, secret evidence and decisions based on information not governed by the rules of evidence, have all been tolerated under the test, even where the power results in severe incursions on rights

242 CLR 1, 56 (Gummow J), 88-90 (Hayne J), 160 (Crennan and Bell JJ); Wainohu v New South Wales (2011) 243 CLR 181, 220 (French CJ and Kiefel J). 257 Brennan, above n 126, 16-18; Wheeler, ‘Due Process’ above n 5, 211; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106-107 (Gaudron J); Re Nolan; Ex parte Young (1991) 172 CLR 460, 496-497 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 487-488 (Deane and Toohey JJ); Polyukovich v Commonwealth (1991) 172 CLR 501, 703-704 (Gaudron J); Steytler and Field, above n 61, 255-259. 258 Cf, Gageler J’s assertions in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 499 (Gageler J). 259 See Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 267-271 (Weinberg, Bennett and Edmonds JJ); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Fardon v Attorney-General (Qld) (2004) 223 CLR 575. 260 Grollo v Palmer (1995) 184 CLR 348; Hilton v Wells (1985) 157 CLR 57; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 268 (Weinberg, Bennett and Edmonds JJ); Totani v South Australia (2010) 242 CLR 1.

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or liberties.261 This led Heydon J to observe in Totani that the due process implications of the test were ‘apparently dormant’.262

Despite rousing dissents in Grollo and Fardon advocating a broader interpretation of incompatibility, case after case has reinforced its narrowness. This narrow interpretation permits the incremental attrition of the separation of judicial power and also arguably poses little obstacle to clear affronts to judicial independence and impartiality. The test’s narrow interpretation focuses on an arms-length, relatively formal, separation and the essential features of a court to avoid incompatibility. This can preclude more substantive considerations from being brought to the fore, as a functionalist test would be expected to do.

The incompatibility test is now well-established as setting a high bar, requiring a degree of independence that is easily established by the maintenance of residual discretions and the most basic ‘essential’ aspects of independence and impartiality (such as the giving of reasons for a decision made with the appearance of open court). Broader factors such as fairness or equality do not seem to play any real role in incompatibility decisions. The test may be in keeping with constitutional text, structure and values, and even directly engage those values, but its potential to achieve judicial independence and impartiality has not been realised. One could say the case law has effectively neutered the potential for the

261 Grollo v Palmer (1995) 184 CLR 348; Hilton v Wells (1985) 157 CLR 57; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 268 (Weinberg, Bennett and Edmonds JJ); Totani v South Australia (2010) 242 CLR 1. 262 Totani v South Australia (2010) 242 CLR 1, 95 (Heydon J).

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incompatibility test to provide an effective mechanism for achieving the core purposes of

Chapter III.

Despite applying the test in recent cases, the High Court has not revisited previous authorities and continues to apply the narrow standard.263 There is nothing to suggest that if an incompatibility test was adopted to replace the second separation rule it would be freed from the prevailing narrow interpretation. Indeed, some commentators advocate the explicit adoption of the same test.264 The notions of independence and impartiality engaged by the incompatibility test in respect of State Courts and judges personae designatae are ultimately sourced from Chapter III. The Court has identified a singular concept of incompatibility despite the contextual and jurisdictional differences between the Grollo and Kable lines of cases.265

Both the High Court’s reticence to revisit past cases and its willingness to identify incompatibility as a singular concept indicate that a functionalist incompatibility test replacing the second separation rule would be the same test developed in the Kable and

263 Steytler and Field, above n 59, 238. cf, Appleby and Williams, above n 251, 28 in which the authors assert that the High Court has ‘reinvigorated’ the Kable doctrine, acknowledging the recent cases ‘have done little to settle the debates as to its basis or scope’. See also, Brendan Lim, ‘Attributes and Attribution of State Courts – Federalism and the Kable Principle’ (2012) 40 Federal Law Review 31, in which the author argues that the recent applications of the incompatibility test reflect a shifting emphasis in the test’s theoretical underpinnings. 264 See, eg, Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 4, 129-130. 265 Wainohu v New South Wales (2011) 243 CLR 181, 228 (Gummow Hayne, Crennan, Bell JJ); Welsh, above n 182, 259; Steytler and Field, above n 61, 244. See, also, the application of the Wilson test in: Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J).

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Grollo lines of cases.266 The flexibility of the incompatibility test would ensure that the different contextual features applying to federal courts would play a role in any incompatibility analysis. However, it might also be confidently surmised that if an incompatibility test replaced the second separation rule this ‘under-performing’267 test ‘of very limited application’268 would provide a weak protection to constitutional values and the separation of judicial power.

It is possible that the narrowness that characterises the incompatibility test may simply be the result of particular styles of judging and not actually indicate this functionalist test is less apt than the existing formalist test to achieve the purposes of Chapter III. However, in the next section I argue that the inherent functionalist foundations of the incompatibility test have facilitated its development as an insubstantial protection for constitutional values.

C Can Functionalism Achieve Independence and Impartiality?

At the core of the functionalist incompatibility test is the rationale that powers may be conferred on multiple branches of government unless the conferral is demonstrated to impede institutional independence or integrity. Unlike the formalist test which seeks proof of particular characteristics before permitting a function to be conferred on the judicature, a

266 Welsh, above n 182, 263. See, eg, Wainohu v New South Wales (2011) 243 CLR 181, 217-218 (French CJ and Kiefel J), 225-226 (Gummow Hayne, Crennan, Bell JJ); Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J). 267 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 563 (Kirby J). 268 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 601 (McHugh J); Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 267 (Weinberg, Bennett and Edmonds JJ).

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functionalist test allows the conferral before looking for offending characteristics. Thus, the functionalist starting point is one of permissiveness, its guiding ethos is flexibility.

The flexibility and permissiveness underpinning the functionalist approach undermines the prophylactic nature of the separation of judicial powers.269 Small affronts to judicial independence and impartiality that fail to reach the considerable standard of ‘incompatible with judicial independence and integrity’ are permitted under the functionalist incompatibility test. The legitimisation of these small affronts creates the potential for a snowball effect and the incremental erosion of the separation of powers. As Redish described:270

[W]hile the formal separationist model may appear annoyingly inflexible in a number of

ways, its advantages become more clear once one recognises the Pandora’s Box that is

opened by inserting flexibility into the judicial separation of powers analysis.

This Pandora’s Box was opened in those contexts in which Chapter III validity is governed by an incompatibility test.

The potential breadth of the test indicated in Wilson and Kable narrowed with each unsuccessful attempt to argue incompatibility that followed. The limited scope of the test is now reflected in the incredibly narrow bases on which the recent incompatibility decisions rest. Each case not only interpreted the incompatible characteristics of power, but legitimised other characteristics as compatible. Thus the use of secret evidence in judicial

269 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 306. 270 Ibid. See also, Walker, above n 70, 161.

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proceedings, risk assessment-based preventive detention, and closed proceedings resulting in intrusive orders are highly unlikely to feature weightily in determinations of incompatibility following their legitimisation as compatible in Gypsy-Jokers, Fardon and

Grollo respectively.

Both the ambit of the range of functions exercisable by the judicature, and the range of ways in which Parliament may control the exercise of those functions has steadily increased

– but these are not easily contracted, as to do so would be inconsistent with pre-existing authorities. The result has been the evolution of a relatively ineffective protection for judicial independence and impartiality under which even the basic fair process and equality of proceedings is difficult to protect from legislative interference.

In theory, the flexibility of the incompatibility test may permit the court to reconsider the compatibility of certain aspects of a power in each new context. However, courts’ proper adherence to precedent and need to provide certainty and consistency for the sake of the community and government, suggest that once a feature is determined to be compatible it will likely be found to be compatible again, even in different contexts.

It is the inherent permissiveness of the functionalist test that facilitates the legitimisation of relatively minor affronts to judicial independence and impartiality and enables the separation of judicial power to be steadily undermined. To again draw on

Redish:271

271 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 40, 100.

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[E]ven if functionalism and balancing could be employed with principled limitation, any

such interpretational approach inherently guts the prophylactic nature of the separation of

power protections, so essential a part of that system.

Judicial enforcement of a robust conception of incompatibility may succeed in achieving the purposes of Chapter III but, nonetheless, will continue to adhere to flexibility and permissiveness rather than rigidity and caution. It is highly likely such an approach will evolve in a manner that gradually narrows the concept of incompatibility into eventual insignificance – as witnessed in the post-Kable incompatibility cases – and permits greater and greater compromises to judicial independence and impartiality. Although the narrow application of the incompatibility standard was undoubtedly related to the State context in which it has primarily developed, these cases demonstrate the underlying tendency of the test to gradually narrow. The risk that this narrowing will occur is a severe and inherent weakness of the functionalist approach and would attend to it regardless of whether the test were being applied in a State or federal context.

It is clear enough that the High Court imbues flexibility into almost any test it determines, preserving a degree of discretion to enable adaptability in the long term. When fundamental constitutional values are at stake the development of the incompatibility test demonstrates that an inherently permissive test interpreted flexibly is apt to become so accommodating that it provides barely any protection at all in the longer term. This is a primary formalist criticism of functionalist approaches, and it describes the development of the incompatibility test in Australia. Following the case study analyses in Parts Three and

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Four, I return to the issue of whether flexibility and permissiveness are indeed the core weaknesses of the incompatibility test in Part Five of the thesis.272

Undoubtedly the incompatibility test’s direct engagement with the purposes of

Chapter III gives it is an important edge in achieving judicial independence and impartiality. The challenge becomes coupling this direct engagement with a strong and less flexible approach, so this strength is not whittled down over time.

VI PURPOSIVE FORMALISM: A TWO-TIERED APPROACH

Thus far I have discussed the purposive nature of the separation of federal judicial power and the strengths and weaknesses of the prevailing formalist and functionalist tests in their potential to achieve the purposes of Chapter III. The cautious, rigid approach of the formalist separation rules supports their capacity to prevent the erosion of the separation of judicial power seen in contexts where the incompatibility test has been applied. This strength is undermined by the rules’ reliance on an ultimately inadequate set of defining characteristics to distinguish judicial from non-judicial powers. If the separation rules are to provide the strong protection claimed, something more beyond these characteristics is needed to determine the allocation of powers. Moreover, the lack of a clear avenue for the consideration of fair process within the separation rules framework places the rules at risk of developing in a manner at odds with judicial independence and impartiality.

Functionalism, on the other hand, engages these constitutional values directly and presents a potentially substantive interpretational approach encompassing considerations of

272 See, Part Five, section II.B.

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fair process. However, the grounding of the incompatibility test in permissiveness and flexibility has unfortunately facilitated its narrowing to an insubstantial and inadequate protection for judicial independence and impartiality, with some judges suggesting that the incompatibility test places only the most minor limits on legislative power.273

The formalist separation rules are far from ideal, but they have been more successful than the functionalist incompatibility test in providing an appropriately strong and reliable protection for judicial independence and impartiality. The criticisms of formalism are well- founded, but perhaps not insurmountable. The weaknesses in the incompatibility test arise from its functionalist nature and are unavoidable. Is there a workable framework that accommodates the strengths of each approach without compounding their weaknesses and would therefore present a preferable approach to interpreting the federal separation of judicial powers? In this section I propose such an approach, a two-tiered method called purposive formalism.

Purposive formalism adopts the formalist separation rules with the addition of a purposive inquiry interrogating whether a power is compatible with judicial independence and impartiality. The design of the method is outlined below. First, however, it is helpful to briefly explain the logic behind the label ‘purposive formalism’.

273 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 601-602 (McHugh J); Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 , 267-271 (Weinberg, Bennett and Edmonds JJ).

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All formalism is of course purposive, in that no formalist claims the separation of functions ought to occur for its own sake.274 That said, formalist approaches to Chapter III may be appreciated as existing on a spectrum. At one end of this spectrum exists a passive approach to the purposive nature of Chapter III. This approach assumes that definition alone will achieve judicial independence and impartiality and that engagement directly with those concepts is unnecessary. A decision-maker adopting this approach will begin and end their reasoning by seeking to define the function at hand. The success of this formalist approach is thus entirely contingent upon the susceptibility of judicial power to precise and enforceable definition. At this end of the formalism spectrum the weaknesses of the separation rules are apparent. Limitations in the definition of judicial power become weaknesses in the capacity of the rules to achieve their purposes and a formalistic neglect of principled considerations places the rules at risk of developing in a technical manner at odds with the core aims of Chapter III.

At the other end of the formalism spectrum lies an actively purposive approach: purposive formalism. Purposive formalism acknowledges that defining a function is not apt to form the entire task of the separation rules as functions are not always susceptible to precise definition. It also acknowledges the purposive nature of Chapter III and compels direct engagement with these values by introducing a mechanism through which purposive considerations play a clear, consistent and significant role in the analysis.

274 Gerangelos, ‘Interpretational Methodology’, above n 8, 9.

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The basic purposive formalist framework is as follows. Two questions are posed in order to determine Chapter III validity.

1. Is the function judicial or non-judicial?- The first ‘definition’ limb.

Then, if the power is insusceptible to clear definition:

2. Is the conferral of the function compatible with the independence and impartiality of

the judicial institution?- The second ‘compatibility’ limb.

Purposive formalism is fundamentally formalist. First and foremost purposive formalism contends that powers ought not be vested in courts unless they contain the defining characteristics of judicial power, as developed in the extensive body of case law. A clear answer to this first question according to the accepted ‘classic’ characteristics of judicial power will determine the allocation of power conclusively. This retains the prophylactic strength of the formalist separation rules by ensuring that functions capable of clear definition are assigned on that basis, and that other considerations are not invoked to vary or confuse that determination. By being grounded in formalist caution and fundamental rigidity, purposive formalism aims to avoid the incremental erosion of judicial independence and impartiality caused by functionalism’s inherent permissiveness and flexibility.

Purposive formalism still faces the considerable challenge of accounting for the limitations of the formalist separation rules: first, the resolution of cases concerning penumbral powers and, secondly, the failure of the rules to provide a clear avenue for

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considering the impact of a conferral of power on judicial independence and impartiality. In order to address these weaknesses purposive formalism engages a second tier of inquiry beyond considering the definition of a power. Only if the nature of the function remains unclear is the second question engaged: ‘is the conferral of the function compatible with the independence and impartiality of the judicial institution?’.

The primary concern of purposive formalism is to define the function as judicial or non-judicial. In cases where definition is difficult, such as where the function may be chameleon, innominate or profess to extend the ambit of judicial power, validity will be determined by direct reference to the power’s impact on judicial independence and impartiality. The two-tiered framework assists purposive formalism to go further than merely determining allocation of judicial and non-judicial functions. It acknowledges and allocates functions in Zines’ third category of powers insusceptible to definition as either judicial or non-judicial, that is, penumbral powers.275

The compatibility limb of purposive formalism is clearly an adaptation of the functionalist incompatibility test. Crucially, the compatibility question is phrased in the positive: is the function compatible, rather than is it incompatible. This is an important distinction. It places a positive burden on the identification of compatible features of the power, upon which validity depends. The incompatibility test works in the opposite way.

The incompatibility test calls for the identification of incompatible features and presumes that the power is otherwise valid. The existing Grollo and Kable lines of authority may

275 Zines, The High Court and the Constitution, above n 8, 221-222.

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guide the court as to the outer-limits of compatibility, but purposive formalism’s second limb calls for the evolution of a jurisprudence of compatibility centred on more comprehensive understandings of the constitutional concepts of judicial independence and impartiality.

Purposive formalism compels courts to engage openly, accountably and consistently with the principled aspect of Chapter III. In incompatibility cases this substantive open engagement is clouded (even overwhelmed) by a focus on indicators of incompatibility, such as usurpation, the essential features of a court and whether the judge is obligated to act in a political manner. In cases applying the separation rules there has simply been no requirement that courts engage openly, consistently, or at all with the purposes of

Chapter III. By requiring courts to resolve difficult questions as to the allocation of powers by clear reference to the core constitutional values of judicial independence and impartiality, purposive formalism holds potential as an advancement in the accountability and reasoning of the court, and in the achievement of those values.

Purposive formalism presents a significant development, but one that builds upon existing authorities. In Thomas v Mowbray (‘Thomas’)276 the High Court was asked not only to determine whether the function in question was judicial in nature, but also whether the provision authorised the exercise of judicial power ‘in a manner contrary to Ch III’.277

276 (2007) 233 CLR 307. 277 Thomas v Mowbray (2007) 233 CLR 307, 324 (Gleeson CJ). The decisions in that case may be appreciated as representing a range of interpretational approaches. For example, Gleeson CJ relied heavily on historical analogy to uphold the challenged provisions: 335. The dissenting justices engaged more directly with the impact of the provisions on fair process: see, eg, 433- 436 (Kirby J). See detailed discussion in Part Three, section III.

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Various decisions of Kirby, Gaudron and Deane JJ reflect aspects of the purposive formalist approach to the separation rules insofar as each justice has displayed an active engagement with the purposes of Chapter III in their reasons, at times drawing on these purposes to determine the issue at hand.278 That said, approaches to the purposive aspect of

Chapter III have been inconsistent. Purposive formalism is proposed as a new framework to encourage consistency in the interpretation of Chapter III and to legitimise constrained, clear and direct engagement with Chapter III’s purposes in the determination of separation of federal judicial powers cases.

By coupling the strictness of the separation rules with the principled engagement of a compatibility test, purposive formalism may provide a mechanism for better achieving the purposes of Chapter III. There are three potential criticisms of purposive formalism that deserve particular consideration and provide an opportunity to elaborate the approach in more detail. First, it may be said that engaging both concepts of judicial power and compatibility risks compounding the ambiguities inherent in each concept and supporting unpredictable, highly discretionary or unguided decisions. Secondly, purposive formalism may simply incorporate the insubstantial and narrow concept of incompatibility arising from the Kable and Grollo lines of cases to govern the compatibility limb. Thirdly, as neither the formalist nor the functionalist tests have been particularly successful at

278 Wheeler, ‘Due Process’, above n 5. See, eg, Nicholas v R (1998) 193 CLR 173, 208-209 (Gaudron J); Polyukovich (1991) 172 CLR 501, 607 (Deane J); Thomas v Mowbray (2007) 233 CLR 307, 433-436 (Kirby J), cf, the reasons of Gleeson CJ in Thomas v Mowbray (2007) 233 CLR 307, where his Honour dealt very briefly with the question of whether the provisions authorised the exercise of judicial power in a manner contrary to Chapter III: 335.

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protecting fair process in judicial proceedings, how could purposive formalism possibly succeed in doing so simply by harnessing both tests in a single model?

A Compounding Imprecision?

Purposive formalism combines the separation rules with a compatibility test; does this not simply compound the weaknesses of each approach? In particular, since neither judicial power nor (in)compatibility are susceptible to precise or exhaustive definition – will a test that invokes both of these concepts simply suffer from compounded imprecision?

A key strength of the purposive formalist approach lies in the tiered nature of its analysis. The compatibility limb is only engaged to resolve cases that cannot be resolved at the definition limb. If a power is capable of definition as clearly judicial or non-judicial by recourse to the characteristics of judicial power, this will resolve the constitutional question entirely. However, as the foregoing discussion has revealed, powers are not always susceptible to sufficiently precise definition. In such cases some other, additional factor is required to determine the proper allocation of the power. Otherwise, the decision maker may be compelled to stretch the characteristics of judicial power, or to seek some other ad hoc consideration to determine the issue. Under a purposive formalist approach the compatibility limb provides this additional factor.

As the compatibility limb has a secondary status it acts only as a refining element, helping to resolve ambiguities. It does not provide an alternative element by which the ambiguities and weaknesses of each standard could be compounded. Each of the concepts employed remains broad and will be subject to differing interpretations, but will also be

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guided by existing authorities. In this way, the standards are structured to enable one to limit the other. Specifically, it enables the standard of compatibility to limit the scope of penumbral powers exercisable by courts. By utilising the compatibility standard to refine ambiguities as to definition, purposive formalism goes some way to addressing the weaknesses of imprecision existing under the formalist separation rules and functionalist incompatibility test. This does not create a perfect method, but certainly a preferable one.

B Overcoming the Narrowness of Incompatibility

The compatibility element of purposive formalism is adapted from the incompatibility test, so is there a risk that it will suffer the same weaknesses as the incompatibility test in the State Court and persona designata contexts? Will the compatibility limb permit all but the most extreme affronts to independence and impartiality, and lead to the incremental erosion of the separation of judicial powers?

The meaning of compatibility in the purposive formalist test is difficult to address in the abstract. It might be said that compatibility with judicial independence and impartiality would require that a power aligns with the rule of law and other basic aims of the separation of federal judicial power discussed in section III of this Part. However, one cannot predict just how a court adopting the purposive formalist approach would interpret compatibility. It would certainly be open to a court to interpret compatibility to mean not- incompatibility, and draw upon the Grollo and Kable lines of cases to inform that understanding. This would, in effect, permit all but grossly incompatible functions to come within the ambit of judicial power, broadening the penumbra of judicial power and bringing

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about the kind of incremental erosion seen in those contexts where the incompatibility test governs the conferral of powers. Such an approach would not advance the capacity for purposive formalism to achieve judicial independence and impartiality. Arguably it would pose no greater threat to these values than the replacement of the second separation rule with an incompatibility test, or reliance on parliamentary intent or imperfect analogies to determine difficult cases. As discussed above, reliance on these alternative factors is also likely to result in the broadening of the penumbra of judicial power, and risk the erosion of the separation of federal judicial powers. Nonetheless, the compatibility limb is not designed to mimic the incompatibility test, and there are good reasons why a more substantial concept of compatibility would be developed in the purposive formalism context.

Crucially, the starting point of the compatibility test is not one of permissiveness but of caution. The compatibility limb determines the allocation of powers not established as judicial. As this is a formalist test such powers may not be conferred on courts. The rationale behind the compatibility limb is that uncertain, penumbral powers may not be conferred on courts unless they are demonstrably compatible with judicial independence and impartiality. In this way it is opposite to the incompatibility test’s presumption of validity in the absence of demonstrated incompatibility. Unlike the incompatibility test, the compatibility limb is not an exception to an exception – as has been cumbersomely adopted in the persona designata context. Nor is it an exception to a rule – as in the State court context. Both because of its exceptional nature and its underlying functionalist permissiveness the incompatibility test presumes the function in question is validly

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conferred and then seeks proof of incompatibility. On the other hand, the compatibility limb presumes the function may not be conferred on the judiciary unless it is proved to be compatible with judicial independence and impartiality. In this way it requires substantive development of the meaning of compatibility.

The incompatibility cases may guide the development of the compatibility limb by indicating the characteristics of functions that are incompatible, such as usurpation of an element of decisional independence, executive control of a power or its exercise, or the integration of a judge into the non-judicial branches. However, in interpreting the compatibility limb a court would need to look beyond this relatively narrow set of criteria and develop a jurisprudence of compatibility.

Considering the aims of the separation of judicial power discussed in section III, compatible functions would preserve equality, justice and confidence in the legal system as well as upholding the constitutional compact more broadly by, for example, ensuring political functions are vested in the representative branches. Thus, the compatibility limb has the capacity to support a more complete, substantive development of the notions of judicial independence and impartiality. This fresh conception of independence and impartiality could cause a renewed focus on the role an independent and impartial federal judicature serves in achieving fundamental constitutional aims such as the rule of law.

The concept of compatibility could conceivably develop more freely and substantively within its limited role of patrolling the grey-areas of judicial power. Its presence would also give history and parliamentary intent a clearer more appropriate place in the reasoning

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process. These considerations would play a part in the analysis whilst remaining secondary to the ultimately determinative compatibility standard. Thus, purposive formalism provides the court with an opportunity to substantively engage with the purposes of Chapter III within the formalist framework. To simply adopt the existing incompatibility test to determine the second tier of the purposive formalist test would be at odds with the role and nature of the compatibility limb, and neglect an opportunity to develop a substantive, purposive Chapter III jurisprudence.

C Protecting Fair Process

Neither the separation rules nor the incompatibility test have been particularly successful at protecting fair process in judicial proceedings. The separation rules accommodate fair process awkwardly. The incompatibility test has maintained a narrow focus on independence rather than on more substantial notions of impartiality and fairness.

How then might purposive formalism fare in protecting fair process?

The compatibility limb of purposive formalism provides the clear avenue for addressing fair process protections that is lacking in the separation rules. Moreover, the compatibility limb is designed to facilitate more substantive consideration of the impact of a power on judicial independence and impartiality than the present incompatibility test.

Through this clear avenue for substantive analysis the compatibility limb incorporates attentiveness to the impact of the function on the perceived impartiality of the proceedings, in the sense that Lacey equates this perception to the court’s capacity to protect its

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processes.279 If the equality or fairness of judicial proceedings is compromised, the independence and impartiality of courts may be challenged and faith in courts as impartial arbiters of justice diminished.280 Through the application of the compatibility limb, functions that are questionably judicial and are exercised in a manner that compromises equality, fairness, or otherwise impacts the perception of judicial independence and impartiality, will not pass constitutional muster.

Fair process will also continue to play a role in Chapter III cases concerning functions that do not reach the compatibility limb of analysis. The existing precedent indicating that fundamental aspects of fair process may form essential features of courts or of judicial power would not be undermined. A clearly non-judicial power could not be conferred on a court. A questionably judicial power would face the more substantive test of whether its exercise compromised broader notions of judicial independence and impartiality. Placing the compatibility inquiry in a second tier acknowledges that penumbral powers present the greatest risk of eroding judicial independence and impartiality and deserve particular interrogation for their potential impact on fair and proper processes. Compromises to fair process – such as ex parte hearings without notice or the use of secret evidence – may be in keeping with the independence and impartiality of courts in the context of, for example, a criminal trial. After all, such trials attract the wealth of associated protections for the rights of the accused. When a function is unusual – such as where it involves the creation of rights absent a controversy or incarceration outside the trial process – the compatibility element

279 Lacey, above n 60, 76. 280 Brennan, above n 126, 16-18.

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calls for more comprehensive compliance with accepted standards of fair process and natural justice if that function is to be exercisable by courts.

Exactly what kinds of fair process protections might arise under the compatibility limb of purposive formalism cannot be foreseen with precision. Gaudron J described fair judicial process as incorporating openness, natural justice and the application of law to ascertainable facts.281 Jurisprudence regarding constitutional fair process protections in

Australia remains sparse. There is a great unrealised potential for the development of an

Australian conception of fair process. That said, it must be acknowledged that any fair process protections derived from Chapter III will focus on the independence of the court, rather than on the rights of individual parties.282 For example, in the cases upholding the use of secret evidence in judicial proceedings, the issue turned upon whether the court was able to independently assess the classification of the material, not on the impact of secrecy on the party from whom the evidence was withheld.283 In many cases the concerns of judicial independence and party rights may overlap, but there is limited capacity for a comprehensive set of fair process rights to evolve from Chapter III, of the kind seen in nations such as the United States with constitutional due process clauses.284

281 Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J), quoted in, eg: Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 615 (Gummow J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 491 (Hayne, Crennan, Kiefel and Bell JJ). 282 Lacey, above n 60, 60. 283 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K- Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458. 284 For discussion of Chapter III’s limited capacity to protect ‘rights’ see: Lacey, above n 60, 60.

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Notwithstanding these concerns, Chapter III remains the only avenue for the constitutional protection of fair judicial process and, as such, it is imperative that it is interpreted to enable courts to give clarity to this area as well as substantive consideration and weight to preserving the fairness, openness and equality of proceedings.285 Purposive formalism, as it relates to judicial independence and impartiality, presents a clear avenue through which the jurisprudence of fair process may evolve.

D Does Purposive Formalism Achieve Independence and Impartiality?

Purposive formalism is by no means an infallible mechanism for achieving judicial independence and impartiality. The foregoing discussion leaves many questions unanswered: how will the court interpret compatibility? What exactly is required by judicial independence and impartiality? How might the purposive formalist approach apply to many examples of controversial powers? There are risks in the approach and it undoubtedly has its weaknesses as a mechanism for the achievement of judicial independence and impartiality. At a broader level the natural widening effect of judicial interpretation and government innovation means it will always be easier for the penumbra of judicial power to grow than to shrink, as the latter requires a more radical step. Nonetheless, purposive formalism has two key advantages that together render it a preferable method of achieving judicial independence and impartiality.

First, the risks of purposive formalism are less than those presented by the formalist separation rules or the functionalist incompatibility test. The two-tiered approach avoids the

285 Ibid.

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incremental erosion stemming from the functionalist incompatibility test’s underlying permissiveness. It also enables direct engagement with judicial independence and impartiality to address the weaknesses in the separation rules, without compounding the imprecision of each set of standards. Purposive formalism addresses the inadequacy of the definition of judicial power by engaging a compatibility test to determine the allocation of functions insusceptible to precise definition. The approach also addresses the risk of the separation rules developing in a manner at odds with constitutional values by providing for direct consideration of those values in the second limb of the analysis.

Secondly, purposive formalism clarifies the role of principled considerations in

Chapter III analyses and compels courts to engage openly, accountably and consistently with the core purpose of Chapter III. Purposive formalism requires a fresh jurisprudence of compatibility, positively framed to propel engagement with the meaning of compatibility rather than focussing upon offensive incompatible features. The compatibility limb thus has the capacity to be more substantive and therefore more capable of achieving judicial independence and impartiality than the existing incompatibility test. The two-tiered framework facilitates this principled, purposive engagement without undermining the basic prophylactic strength of the separation rules. In this way purposive formalism presents a clear picture of the role of each separate factor in determining Chapter III validity. The definition of the power is of prime importance, principled engagement with the purposive aspect of Chapter III is secondary, and of lesser weight are further considerations such as historic analogy and parliamentary intent.

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Purposive formalism is simply proposed as a preferable approach, one that offers a better chance of achieving the fundamental purposes of Chapter III than either the formalist separation rules or functionalist incompatibility test. The analysis of purposive formalism has been theoretical, speaking broadly and at the point of abstraction. As to how purposive formalism may play out with respect to specific functions, this is a task for further research.

The case studies in Parts Three and Four commence this endeavour. A few additional points may be made in the abstract however. First, the purposive formalist approach is proposed to offer the best means of achieving judicial independence and impartiality in the longer term. As such it may appear to produce unexpected results in particular cases. This stems from its fundamentally formalist nature, which has been justified in the course of this

Part. Secondly, purposive formalism leaves the decision-maker with room to manoeuvre.

Reasonable minds may, and do, differ as to the meanings of judicial power and of judicial independence and impartiality. Whilst this ambiguity creates a risk of concepts being interpreted in a way that may prevent purposive formalism from achieving the purposes of

Chapter III, the existence of some flexibility is important to preserve. The powers of government evolve over time and must be allowed to do so. Constraining the court too much in its interpretation of the separation of judicial power may stunt this evolution or, critically, enable parliaments to avoid Chapter III limits on their powers by employing formalistic drafting tricks and techniques. Purposive formalism acknowledges that constraining the court further may not be the way forward in achieving judicial independence and impartiality under Chapter III. Requiring the court to openly and directly engage with the purposes of Chapter III in a clear and constrained fashion may well be a step in the right direction.

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The adoption of purposive formalism would present a significant development built upon existing doctrine. Purposive formalism is a reconceptualisation and rebuilding of the formalist approach to the federal separation of judicial powers, harnessing the strengths of the existing formalist and functionalist tests to ameliorate their respective deficiencies. In this way purposive formalism presents an alternative method by which judicial independence and impartiality may be better achieved.

VII CONCLUSION

In this Part I have considered how Chapter III may be interpreted to best achieve the independence and impartiality of the federal judiciary. The significance of this issue is supported by three observations. First, the Framers of the Australian Constitution offered sparse guidance on the degree of separation between the branches of government required under the Constitution, effectively leaving the matter to the High Court. The lack of clear guidance from the Framers left the Court with significant scope for its early interpretations of Chapter III. Secondly, throughout the controversial development of the rules governing the separation of judicial power, there has remained a general consensus as to the purposive nature of Chapter III. The separation of judicial power derived from Chapter III is designed to achieve judicial independence and impartiality, through which a range of other constitutional values may be attained. Each interpretive viewpoint claims to offer the best means of achieving judicial independence and impartiality.

Thirdly, Australia is in the intriguing position of having parallel streams of formalist and functionalist separation of judicial powers jurisprudence. The formalist separation rules

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govern branch functions at the federal level, whereas the functionalist incompatibility test governs the limits on the permissible functions of State courts and of judges personae designatae. These features of the Australian legal landscape produce fertile ground for assessing the success, or otherwise, of formalist and functionalist style tests in achieving judicial independence and impartiality, and for evolving a preferable method of interpreting

Chapter III.

Building on these observations, this Part has assessed the success of the formalist separation rules and functionalist incompatibility test in achieving judicial independence and impartiality. In undertaking this analysis some, perhaps unexpected, truths have been faced. Despite elevating judicial independence and integrity to a determinative level, the functionalist incompatibility test has proved an inadequate mechanism for achieving the core aims of Chapter III. The failure of the incompatibility test to live up to its potential is argued not to simply reflect the idiosyncratic approaches of justices interpreting the test, as may be alleged.286 Rather, the rapid weakening of the incompatibility standard demonstrates the incremental erosion of the separation of powers that formalists regularly attribute to functionalist approaches. This erosion stems from the permissiveness and flexibility that characterises all functionalist tests.287

The considerable deficiencies of the formalist separation rules have also been discussed. The primary formalist assertion that judicial power is susceptible to precise definition is fundamentally flawed. It is true some powers are capable of definition as

286 Bateman, above n 129, 442. 287 An argument I develop further in Part Five, section III.

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judicial or non-judicial, but many are not. In these latter cases the High Court has adopted a range of inconsistent techniques to resolve the Chapter III issue. In doing so, it has been constrained by the separation rules’ blinkered focus on definitional characteristics. Thus, to resolve Chapter III questions courts have stretched and contorted the characteristics of judicial power, drawn disparately upon history, loose analogies and parliamentary intent, and created controversial classes of exceptional powers capable of being vested in multiple branches of government. Formalism’s implicit assertion that the allocation of powers according to definition will naturally achieve judicial independence and impartiality is also unsound. This is demonstrated by the awkward, inconsistent and ultimately unsatisfactory place of basic fair process protections within the separation rules framework.

To merely critique the separation rules and incompatibility test is to tread a well-worn path. This Part builds upon critical observations to propose a way forward in the interpretation of Chapter III, beginning with a pragmatic acknowledgment of the weaknesses in both the formalist and functionalist approaches. The proposed solution is purposive formalism.

By grounding itself in the formalist approach and giving primacy to definitional factors in determining the allocation of powers, purposive formalism avoids the permissiveness and flexibility of the functionalist method and resultant incremental erosion of judicial independence and impartiality. But purposive formalism does not adopt the formalist approach unreservedly. The approach is designed on an acceptance that over-estimating the precision with which functions may be defined undermines the efficacy and ultimate utility of the formalist rules. Building upon the considerable body of judicial power case law and

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commentary, purposive formalism primarily contends that functions capable of being defined by reference to the accepted characteristics of judicial power ought to be allocated on that basis. But then there are other cases in which the characteristics are insufficient to fulfil the task of definition. In these cases, purposive formalism only permits a power to be vested in courts if it is demonstrably compatible with judicial independence and impartiality. Importantly, this compatibility limb is a secondary tier of the inquiry and presumes that a power may not be conferred until demonstrated to be compatible. This distinguishes purposive formalism from the functionalist incompatibility test, which permits the conferral of a power in the absence of demonstrated incompatibility.

The purposive formalist approach is a significant development in the interpretation of

Chapter III to achieve judicial independence and impartiality. It builds upon existing

Chapter III jurisprudence to at once harness the strengths and address the weaknesses of the existing tests. The approach acknowledges the need for a strict yet principled mechanism for allocating the powers of government. It attempts to address the tension between rules and their purposes, albeit in the very limited context of the allocation of powers on

Australian federal courts.

By relegating the purposive element to a limited, secondary role purposive formalism directly engages the purposes of Chapter III, but retains the strictness and prophylactic strength of the separation rules. By elevating a purposive compatibility inquiry to a clear position within the Chapter III validity test, purposive formalism clarifies the place and relevance of other considerations, such as historic analogy and parliamentary intent.

Perhaps most importantly, purposive formalism compels the courts to be more open and

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accountable in their approach to the principled, purposive considerations that do and should play a part in Chapter III reasoning.

Despite the risks, purposive formalism has much to commend it. By combining the strengths of the separation rules and the incompatibility test in a tiered design, it addresses the weaknesses of each approach. Purposive formalism therefore presents a step forward in interpreting Chapter III in a manner that is consistent with its objects and purposes. By reconceptualising the interpretation of Chapter III, purposive formalism calls for a re- examination of earlier cases and a reinvigorated Chapter III jurisprudence more clearly concerned with achieving core constitutional aims within the strong formalist framework. It emerges not as an ideal but as a preferable approach. In the next two Parts of this thesis I engage in case studies test whether the strengths and weaknesses of the formalist, functionalist and purposive formalist approaches discussed in this Part are borne out in practice.

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PART THREE

TESTING BOILERMAKERS’:

ANTI-TERRORISM CONTROL ORDERS AND

THE TELLING CASE OF THOMAS V MOWBRAY

I INTRODUCTION

Is the constitutional rule that restricts federal courts to judicial powers and ancillary non-judicial powers capable of achieving judicial independence and impartiality?

Would an alternate, purposive formalist, interpretation of Chapter III better achieve this aim? In this Part I answer these questions by engaging in a case study analysis of the anti-terrorism control order provisions of the Commonwealth Criminal Code (‘the

Code’)1 and the 2007 case of Thomas v Mowbray (‘Thomas’).2

As discussed in Part Two, Chapter III of the Constitution has been interpreted to require a strict separation of federal judicial power. The key purpose of this separation is the achievement of an independent and impartial judicature,3 through which core constitutional aims such as equality, citizens’ rights and liberties, and limited

1 Criminal Code Act 1995 (Cth). 2 (2007) 233 CLR 307. 3 Cheryl Saunders and Katherine Le Roy, ‘Perspectives on the Rule of Law’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (The Federation Press, 2003) 179; HP Lee and Enid Campbell, The Australian Judiciary (Cambridge University Press, 2nd ed, 2012) 3; Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 2; Peter Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1, 3; New Zealand Law Commission, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? Issues Paper No 1 (2011) 4.

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government are maintained.4 The strict separation of federal judicial powers is the consequence of two rules. The first separation rule restricts the conferral of judicial powers to properly constituted courts.5 The second rule restricts federal courts to judicial powers and ancillary or incidental non-judicial functions.6 The second rule is also known as the second limb of Boilermakers’, or the Boilermakers’ rule, as it was given authority in the 1956 decision of R v Kirby; Ex parte Boilermakers’ Society of

Australia (‘Boilermakers’).7 Together, the two separation rules reflect a quintessentially formalist position, allocating the powers of government strictly according to definition.8

This stands in contrast to functionalist approaches to the separation of powers – introduced in Part Two of this thesis and discussed further in Part Four – which harness more flexible standards to govern the allocation of government powers.9

The second separation rule has been criticised as overly technical and ineffective in achieving the purposes of Chapter III.10 These criticisms have fuelled claims that the

4 James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 69-72; Convention Debates, vol III, Adelaide, 1897, 950 (Symon). Discussed in Part Two, section III. 5 Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434. 6 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. 7 (1956) 94 CLR 254. 8 Rohan Hardcastle, ‘A Chapter III Implication for State Courts: Kable v Director of Public Prosecutions’ (1998) 3 Newcastle Law Review 13, 27; Martin Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta’ (1989) 39 DePaul Law Review 299, 304-305; John F Manning, ‘Separation of Powers as Ordinary Interpretation’ (2011) 124 Harvard Law Review 1939, 1943-1944. 9 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’, above n 3; Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 193-194. See discussion in Part Two, section V. 10 R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ); James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113; Mason, above n 3.

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rule ought to be overruled and replaced with a functionalist test of Chapter III validity.11

In this Part, I pose two questions in order to assess the legitimacy of the second separation rule as a means of achieving judicial independence and impartiality. First, is judicial power capable of sufficiently precise and enforceable definition? If powers are not susceptible to definition then the primary assumption of the formalist separation rules is invalid. Secondly, do the separation rules protect fair process in judicial proceedings? Fair process is closely linked to judicial independence and impartiality. If the rules inadequately protect fair process this may suggest that the approach is ineffective at achieving the purposes of Chapter III. In Part Two, I discussed these issues in the abstract. In this Part, these questions are answered by focussing on a single case study.

The case of Thomas concerned a challenge to the Commonwealth’s anti-terrorism control order provisions, under which Mowbray FM had imposed an interim anti- terrorism control order on Joseph Thomas. The terms of the order included a range of obligations and restrictions placed on Thomas for the purpose of protecting the community from terrorism. A majority of the High Court – Kirby and Hayne JJ dissenting – upheld the provisions as in keeping with the second separation rule. That is, the majority justices held that the power conferred on the Federal Magistrates’ Court was judicial in nature and was exercised in a manner consistent with Chapter III.

11 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 10; Mason, above n 3; Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law Journal 265; George Winterton, Parliament, the Executive and the Governor-General (Melbourne, 1983), 60, 62-63; Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University, 1999) 156.

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The High Court’s decision in Thomas has been critiqued on many bases. My aim is not to consider the correctness of the court’s reasoning12 or to assess the impact of control orders on human rights.13 Rather, I investigate how the case demonstrates the strengths and weaknesses in the capacity for the second separation rule to achieve judicial independence and impartiality. Thomas provides a valuable case study in this respect. The case concerns a conferral of powers on federal courts that directly impact the rights and liberties of citizens in the absence of criminal charge or trial. Importantly,

Thomas’ grounds of argument separately articulated the issues arising from how the power is defined and how it is exercised. In this way, Thomas’ challenge to the control order provisions strikes at each of core assumptions supporting the formalist separation rules.

This Part is structured in seven sections. After outlining the control order provisions in section II, I discuss the approaches adopted by the High Court to defining the power in issue and I query whether the case demonstrates the degree to which that power is susceptible to precise definition. In section V, I discuss how the High Court approached

Thomas’ contention that control orders are issued in a manner repugnant to Chapter III.

This discussion reveals some of the key weaknesses in the capacity of the separation rules to protect fairness, openness and equality in judicial proceedings.

Section VI builds upon the foregoing analysis to consider whether a different approach to interpreting Chapter III may overcome the weaknesses in the Boilermakers’ rule. In Part Two, I introduced purposive formalism as a new method of interpreting

12 See, Denise Meyerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray’ (2008) 36 Federal Law Review 209. 13 See, Paul Fairall and Wendy Lacey, ‘Preventative Detention and Control orders under Federal Law: The Case for a Bill of Rights’ (2007) 31 Melbourne University Law Review 1072.

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Chapter III. In the final sections of this Part, I apply purposive formalism to the control order provisions upheld in Thomas. This analysis demonstrates that purposive formalism provides a much-needed clear, consistent and principled avenue for determining the validity of penumbral powers, and in doing so the approach is better able to achieve judicial independence and impartiality.

II ANTI-TERRORISM CONTROL ORDERS

Control orders in Division 104 of the Code were introduced as part of a package of urgent anti-terrorism legislation in the months following the 2005 London bombings.14

After 9/11 the federal government enacted numerous anti-terrorism Acts, but in 2005 it still faced the threat of terrorism with few measures aimed squarely at prevention.15

Unlike usual criminal justice measures that respond to past wrongs, control orders are civil orders aimed solely at the prevention of future criminal acts.16

The control order provisions of the Code are modelled on the United Kingdom anti-terrorism control order scheme, now repealed and replaced with the similar

Temporary Prevention and Investigation Measures, or ‘TPIM’, scheme.17 Although

Australian and United Kingdom control orders are comparable, the reasons behind their

14 Anti-Terrorism Act (No 2) 2005 (Cth). 15 Until 2005 the Australian government’s anti-terrorism approach consisted largely of the ordinary criminal laws and terrorism (including terrorist organisation) offences. The introduction of control orders and preventative detention orders (Criminal Code Act 1995 (Cth) Divs 104 – 105) focused instead on the prevention of terrorism, coming into play before the criminal justice system could be engage, see: Jude McCulloch and Sharon Pickering, ‘Counter-terrorism: The Law of Policing and Pre-emption’ in Nicola McGarrity, Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond (Routledge, 2010) 13; Tamara Tulich, ‘A View from Inside the Preventive State: Reflections on a Decade of Anti-Terror Law’ (2012) 21 Griffith Law Review 209. 16 Criminal Code Act 1995 (Cth) s 104.4. 17 Prevention of Terrorism Act 2005 (UK); Temporary Prevention and Investigation Measures Act 2011 (UK).

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implementation and the orders themselves differ in a variety of important ways. For example, the United Kingdom orders engage a supporting scheme of Special Advocates and involve courts to a lesser degree.18 The Australian orders also lack some of the broader supporting mechanisms of the United Kingdom scheme, such as the United

Kingdom and European human rights frameworks.19

Division 104 control orders are issued by Issuing Courts on the basis of a balance of probabilities determination that the order will either substantially assist in preventing a terrorist act or that the person has been involved in training with a listed terrorist organisation.20 Each term of the requested order must be reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.21

Terrorist act is defined in s 100.1 of the Code as ‘an action or threat of action’ with the intention of advancing a political, religious or ideological cause and coercing, or influencing by intimidation, a domestic or foreign government or intimidating the public or a section of the public. Action is only defined as a terrorist act if it: causes serious physical harm or death, seriously damages property, endangers a person’s life, creates a serious risk to public health or safety, or seriously interferes with, seriously

18 For analysis of the role of Special Advocates in counter-terrorism proceedings in the United Kingdom, see: Cian Murphy, ‘Counter-Terrorism and the Culture of Legality: The Case of Special Advocates’ (2013) 24 King’s Law Journal 19. 19 For a comparative analysis of these two schemes, see: Andrew Lynch, ‘Control Orders in Australia: A Further Case Study in the Migration of British Counter-Terrorism Law’ (2008) 8 Oxford University Commonwealth Law Journal 159; Andrew Lynch, Tamara Tulich and Rebecca Welsh, ‘Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in Australia and the United Kingdom’ in David Cole, Federico Fabbrini and Arianna Vedaschi (ed) Secrecy, National Security, and the Vindication of Constitutional Law (Edward Elgar, 2013) 154. 20 Criminal Code Act 1995 (Cth) s 104.4(1)(b)-(c). 21 Ibid s 104.4(1)(d).

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disrupts, or destroys, an electronic system. Action is not a terrorist act if it is advocacy, protest, dissent or industrial action, and is not intended to cause serious physical harm or death, endanger the lives of others or create a serious risk to the public health or safety.22 The definition of a terrorist act has been criticised as being so broad its meaning is unclear.23 Notwithstanding these criticisms, the definition has underpinned a significant number of prosecutions for terrorism offences.24

A second concept requiring some explanation is that of a listed terrorist organisation. These organisations are deemed as such by the Attorney-General, once he or she is satisfied on reasonable grounds that the relevant organisation is directly or indirectly engaged in, preparing, planning, assisting in, fostering or advocating the performance of a terrorist act (whether or not the terrorist act has occurred or will occur).25 Serious offences arise in connection with listed terrorist organisations,

22 Ibid s 100.1(3). 23 Reports from the Security Legislation Review Committee, the Parliamentary Joint Committee on Intelligence and Security, the Council of Australian Governments and the Independent Reviewer of National Security Legislation have recommended amendments or clarifications to the definition of terrorism: Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter-terrorism Legislation, December 2006, Recommendation 10; Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) Recommendations 6-8; Council of Australian Governments, Australian Government, Council of Australian Governments Review of Counter-Terrorism Legislation (2013) x; Independent National Security Monitor, Australian Government, Declassified Annual Report 20th December 2012, (2013) 128. See also, Special Reporter on the Promotion and Protection of Human Rights while Countering Terrorism, Australia: Study on Human Rights Compliance while Countering Terrorism, UN Doc A/HRC/4/26/Add.3 (2006), [10]; Nicola McGarrity, “Testing’ our counter- terrorism laws: the prosecution of individuals for terrorism offences in Australia’ (2010) 34 Criminal Law Journal 92, 113-114. 24 For a summary of some of these prosecutions, see: McGarrity, above n 23; Council of Australian Governments, above n 23, Attachment D. 25 Criminal Code Act 1995 (Cth) s 102.1. There are 17 organisations now officially listed, all of them Islamic-based and many of them Al Qa’ida related: Criminal Code Regulations 2002 (Cth) Pt 2.

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including support, membership and training offences.26 It is also an offence for members to associate with other members, or with persons who promote or direct a listed terrorist organisation.27 Penalties for these offences are severe, extending in some cases to imprisonment for up to 25 years.28

Once the Issuing Court has determined that a control order will assist in preventing a terrorist act, or that the person has trained with a listed terrorist organisation, it may issue a control order imposing restrictions that it determines to be: reasonably necessary, appropriate and adapted to the purpose of protecting the public from terrorist acts.29 In reaching its determination the Court must take into account the impact of the obligations, prohibitions and restrictions on the person’s circumstances, including financial and personal.30

The terms of a control order may include far-reaching restrictions or obligations.

These terms may relate to the person’s: presence at certain places, contact with certain people, use of telecommunication or technology, possession of things or substances, activities, wearing of a tracking device, reporting to certain people at particular times and places, fingerprinting and photographing for the purpose of ensuring compliance with the order, and participation in consensual counselling or education.31 Although the restrictions and obligations available under a control order fall short of imprisonment in

26 Criminal Code Act 1995 (Cth) ss 102.3-8. 27 Ibid s 102.8. 28 See, ibid Div 102, sub-div B. On the difficulties in prosecuting terrorist organisation offences experienced in Australia’s terrorism trials to 2010, see: McGarrity, above n 23, 100, 126. 29 Criminal Code Act 1995 (Cth) s 104.4(1)(d). 30 Ibid s 104.4(2). 31 Ibid s 104.5(3).

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a state facility, it is clear that the orders have the potential to severely inhibit a person’s liberty even to the point of house arrest.

Control orders may be issued in respect of adults not suspected of involvement in criminal wrongdoing. A child aged 16 or 17 years may also be subject to an order, if he or she is suspected of involvement in a terrorism related crime.32 The maximum duration of a control order is 12 months from the date the interim order is served on the person.33 There are no limits on seeking consecutive control orders over an individual.34

The Code provides senior members of the Australian Federal Police (‘AFP’) with a three-stage process to obtain a final confirmed control order against an individual. The first step is to obtain the consent of the Attorney-General certifying that the grounds for issuing the control order are met.35 Secondly, the AFP seeks an interim control order from an Issuing Court. Finally, to confirm the interim order the AFP must commence confirmation proceedings, to be resolved in open hearing before an Issuing Court.36 The

Code appoints federal courts as Issuing Courts, thus engaging Chapter III restrictions on the permissible powers of those courts.37

32 Ibid s 104.28. 33 Ibid s 104.16(1)(d). 34 Ibid s 104.5(2). In his 2012 report the Independent National Security Legislation Monitor reasoned that the proceedings with respect to Thomas demonstrated that ‘once a person has trained with a terrorist organisation that person will always meet the requirements for a CO [control order]’. This observation highlights the likelihood and ease with which consecutive control orders may be obtained: Independent National Security Monitor, above n 23, 24. 35 Criminal Code Act 1995 (Cth) s 104.3. 36 Where an urgent control order is sought, the first two steps are reversed: an AFP officer may apply directly to the issuing court but must seek approval from the Attorney-General within 4 hours of the interim control order being issued: Ibid s104.10. 37 Issuing Courts are the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court of Australia: Ibid s 100.1.

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Two individuals have been subject to control orders in Australia to date, namely,

Joseph Thomas and David Hicks.38 Only the order against Hicks reached the confirmation stage. In the section of his annual report dealing with control orders, the

Independent National Security Legislation Monitor, Bret Walker SC, (the ‘INSLM’) observed that the AFP has considered the commencement of control order proceedings against 23 other individuals. The INSLM reports that in almost half of these instances the control order was considered as a response to there being insufficient evidence on which to prosecute the person for terrorism offences.39 Despite the AFP electing not to seek a control order in these instances, the INSLM strongly criticises this scenario as offensive to the rule of law.40

A Interim Control Orders

Interim control orders are issued by Issuing Courts ex parte and without notice to the affected person. Urgent interim control orders may be issued in response to an application by phone, fax or email.41 Once the Issuing Court has issued the interim order, it is in force from the time it is personally served on the person subject to the order.42 A date must be specified in the order for the person to attend court, at which time the court may confirm, declare void or revoke the interim order.43 This date must be as soon as a practicable and not less than 72 hours after the order has been made.44

38 For discussion see, Lisa Burton and George Williams, ‘What Future for Australia’s Control Order Regime?’ (2013) 24 Public Law Review 182, 191-193. 39 Independent National Security Monitor, above n 23, 13. 40 Ibid 31. 41 Criminal Code Act 1995 (Cth) s 104.6. 42 Ibid s 104.5(1)(d). 43 Ibid s 104.5(1)(e). 44 Ibid s 104.5(1A).

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Interim control order proceedings are designated interlocutory proceedings in Division

104.45

The provisions suggest that the interim order is not intended to endure for very long, implicitly counter-balancing the unfairness of the ex parte interim proceedings.

Confirmation proceedings must be scheduled to occur as soon as practicable, and at least 48 hours after the interim order is served on the person.46 Nonetheless, an interim order may endure for up to 12 months in exceptional circumstances (as was the case with Thomas’ order in light of his High Court challenge to Division 104). Another effect of the urgency with which control order proceedings take place is that the person who is subject to the order is guaranteed only 48 hours’ notice of the confirmation hearing.

The first interim control order was issued in 2006 in respect of Thomas.47 The second was issued in respect of Hicks upon the completion of his sentence for providing material support for terrorism, handed down by United States Military Commission in

2007. Hicks plead guilty to this charge, which has since been held not to have been a valid offence under international law at the relevant time.48 Prior to Hicks’ Military

Commission hearing he was held by United States forces at Guantanamo Bay for five years without charge.49 The rarity of control order applications in Australia has raised

45 Ibid s 104.28A. 46 Ibid ss 104.12(1)(a), 104.5(1A). 47 Australian Broadcasting Corporation, ‘The Convert’, Four Corners, 27 February 2006 (Joseph Thomas): ‘So I chose the name Jihad, an Aussie battler or struggler. From there we got from the media the lovely headlines’. 48 Hamdan v United States (DC Circuit Oct. 16, 2012). 49 Hicks had spent more than 5 years incarcerated by United States forces at Guantanamo Bay, Cuba, detained as a consequence of his involvement with Al Qa’ida forces in Afghanistan.

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concerns over their necessity, the INSLM recommending their repeal on this basis, among others.50

B Confirmed Control Orders

Division 104 requires the AFP to elect whether or not to confirm the interim control order, and to commence any relevant confirmation proceedings as soon as practicable following the service of the interim order.51 When the person subject to the order is notified of the interim order and confirmation hearing, he or she receives a copy of the order itself and a summary of the grounds on which the order was issued.52 If the AFP elects to confirm the interim order, an officer must serve the order personally on the person in addition to information enabling the person to understand and respond to the substance of the facts, matters and circumstances on which the confirmation application will be based.53 It is not clear just how much information this may require,54 particularly considering the broad bases upon which information may be excluded from service.55

Documents may be excluded from service on the person if disclosure would be likely to: prejudice national security (within the meaning of the National Security

The control order over Hicks expired in 2008. For critique, see: Timothy L H McCormack, ‘David Hicks and the Charade of Guantanamo Bay’ (2007) 8 Melbourne Journal of International Law 273. 50 Independent National Security Monitor, above n 23, 28, 43-44. 51 Criminal Code Act 1995 (Cth) s 104.5(1)-(2). 52 Ibid s 104.5(1). 53 Ibid s 104.12A(2). 54 For detailed discussion of the disclosure and secrecy requirements relating to control orders, see: Andrew Lynch, Tamara Tulich and Rebecca Welsh, above n 19, 162-168. 55 Criminal Code Act 1995 (Cth) s 104.12A.

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Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the ‘NSIA’)),56 be protected by public interest immunity, put at risk ongoing operations by law enforcement agencies or intelligence agencies, or put at risk the safety of the community, law enforcement officers or intelligence officers.57 Considering the national security and community protection purposes of control orders it is likely that a significant amount of information would fall within these categories of excluded materials.

Confirmation proceedings take the form of a contested hearing in open court. This allows the person subject to the order the opportunity to contest the confirmation of the interim order by cross-examination, evidence and submissions.58

Only one confirmed control order has been sought or issued in Australia. This order was in respect of Hicks who did not attend court to contest the proceedings due to his mental state at the time.59 Thomas’ interim control order never reached the confirmation stage. Following the conclusion of Thomas’ High Court challenge he came to a written agreement with the AFP imposing conditions similar to those contained in the interim control order.60

56 ‘Likely to prejudice national security’ is defined as ‘a real, and not merely a remote, possibility that the disclosure will prejudice national security’. ‘National security’ is broadly defined as Australia’s defence, security, international relations or law enforcement interests: National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 8, 17. 57 Criminal Code Act 1995 (Cth) s 104.12A(3). 58 Ibid s 104.14. 59 ABC Radio, ‘Hicks fails to appear at control order hearing’, PM, 18 February 2008 (Warren Donald FM). 60 J Madew, ‘Federal court lifts ‘terror’ restrictions on Jack Thomas’, The Age (Melbourne) 24 August 2007.

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There have been no further applications for control orders. This may be a consequence of the arguably ineffective nature of control orders as a terrorism prevention measure. As the INSLM concluded: ‘In terms of effectiveness … surveillance and investigation seem to have been effective; COs [(control orders)] have been ineffective’.61 He continued:62

The cost of surveillance may exceed the cost of obtaining a CO, but surveillance surely promises

better value for money … the continued resort to surveillance and other intelligence activities in

contrast to the isolated two only COs probably supports that intuition.

C Thomas’ Chapter III Challenge

Thomas was an Australian citizen who travelled to Pakistan in 2001 with the intention of joining the Islamic cause. There he undertook three months of paramilitary training with Al Qa’ida at the Al Farooq training camp where he learnt how to use firearms and explosives.63 Thomas was captured, imprisoned and interrogated in

Pakistan before being returned to Australia. Upon his return, Thomas was charged with two counts of providing support to a terrorist organisation, each of which led to an acquittal in the Supreme Court of Victoria.64 Thomas was convicted on the two lesser charges of intentionally receiving funds from a terrorist organisation65 and possessing a falsified passport,66 but each of these convictions was quashed on appeal.67 Less than

61 Independent National Security Monitor, above n 23, 13. 62 Ibid 28. 63 Thomas v Mowbray (2007) 233 CLR 307, 310. 64 DPP (Cth) v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006), referred to in, Andrew Lynch, ‘Thomas v Mowbray: Australia’s "War on Terror" Reaches the High Court’ (2008) 32 Melbourne University Law Review 1182, 1187. 65 Criminal Code Act 1995 (Cth) s 102.6(1). 66 Passports Act 1938 (Cth) s 9A.

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two weeks after the acquittals, the AFP relied on the same evidence in order to seek and obtain an interim control order against Thomas in the Federal Magistrates’ Court (now the Federal Circuit Court).68 Andrew Lynch has suggested this may be criticised as an instance of ‘jurisprudential context shopping’.69

The interim control order issued in respect of Thomas required, in general terms, that Thomas stay at his residence between midnight and 5am, report to the Victorian

Police three times a week, not contact members of certain listed organisations, and not use unapproved email, mobile phone or internet technology.70 During the proceedings,

Mowbray FM reportedly said that some of the requested restrictions were ‘silly’, such as the inclusion of Osama bin Laden’s name on the list of individuals Thomas would be prohibited from contacting. This original list of over 300 pages was reduced to some 50 names in the eventual order.71

Thomas commenced proceedings in the High Court challenging the constitutional validity of the Division 104 control order scheme. The confirmation hearing for

Thomas’ control order was held-over pending the outcome of this High Court challenge and ultimately his interim order endured for almost a year. Following the resolution of

Thomas’ constitutional challenge, the AFP continued to prosecute him through criminal

67 R v Thomas (2006) 14 VR 475. 68 Jabbour v Thomas (2006) 165 A Crim R 32. 69 Andrew Lynch, ‘Thomas : Australia’s “War on Terror” Reaches the High Court’ (2008) 32 Melbourne University Law Review 1182, 1188, referring to Lucia Zedner, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Hart, 2007) 257, 265 and Helen Fenwick, Civil Liberties and Human Rights (Routledge, 4th ed, 2007) 1340–2. See also, Independent National Security Monitor, above n 23, 17.

70 Thomas v Mowbray (2007) 233 CLR 307, 309. 71 ‘Thomas control order “silly”‘, The Age (Melbourne) 31 August 2006; Andrew Lynch, above n 64, 1188.

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justice channels. Thomas was retried on the terrorism and passport related charges on the basis of fresh evidence, namely, an interview he gave to the Australian Broadcasting

Corporation’s Four Corners program.72 In October 2008, Thomas was convicted on the passport offence but once again acquitted of the terrorist organisation offence. Thomas was sentenced to nine months imprisonment, all but five days of which had already been served. He was released on good behaviour for that five day period.73

Thomas’ challenge to the control order provisions failed. Gleeson CJ, Gummow,

Crennan, Callinan and Heydon JJ (the ‘majority justices’) upheld Division 104 as constitutionally valid. Callinan J agreed with the joint opinion of Gummow and

Crennan JJ on the Chapter III issues, adding some observations of his own. Gleeson CJ delivered a separate opinion. Heydon J only addressed the Chapter III issue by stating that he agreed with ‘certain of the reasons given by Gummow and Crennan JJ and

Callinan J’ and also with the reasons of Gleeson CJ.74 Kirby and Hayne JJ (the

‘dissenting justices’) issued separate dissenting opinions.

III INTERPRETATIONS OF JUDICIAL POWER IN THOMAS

Thomas’ primary Chapter III argument was that the power to issue control orders was non-judicial and, as such, the separation rules prohibited its conferral on federal courts. Before considering how the High Court approached the task of defining the

Issuing Court’s powers, it is helpful to revisit some of the principles – introduced in Part

Two – that guide the determination of this issue.

72 Australian Broadcasting Corporation, above n 47. 73 McGarrity, above n 23, 102. 74 Thomas v Mowbray (2007) 233 CLR 307, 526 (Heydon J).

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A The Defining Characteristics of Judicial Power

Griffith CJ’s ‘classic’ definition of judicial power provides the traditional starting point for determining whether a power is judicial or non-judicial.75 This definition indicates that judicial powers involve the conclusive determination of controversies regarding existing rights.76 A further accepted characteristic of judicial power is that it is exercised according to law. That is, a judicial determination is constrained by legal standards and criteria as opposed to resting upon subjective, political, or arbitrary standards.77 The presence of these characteristics indicates a function is exclusively judicial.78

At this point judicial power appears a clear concept identified by a series of characteristics. However, defining judicial power is not as straightforward as this may suggest. Despite hinging entirely on the concepts of judicial and non-judicial power, the separation rules have developed alongside the acknowledgment that these concepts are insusceptible to exhaustive definition.79 Not all the accepted powers of courts align with

75 Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); Stellios, The Federal Judicature, above n 4, 108-109. See also, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-375 (Kitto J). 76 Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 220. 77 R v Spicer; Ex parte Waterside Workers’ Federation of Australia (Waterside Workers’ Case) (1957) 100 CLR 312, 317 (Dixon CJ, Williams, Kitto and Taylor JJ); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). See also discussion in, AR Blackshield, ‘The Law’ in Power in Australia: Directions of Change (Centre for Continuing Education, Australian National University, 1981) 171, 185-186. 78 Zines, The High Court and the Constitution, above n 76, 220. 79 See, R v Davison (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 373 (Kitto J), 394 (Windeyer J); Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 188-189 (Mason CJ, Brennan, Deane, Dawson, Toohey Gaudron and McHugh JJ); Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Mason CJ, Brennan and Toohey JJ), 267 (Deane, Dawson, Gaudron and McHugh JJ); Nicholas v R (1998) 193 CLR 173, 219 (McHugh J), 207 (Gaudron J).

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the classic characteristics. Ordering remedies, sentencing, issuing bankruptcy sequestration orders, proceedings for contempt of court, and the evolution of the common law are just a few examples of court functions lacking some or all of the defining characteristics of judicial power. Powers such as these defy clear definition as judicial or non-judicial by reference to the defining characteristics described above. As such they fall within HLA Hart’s famous ‘penumbra of debatable cases’, which ‘have some features in common with the standard case’ but lack others or have additional qualities.80 Recognising this, the High Court has observed that judicial power defies and

‘transcends’ abstract conceptual analysis and has repeatedly acknowledged the difficulty in defining judicial power with predictability and precision.81

The separation rules require that all powers be identified as judicial or non-judicial and allocated on that basis. That said, there are four key avenues by which flexibility is maintained within the separation rules framework. First, the characteristics of judicial power are not considered to be determinative. The absence of a characteristic does not necessarily render a power non-judicial. Defining a power as judicial or non-judicial generally involves a balancing exercise, weighing present against absent and contrary characteristics.82 Secondly, each characteristic is interpreted flexibly. For example,

80 HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 607. See full quote and discussion in Part Two, section IV.A. 81 See, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 373 (Kitto J), 394 (Windeyer J); Nicholas v R (1998) 193 CLR 173, 219 (McHugh J), 207 (Gaudron J); Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 188-189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); R v Davison (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J); Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Mason CJ, Brennan and Toohey JJ), 267 (Deane, Dawson, Gaudron and McHugh JJ). 82 Dominique Dalla-Pozza and George Williams, ‘The Constitutional Validity of Declarations of Incompatibility in Australian Charters of Rights’ (2007) 12 Deakin Law Review 1, 9-10; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, 15 (Aitkin J); R v Davison (1954) 90 CLR 353, 366-367 (Dixon CJ and McTiernan J).

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binding and authoritative judicial decisions are nonetheless subject to appeal and may be overruled by a higher court. Likewise, a controversy between parties may exist even where one party has no knowledge of the matter, as in proceedings for urgent injunctions.

The third avenue of flexibility is found in the regularly invoked categories of exceptional functions. These classes of functions include the related categories of innominate powers, dependent on Parliament for their ultimate characterisation, and chameleon powers, which take their character from the body in which they are vested.83

Finally, the court may draw upon considerations beyond the defining characteristics of judicial power to assist in ascertaining the definition of a function. Parliamentary intent, the historical functions of courts and the purposes of the separation of judicial power each may play a part in determining whether a function is judicial or non- judicial.84 For example, if a power is of a kind traditionally exercised by courts this may indicate it was intended by the Framers to fall within the judicial power of the

Commonwealth or that the continued vesture of that power in courts is in keeping with institutional independence and impartiality.85

On the one hand, judicial power is susceptible to precise and enforceable definition and is identified by a series of characteristics. To this extent the primary assumption

83 For a valuable discussion of these two classes of functions, see, Suri Ratnapala, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 2007) 136-143. 84 Zines, The High Court and the Constitution, above n 76, 221; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 67 (McHugh J); R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, 12 (Murphy J). 85 R v Davison (1954) 90 CLR 353, 382 (Kitto J); Stellios, The Federal Judicature, above n 4, 141; Patrick Lane, Lane’s Commentary on the Australian Constitution (The Law Book Company, 2nd ed, 1997) 466.

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underpinning the separation rules is legitimate. On the other hand, judicial power eludes exhaustive definition and encompasses an amorphous penumbra of uncertain powers lacking some or all of these defining characteristics. To this extent the approach of allocating powers according to definition runs into some difficulty.86

Despite the accepted flexibility in the definition of judicial power, the separation rules rest entirely on the capacity to define functions as judicial and non-judicial with enforceable precision. Thus, the capacity for the rules to provide the strong protection for judicial independence and impartiality requires that judicial power have some precise, enforceable and clear meaning. It follows that the non-determinative and flexible nature of the defining characteristics of judicial power must be subject to limits, so that the strictness and rigidity of the separation rules is not undermined. The High

Court in Thomas employed a few, perhaps problematic, judicial techniques in order to define a power that arguably defied clear definition as judicial or non-judicial.

B Control Orders and the Characteristics of Judicial Power

In Thomas the High Court invoked the characteristics of judicial power to determine whether the power conferred on Issuing Courts was judicial. To revisit the pertinent aspects of the Issuing Court’s role, the Court was charged with determining whether to issue a control order on the basis of a balance of probabilities assessment that either: the person has been involved in training with a listed terrorist organisation or making the order would substantially assist in preventing a terrorist act.87 The Issuing

Court was also required to assess whether each term of the requested order was

86 Discussed in Part Two, section IV. 87 Criminal Code Act 1995 (Cth) s 104.4(1)(b)-(c).

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reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.88

The Issuing Court’s role involved a conclusive decision culminating in a binding order. To this extent the role aligned with the defining characteristics of judicial power.

Beyond this, however, the power to issue control orders departs from Griffith CJ’s classic conception. First, in fulfilling its role under Division 104 the Issuing Court was not determining a controversy about existing rights. Second, the criteria that form the basis of the Issuing Court’s determination are arguably too broad and unconstrained to qualify as legal standards. I deal with each of these compromises to the classic characteristics of judicial power in turn.

C The Determination of Existing Rights

The determination of existing rights has been called the core characteristic of judicial power.89 This characteristic distinguishes judicial power from the typical legislative function of laying down general rules directing the behaviour of persons.90

As Isaacs J observed in Australian Boot Trade Employees Federation v Whybrow and

Co,91

If the dispute is as to the relative rights of parties as they rest on past or present circumstances,

the award is in the nature of a judgment, which might have been the decree of an ordinary

judicial tribunal acting under the ordinary judicial power. … If, however, the dispute is as to

88 Ibid s 104.4(1)(d). 89 On the importance of this ‘core’ factor, see: Ha v New South Wales (1997) 189 CLR 465, 504 (Brennan CJ, McHugh, Gummow and Kirby JJ); Huddart, Parker & Co v Moorhead (1909) 8 CLR 330, 357 (Griffith CJ); Stellios, The Federal Judicature, above n 4, 108-111. 90 Zines, The High Court and the Constitution, above n 76, 220. 91 (1910) 10 CLR 266, 318 (Isaacs J).

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what shall in the future be the mutual rights and responsibilities of the parties – in other words, if

no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus

creating new rights and obligations, with sanctions for non-conformity – then the determination

that so prescribes … is essentially of a legislative character.

In essence, the political branches of government create binding norms, rights and obligations in the polity. It is for the judicature to determine whether these norms or rules have been breached in an instant case.

In issuing a control order, the Issuing Court was not determining rights or obligations as they existed under law. Prior to becoming the subject of the control order, the person has not necessarily engaged in any act or omission invoking necessary legal sanction or remedy. The past acts of the person are likely to be of central relevance to the application, but ultimately the rights and obligations imposed by the control order are not determined by those past acts, but hinge upon the aim of protecting the public from terrorist acts. Thus, the Issuing Court’s concern does not lie with pre-existing legal rights and obligations. Rather it is creating a fresh set of rights and obligations, assessing which of such are required to prevent terrorism.

Powers requiring a decision-maker to consider whether and how a range of measures may assist in protecting the broader community are more familiar in the context of administrative or legislative action. It is unusual that a court is employed in this kind of task, so distinct from the usual judicial role of assessing evidence of past acts to determine a legal consequence. Despite recognising that ‘the notion of

“arbitrament upon a question as to whether a right or obligation in law exists” lies at the

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centre of the conception that was described’ by Griffith CJ in Huddart Parker,92 the

High Court in Thomas placed little weight on this defining characteristic.93

The High Court’s decision to overlook the absence of this defining characteristic of judicial power was supported by the clear fact that courts may create rights and obligations, and regularly do so.94 In evolving the common law, courts engage in judicial law-making. In issuing remedies and throughout the course of judicial proceedings courts may issue a range of orders that create binding rights and obligations between parties, and may even extend these to third parties. As Gleeson CJ identified in

Thomas, ‘creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been and is exercised by courts in a variety of circumstances’.95 The High Court in Thomas embraced a conception of judicial power that includes the creation, rather than determination, of rights and duties.96 In consequence, it appears that far from being a core characteristic of judicial power, this characteristic is in fact dispensable. The determination of existing rights in dispute describes a mere subset of judicial powers.

In Thomas, the High Court recognised that the creation of rights and duties was not at odds with the concept of judicial power, but their Honours also suggested that rights creative (rather than determinative) powers place a greater emphasis on the remaining

92 Thomas v Mowbray (2007) 233 CLR 307, 464 (Hayne J), 414 (Kirby J). 93 Thomas v Mowbray (2007) 233 CLR 307, 414, 420 (Kirby J), 466 (Hayne J), 327-328 (Gleeson CJ). 94 See, Zines, The High Court and the Constitution, above n 76, 256; Cominos v Cominos (1972) 127 CLR 588, 600 (Gibbs J); R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194, 216 (Mason and Murphy JJ). 95 Thomas v Mowbray (2007) 233 CLR 307, 328 (Gleeson CJ). See also, 466 (Hayne J). 96 Thomas v Mowbray (2007) 233 CLR 307, 327-328 (Gleeson CJ), 414 (Kirby J), 464-468 (Hayne J).

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characteristics of judicial power. In particular, the dissenting justices observed that a power that creates rights and obligations must be ‘governed or bounded by some ascertainable tests or standards’.97 Quoting the Court’s unanimous reasons in Precision

Data Holdings Ltd v Wills,98 Kirby J observed that:99

[A]ny conferral on a Ch III court of the power to ‘bring a new set of rights and obligations into

existence’ must be ‘exercised according to legal principle or by reference to an objective

standard or test prescribed by the legislature and not by reference to [unspecified] policy

considerations’.

Thus, Chapter III validity hinges upon the presence of legal criteria constraining the creation of rights.

By holding that judicial power extends to the creation of rights and obligations the

High Court adopted a very broad conception of judicial power, one which may encompass functions of a kind traditionally considered to be non-judicial. The Court’s reasons reflect an understanding, however, that the accepted powers and experiences of courts mandate a conception of judicial power that includes the creation of rights and obligations. To this extent, Thomas provides a clear example of the ease with which the defining characteristics of judicial power may be ignored. The classic characteristics appear to give meaning to judicial power – but in practice they may be of little or no actual weight. This scenario lends support to the primary criticism of the separation

97 Thomas v Mowbray (2007) 233 CLR 307, 466 (Hayne J), quoting R v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312, 317 (Dixon CJ, Williams, Kitto and Taylor JJ). See also, Thomas v Mowbray (2007) 233 CLR 307, 419- 420, 466-468 (Kirby J). 98 (1991) 173 CLR 167. 99 Thomas v Mowbray (2007) 233 CLR 307, 421 (Kirby J), quoting, Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 191 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

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rules, that judicial power lacks precise meaning, as its supposedly defining characteristics may prove to be effectively meaningless.

D According to Legal Criteria

The second way in which the Issuing Court’s role departed from the classic conception of judicial power relates to the standards governing the issue of control orders. This became the primary focus of contention in Thomas.

Judicial decisions are distinguished from political or administrative decisions as they are made ‘according to law’ and involve ‘the application of a pre-existing legal standard rather than by the formulation of policy or the exercise of administrative discretion’.100 If the basis for a judicial determination is too broad it may be subject to subjective, arbitrary or political interpretation, undermining constitutional values and rendering the power non-judicial in nature. On the other hand, a particularly narrow basis for a judicial determination may indicate that the court’s decisional independence has been usurped and that it is acting as a mere rubber stamp for the political branches.101

Restricting courts to making decisions according to law limits the scope of judicial discretion and prevents the unrepresentative judicature from straying into political territory. In this way, constraining judicial decisions by legal standards plays a key role in preserving parliamentary supremacy and ensuring the executive and legislative

100 Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 268 (Deane, Dawson, Gaudron and McHugh JJ), quoted in, Thomas v Mowbray (2007) 233 CLR 307, 414 (Kirby J). See also, Australian Boot Trade Employees Federation v Whybrow and Co (1910) 10 CLR 266, 318 (Isaacs J). 101 AR Blackshield, above n 77, 185-186.

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branches remain responsible for fundamentally political decisions. This defining characteristic of judicial power is also pivotal in preserving objectivity and equality in the justice system, avoiding politicisation and arbitrariness from characterising judicial determinations. Thus, this characteristic of judicial power is vital to achieving actual and perceived judicial independence and impartiality, institutional legitimacy, representative and responsible government, and the rule of law.102

Despite the importance of this defining characteristic of judicial power, decisions according to legal criteria may involve vague and imprecise criteria.103 Standards such as reasonableness, recklessness, proportionality, unconscionability and likelihood are well-established legal criteria. Even standards as indefinite as ‘oppressive, unreasonable or unjust’,104 ‘just and equitable’105 and ‘unduly onerous’106 have been upheld as sufficiently precise so as to be susceptible to judicial application.107

Political considerations may also play a part in judicial decisions.108 In Thomas,

Gummow and Crennan JJ observed that ‘[c]ourts are now inevitably involved on a day-

102 See, the illustrative discussion by Griffith CJ in, Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 442-444 (Griffith CJ); Ratnapala, above n 83, 127-128; Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta’, above n 8, 303; Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1, 3. 103 Thomas v Mowbray (2007) 233 CLR 307, 507-508 (Callinan J), adopting the reasons of Gummow and Crennan JJ: 345-347. See also, 417 (Kirby J). 104 R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Amalgamated Engineering Union Case) (1960) 103 CLR 368. 105 Cominos v Cominos (1972) 127 CLR 588. 106 Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25. 107 See, Thomas v Mowbray (2007) 233 CLR 307, 346-347 (Gummow and Crennan JJ), 468- 469 (Hayne J) 108 Thomas v Mowbray (2007) 233 CLR 307, 418 (Kirby J).

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to-day basis in the consideration of what might be called “policy”‘109 and quoted Leslie

Zines’ observation that ‘[a]ny standard or criterion will have a penumbra of uncertainty

… an area of some choice and of discretion: an area where some aspect of policy will inevitably intrude’.110

Vagueness and imprecision may be tolerated in legal criteria on the basis that they are limited by features of judicial process. Judicial determinations are not made at large but are narrowly focussed upon the matter before the court, that is, they pertain to concrete situations, defined by the dispute and the parties to it.111 Moreover, a court’s determinations will rest upon the submissions and evidence presented by the parties, placing further constraints on the exercise of the court’s discretions. Finally, the doctrine of stare decisis and the requirement that judicial decisions be binding and authoritative will further constrain the application of legal standards. The doctrine enables vague standards to be refined on a case by case basis and develop guiding principles.112 In this way a vague criterion, such as reasonableness or unconscionability, may evolve into a standard of behaviour subject to a body of guidance. These factors permit the court a suitable degree of independent discretion yet constrain the decision and prevent it from hinging upon ‘idiosyncratic notions of justice’.113 In sum, vague standards may qualify as legal criteria on the basis they are made in respect of concrete situations, are constrained by evidence and precedent, and develop guiding principles.

109 Thomas v Mowbray (2007) 233 CLR 307, 350 (Gummow and Crennan JJ). 110 Thomas v Mowbray (2007) 233 CLR 307, 351 (Gummow and Crennan JJ). See also, 418- 419 (Kirby J). 111 Zines, The High Court and the Constitution, above n 76, 257. 112 See, Thomas v Mowbray (2007) 233 CLR 307, 351 (Gummow and Crennan JJ). 113 This phrase was harnessed by both Hayne and Kirby JJ in their reasons in Thomas v Mowbray (2007) 233 CLR 307, 419 (Kirby J), 479 (Hayne J).

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The power conferred on Issuing Courts involves the application of a number of standards. First, the Issuing Court determines whether the control order is reasonably necessary and reasonably appropriate and adapted, subject to the overarching standard of the balance of probabilities.114 Each of these standards may be ‘unlovely and opaque’115 but is also a familiar and well-established legal criterion embedded in a variety of legal contexts including tort, commercial and constitutional law.116

The issuing of a control order depends upon a further assessment. The order must substantially assist, and each of its terms must be ‘reasonably necessary, appropriate and adapted, for the purpose of protecting the public from a terrorist act’.117 In Thomas, the High Court was divided on whether this criterion – ‘for the purpose of protecting the public from a terrorist act’ – is a legal standard.

In determining whether the control order and its terms will affect the protection of the public from terrorism, the Issuing Court engages in predictive reasoning directed at community protection and national security aims. The criterion is vague, imprecise and future-oriented. Moreover, it invokes the fundamentally political considerations of community safety and crime prevention. The criterion takes the function beyond the classic conception of judicial power as relating to past acts and concrete situations.

Nonetheless, the authorities suggest that vague, imprecise standards are not antithetical to judicial action, and judges regularly engage in predictive reasoning and turn their minds to political considerations, such as crime prevention, in the course of fulfilling

114 Criminal Code Act 1995 (Cth) s 104.4(1)(b)-(d). 115 Thomas v Mowbray (2007) 233 CLR 307, 417 (Kirby J). 116 Thomas v Mowbray (2007) 233 CLR 307, 330-333 (Gleeson CJ), 352-353 (Gummow and Crennan JJ), 468 (Hayne J), 416-417 (Kirby J). 117 Criminal Code Act 1995 (Cth) s 104.4(1)(d) (emphasis added).

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judicial duties. For example, sentencing and the issuing of injunctions, bail and other orders and remedies involve predictions and community protection considerations.118 In short, the criterion for the Issuing Court’s determination is not clearly legal, but it is not necessarily antithetical to an exercise of judicial power either.

In order to resolve this issue the majority justices drew upon two considerations beyond the characteristics of judicial power: the traditional functions of courts and parliamentary intent. These approaches are discussed in turn below. Hayne and Kirby JJ refused to rely on either of these factors to determine the definition of the Issuing

Court’s power. Rejecting these considerations, their Honours adopted a robust approach to interpreting the characteristics of judicial power, highlighting unique aspects of this criterion that their Honours concluded set ‘the impugned provisions apart from an exercise of judicial power’.119

The first unique feature highlighted by the dissenting justices is that the terrorist act in question need not be specified. The criterion of ‘for the purpose of protecting the public from a terrorist act’ requires the Issuing Court to determine whether and how the order and its terms may contribute to the protection of the public from future acts of terrorism at large. It may be recalled that terrorist act itself is defined broadly in the

Code.120

Secondly, the perpetrator of the act need not be identified. In the context of control orders the predicted perpetrator may be a secretive international organisation such as Al

118 Thomas v Mowbray (2007) 233 CLR 307, 334 (Gleeson CJ), 417 (Kirby J). 119 Thomas v Mowbray (2007) 233 CLR 307, 468 (Hayne J). 120 Discussed in section II, above. See the criticism of the definition on this basis in, eg: Special Reporter on the Promotion and Protection of Human Rights while Countering Terrorism, above n 23, [16]-[17].

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Qa’ida, Jemaah Islamiya or indeed any actor or group, specific or general, who may threaten the Australian community with terrorism. For example, the control order against Thomas was supported by the assertions that international terrorist organisations may utilise him as a sleeper agent, or that potential terrorists may access and use his knowledge of firearms and explosives.121

Even if a terrorist act or potential perpetrator were identified in the grounds of the control order, it is likely that the information would be withheld from the person and their representatives on national security or other grounds.122 Thus, the prevention of terrorist acts forms a pivotal aspect of the Issuing Court’s determination, but the timing, nature, perpetrator and victim of the acts need not be specified in control order proceedings, and may nonetheless be withheld from the person subject to the order.

Referring to these factors, the dissenting justices concluded that the criterion ‘for the purpose of protecting the public from a terrorist act’ was so unconstrained that it did not relate to a concrete situation.123 In control order proceedings the Issuing Court is not dealing with a particular situation, but with a vast number of possibilities involving a full spectrum of threats and potential eventualities to weigh into its determination. This,

Hayne and Kirby JJ observed, vests in the Issuing Court a broad decisional mandate concerned primarily with the political matter of crime prevention.124

In consequence, it is very difficult for the person to adduce relevant evidence or raise substantive arguments directed to the basis of the control order application. This

121 Lynch, above n 69, 1187. 122 Criminal Code Act 1995 (Cth) s 104.12A. 123 Thomas v Mowbray (2007) 233 CLR 307, 419 (Kirby J), 479 (Hayne J). 124 Thomas v Mowbray (2007) 233 CLR 307, 418-419 (Kirby J), 469-478 (Hayne J).

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difficulty is enhanced by the ex parte nature of the interim proceedings, the limited timeframe in which the person is guaranteed notice of the confirmation hearing, and the likelihood that the applicant’s case will rest upon national security and intelligence information withheld from the person. The challenge that these procedural factors pose to the fairness and equality of the proceedings is discussed further in section V.

Hayne J further observed that the criterion of ‘reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act’ depended on the work of intelligence and policing forces, which neither the person subject to the order nor the Court were in a position to effectively question.125 Thus, their Honours found that the standard did not relate to a concrete situation and was not susceptible to an evidence-based determination.

Finally, Hayne J reasoned that the criterion was insusceptible to the development of guiding principles over time. For his Honour, the repeated exercise of the power under

Division 104,126

would yield a succession of factually specific predictions made by individual judicial officers,

each necessarily based on its own particular evidentiary foundation. ... it is far from clear how a

course of such decisions would yield any rule or standard of law that subsequent courts could

identify and apply.

So, for the dissenting justices the criterion ‘for the purpose of protecting the public from a terrorist act’ was not constrained by a concrete situation, was insusceptible to an

125 Thomas v Mowbray (2007) 233 CLR 307, 477-478 (Hayne J). The relevant passage and the INSLM’s endorsement of the same is extracted in section V.B, below. 126 Thomas v Mowbray (2007) 233 CLR 307, 474 (Hayne J).

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evidence-based determination in all the circumstances, and would not develop guiding principles.

It is apparent that Hayne and Kirby JJ accepted that imprecise, predictive criteria were susceptible to judicial exercise, but took a more principled approach to considering why vague standards were permissible in certain contexts. This involved drawing some fine distinctions in order to distinguish the criterion in issue from previously upheld standards. The dissenting justices took into account the process by which the orders are issued, and considered the power in its national security context. In these ways, their

Honours’ approaches stand in contrast to the more technical and methodical process of defining a power as judicial or non-judicial suggested by the definition-focussed separation rules. Their Honours looked beyond the list of defining characteristics to consider the power in its broader context, each justice ultimately referring to the impact of the power on the equality and impartiality of court proceedings.127

The majority justices also acknowledged the unusual nature of the criterion for the

Issuing Court’s determination. However, their Honours focussed not on the unique aspects of the power but on its similarities to the existing powers of Courts.128 The fact that the Issuing Court’s discretion was guided by familiar legal standards (the balance of probabilities, reasonable necessity and proportionality) and exercised in judicial proceedings governed by the rules of evidence and the doctrine of stare decisis was sufficient to support the majority justices’ conclusion that the standard was adequately

127 Thomas v Mowbray (2007) 233 CLR 307, 442, 477-478 (Hayne J), 413, 419, 428, 432, 436- 437 (Kirby J). 128 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ).

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constrained and would produce guiding principles. To this end, Gummow and

Crennan JJ observed:129

The federal judges exercising the jurisdiction conferred by the interim control order provisions

will bring to their consideration ... matters of common knowledge ... and the facts and

circumstances disclosed in the evidence on the particular application for an order. From

consideration of the legislation on a case by case basis it may be expected that guiding principles

will emerge, a commonly encountered phenomenon in judicial decision-making.

Thus, for the majority justices, the mere existence of familiar legal standards and open judicial proceedings was sufficient to support a broad view of ‘legal criteria’, encompassing prediction and political considerations.130 This broad conception was further justified on the, arguably problematic, bases of parliamentary intent and historical analogy.

E When the Characteristics Aren’t Enough: Deference and Analogy

The characteristics of judicial power may successfully distinguish clearly judicial from clearly non-judicial powers. However with respect to penumbral powers, such as the power to issue control orders, the characteristics seem to be insufficient to produce a clear result. The flexible interpretation of these defining characteristics of judicial power allows for significant overlap between judicial and non-judicial powers. As the separation rules require validity to be assessed solely on the basis of definition, it is hardly surprising that considerations beyond the characteristics have come to play a role in fulfilling that task.

129 Thomas v Mowbray (2007) 233 CLR 307, 351 (Gummow and Crennan JJ). 130 Thomas v Mowbray (2007) 233 CLR 307, 351-353 (Gummow and Crennan JJ), 508-509 (Callinan J).

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Parliamentary intent and the traditional functions of courts are relevant considerations for a court interpreting judicial power. In Thomas, the Chief Justice harnessed parliamentary intent, and the majority as a whole relied upon the traditional functions of courts, to resolve whether the power conferred on Issuing Courts was judicial or non-judicial. The justices’ recourse to these considerations demonstrates that, for their Honours, the defining characteristics of judicial power were ultimately insufficient to define the power in issue: some additional factor was needed in order to resolve the proper definition of control orders.

1 Parliamentary Intent

Parliamentary intent is an important consideration in any exercise of statutory interpretation.131 In determining whether a power is judicial or otherwise the intention behind the relevant Act ought to play some part.132 In Thomas, the intention of parliament was pivotal to Gleeson CJ’s decision to uphold the conferral of powers on

Issuing Courts in Division 104.

Gleeson CJ commenced his consideration of Thomas’ Chapter III arguments by referring to the necessary overlap between legislative, executive and judicial functions.133 This overlap is widely recognised, including by the majority justices in

131 Acts Interpretation Act 1901 (Cth) s 15AA; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ). 132 Zines, The High Court and the Constitution, above n 76, 258-261. 133 Referring to the majority opinion in Boilermakers’: Thomas v Mowbray (2007) 233 CLR 307, 326 (Gleeson CJ), quoting, R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 278 (Dixon CJ, McTiernan, Fullagar, Kitto JJ).

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Boilermakers’. Gleeson CJ then adopted a position encapsulated in a statement his

Honour quoted from Westel Woodbury Willoughby:134

Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative,

executive or judicial, it lies within the authority of the legislature to determine where its exercise

shall be vested.

Commencing on this footing, Gleeson CJ recognised that the power to issue control orders was neither clearly judicial nor non-judicial by reference to the classic characteristics of judicial power. His Honour then placed determinative weight on the intent of parliament. To this end Gleeson CJ observed:135

Determining whether governmental power or function is best exercised administratively or

judicially is a regular legislative exercise. If, as in the present case, Parliament decides to confer

a power on the judicial branch of government, this reflects a parliamentary intention that the

power should be exercised judicially and with the independence and impartiality which should

characterise the judicial branch of government.

Against this backdrop, Gleeson CJ approached the Chapter III issue by suggesting the power conferred on the Issuing Court was valid, unless it could be shown to be

‘peculiarly or distinctively either legislative, or executive’.136 The Chief Justice framed the Chapter III question as concerning ‘whether the essential nature of control orders is such that the power to make them cannot be conferred by the legislature upon the

134 Thomas v Mowbray (2007) 233 CLR 307, 326 (Gleeson CJ), quoting, Westel Woodbury, The Constitutional Law of the United States (Baker, Voorhis & Company, 2nd ed, 1929) 1619- 1620. 135 Thomas v Mowbray (2007) 233 CLR 307, 327 (Gleeson CJ). 136 Thomas v Mowbray (2007) 233 CLR 307, 327 (Gleeson CJ).

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judicial branch of government for the reason that such orders are distinctively legislative or executive’.137

Though the Chief Justice did not say so explicitly, it appears he adopted the chameleon doctrine to determine the validity of the Issuing Court’s powers. Under that doctrine the definition of a power depends upon where the power is vested and parliament’s presumed intent: if parliament confers a power on the judicature this reflects that the power is intended to be judicial and to be exercised accordingly. The chameleon doctrine had formed an important part of the Commonwealth’s submissions in support of the control order provisions.138

Having phrased the Chapter III question in this way, Gleeson CJ reasoned that the power to issue control orders was judicial because it lacked exclusively executive or legislative characteristics. His Honour supported this conclusion by referring to analogous functions of courts to demonstrate that the power conferred on Issuing

Courts,139

is not intrinsically a power that may be exercised only legislatively, or only administratively. If it

were otherwise, the federal Parliament would lack the capacity to confide an exercise of such

power to the judicial branch of government.

The Chief Justice’s approach to defining the power conferred on Issuing Courts is unique in subtle, but crucial, ways. His Honour refocussed the inquiry away from compliance with the characteristics of judicial power and instead queries whether the power is peculiarly or essentially legislative or executive in nature. Under this

137 Thomas v Mowbray (2007) 233 CLR 307, 327 (Gleeson CJ). 138 Thomas v Mowbray (2007) 233 CLR 307, 316 (Gleeson CJ). 139 Thomas v Mowbray (2007) 233 CLR 307, 328 (Gleeson CJ).

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reformulation of the Chapter III question it is not necessary that the Issuing Court’s power align with the defining characteristics of judicial power, only that it not contain features that are antithetical to an exercise of judicial power. This approach drastically undermines the formalist strictness of the separation rules and poses a clear risk to judicial independence and impartiality.

Gleeson CJ’s reasons appear to rest upon a presumption that all powers are judicial, executive or legislative, that is, all powers not exclusively legislative or executive may be included in the ambit of judicial power.140 The Chief Justice seems to envisage that all powers may be exercised by one or more branches of government, and that questions of constitutional validity turn only on whether the correct branch has been vested with the particular power. This is simply not the case.

There are many powers that are outside the scope of government action, regardless of which branch of government the power is conferred upon. For instance, a law that infringes the separation of powers may be entirely outside the scope of government power. One example of such a power arises from the rule that punitive detention is exclusively within the ambit of judicial powers and requires a criminal trial.141 Thus, the constitution does not permit a power to order punitive detention absent a criminal trial to be vested in any branch of government. Constitutional invalidity does not mean the power was conferred on the wrong branch, but that the power in its present form cannot

140 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ). See also, 506-507 (Callinan J); Lynch, above n 69, 1208. 141 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan CJ, Deane and Dawson JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 612 (Gummow J). See also, the valuable discussion of this rule in: Jeffrey Steven Gordon, ‘Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention’ (2012) 36 Melbourne University Law Review 41.

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be conferred on that particular branch. It is entirely possible that a power may not be capable of being vested in any branch of government in keeping with the constitution.142

At a fundamental level, Gleeson CJ’s approach contorts the second separation rule and risks the independence and impartiality of federal courts. As Kirby J warned:143

The chameleon doctrine, whilst occasionally useful, must not be elevated so far that it

overwhelms all other considerations referred to in this Court’s decisions on the point. To permit

this to happen would be to debase the Court’s doctrine, to surrender its constitutional function to

the choices made by other branches of government, and to ignore the important constitutional

purposes that the separation of judicial power upholds.

Even in argument relying upon the chameleon doctrine in Thomas, the Commonwealth

Solicitor General, David Bennett QC, recognised that a potential consequence of the doctrine is that the second separation rule ‘does not matter much anymore’.144

Faced with a penumbral power that eluded clear definition as judicial or non- judicial, Gleeson CJ deferred to the will of Parliament, and permitted the power to issue control orders to be defined as judicial simply because it was conferred on courts and lacked exclusively executive or legislative characteristics. Gleeson CJ’s approach appears to effectively define judicial power as all functions not peculiarly executive or legislative. Not only does this approach negate judicial power of all inherent meaning, but it defines it by reference to two concepts which are themselves notoriously difficult to define. Executive power in particular remains a nebulous concept, and neither executive nor legislative power has received nearly so much jurisprudential attention

142 Thomas v Mowbray (2007) 233 CLR 307, 476 (Hayne J), 429 (Kirby J). 143 Thomas v Mowbray (2007) 233 CLR 307, 427-428 (Kirby J). 144 Thomas v Mowbray (2007) 233 CLR 307, 316.

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and guidance as the concept of judicial power.145 Indeed, one of the clearer limits on the ambit of executive or legislative powers has traditionally been the fact they do not include judicial powers.

Gleeson CJ’s apparent reformulation of the second separation rule risked expanding the ambit of judicial power to include all functions not peculiarly executive or legislative. This is a circular and problematic approach. Harnessing parliamentary intent to determine the proper allocation of penumbral powers enables parliament to determine the outer limits of judicial power and, in turn, to control important limits on legislative power too. In short, this approach risks facilitating the erosion of the separation of judicial power and undermining courts’ capacities for robust judicial review of the limits on parliamentary powers.

Finally, Gleeson CJ’s approach to the rules governing the separation of judicial power enables loose analogies and examples from jurisdictions in which courts may exercise non-judicial powers to be drawn upon to demonstrate a power is not peculiarly legislative or executive. It is to the High Court’s reliance on imprecise historical analogies in Thomas, and the risks to judicial independence and impartiality arising from that method, that I now turn.

2 Historical Analogy

The fact that a function has been traditionally exercised by courts generally indicates it is judicial, and that its continued conferral on courts is in keeping with

145 George Winterton, ‘The Limits and Use of Executive Power by Government’ (2003) 31 Federal Law Review 421. As Mason CJ, Deane and Gaudron JJ observed, executive power ‘has often been discussed but never defined’: Davis v Commonwealth (1988) 166 CLR 79, 92 (Mason and Gaudron JJ).

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traditional conceptions of judicial power and broader notions of judicial independence and impartiality.146 On this basis, the historic functions of courts have been regularly drawn upon to help resolve difficult Chapter III questions. The judicial nature of a power is clear enough when courts have exercised that particular function for an extended period, such as the power to issue bankruptcy sequestration notices held to be judicial in R v Davison.147 However, when the function is novel the court may rely on reasoning by analogy to establish that the power is of a kind traditionally exercised by courts.148

A key pillar of support for the High Court’s decision to uphold Division 104 was the conclusion that the power to issue control orders was of a kind traditionally exercised by courts. The majority justices reasoned that criteria analogous to ‘for the purpose of protecting the public from a terrorist act’ were accepted within the existing powers of courts. Historical analogy played a particularly weighty role in the judgment of Gummow and Crennan JJ, with whom Callinan and Heydon JJ substantially agreed.

Courts regularly engage in predictive reasoning in the course of fulfilling core judicial tasks such as ordering remedies and conducting a criminal trial.149 Predictions and community protection considerations even underpin some judicial restraints on liberty. To this end, Gleeson CJ, Gummow and Crennan JJ cited the examples of bail

146 Zines, The High Court and the Constitution, above n 76, 221. 147 (1954) 90 CLR 353. 148 R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J); Zines, The High Court and the Constitution, above n 76, 256. 149 Thomas v Mowbray (2007) 233 CLR 307, 334 (Gleeson CJ).

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and Apprehended Violence Orders (‘AVOs’),150 the latter finding their ‘origin in the ancient power of justices and judges to bind persons over to keep the peace’.151

Sentencing and family law injunctions were also cited in their Honours’ judgments, as well as orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

(‘DPSOA orders’).152

DPSOA orders provide for the continued preventive imprisonment of offenders at the completion of their sentence for serious offences, and provided an important analogue in the majority judgments. The exercise of these powers by courts demonstrated for their Honours that powers of the kind conferred on Issuing Courts are:153

a familiar part of judicial power to make orders restraining liberty of the subject, for the

purposes of keeping the peace or preserving property. Orders, which are not orders for

punishment following conviction, but which involve restraints upon the person to whom they are

directed, can be made after a judicial assessment of future risk.

Like control orders, bail and AVOs involve onerous restrictions on the liberty of a person in the absence of criminal guilt. They also have the potential to restrain

150 Thomas v Mowbray (2007) 233 CLR 307, 328-329 (Gleeson CJ), 347-348 (Gummow and Crennan JJ). 151 Thomas v Mowbray (2007) 233 CLR 307, 347-348 (Gummow and Crennan JJ), 329 (Gleeson CJ), to which his Honour quoted William Blackstone’s Commentaries relating to ‘preventive justice’. However, I note that even the passage quoted from Blackstone refers to the preventive justice powers being used as part of a penalty inflicted on the criminally guilty and as ‘a caution against the repetition of the offence’ (emphasis added). That is, Blackstone is referring to a power used in the context of the criminal process, not in respect of persons not necessarily charged with any offence: William Blackstone, Commentaries on the Laws of England (1769), Book IV, 248. See also, 423 (Kirby J) distinguishing binding-over orders on similar grounds. 152 Thomas v Mowbray (2007) 233 CLR 307, 348 (Gummow and Crennan JJ). 153 Thomas v Mowbray (2007) 233 CLR 307, 347 (Gummow and Crennan JJ).

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otherwise lawful conduct, such as being at a particular place or near a particular person.154 DPSOA orders similarly impose severe restrictions on liberty on the basis of a balance of probabilities assessment of future conduct, and are issued in the absence of an ancillary judicial function.155 Moreover, in Fardon v Attorney-General (Qld)

(‘Fardon’)156 McHugh J suggested that DPSOA orders are judicial in nature.157

Although in that case Gummow J, and Kirby J in dissent, expressed an opposite view,158

McHugh J’s obiter dicta leant perhaps the strongest precedential support for the validity of control orders in Thomas, and Gleeson CJ explicitly adopted McHugh J’s reasons to this effect.159

Reasoning by analogy is a valuable judicial method, but it is far from ideal in determining Chapter III cases.160 As Deane, Dawson, Gaudron and McHugh JJ observe in Brandy v Human Rights and Equal Opportunity Commission & Ors:161

One is tempted to say that, in the end, judicial power is the power exercised by courts and can

only be defined by reference to what courts do and the way in which they do it, rather than by

recourse to any other classification of functions. But that would be to place reliance upon the

154 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ). 155 Thomas v Mowbray (2007) 233 CLR 307, 328-329 (Gleeson CJ), 347-348 (Gummow and Crennan JJ). 156 (2004) 223 CLR 575. 157 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 596-597 (McHugh J). 158 Thomas v Mowbray (2007) 233 CLR 307, 608-614 (Gummow J), 631 (Kirby J). 159 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ). 160 Lane, above n 85, 467; Thomas v Mowbray (2007) 233 CLR 307, 424 (Kirby J). 161 Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ), quoted in, Thomas v Mowbray (2007) 233 CLR 307, 414 (Kirby J).

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elements of history and policy which, whilst they are legitimate considerations, cannot be

conclusive.

In a similar vein, Sawer observed that to define judicial power as the power exercised by courts and take its meaning from what courts do and the manner in which they do it, is circular and ultimately unconvincing.162

As discussed in Part Two, reliance on imprecise or inappropriate analogues to identify a power as judicial or non-judicial poses a particular risk to judicial independence and impartiality. Reasoning by analogy may become a cherry-picking exercise. Or, it may draw comparators from jurisdictions subject to more flexible restrictions on the permissible powers of courts. In these scenarios the approach is liable to facilitate the erosion of judicial independence and impartiality. The clearest way this erosion may occur is by drawing upon the non-judicial functions of courts to demonstrate an analogous function is judicial in nature. This is just what occurred in

Thomas.

The analogies relied upon by the majority justices in Thomas bear similarities to control orders, but they also contain distinguishing features that are of fundamental importance in the Chapter III context. AVOs and DPSOA orders are issued by State courts in respect of which the separation rules do not apply.163 As Callinan and

Heydon JJ observed in Fardon, ‘Federal judicial power is not identical with State judicial power ... Not everything by way of decision-making denied to a federal judge is

162 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 179-180. 163 Thomas v Mowbray (2007) 233 CLR 307, 423 (Kirby J), quoting, Fardon v Attorney- General (Qld) (2004) 223 CLR 575, 655-656 (Callinan and Heydon JJ).

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denied to a judge of a State’.164 In essence, State courts are permitted to exercise non- judicial powers provided they are not incompatible with the institutional independence and integrity of those courts.165 Thus, the exercise of these powers by State courts does not indicate the role is judicial under the Commonwealth Constitution.

Injunctions issued by family courts and orders as to bail and sentencing are ancillary to the fulfillment of the judicial tasks of determining the existing rights and duties of parties to a principal proceeding or conducting a criminal trial.166 Ancillary functions are a well-established class of non-judicial functions exercisable by federal courts. Thus, the exercise of these functions by courts does not prove they are judicial.

Importantly, every analogous order relied upon by the majority justices to support the validity of the Issuing Court’s role imposed restrictions on a person only to an extent justified by that person’s past conduct.167 In proceedings for bail and family law injunctions, considerations outside the individual’s conduct come into play, for instance the best interests of the child. However, these factors have a limited role in the court’s overall determination and the decision of the court hinges upon the past and predicted conduct of the individual subject of the order. In this way the analogous orders all relate to concrete situations, more easily subjected to evidence, argument and the development of guiding principles.

164 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655-656 (Callinan and Heydon JJ). 165 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, discussed in Part Two, section V, and at length in Part Four. 166 Thomas v Mowbray (2007) 233 CLR 307, 422 (Kirby J). See also, 310-311, per Kirby J; Gordon, above n 141, 100; Christos Mantziaris, ‘Commonwealth Judicial Power for Interim Control orders – The Chapter III Questions Not Answered’ (2008) 10 Constitutional Law and Policy Review 65, 71. The INSLM stated in his 2012 report that bail and remand are ‘radically different’ to control orders: Independent National Security Monitor, above n 23, 6. 167 Thomas v Mowbray (2007) 233 CLR 307, 422 (Kirby J).

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Control orders are unique in that they do not necessarily have a relationship to the person’s past or predicted conduct and may be issued on the basis of the predicted actions of third parties.168 In a recent review of the control order provisions the INSLM observed:169

[A]lthough a CO is founded on the connexion of the person against whom it is sought with the

commission of a terrorist offence, there need not be any pending charge or any charge at all.

COs are therefore radically different from remand in custody or conditional bail, which are

judicial powers available only because a trial of pending charges is in prospect.

The unique aspects of control orders present serious challenges for the person subject to the order in adducing relevant evidence, and for the court in weighing the submissions before it. The fact that control orders are issued on grounds not bounded by, or closely tied to, the person’s past conduct presents an important point of distinction, setting the power to issue control orders apart from the analogies drawn upon in Thomas.

Reliance on loose analogy to determine cases may be problematic where the characteristics of judicial power are insufficient to determine the nature of the power.

Reliance on such analogies to render a function judicial that would otherwise be non- judicial is alarming. By harnessing imprecise analogues to hold that the power to issue control orders was judicial, the High Court expanded the ambit of judicial power to include ancillary powers of courts and the powers of State courts. If analogues from these contexts may be relied upon to support the classification of a power as judicial, then the separation of powers restrictions on federal courts becomes far weaker. In

168 Thomas v Mowbray (2007) 233 CLR 307, 425 (Kirby J). This is also true of the (ancillary) injunctive remedy for the personal protection of a party to a marriage now provided by s 114(1)(a) of the Family Law Act 1976 (Cth): 357 (Gummow and Crennan JJ). 169 Independent National Security Monitor, above n 23, 6.

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essence, this approach opens the way to an incremental erosion of the separation of judicial power.170

Gummow and Crennan JJ relied on the imprecise analogies detailed above in order to conclude that ‘the orders which may be made are a familiar part of judicial power to make orders restraining the liberty of the subject, for purposes of keeping the peace or preserving property’.171 Unlike Kirby or Hayne JJ, Gummow and Crennan JJ were unwilling to see the power to issue control orders as sufficiently unique so as to distinguish it from the existing powers of courts that are concerned with the prevention of future harm. This approach undermines the strictness and rigidity of the separation rules. Not only did their Honours interpret the defining characteristics of judicial power in a particularly broad, flexible manner, but they drew upon problematic analogues to effectively expand the outer limits of judicial power.

The Chief Justice admitted that the analogies relied upon ‘are not exact’ but held that they demonstrated that the controversial features of the power were not

‘antithetical’ to judicial power.172 Gleeson CJ’s ultimate conclusion was that ‘powers relevantly similar to those given by Div 104 traditionally have been, and are, exercised by the judiciary. They are not exclusively or distinctively administrative’.173 It may be that the exercise of analogous powers by State courts demonstrates that such powers are not exclusively executive or legislative, but it cannot be said that this demonstrates such functions are positively judicial. As discussed in the previous section, Gleeson CJ was

170 Meyerson, ‘Extra-judicial Service on the Part of Judges’ above n 9, 161. 171 Thomas v Mowbray (2007) 233 CLR 307, 347 (Gummow and Crennan JJ). 172 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ). 173 Thomas v Mowbray (2007) 233 CLR 307, 329 (Gleeson CJ).

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not applying the separation rules in a manner that focussed upon the defining characteristics of judicial power. The Chief Justice took an opposite approach, effectively defining judicial power as all powers conferred on courts lacking peculiarly legislative or executive characteristics. On this basis, reliance on loose imprecise analogies to a determinative degree was justified, but, as argued above, the approach misconstrued the separation rules and risked the independence and impartiality of federal courts.

Ultimately, judicial reliance on imprecise analogy and parliamentary intent to define a function as judicial or non-judicial reflects the inadequacy of the defining characteristics of judicial power. The High Court was placed in a challenging position in Thomas. The separation rules require the Court to define the power in issue, but the power itself defied clear definition. The High Court justices’ approaches to resolving this predicament were inconsistent, and the final decision of the Court rested heavily on factors beyond the defining characteristics of judicial power. Whilst these factors provided a useful means of resolving the Chapter III issue, they also posed serious risks to the efficacy of the separation rules and to the achievement of judicial independence and impartiality.

IV THE WEAKNESSES IN THE SEPARATION RULES

The separation rules are designed to achieve the independence and impartiality of the federal judicature. Their capacity to achieve this aim rests primarily upon the legitimacy of the formalist assumption that powers may be defined as judicial or non- judicial. In many cases this is not a complicated exercise. Judicial power has long been identified as the power to conclusively determine controversies between parties with respect to existing rights and duties according to law. This definition resolves the

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allocation of many government powers. Thomas draws our attention away from these simple cases and focuses it upon those instances in which a function defies clear definition.

The decisions in Thomas highlight the considerable flexibility that has come to characterise interpretations of judicial power. The High Court’s approach indicates that the first characteristic of judicial power – that it concerns existing rights and duties – may in fact be given negligible weight in distinguishing judicial from non-judicial functions. Courts, this reasoning suggests, may create rights and duties as readily as they determine existing ones. Then is judicial power simply characterised by a conclusive determination according to law? The High Court in Thomas suggested that the bounds of judicial power may even reach beyond this extenuated definition.

In Thomas, the Court confirmed that decisions according to law may involve vague, imprecise, predictive, even political criteria. For Gleeson CJ the outer limits of judicial power extended to encompass all powers conferred on courts and lacking peculiarly legislative or executive features. For Gummow, Crennan and Callinan JJ all functions exercised by courts, regardless of whether the court in question is State or federal, may be drawn upon to demonstrate the judicial nature of a power. In all, the majority justices’ conclusions suggest that highly discretionary criteria may form the basis of a judicial determination, provided that the basic features of judicial process – an open hearing governed by the rules of evidence and ultimately constrained by a legal standard– are maintained. Thus, the majority judgments come very close to defining judicial power by reference to ‘what courts do and the way they do it’, a problematic

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approach that departs significantly from the strictness and rigidity upon which the formalist separation rules are based.174

A few key observations with respect to the separation rules follow from this discussion. First, some powers do indeed defy clear definition as judicial or non- judicial. This has been recognised since the inception of the separation rules, but in

Thomas we clearly see how those rules are interpreted in order to determine the Chapter

III validity of such powers.

Secondly, the formalist assumption that judicial power has a precise and enforceable meaning is not true in all cases. Control orders defied clear definition as judicial or non-judicial and, faced with this penumbral power, the High Court adopted a range of inconsistent approaches in order to arrive at a definition as required by the separation rules. Two of these approaches – relying on parliamentary intent and imperfect historical analogy – place judicial independence and impartiality at significant risk.

These two weaknesses in the separation rules framework are interrelated. The first is a failure to outline a clear or consistent approach to determining the Chapter III validity of penumbral powers. This in turn creates the second weakness: that considerations that undermine judicial independence and impartiality are permitted to determine constitutional validity.

174 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 179-180; Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ). Denise Meyerson has drawn upon similar observations to criticise ‘the majority’s decision [in Thomas] on its own terms’: Meyerson, ‘Using Judges to Manage Risk’, above n 12, 212.

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It would be an overstatement to say that judicial power is a meaningless concept and that the formalist separation rules ought to be jettisoned entirely. Rather, the definition-based separation has serious limitations and requires improvement, if possible. It is well accepted that some powers defy clear definition. Thomas highlights that the greatest weakness in the separation rules framework is that when faced with a power of this nature the Court has no clear path to follow in order to determine constitutional validity. In such circumstances, it is entirely possible that the Court will adopt a path that is unfortunately at odds with the overall achievement of constitutional aims and values in order to fulfil the requirement that it define the function at hand.

In Part Two, I suggested a new approach to the separation rules whereby the purposive element of the separation of federal judicial power is deliberately invoked to determine the proper allocation of penumbral powers. This approach of purposive formalism and its application to control orders is considered below, in section VI.

Before turning to that discussion, it is valuable to consider the second ground of

Thomas’ Chapter III challenge, and whether the court’s approach to the fair process aspects of Chapter III demonstrates further weaknesses in the separation rules.

V FAIR PROCESS CONSIDERED IN THOMAS

A Fair Process and Chapter III

The separation rules assume, first, that functions are susceptible to precise and enforceable definition. Their second fundamental assumption is that a definition-based allocation of powers will naturally achieve judicial independence and impartiality. If this latter assumption is flawed then the rules may produce technical decisions that successfully allocate government powers but do nothing to achieve the purposes of

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Chapter III.175 One measure of whether the formalist separation rules achieve judicial independence and impartiality is the extent to which they are capable of protecting fair judicial process from legislative incursion. As discussed in Part Two, fair process is closely connected with the independence and impartiality of federal courts.176

The second Chapter III argument made by Thomas in his challenge to Division 104 control orders, was that the powers conferred on Issuing Courts were exercised in a manner at odds with the constitutional separation of judicial power. It is unusual that a discrete argument based on the manner in which a power is exercised is raised in a

Chapter III case.177 The clear articulation of this argument compelled the High Court to engage directly with the capacity for the Boilermakers’ rule to protect fair process, and presents an opportunity to consider the degree to which the formalist separation rules succeed at protecting judicial independence and impartiality.

Two approaches have emerged since Boilermakers’ to envisage fair process protections within the definition-focussed separation rules framework. These approaches were introduced in Part Two, but it is helpful to briefly revisit them here.

175 Mason, above n 3, 2. 176 Gerard Brennan, ‘Lessons from a Life in the Law’ (Paper presented at The Annual Hal Wootten Lecture, Faculty of Law, University of New South Wales, 11 September 2012) 16-18; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 498 (Gageler J), 480 (French CJ); Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32 Federal Law Review 205, 211; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106-107 (Gaudron J); Re Nolan; Ex parte Young (1991) 172 CLR 460, 496-497 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 487-488 (Deane and Toohey JJ); Polyukovich v Commonwealth (1991) 172 CLR 501, 703-704 (Gaudron J); Chris Steytler and Iain Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35 University of Western Australia Law Review 227, 255-259. 177 Cf, cases in which fair process was a central issue, but the grounds of challenge did not refer directly to the manner in which the power was exercised as a possible basis for invalidity, eg: Leeth v Commonwealth (1992) 174 CLR 455; Chu Kheng Lim v Minister for Immigration (1992) (1992) 176 CLR 1.

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Some justices, such as Gaudron J, have conceived of process protections within the defining characteristics of judicial power, even though fair process in not mentioned in

Griffith CJ’s classic definition.178 Other justices, including Deane J, have envisaged fair process protections as within the essential or defining features of courts. Under the latter approach judicial powers may only be vested in an institution capable of exercising them in accordance with fair process.179

Fair process may simultaneously inform the essential characteristics of both judicial power and of courts.180 In Thomas, the High Court adopted both approaches in this manner.181 Both Gaudron and Deane JJ’s approaches have received varied authoritative support, failing to produce a consistent set of principles. Rather, courts have tended to determine in an ad hoc manner whether one feature or another is an essential or defining characteristic – which itself presents quite a high threshold for protection.182 These weaknesses are demonstrated in the High Court’s decisions in Thomas.

178 Wheeler, ‘Due Process’ above n 176, 209-210. Polyukovich v Commonwealth (1991) 172 CLR 501, 703 (Gaudron J). For critique of this approach see, Wheeler, ‘Due Process’ above n 176, 210-211; Will Bateman, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411, 432. 179 Bateman, above n 178, 433-441; Wheeler, ‘Due Process’, above n 5, 209. For critique of this approach see, Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 15 August 2013) 11-14. 180 Wheeler, ‘Due Process’, above n 176, 211. Though this may have consequences in the context of State courts, capable of exercising non-judicial powers but requiring the defining characteristics of courts. See discussion of the essential features approach to protecting fair process in the State court context in Part Four, section III.B. 181 Thomas v Mowbray (2007) 233 CLR 307, 355 (Gummow and Crennan JJ), 335 (Gleeson CJ). 182 Bateman, above n 178, 433-441; Wheeler, ‘Due Process’, above n176, 209; Goldsworthy, above n 179, 11-14.

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B Fair Process and Control Order Proceedings

The control order provisions preserve many independent, fair and impartial aspects of federal court processes.183 Confirmation hearings occur in open court and involve cross-examination, argument and are governed by the rules of evidence. The burden of proof rests with the applicant and the person’s personal circumstances are taken into account as the Issuing Court determines whether to issue the control order.184 The Court retains an overarching discretion whether to issue the order, reflecting the judge’s general control of the proceedings and their outcome.185 For the majority justices these factors weighed strongly in favour of a conclusion that the provisions were consistent with Chapter III.

However, proceedings for interim and confirmed control orders compromise fair process in some key respects. First, interim control order proceedings take place ex parte as standard, rather than in specifically justified circumstances.186 There is arguably no greater offence to the equality of judicial proceedings than the compulsory exclusion of one party without notice, particularly from a hearing that may result in extended and onerous restrictions being placed on the liberty of the excluded party.187

183 Thomas v Mowbray (2007) 233 CLR 307, 335 (Gummow and Crennan JJ), 355 (Gleeson CJ) 184 Criminal Code Act 1995 (Cth) s 104.4(2). 185 Criminal Code Act 1995 (Cth) s 104.14. 335 (Gleeson CJ). 186 Thomas v Mowbray (2007) 233 CLR 307, 433-434 (Kirby J). 187 In his review of control orders the INSLM recommended that no order should be made ex parte unless the court determines ‘it is reasonably necessary in order to avoid the unacceptable risk of a terrorist offence being committed were the respondent to be notified before the CO is granted’: Independent National Security Monitor, above n 23, 9, Recommendation 11/2.

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Secondly, the provisions guarantee the person subject to the order merely 48 hours’ notice of the confirmation hearing.188 This is designed to ameliorate the unfairness of the ex parte interim hearing by providing for a speedy contested proceeding. However, in effect it guarantees the person only two days within which to build their case. This is an insufficient period in which to build almost any case for full hearing, let alone one involving complex issues of national security potentially resulting in up to 12 months of onerous restrictions and obligations. The controlee’s difficulties may be enhanced by the restrictive terms of the interim order which may include a prohibition on using technology or on leaving the house at certain times.

The third way in which the fairness and equality of control order proceedings is compromised is in the likely involvement of secret evidence. The evidence relied upon by the applicant to support the request for a control order is highly likely to be substantially withheld from the person on national security or other grounds.189 For instance, evidence going to the nature or perpetrator of the terrorist act in issue may be withheld on the basis it is ‘likely to prejudice national security’.190 The expansive grounds upon which evidence may be withheld apply at all stages of issuing process, from the Attorney-General’s initial certification, to the contested confirmation hearing.

The application may not directly engage the provisions of the NSIA which contain important protections for the affected party. Instead, the control order provisions enable

188 Thomas v Mowbray (2007) 233 CLR 307, 434 (Kirby J); Criminal Code Act 1995 (Cth) s 104.12(1)(a). 189 Thomas v Mowbray (2007) 233 CLR 307, 434-435 (Kirby J). 190 Criminal Code Act 1995 (Cth) s 104.12A.

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evidence to be withheld by the AFP according to preliminary assessment that the information would be likely to fall within the ambit of the NSIA.191

Finally, the unconstrained nature of the court’s determination and its dependency upon the work of police and intelligence forces seriously compromise the person’s capacity to adduce relevant evidence. This final point is perhaps the most worrying. The work and capabilities of these forces form a central aspect of the grounds on which a control order may be issued, but are uniquely within the competence and knowledge of the government and arguably beyond question by the person or the Issuing Court.

Taken separately, these procedural deficiencies may not amount to so gross an infringement on judicial process and powers as to render the proceedings at odds with the defining features of courts or of judicial power.192 Short notice periods, ex parte proceedings and secret evidence are unusual, but each is an accepted reality in court proceedings and cannot reasonably be outside Parliament’s capacity to regulate.193 It could not be said, for example, that if a court holds proceedings ex parte it ceases to be a court, or that all powers exercised on the basis of closed evidence cannot be judicial.194 Proceedings that occur without notice or with a short notice period are not ideal, but are an accepted aspect of judicial proceedings. Importantly, the Issuing Court retains its usual powers to ensure fairness and to make appropriate orders in light of the

191 For full discussion, see: Andrew Lynch, Tamara Tulich and Rebecca Welsh, above n 19, 162-168. 192 Cf, Kirby J’s view that these features of the process by which control orders are issued were repugnant to Chapter III, whether considered individually or cumulatively: Thomas v Mowbray (2007) 233 CLR 307, 433 (Kirby J). 193 As to the role of secret evidence in court proceedings, this is the case under the NSIA and in common law claims for public interest immunity. As to the ex parte nature of the proceedings, see: Thomas v Mowbray (2007) 233 CLR 307, 340 (Gummow and Crennan JJ), cf, 434 (Kirby J). 194 Goldsworthy, above n 179, 11-14.

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circumstances of each case, taking into account factors including the urgency of the request and the benefit of providing the person with a reasonable amount of time to prepare their case in response.195

The majority justices in Thomas dealt swiftly with Thomas’ fair process arguments along these lines.196 Their Honours at once emphasised those ‘usual’ aspects of the proceedings that maintain fairness, and reasoned that the more unusual aspects fall short of classification as essential or defining features of courts or their powers.197

The worrying procedural elements addressed above may not individually render the provisions constitutionally invalid. However, a compounding of these factors seriously impacts both the fairness and equality of the proceedings, as well as the capacity of the

Issuing Court to fulfil its role with independence and impartiality. All four factors compromise the capacity of the person to adduce relevant evidence to meet the case supporting the control order. The ex parte nature of the interim proceedings means that the first knowledge the person has of the matter is the service of the interim order on them. He or she is then only ensured a 48 hour period within which to build his or her case. In doing so, the person is likely to lack full information about the terrorist threat in question, the predicted perpetrators, or the capacities of the government to prevent those acts from coming to pass.

195 Criminal Code Act 1995 (Cth) s 104.4(2); Thomas v Mowbray (2007) 233 CLR 307, 355 (Gummow and Crennan JJ). 196 Thomas v Mowbray (2007) 233 CLR 307, 335 (Gleeson CJ), 355, 357 (Gummow and Crennan JJ), 508 (Callinan JJ). 197 Thomas v Mowbray (2007) 233 CLR 307, 335 (Gleeson CJ), 508 (Callinan J), 355-358 (Gummow and Crennan JJ).

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The nature of the Issuing Court’s determination further compromises the person’s capacity to adduce relevant evidence and meet the case against him or her self. In control order proceedings, the Issuing Court is dealing with a vast number of possibilities involving a spectrum of threats, likely to be posed by mysterious international groups. This presents unique evidential challenges for the person as he or she faces the task of countering the AFP’s assertions that the proposed restrictions and obligations will assist in preventing third parties from committing future acts of terrorism.

Whilst these factors are troubling from a fair process perspective, it is more directly relevant to the Chapter III analysis that they inhibit the Issuing Court’s capacity to conduct control order proceedings with independence and impartiality. The broad nature of the section 104.4 criteria places significant importance on the evidence before the

Court which, as this analysis has shown, may consist of largely untested evidence adduced by the AFP. Justice Hayne summarised this impact on the integrity of the

Issuing Court in this lengthy, but valuable, passage:198

For the most part courts are concerned to decide between conflicting accounts of past events.

When courts are required to predict the future, as they are in some cases, the prediction will

usually be assisted by, and determined having regard to, expert evidence of a kind that the

competing parties to the litigation can be expected to adduce if the point in issue is challenged.

Intelligence information, gathered by government agencies, presents radically different

problems. Rarely, if ever, would it be information about which expert evidence, independent of

the relevant government agency, could be adduced. In cases where it could not be tested in that

way (and such cases would be the norm rather than the exception) the court, and any party

198 Thomas v Mowbray (2007) 233 CLR 307, 477-478 (Hayne J).

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against whose interests the information was to be provided, would be left with little practical

choice except to act upon the view that was proffered by the relevant agency.

These difficulties are important, but not just because any solutions to them may not sit easily

with common forms of curial procedure. They are important because, to the extent that federal

courts are left with no practical choice except to act upon a view proffered by the Executive, the

appearance of institutional impartiality and the maintenance of public confidence in the courts

are both damaged.

In a unique step for an independent reviewer of legislation, the INSLM adopted this passage and its surrounding text in his report.199 He then concluded that:200

[N]one of these difficulties [identified by Hayne J] is dispelled by the reasoning of the majority.

Rather, and with commendable confidence in the Australian judiciary, the outcome opposite to

that favoured by Hayne J involved acceptance of the difficulty of the judicial task when a judge

is required to determine drastic consequences on the basis of predicted conduct. And none of

these difficulties arise when the ordinary judicial processes are applied.

Like Hayne J, Kirby J adopted a more substantive approach to considering the validity of control order proceedings.201 Each dissenting justice’s focus lay with the overall impact of the procedural compromises on the independence and impartiality of the Issuing Court, rather than merely focussing on whether each factor amounted to a defining characteristic of courts or their powers.

The potential impact outlined by Hayne J of the control order proceedings on the independence and impartiality of Issuing Courts had been borne out to some degree in the control order proceedings against Thomas. One basis of Thomas’ interim control

199 Independent National Security Monitor, above n 23, 41-43. 200 Ibid 43. 201 Thomas v Mowbray (2007) 233 CLR 307, 433-435, 442-443 (Kirby J).

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order was the assertion that international terrorist organisations could utilise him as a sleeper agent (a similar assertion later supported the issue of a confirmed control order against Hicks).202 The evidence on this point was not strong.203 Thomas was the subject of considerable media attention rendering his utilisation in a secretive plot reasonably unlikely.204 The capacity for Thomas to meet the AFP’s case and show that Al Qa’ida or another terrorist organisation would not utilise his knowledge was limited. Not only was the allegation not concrete, in the sense that it related to defined events or persons, but

Thomas’ difficulties in adducing relevant evidence were multiplied by the allegation’s basis in intelligence information he was unlikely to be privy to or capable of questioning.

Moreover, the AFP primarily relied upon a record of interview they conducted with

Thomas in Pakistan in early 2003 to support their control order application. Prior to the interim control order proceeding the Victorian Court of Appeal had quashed Thomas’ convictions on the basis that this record of interview was inadmissible as it had not been voluntarily made. Mowbray FM accepted the interview into evidence on the basis that the ex parte interim hearing was an interlocutory proceeding.205

In the only confirmation hearing to have as yet occurred in Australia, the 2007 proceedings against Hicks, Donald FM highlighted the fundamental importance of the respondent’s evidence to the Issuing Court’s decision. Hicks did not appear at his

202 Jabbour v Thomas (2006) 165 A Crim R 32, 38 (Mowbray FM). 203 Lynch, above n 69, 1188. 204 Ibid 1187, citing the ‘accepted wisdom that terrorist organisations “prefer to use for operational purposes “clean skins”, persons who are not known ever to have been arrested”: Lord Carlile of Berriew, Third Report of the Independent Reviewer Pursuant to section 14(3) of the Prevention of Terrorism Act 2005, Cm 7367 (2008) 17. 205 Jabbour v Thomas (2006) 165 A Crim R 32, 34; Lynch, above n 69, 1188.

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confirmation hearing due to his mental state at the time, having been recently released from gaol in South Australia following 5 years of United States military detention in

Guantanamo Bay, Cuba. To this Donald FM said,206

The fact is we have no evidence from him - no evidence from medical practitioners. The

problem I have is that this court has to act on the basis of evidence and the only evidence I have

is from one side. It does make it difficult when I have nothing from Mr Hicks and I was hoping

to have that.

Further, Donald FM relied upon letters written many years earlier, before Hicks’ capture and detention. Donald FM justified this on the basis he had not received any evidence from Hicks to the effect that these letters did not still reflect his views.207

These comments reflect the onerous position in which an Issuing Court is placed when conducting confirmation proceedings. The Issuing Court is charged with preserving the equality, objectivity and fairness of proceedings in which the capacity of one side to adduce relevant evidence and argument is severely compromised. As

Hayne J concluded, in these circumstances the actual and perceived independence and impartiality of the Issuing Court is seriously impacted.

In sum, the manner in which control orders are issued challenges the actual and perceived independence and impartiality of Issuing Courts. A compounding of separate compromises to fair process, in a context in which the judge’s determination hinges upon national security information and the peculiar knowledge and work of the executive government, seriously impacts the equality of control order proceedings.

206 ABC Radio, ‘Hicks fails to appear at control order hearing’, PM, 18 February 2008 (Warren Donald FM). 207 Jabbour v Hicks [2008] FMCA 2139, [30] (Mowbray FM).

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Issuing Courts’ actual and perceived independence and impartiality rests, in part, upon the equality of the proceedings before it. Despite the serious challenges to the Issuing

Courts’ independence and impartiality discussed above, none of the compromises to fair process in control order proceedings involve a defining or essential feature of judicial power or of courts. Thus, a majority of the Court avoided a holistic consideration of the provisions’ impact on equality, fair process, independence or impartiality, and interpreted the separation rules to uphold the provisions as in keeping with Chapter III.

C Do the Separation Rules Protect Fair Process?

Both Deane and Gaudron JJ’s approaches to envisaging fair process protections within the separation rules framework conceive of these protections in a minimalist fashion. In order to qualify for constitutional protection the feature must define courts or their powers. This sets a high bar. The giving of reasons, for example, may be an essential feature of a court.208 But, as the majority decisions in Thomas confirm, reliance on secret evidence and ex parte hearings, each of which withholds important material from a party, have an accepted place in some judicial proceedings. Thus, despite the troubling nature of these procedural mechanisms from a fairness and rule of law perspective, they do not, and ought not, qualify as defining features, even when they are used in unusual contexts and result in severe impositions on the rights and liberties of a citizen.209

208 Wainohu v New South Wales (2011) 243 CLR 181. 209 Thomas is one of the clearest examples of this. See also subsequent cases, eg: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501.

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Thomas demonstrates the capacity for the essential features approach to protecting fair process to allow cumulative compromises to the fairness and equality of proceedings by permitting individual compromises that each fail to qualify as a defining feature of judicial power or a court.210 In this way, the risk of incremental damage to the integrity of judicial proceedings, as feared by proponents of the formalist separation rules, is enhanced by the indirect way in which those rules protect fair process. In other words, the ‘essential features’ approach to protecting fair process risks undermines the aims and justifications underpinning the strict separation rules.

Crucially, the approach fails to require or facilitate direct and meaningful engagement with the purposive nature of Chapter III. Once a factor is established to be outside the ambit of essential or defining features of courts or their powers, the rules do not require that the broader impact of that factor on judicial independence or impartiality to be addressed. Any engagement with such principled, purposive considerations is, therefore, relatively ad hoc and inconsistent, as demonstrated in the distinctions between the majority and dissenting opinions in Thomas.

In Thomas, Gleeson CJ dealt briefly with Thomas’ fair process argument in a single concluding paragraph inquiring whether the Issuing Court was to act as ‘an instrument of government policy’.211 In contrast, Kirby J dedicated five pages of his judgment to the issue, dealing with each compromise to fair process individually.212 Kirby J’s detailed analysis ends in the far broader conclusion that Division 104 is, ‘at odds in

210 See Meyerson’s critique of the High Court’s decision in Thomas on this basis, amongst others, in: Meyerson, ‘Using Judges to Manage Risk’, above n 12, 224-225. 211 Thomas v Mowbray (2007) 233 CLR 307, 335 (Gleeson CJ). 212 Thomas v Mowbray (2007) 233 CLR 307, 433-437 (Kirby J).

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important respects with the features of “independence, impartiality and integrity” that are implied or assumed characteristics of the federal courts for which Chapter III of the

Constitution provides’.213

The separation rules allow the potential for principled engagement with the purposes of Chapter III – as seen in the judgments of Kirby and Hayne JJ – but do not require or encourage it. Rather, the rules have developed in a manner that focuses closely on defining characteristics, foreseeably at the expense of the values and aims underpinning the separation of federal judicial power. The inconsistent manner in which justices engage with the purposes of Chapter III in this context creates unpredictability and complexity. This in turn makes fair process protections under Chapter III one of the most difficult to navigate aspects of the federal separation of judicial power, despite the undeniable centrality of fair process to judicial independence and impartiality.

VI A PURPOSIVE FORMALIST APPROACH TO CONTROL ORDERS

A Purposive Formalism

In Part Two, I introduced a new method of interpreting the federal separation of judicial power, namely, purposive formalism. Purposive formalism is proposed as an alternative to the Boilermakers’ test applied in Thomas, though it builds upon the same body of precedent and would not necessarily require Boilermakers’ to be overruled. The method is proposed as a preferable approach, addressing the weaknesses in the

Boilermakers’ test whilst harnessing its strengths. In this section, I apply the two-tiered purposive formalist test to the control order provisions upheld in Thomas in order to

213 Thomas v Mowbray (2007) 233 CLR 307, 436 (Kirby J).

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determine whether purposive formalism is capable of achieving its aims and overcoming the weaknesses in the separation rules.

It is helpful at this point to briefly revisit the key features of the purposive formalist approach. Purposive formalism involves a two-tiered test. At the first tier, the

‘definition limb’, the test inquires whether the power is judicial or non-judicial. A clear answer at this stage resolves the issue. A clearly judicial function must be conferred on courts; a clearly non-judicial function must not be conferred on courts. To this extent purposive formalism aligns with the formalist separation rules discussed above and applied in Thomas. The usual exception for ancillary or incidental powers continues to apply. However, unlike the separation rules, purposive formalism acknowledges that powers are not always susceptible to precise definition as judicial, legislative or executive and that definition alone is an insufficient basis to govern the allocation of powers in all cases. The method recognises that cases concerning penumbral powers require something more, beyond defining characteristics, to determine Chapter III validity.

In order to determine the proper allocation of penumbral powers, purposive formalism introduces a secondary tier of analysis. This ‘compatibility limb’ inquires whether the conferral of the power on federal courts is compatible with judicial independence and impartiality. A power that is not clearly judicial is prohibited from being conferred on federal courts, unless it is demonstrably compatible with judicial independence and impartiality. This compatibility inquiry is phrased in the positive, seeking proof of compatibility and presuming the power is otherwise invalid. In this way it is designed to resolve the allocation of penumbral powers in a manner that

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achieves judicial independence and impartiality, and provide a clear avenue for fair process considerations to play a part in determining Chapter III validity.

B Purposive Formalism and Control Orders

Adopting a purposive formalist approach to control orders requires not only that the definition of the power conferred on Issuing Courts be considered, but also the compatibility of the power with judicial independence and impartiality. Tracing through this two-tiered analysis reveals some key advantages of the purposive formalist approach.

1 Is the Power to Issue Control Orders Judicial or Non-Judicial?

The power to issue control orders aligns with some, but not all, of the characteristics of judicial power.214 It involves a binding and authoritative decision resolving, in one sense, a dispute between parties. The court does not act on its own motion. However, the power does not involve the determination of a dispute about existing rights, and the criteria for the Issuing Court’s determination stretch the boundaries of what may be considered legal standards.

Despite challenging classic notions of judicial power and process, the power to issue control orders aligns with some qualities of judicial power and lacks qualities that are clearly antithetical to judicial power, or are peculiarly executive or legislative. The power conferred on Issuing Courts is therefore neither clearly judicial nor clearly non- judicial. It exists in the space between clearly defined functions. This much was apparent from the treatment of the provisions in Thomas, in particular from Gleeson

214 Thomas v Mowbray (2007) 233 CLR 307, 468 (Hayne J).

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CJ’s apparent invocation of the chameleon doctrine.215 As the power to issue control orders is penumbral in nature the second, compatibility, limb of the purposive formalist analysis is engaged.

The first advantage of purposive formalism over the separation rules is that it alleviates the obligation on courts to define a function as judicial or non-judicial. In some circumstances drawing such bright-line distinctions is simply not possible. Whilst the existence of penumbral powers has long been recognised,216 the method of resolving their proper allocation according to Chapter III and the federal separation of powers remains as yet unresolved.

The separation rules’ narrow focus on allocating functions according to definition obliges courts to arrive at a definition, however difficult that task may be. This pressure has resulted in increasingly flexible interpretations of the characteristics of judicial power, whittling down the precision with which judicial power is defined.217 This was seen in Thomas in the breadth accorded to the concept of legal criteria, and in the negligible weight attributed to the general requirement that judicial power determine existing rights and obligations.

The obligation on a court to define all powers as judicial or non-judicial has also resulted in increasing resort to exceptional categories of powers in order to justify judicial exercise of apparently non-judicial powers, and non-judicial exercise of

215 Thomas v Mowbray (2007) 233 CLR 307, 326-327 (Gleeson CJ). 216 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 278 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); Zines, The High Court and the Constitution, above n 76, 222; Ratnapala, above n 83, 136. 217 Appleby, ‘Imperfection and Inconvenience’, above n 11, 272.

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apparently judicial tasks.218 These classes of exceptional functions, such as chameleon and innominate powers, reflect the tensions between the strictness and rigidity the separation rules claim as their strength, and the impossibility of neatly categorising and allocating every function as judicial or non-judicial.

Purposive formalism permits courts to acknowledge when a power defies clear definition. This is itself an advancement on the separation rules, incorporating within the formalist framework the well-recognised fact that not two, but three, kinds of power exist: judicial powers, non-judicial powers and those powers that do not fall neatly into either category.219 Purposive formalism escapes the need to contort, stretch or manipulate the defining characteristics of judicial power, or to create amorphous categories of exceptions that undermine the efficacy of the formalist approach. Thus purposive formalism may enable the defining characteristics of judicial power to be applied more consistently and subjected to fewer exceptions.

In the case of control orders, a court recognising that the power conferred on

Issuing Courts is of a penumbral nature would proceed to the secondary-tier of analysis, focussing on whether the power is compatible with judicial independence and impartiality.

2 Compatibility

Adopting a purposive formalist interpretation of Chapter III, the power to issue control orders may not be conferred on federal courts unless it is established to be compatible with judicial independence and impartiality.

218 Zines, The High Court and the Constitution, above n 76, 221; Ibid, 272. 219 Zines, The High Court and the Constitution, above n 76, 222.

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The second advantage of purposive formalism over the separation rules is that it clarifies how the validity of penumbral powers is determined. The separation rules do not indicate how cases ought to be resolved when a power is not easily defined as judicial or non-judicial. Thomas demonstrates the inconsistent range of approaches a court may adopt in resolving such cases, varying from adopting the chameleon doctrine, to engaging in extended historical inquiries, to giving deep consideration to the nature of the defining characteristics, to harnessing the purposes of Chapter III. Purposive formalism overcomes the potential for inconsistency by stipulating that compatibility with judicial independence and impartiality is the determinative factor in penumbral cases. That is, the core purpose of Chapter III determines the allocation of powers insusceptible to clear definition.

The inclusion of the compatibility limb not only promotes clarity and consistency in the resolution of penumbral cases, but it precludes inappropriate and problematic considerations from playing a determinative role. Historical analogy, parliamentary intent, even government efficiency and effectiveness may be relevant to the overall inquiry; however, these factors may not provide the determinative criterion in a purposive formalist test of Chapter III validity. The two-tiered test elevates compatibility with independence and impartiality above these other potential considerations, secondary only to the definition of the power. In this way purposive formalism avoids the risks posed to judicial independence and impartiality by excessive deference and loose analogies, as discussed above.220 The purposive formalist test relegates these considerations to a proper place of relevance, and prevents them from undermining the independence and impartiality of federal courts.

220 Discussed in section IV.D.

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So, would the control order provisions withstand a purposive formalist test of

Chapter III validity? The power conferred on Issuing Courts challenges judicial independence and impartiality in a few key respects. Of primary importance in this context is the close relationship between fair process and judicial independence and impartiality.221

In section V, I discussed the impact of a number of features of control order proceedings on fair judicial process: the mandatory ex parte nature of the interim proceedings, the potentially short notice period prior to confirmation proceedings, the likelihood that important information may be withheld from the person, the uniquely unbounded nature of the Issuing Court’s determination, and the fact that the court’s decision hinges upon factors uniquely within the knowledge and control of the government. I submitted that a compounding of these factors challenges fair process and the capacity of the Issuing Court to fulfil its role with independence and impartiality. As

Hayne J concluded in Thomas, these procedural compromises leave the Issuing Court

‘with no practical choice except to act upon a view proffered by the Executive’ and thus

‘the appearance of institutional impartiality and the maintenance of public confidence in the courts are both damaged’.222 Reasoning along these lines strongly supports a conclusion that the power conferred on Issuing Courts is not compatible with judicial independence and impartiality, and therefore cannot be conferred on federal courts in accordance with a purposive formalist interpretation of Chapter III.

Moreover, the impact of control orders on broader constitutional values such as the rule of law may be considered under the compatibility limb of the purposive formalist

221 Discussed above, in section V, and in Part Two, section III. Brennan, above n 176, 16-18. 222 Thomas v Mowbray (2007) 233 CLR 307, 477-478 (Hayne J).

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test. In his review of the control order provisions, the INSLM emphasised the threat to the rule of law posed by the imposition of a control order on an individual who has been acquitted of a terrorism offence ‘on the basis of the same evidence and the same conduct for which the person was acquitted, as the case of Jack Thomas demonstrates’.223 Acquittal by one court followed promptly by the imposition of onerous obligations and restrictions by another on the basis of the same information, poses a threat to the perceived independence and impartiality of federal courts.

Purposive formalism permits and encourages considerations of this nature to contribute to the overall determination of constitutional validity.

A finding that control orders are not compatible with judicial independence and impartiality is by no means a foregone conclusion. A court interpreting the compatibility limb may adopt a thinner conception of compatibility. The Issuing Court’s overarching discretions, basic control of proceedings and fundamental decisional independence may support the conclusion that Issuing Courts retain their independence and impartiality, and are in a position to appropriately ameliorate any inequalities and bias present in control order proceedings.224

Of course, it cannot be predicted with complete confidence whether the control order provisions would survive the purposive formalist test of Chapter III validity. At present the concepts of judicial independence and impartiality, and of fair process for

223 Independent National Security Monitor, above n 23, 29. 224 See, discussion of the incompatibility test in Part Four, section III, regarding similar reasoning in that context, eg: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 (Gummow, Hayne, Heydon and Kiefel JJ); K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 542-543 (Gummow, Hayne, Heydon, Crennan and Kiefel JJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 503 (Gageler J).

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that matter, remain under-developed. Therefore, it is difficult to say how a court may interpret and give content to purposive formalism’s compatibility limb. A court may adopt a broad conception of fair judicial process along the lines of Gaudron J’s suggestion that it incorporates openness, natural justice and the application of law to ascertainable facts.225 Alternatively, a court may adopt a thinner conception requiring only that overarching judicial discretions, arms-length independence and basic control of proceedings are maintained. The compatibility limb provides a clear avenue for the consideration and protection of fair judicial process, but the exact nature of the protections that may arise under this limb cannot be foreseen with precision.

It must be acknowledged that any fair process protections derived from Chapter III will inevitably focus on the independence of the court, rather than on the rights of individual parties.226 So, in respect of control order proceedings, the focus of the compatibility inquiry would lie with how procedural compromises may offend the independence and impartiality of the Issuing Court; the focus would not rest upon the impact on the party him or her self. For instance, the ex parte nature of interim proceedings may be unfair, but constitutional repugnancy would more likely stem from its impact on the Court’s capacity to make an evidence-based determination or maintain confidence in its impartiality.

Despite the inherent limitations of Chapter III as a source of fair process protections, there is an unrealised potential for the development of an Australian conception of fair process. Like the elusive standards of reasonableness, proportionality

225 Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J), quoted in Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 615 (Gummow J). 226 Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution’ (2003) 31 Federal Law Review 57, 60.

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and justice, the constitutional conceptions of judicial independence and impartiality require development on a case by case basis in order to evolve guiding principles as to their meaning. It would take such guidance to elucidate the requirements of judicial independence and impartiality, develop a meaningful Australian notion of fair process, and then to confidently assess whether control orders would pass constitutional muster under a purposive formalist approach.

Nonetheless, strong arguments exist to indicate the power to issue control orders is not compatible with judicial independence and impartiality. Courts are generally precluded from creating rights or making determinations based on predictive, vague or political criteria as these features characterise non-judicial decisions and may risk the independence and impartiality of the judicature. Additionally, the process by which control orders are issued seriously challenges fairness and equality, and therefore impacts judicial independence and impartiality in the ways discussed in section V. In these circumstances, Division 104 may not pass the purposive formalist test of Chapter

III validity. Amending the criteria on which control orders are issued, and enhancing the equality of the proceedings would go some way to overcoming this invalidity. But there are counter-arguments to this view and, at the end of the day, a judge interpreting the compatibility limb would have considerable room for manoeuvre.

A purposive formalist analysis of the control order provisions may not produce an entirely clear answer as to their constitutional validity. However, purposive formalism has some important advantages in enhancing the capacity for the test of Chapter III validity to achieve judicial independence and impartiality. Fair process is a central aspect of judicial independence and impartiality, thus the compatibility limb presents a

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clear and direct avenue for the protection of fair process. This is the third key advantage of the purposive formalist approach over the separation rules, as the rules only protect fair process by conceiving of it as a defining or essential feature of courts or their powers. As seen in Thomas, this awkward approach facilitates a minimalist conception of fair process, and risks cumulative offences to judicial independence and impartiality.

The majority justices in Thomas considered only whether the individual features alleged to compromise fair process qualified as an essential or defining feature of judicial power or of courts, and concluded they did not. This is a very different investigation from considering whether the process by which a power is exercised is compatible with the independence and impartiality of the judicature. The latter approach is more substantive. It enables the court to protect judicial independence and impartiality from being compromised by a set of cumulative compromises to fair process, where no single compromise amounts to a defining feature. It also suggests that each power will be considered afresh and with regard to its context and impact.

This approach reflects the understanding that the greatest threats to judicial independence and impartiality are posed by minor incursions to structural integrity and the incremental erosion of accepted limits on legislative and executive interference.227

Perhaps ironically, the formalist separation rules are built upon this very rationale. By

227 Brendan Gogarty and Benedict Bartl, ‘Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters’ (2009) 32 University of New South Wales Law Journal 75, 84, 98; Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 161; Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 8, 303; Antonin Scalia, ‘Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws’ in Amy Gutmann (ed), A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997) 3, 25; Plaut v Spendthrift (1995) 514 US 211, 239-40, discussed in Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process (Hart Publishing, 2009) 17.

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separating powers strictly according to definition, rather than permitting more flexible or adaptive concerns to determine the allocation of government power, formalism claims to avoid a ‘creeping tyranny’ and the ‘death by a thousand cuts’228 of the separation of powers. It only makes sense then that the same kind of incremental erosion ought to be avoided in the context of judicial processes – so central to judicial independence and impartiality.

The essential or defining features approach poses little obstacle to cumulative compromises to fair judicial process. By including the compatibility limb, purposive formalism enables a more robust protection for fair process that takes a range of procedural factors into account and assesses their overall effect on the independence and impartiality of the court. In this way the compatibility limb permits a substantive, contextual consideration of how the manner in which a power is exercised impacts the independence and impartiality of the court.

A fourth key advantage of purposive formalism is that it compels courts to engage directly with the purposive aspect of Chapter III. Under the separation rules, fair process has been the subject of inconsistent, even ad hoc, jurisprudential development.229 This is demonstrated in the vastly different ways in which the justices in Thomas approached the fair process aspect of Thomas’ challenge. The compatibility limb of purposive formalism obliges courts to directly consider the core purpose of Chapter III and the separation of federal judicial power. Accordingly, it facilitates the development of

228 Martin Redish and Elizabeth Cisar, ‘“If Angels were to Govern”: The Need for Pragmatic Formalism in Separation of Powers Theory’ (1991) 41 Duke Law Journal 449, 453; Gerangelos, ‘Interpretational Methodology’, above n 3, 3. 229 Bateman, above n 178, 432; Wheeler, ‘Due Process’, above n 176, 211.

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meaningful conceptions of judicial independence and impartiality, as well as a uniquely

Australian conception of fair judicial process.

The compatibility limb ensures that functions that are questionably judicial and compromise judicial independence and impartiality will not pass constitutional muster.

As discussed in Part Two, the existing precedent identifying fair process as an essential feature of judicial powers and of courts will continue to operate under the purposive formalist test. Therefore, core aspects of fair process would be protected even in cases that did not reach the second tier of analysis. Penumbral powers would face the more substantive test of whether their exercise compromised broader notions of judicial independence and impartiality. This acknowledges that penumbral powers present the greatest risk of eroding judicial independence and impartiality and that their capacity to impact fair process deserves particular attention.

VII CONCLUSIONS: THE ADVANTAGES OF PURPOSIVE FORMALISM

In this Part I set out to consider whether the Boilermakers’ rule restricting federal courts to judicial functions and ancillary non-judicial tasks is capable of achieving judicial independence and impartiality. The 2007 High Court case of Thomas provided the basis for an analysis of the rule in action, building upon the more abstracted analysis of the strengths and weaknesses of the rule in Part Two.

The second separation rule is regularly criticised on the basis that it incorrectly presumes that government powers are susceptible to definition as judicial or non- judicial, and that the allocation of powers based on definition does nothing to achieve

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the independence and impartiality of federal courts.230 Thomas demonstrated that there is a degree of legitimacy to these criticisms. Not all powers are susceptible to clear definition as judicial or non-judicial. The power to issue control orders was one such penumbral power. The judgments in Thomas revealed the difficulties inherent in the task of allocating a penumbral power based on its identification as either judicial or non-judicial according to the formalist separation rules.

In essence, the analysis of the High Court’s decision in Thomas demonstrates that the separation rules fail to ensure that the constitutional validity of penumbral powers is determined in a manner that achieves judicial independence and impartiality. Further, the inconsistent approaches to fair process adopted in Thomas showed that the existing conception of fair process as a defining characteristic of judicial powers or of courts is inadequate to effectively achieve judicial independence and impartiality.

Adopting a purposive formalist approach to the powers conferred on Issuing Courts does not produce a clear result as to their constitutional validity. Moreover, there is no guarantee that substantive fair process protections may evolve from this, or any other, interpretation of Chapter III. That said, the purposive formalist analysis of control orders undertaken in this Part revealed that purposive formalism does overcome the key frailties in the capacity of the separation rules. The approach thus arises as a preferable interpretation of Chapter III to achieve judicial independence and impartiality.

First, purposive formalism removes the obligation on courts to define all functions as judicial or non-judicial by acknowledging that some functions defy definition along

230 See, eg: R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ); ‘Reconceiving the Separation of Judicial Power’, above n 10; Mason, above n 3.

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these lines. In Thomas, Gleeson CJ adopted the chameleon doctrine in order to avoid arriving at a clear definition of the power conferred on issuing courts, despite the

Commonwealth Solicitor General’s observation that the doctrine undermines the separation rules to the point of irrelevance.231 The remaining justices harnessed the defining characteristics of judicial power in order to complete the necessary task of determining whether the power was judicial. These judgments reveal the immense difficulty courts face in being obliged to determine the definition of a power that is neither clearly judicial nor non-judicial. Instead of clarifying the meaning of judicial power, the judgments highlight its amorphous nature. Instead of supporting the separation rules’ strengths as a strict and rigid approach, the judgments display the flexibility and unpredictability in the rules’ interpretations. Purposive formalism rescues decision-makers from the necessity of defining powers that defy clear definition, and permits them to acknowledge that definitional characteristics are insufficient to resolve some cases.

The key advantage of purposive formalism lies in its inclusion of a second tier of analysis: the compatibility limb. By stipulating a compatibility test to determine the valid allocation of penumbral powers, purposive formalism creates clarity and consistency in the interpretation of Chapter III, reining in and channelling the discretions that produced such an inconsistent range of approaches in Thomas.

Simultaneously, the compatibility limb avoids problematic considerations rising to an inappropriately determinative status. When the definitional characteristics proved insufficient to resolve the classification of the power conferred on Issuing Courts,

Gleeson CJ adopted a deferential position and Gummow, Crennan and Callinan JJ drew

231 Thomas v Mowbray (2007) 233 CLR 307, 316.

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upon imprecise or inapt analogies to support the validity of the power. Parliamentary intent and the historical functions of courts are relevant considerations, but their utilisation as determinative factors ultimately undermines the strength of the separation rules and risks the independence and impartiality of federal courts. Purposive formalism clarifies that compatibility is the determinative factor and that the range of other relevant considerations are of secondary weight.

Finally, the compatibility limb provides a direct avenue by which fair process may be considered and protected, and compels courts to engage directly and consistently with the purposive aspect of the federal separation of judicial powers. Fair judicial process is central to judicial independence and impartiality, but the definition-focussed rules have only provided for its protection through the awkward mechanisms of conceiving of it as within the defining characteristics of courts or of judicial power.

Even then, the jurisprudence on fair process remains patchy and undeveloped.232

Thomas reflects this weakness in the formalist separation rules framework. Whilst the dissenting justices engaged substantively with the impact of the provisions on fair process, the majority justices considered the issue in a more cursory manner, focussing on defining characteristics.233 The separation rules support either of these approaches and thus fail to facilitate the development of meaningful notions of fair process. The compatibility limb of purposive formalism, on the other hand, compels courts to consider the impact of a power and its exercise as a whole on judicial independence and impartiality, and thus enhances the capacity for the rules to achieve fair process and the purposes of the separation of judicial power.

232 Bateman, above n 178, 433-441; Wheeler, ‘Due Process’, above n 176, 209. 233 Thomas v Mowbray (2007) 233 CLR 307, 335 (Gleeson CJ), 355, 357 (Gummow and Crennan JJ), 508 (Callinan JJ).

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In Thomas, the High Court was prepared to acknowledge the purposive nature of

Chapter III and the fact that those purposes play a role in the interpretation of the separation of federal judicial powers. Beyond this, their Honours’ approaches were varied and inconsistent. For example, Gummow and Crennan JJ identified that:234

[T]he issues presented in this case at bottom turn upon a view of the role of Ch III in the plan

laid out in the Constitution for the development of a free and confident society. It has been well

said that Ch III gives practical effect to the assumption of the rule of law upon which the

Constitution depends for its efficacy. But what does the rule of law require?

Their Honours did not, however, return to the rule of law or the purposes of Chapter III in their decision. The dissenting justices Hayne and Kirby JJ engaged more directly with the purposive aspect of Chapter III. But in doing so, their Honours were at pains to justify why historical analogy and parliamentary intent were not playing a weightier role in their analyses. Purposive formalism clarifies how purposive considerations play into the Chapter III inquiry. It affords the purposes of Chapter III appropriate weight.

And it does so without undermining the strengths of the formalist approach arising from its strictness and rigidity when it comes to clearly judicial and non-judicial powers.

The advantage of purposive formalism is not that it produces a particular result – it may or may not support a conclusion that the control order provisions are constitutionally valid. Rather, it enhances the capacity for the achievement of judicial independence and impartiality and facilitates the meaningful development of these core constitutional concepts. In short, it addresses the weaknesses in the rules without diluting their strengths. With respect to control orders, purposive formalism requires

234 Thomas v Mowbray (2007) 233 CLR 307, 342 (Gummow and Crennan JJ). See also, 327, 329, 335 (Gleeson CJ), 413, 428, 432, 436-437 (Kirby J), 442 (Hayne J).

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that their validity or otherwise be directly supported by reference to the core aims of the separation of judicial power; enhancing openness and accountability as well as the potential for clarity and consistency in this ‘melee of conflicting imperatives and subtle categorisations’ that has come to characterise Chapter III jurisprudence.235

235 Gerangelos, ‘Interpretational Methodology’, above n 3, 1.

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PART FOUR

TESTING INCOMPATIBILITY:

PREVENTATIVE DETENTION ORDERS AND JUDICIAL INDEPENDENCE

I. INTRODUCTION

Is a functionalist incompatibility test capable of effectively achieving judicial independence and impartiality? If so, should it govern the permissible powers of federal courts? Or, alternatively, would a purposive formalist interpretation of Chapter III better achieve these aims? In this Part, I answer these questions by engaging in a case study analysis of the anti-terrorism preventative detention order (‘PDO’) provisions of the

Commonwealth Criminal Code (the ‘Code’).1 These provisions were enacted alongside the control order provisions considered in Part Three and confer similar powers on judges personally rather than on federal courts.

The constitutional rule restricting federal courts to the exercise of judicial functions has attracted consistent criticism since its inception. Common criticisms of the rule, as discussed in Parts Two and Three of this thesis, include that it places too much emphasis on how a function is defined, is unnecessarily technical, and that it does little to achieve the underlying purposes of the separation of judicial power derived from

Chapter III of the Constitution.2 Overwhelmingly, the alternative standard proposed to

1 Criminal Code Act 1995 (Cth). 2 R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ); James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113; Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1; Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law

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this rule is a functionalist style incompatibility test.3 In this Part, I refocus attention away from the formalist approach discussed in previous Parts of the thesis, and assess the strengths and weaknesses of the incompatibility test as a mechanism to achieve judicial independence and impartiality.

As introduced in Part Two, the functionalist incompatibility test permits conferrals of power regardless of questions of definition, provided that the conferral does not inhibit institutional independence or integrity. In Australia, an incompatibility test limits the permissible functions of judges in their personal capacities (‘personae designatae’) and of State courts. Advocates of the incompatibility test’s adoption with respect to federal courts claim that it offers the best chance of achieving the core purpose of the separation of judicial power, that is, the achievement of judicial independence and impartiality. The support for this claim is straightforward – the incompatibility test harnesses the purposive aspect of Chapter III and renders it directly determinative of constitutional validity, in doing so it provides a clear and substantive mechanism by which those purposes may be achieved.

In Part Two, I considered the strengths and weaknesses of the incompatibility test in the abstract. Now, I undertake a more focussed analysis considering the test in action.

The anti-terrorism PDO provisions in Division 105 of the Code provide a valuable focus for this case study analysis. The PDO provisions have the potential to severely

Journal 265; George Winterton, Parliament, the Executive and the Governor-General (Melbourne, 1983), 60, 62-63; Leslie Zines, The High Court and the Constitution (5th ed, Federation Press, 2008) 299; Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University, 1999) 156. 3 Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 2; see also, Appleby, ‘Imperfection and Inconvenience’, above n 2, and Mason, above n 2, whose differing conceptions of ‘purposive functionalist’ tests are identical to, or modelled closely on, the incompatibility test.

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impact citizens’ rights and liberties. They also pose a clear challenge to constitutional values such as equality, openness and, crucially, to the independence of serving judges who may be appointed as Issuing Authorities in respect of continued PDOs. The PDO provisions, described in section II, provide for the incarceration of persons for up to 48 hours.4 As the name suggests, PDOs are ordered solely for preventive purposes: either to prevent an imminent terrorist act, or to preserve evidence of a recent terrorist act.5

The process by which PDOs are sought, issued and carried-out is highly secretive and provides limited scope for the person subject to the order to assert their rights.

One of the only avenues by which the constitutional validity of the PDO provisions may be challenged is through the incompatibility limit on the permissible powers of judges personae designatae, discussed in section III. Considering the potential incompatibility of the power to issue PDOs – in sections IV, V and VI – demonstrates some strengths and weaknesses in the capacity of the incompatibility test to achieve judicial independence and impartiality. These are summarised in section VII with the aim of determining whether an incompatibility test lives up to its potential and ought to be adopted at the federal level.

Section VIII builds upon this discussion to consider whether a different approach to interpreting Chapter III may better achieve judicial independence and impartiality in the context of PDOs. In Part Two, I proposed a new method of interpreting the separation of federal judicial power, an approach called purposive formalism. An analysis of the

PDO provisions provides the practical basis for a discussion of how purposive

4 Criminal Code Act 1995 (Cth) s 105.4. 5 Ibid s 105.4.

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formalism may present a preferable interpretation of Chapter III to better achieve judicial independence and impartiality.

II. ANTI-TERRORISM PREVENTATIVE DETENTION ORDERS

PDOs were introduced into Division 105 of the Code, along with control orders and a suite of other measures, in the months following the 2005 London bombings.6 Like control orders, discussed at length in Part Three, PDOs are civil orders aimed at the prevention of future wrongs. The PDO provisions enable the detention of individuals aged 16 years or over, for up to 48 hours by the Australian Federal Police (‘AFP’), in order to prevent an imminent terrorist act, or to protect evidence of a recent terrorist act.7

Division 105 creates two kinds of PDOs. The first, an initial order, is initiated and administered entirely within the ranks of the AFP.8 Initial PDOs may authorise detention for a period of up to 24 hours.9 The second kind of order is a continued order.

Continued PDOs are issued on application by the AFP to an Issuing Authority and may extend the period of detention to up to 48 hours from the point the detainee was first taken into custody.10

In the case of continued orders, the Issuing Authority is a consenting qualified person appointed to the position by the Attorney-General.11 The Attorney-General may

6 Anti-Terrorism Act (No 2) 2005 (Cth). 7 Criminal Code Act 1995 (Cth) s 105.4. 8 Ibid s 105.8. 9 Ibid s 105.9. 10 Ibid s 105.12. 11 Ibid s 105.2(1).

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appoint to this role: a practicsng12 or retired13 judge of a Federal, Family or State or

Territory Supreme Court,14 a Federal Magistrate,15 or a President or Deputy President of the Administrative Appeals Tribunal.16 When issuing a continued order the Issuing

Authority is acting in his or her personal capacity, as a qualified individual and designated person (or ‘persona designata’), and not as a judge or President per se.17 This distinction is of integral importance to considering the constitutional issues discussed in this Part.

The application to a senior AFP officer for an initial PDO, or to an Issuing

Authority for a continued PDO, will include a summary of the grounds on which the applying officer considers the order should be made, as well as the outcomes of any previous orders sought against the detainee (including applications for control orders under Division 104 of the Code).18 The summary provided by the AFP officer will not contain any information the disclosure of which is likely to prejudice national security

(within the meaning of the National Security Information (Criminal and Civil

Proceedings) Act 2004 (Cth) (‘NSIA’)).19 An application for a continued PDO must

12 Ibid s 105.2(a)-(b). 13 Ibid s 105.2(d). 14 Ibid s 100.1(1). 15 Ibid s 105.2(c). 16 Ibid s 105.2(e). The President or Deputy President must have been enrolled as a legal practitioner for at least two years. The President will necessarily also be a Judge of a federal court: Administrative Appeals Tribunal Act 1975 (Cth) s 7(1). The Deputy- President must have been enrolled as a legal practitioner for at least 5 years: Administrative Appeals Tribunal Act 1975 (Cth) s 7(1AA). 17 Criminal Code Act 1995 (Cth) s 105.19. 18 Ibid s 105.7(2), 105.11(2). 19 Ibid s 105.11(3A). ‘Likely to prejudice national security’ is defined as ‘a real, and not merely a remote, possibility that the disclosure will prejudice national security’, and ‘national security’ is broadly defined as Australia’s defence, security, international relations or law enforcement interests: National Security Information (Criminal and Civil Proceedings) Act

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include any information given to the officer by the detainee.20 This is the only opportunity that the detainee has to communicate with the Issuing Authority. The detainee must be informed of his or her right to provide information in this way.21

There are two possible grounds on which a PDO may be issued. The first ground focuses on the prevention of an imminent act of terrorism – and acts expected to occur

‘in any event’ within 14 days of the application.22 This ground provides that making the order will substantially assist in preventing an imminent terrorist act, and that detaining the person for the requested period is reasonably necessary to prevent that terrorist act.23

In addition, there must be reasonable grounds to suspect that the person either: will engage in a terrorist act, possesses a thing that is connected with the preparation for, or engagement in, a terrorist act, or has done an act in preparation for, or planning, a terrorist act.24 The second ground on which a PDO may be issued is that it is reasonably

2004 (Cth) ss 8, 17. For discussion of the direct and indirect consequences of the NSIA on control order proceedings, including the impact of withholding materials on the basis that they are ‘likely to’ fall within the NSIA, see: Andrew Lynch, Tamara Tulich and Rebecca Welsh, ‘Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in Australia and the United Kingdom’ in David Cole, Federico Fabrini and Arianna Vedaschi (ed) Secrecy, National Security, and the Vindication of Constitutional Law (Edward Elgar, 2013) 154, 162-168. 20 Criminal Code Act 1995 (Cth) s 105.11(5). 21 Ibid s 105.10A(b). 22 Ibid s 105.4(5). Terrorist act is defined as ‘an action or threat of action’ with the intention of advancing a political, religious or ideological cause and coercing, or influencing by intimidation, a domestic or foreign government or intimidating the public or a section of the public. Action is only defined as a terrorist act if it: causes serious physical harm or death; seriously damages property; endangers a person’s life; creates a serious risk to public health or safety; or seriously interferes with, seriously disrupts, or destroys, an electronic system: s 100.1, discussed in Part Three, section II. 23 Ibid s 105.4(4). 24 Ibid s 105.4(4).

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necessary to detain the person in order to preserve evidence of, or relating to, a ‘recent’ terrorist act that has occurred in the previous 28 days.25

A detainee under a PDO is subject to significant restrictions on his or her contact with third parties, including legal representatives.26 Moreover, the detainee may be subject to prohibited contact orders restricting his or her contact more broadly.27

Breaches of these disclosure restrictions may incur criminal prosecution and up to 5 years imprisonment.28 Officers are not permitted to question a detainee under a PDO except to confirm his or her identity, ensure his or her wellbeing or to fulfil the terms of the PDO.29

It is important to consider PDOs within the broader context of anti-terrorism measures.30 Whilst a person may be detained under a PDO for up to 48 hours and may not be interrogated, a person charged with a terrorism offence may be interrogated and is highly unlikely to be granted bail, making the period of potential incarceration for that person substantially longer than 48 hours.31 Even if the AFP is unable to charge a person, the Australian Security Intelligence Organisation (‘ASIO’) may invoke the

Special Powers Relating to Terrorism Offences provisions of the Australian Security

25 Ibid s 104.4(6). 26 Ibid ss 105.34-105.39 27 Ibid s 105.14A. 28 Ibid s 105.41. 29 Ibid s 105.42. 30 For general discussion on this topic, see: Independent National Security Monitor, Australian Government, Declassified Annual Report 20th December 2012, (2013) 53-59. 31 Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10 Flinders Journal of Law Reform 105, 132; Nicola McGarrity, ‘Testing our Counter-Terrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia’ (2010) 34 Criminal Law Journal 92, 121-124.

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Intelligence Organisation Act 1979 (Cth).32 If it can be demonstrated that questioning the person will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’, he or she may be subject to an ASIO questioning warrant.

Questioning warrants empower ASIO to interrogate a person in secret for up to a total of 24 hours over the course of 28 days.33 A person subject to an ASIO questioning warrant has no right to silence, no privilege against self-incrimination, and may be subject to body and strip searches.34 The person’s rights to contact third parties, including legal representatives, are severely circumscribed,35 and a number of disclosure and non-compliance offences punishable by imprisonment attach to the provisions.36 If, additionally, reasonable grounds exist to believe the person: may alert someone involved in a terrorism offence that the offence is being investigated, may not appear for questioning, or may destroy or damage evidence (this last criterion notably resembling the second ground for issuing a PDO), then the person may be subject to an

ASIO questioning and detention warrant. Questioning and detention warrants not only

32 Australian Security Intelligence Organisation Act 1979 (Cth) Pt 3 Div 3. 33 Ibid s 34E(5)(b). 34 Jude McCulloch and Joo Cheong Tham, ‘Secret State, Transparent Subject: The Australian Security Intelligence Organisation in the Age of Terror’ (2005) 38 The Australian and New Zealand Journal of Criminology 400, 402. 35 Australian Security Intelligence Organisation Act 1979 (Cth) ss 34J(1)(e), 34K(1), (9)-(11), 34G(5)-(6), 34E(3), 34ZO, 34C(3B), 34D(4A), 34TA, 34U, 34CU. See also, Ibid; Andrew Palmer, ‘Investigating and Prosecuting Terrorism: The Counter-Terrorism Legislation and the Law of Evidence’ (2004) 27 University of New South Wales Law Journal 373, 381. 36 Australian Security Intelligence Organisation Act 1979 (Cth) ss 34L, 34ZS. For further discussion on the non-disclosure aspects of the Special Powers provisions, see: Joo Cheong Tham, ‘Critique and Comment Casualties of the Domestic “War on Terror”: A Review of Recent Counter-Terrorism Laws’ (2004) 28 Melbourne University Law Review 512; McCulloch and Tham, above n 34.

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permit the secret compulsory interrogation of the person, but also enable his or her detention for up to 7 days.37

Like PDOs and questioning warrants, ASIO questioning and questioning and detention warrants attract a high level of secrecy and onerous contact restrictions.

Cleary arrest or obtaining an ASIO questioning or questioning and detention warrant present preferable options in the furtherance of a terrorism investigation, as compared to the comparatively limited powers available under a PDO.38

The first ground on which a PDO may be issued bears strong similarity to the basis for obtaining a control order under Division 104 of the Code, discussed in detail in Part

Three of this thesis.39 Thus, if the AFP determines that restricting the person’s liberty will substantially assist, and is proportionate to, the aim of preventing an imminent terrorist act, the organisation could conceivably elect whether to seek a PDO or a control order. The terms of a control order are far more flexible and potentially far- reaching and durable than the brief period of detention available under a PDO.40 A control order may extend for up to 12 months and has the possibility of renewal beyond that period.

Against this backdrop it can be seen that PDOs fill a very slight gap in the anti- terrorism legislative arsenal. Their role is merely to permit up to two days detention in

37 Australian Security Intelligence Organisation Act 1979 (Cth) s 34F. 38 For the author’s analysis of the Chapter III validity of ASIO questioning and questioning and detention warrants, see: Rebecca Welsh, ‘A Question of Integrity: The Role of Judges in Counter-Terrorism Questioning and Detention by the Australian Security Intelligence Organisation’ (2011) 22(2) Public Law Review 138. 39 Criminal Code Act 1995 (Cth) s 104.4. 40 Ibid s 104.5(3), discussed in Part Three, section II.

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response to an imminent or recent terrorist act, in the absence of sufficient evidence to support an arrest, and when questioning would not substantially assist a terrorism investigation. On this basis Andrew Lynch and Alexander Reilly assert that:41

[D]etention [under a PDO] is being used to facilitate the criminal investigation process,

but in circumstances where the person is being detained as part of a broader criminal

investigation that does not necessarily involve them. If the authorities are investigating

the actions of another person, this ought only to be furthered through taking action

against that person.

It is perhaps little wonder that after a number of years, and despite urgent enactment,42 the PDO provisions have never been used. Moreover, the Independent

National Security Legislation Monitor, Bret Walker SC, (the ‘INSLM’) reports that no agency has even ‘seriously considered seeking a PDO’ and that extensive consultation revealed ‘no enthusiastic support for the provisions’.43 On the other hand, ASIO questioning warrants have been issued a total of 16 times,44 the terrorism offence provisions have resulted in 35 prosecutions and 23 convictions,45 and even control orders have been used twice and considered by agencies on a number of other occasions.46

41 Lynch and Reilly, above n 31, 132. 42 For discussion and critique of this enactment process, see: Greg Carne, ‘Prevent, Detain, Control and Order?: Legislative Process and Executive Outcomes in Enacting the Anti- Terrorism Act (No.2) 2005 (Cth)’ (2007) 10 Flinders Journal of Law Reform 17. 43 Independent National Security Monitor, above n 30, 45. 44 Ibid Attachment G, 154. 45 Council of Australian Governments, Australian Government, Council of Australian Governments Review of Counter-Terrorism Legislation (2013) Attachment D. 46 Independent National Security Monitor, above n 30 13. Discussed in Part Three, section II.

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In separate reports tabled on 14 May 2013, both the INSLM and the Council of

Australian Governments (‘COAG’) recommended the repeal of Division 105.47 A number of reasons were cited in support of these recommendations, including the need for additional safeguards that would diminish the potential effectiveness of PDOs,48 and the lack of demonstrated necessity or utility for the scheme.49

These observations aside, PDOs remain a key feature of Australia’s anti-terrorism laws. The close relationship, but distinct differences, between PDOs, ASIO warrants and terrorism offences highlights that despite stipulating a crime prevention and prosecution purpose,50 PDOs are uniquely designed to enable the detention of individuals outside the usual criminal, or even intelligence gathering, processes and paradigms.

The involvement of serving judges in this unique detention scheme raises important constitutional questions. The role of Issuing Authority is to determine whether the bases for the PDO are met. That role is fulfilled in secretive proceedings in which the person subject to the PDO has limited capacity to contest the application or to access information or counsel. The central role played by serving judges in this executive detention scheme poses a clear challenge to judicial independence and impartiality. As

PDOs have never been used, there has arisen no opportunity for their validity to be tested in court. Before turning to the Chapter III validity of PDOs, it is helpful to revisit

47 Council of Australian Governments, above n 45, Recommendation 39; Ibid Recommendation III/4. 48 Council of Australian Governments, above n 45, 70. 49 Independent National Security Monitor, above n 30, 67. 50 Criminal Code Act 1995 (Cth) s 105.1.

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the constitutional principles – introduced in Part Two – that govern the involvement of judges in the PDO scheme.

III. THE INCOMPATIBILITY TEST

A. History and Development

The strict formalist separation of judicial power derived from the Commonwealth

Constitution only applies to federal courts. It does not apply to judges in their personal capacities, said to be appointed as designated persons or personae designatae. The principle that serving judges of federal courts may undertake non-judicial functions is a long-standing exception to the second separation rule restricting judges to judicial tasks.

By the 1980s, the doctrine was supported by extensive practice which had, sometimes controversially, seen judges appointed to positions such as Ambassador and Royal

Commissioner.51

The distinction between a judge as-a-judge and a judge as-a-qualified-individual is therefore of supreme importance. But the distinction is inescapably superficial. Simply by conferring a role on a judge personally rather than on a court, the strict separation rules are avoided and non-judicial tasks may be exercised by a judge.52 That judge may even fulfil his or her role in Chambers or in proceedings resembling a hearing.53 The apparent superficiality of the persona designata exception has been acknowledged

51 For an insightful history of this practice and its controversy, see: AJ Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge’ (1992) 21 Federal Law Review 48. 52 To this end, Denise Meyerson has described the persona designata device as a ‘back door’: Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 188. 53 See, Hilton v Wells (1985) 157 CLR 57, 84 (Mason and Deane JJ); Grollo v Palmer (1995) 184 CLR 348, 377 (McHugh J); Wainohu v New South Wales (2011) 243 CLR 1.

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throughout the string of constitutional challenges to persona designata appointments, most famously by Mason and Deane JJ in Hilton v Wells,54 who warned against the device becoming an ‘elaborate charade’.55

Clearly, the persona designata doctrine has the potential to overwhelm the second separation rule precluding courts from being vested with non-judicial powers.56 In the

1995 case of Grollo v Palmer (‘Grollo’),57 the High Court gave authority to an important limit on the exception when it held that: ‘no function can be conferred [on a judge persona designata] that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power’.58

In 2010, the High Court confirmed that this limit on the permissible powers of federal judges personae designatae extended to judges of State courts in their personal

54 (1985) 157 CLR 57. 55 Hilton v Wells (1985) 157 CLR 57, 84 (Mason and Deane JJ), citing, Medical Board (Vic) v Meyer (1937) 58 CLR 62, 97 (Dixon J). See also, Wainohu v New South Wales (2011) 243 CLR 1, 205 (French CJ and Kiefel J), 229 (Gummow, Hayne, Crennan and Bell JJ); Hilton v Wells (1985) 157 CLR 57, 69 (Gibbs CJ, Wilson and Dawson JJ) where their Honours said the question of whether judges are appointed persona designata ‘involves fine distinctions, which some may regard as unsatisfactory’. And in Grollo, McHugh J (in dissent) observed: ‘When a person who holds judicial office contemporaneously exercises executive power as a persona designata, members of the public may have great difficulty in seeing any separation of those functions’: Grollo v Palmer (1995) 184 CLR 348, 377 (McHugh J), cited in, Wilson v The Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 12-13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 56 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 43 (Kirby J); Grollo v Palmer (1995) 184 CLR 348, 376 (McHugh J), quoted in, Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, 13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261 (Weinberg, Bennett and Edmonds JJ); Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 52, 187-188. 57 (1995) 184 CLR 348. 58 Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ).

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capacity as well.59 Before this development, authorities on the relationship between the

Grollo and Kable rulings were unclear60 and it may have been argued that the restrictions on the powers of State judges personae designatae were weak, almost to the point of non-existence.61

Grollo concerned an unsuccessful challenge to provisions enabling telephone- tapping warrants to be issued by federal judges persona designata.62 The warrants were issued in secret, on application by the AFP to an ‘eligible judge’ in Chambers. A majority of the Court acknowledged that this function involved an ‘in camera exercise of executive power to authorise a future clandestine gathering of information’.63

However, their Honours determined that the function was nonetheless compatible with judicial independence and integrity as the judge retained his or her fundamental independence throughout the proceedings.64

59 Wainohu v New South Wales (2011) 243 CLR 181, 211-212 (French CJ and Kiefel J), 228- 229 (Gummow, Hayne, Crennan and Bell JJ). 60 Wainohu v New South Wales (2011) 243 CLR 181, 202 (French CJ and Kiefel J), 221 (Gummow, Hayne, Crennan and Bell JJ). 61 This was argued by the State of Victoria, intervening: Wainohu v New South Wales (2011) 243 CLR 181, 212 (French CJ and Kiefel J). Support for this could be found in McHugh J’s equivocal statement in Kable that indicated incompatibility may invalidate the persona designata appointment of a State judge, but that this would be very rare (His Honour suggested the radical example of the appointment of a Chief Justice to Cabinet): Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 118 (McHugh J). This belief may also be reflected in some of the drafting techniques employed by State and federal legislatures, employing State judges in their personal capacity alongside retired judges and independent persons in controversial regimes. See, eg the conferral of functions on State judges persona designata by the Commonwealth in Australian Security Intelligence Organisation Act 1979 (Cth) Pt 3 Div 3. For further discussion of these topics, see: Welsh, ‘A Question of Integrity’, above n 38, 146-149; Rebecca Welsh, ‘“Incompatibility” Rising?: Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259, 262. 62 Telecommunications (Interception) Act 1979 (Cth) ss 6D, 6H. 63 Grollo v Palmer (1995) 184 CLR 348, 367 (Brennan CJ, Deane, Dawson, Toohey JJ). 64 Grollo v Palmer (1995) 184 CLR 348, 367 (Brennan CJ, Deane, Dawson, Toohey JJ).

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The following year, the incompatibility test was applied for the first time. Wilson v

Minister for Aboriginal and Torres Strait Islander Affairs (‘Wilson’)65 concerned the appointment of Justice Jane Mathews as reporter to the Minister on whether certain areas should be classified as Aboriginal heritage sites. This appointment was found to be invalid on the basis that it involved functions so entwined with the executive as to diminish public confidence in the judicial institution as a whole.66 Since Wilson, the incompatibility test has not been applied to invalidate a persona designata appointment of a federal judge, despite its invocation on a number of occasions.67

In 1996, less than a week after Wilson was handed down, the High Court introduced a second field of application for the incompatibility test. In Kable v Director of Public Prosecutions (NSW) (‘Kable’),68 the Court held that an incompatibility test limited the functions capable of being vested in State Courts. The case concerned State legislation providing for the NSW Supreme Court to order the preventive incarceration of a named individual at the completion of his sentence for serious offences.69 This

65 (1996) 189 CLR 1. 66 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 18-19 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 26 (Gaudron J). Some commentators have critiqued Wilson as being inconsistent with the findings in Grollo, see: Zines, The High Court and the Constitution, above n 2, 266-267; Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 192; Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 52, 196. See also, Kirby J’s dissenting opinion in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 47-50 (Kirby J). 67 See, eg, Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, and the valuable discussion of the evolution of the incompatibility condition, in particular the ‘later cases’ concerning the doctrine: 266-271 (Weinberg, Bennett and Edmonds JJ). The test has been applied to invalidate a conferral of functions on serving State judges in Wainohu v New South Wales (2011) 243 CLR 181, discussed below. 68 (1996) 189 CLR 51. 69 Community Protection Act 1994 (NSW).

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scheme was held to be invalid on the basis it applied ad hominem and involved significant departures from fair process.70

The Kable rule limiting the permissible powers of State courts was argued on numerous occasions, but was not applied again until 2009.71 The 2004 case of Fardon v

Attorney-General for the State of Queensland (‘Fardon’)72 is of particular relevance to the PDO analysis in this Part. In Fardon, the High Court upheld the capacity of the

Queensland Supreme Court to issue preventive detention orders almost identical to those considered in Kable.73 The Acts considered in Kable and Fardon bear important similarities to PDOs and I return to these cases in section V, below.

B. What is Incompatible?

Incompatibility with judicial independence and impartiality informs the constitutional limits on the permissible functions of judges personae designatae and

State Courts – but what makes a power incompatible? This question has been dealt with in some detail in Part Two, but it is useful to revisit it now to support the analysis of the

PDO provisions in this Part.

Incompatibility is an inherently flexible concept. The High Court has described determining incompatibility as an evaluative process,74 and has acknowledged that

70 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 98 (Toohey J), 106-8 (Gaudron J), 122-123 (McHugh J), 131, 132 (Gummow J); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655 (Callinan and Heydon JJ). 71 See discussion in section III.B, below. 72 (2004) 223 CLR 575. 73 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 74 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 529 (French CJ).

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exhaustive definition of incompatibility is neither possible nor desirable.75 Nonetheless, the High Court has gone to some lengths to give meaning to the concept of incompatibility, particularly in the earliest incompatibility cases. This early guidance has proved influential in the development of the incompatibility test.76

In Grollo, the Court described three ways in which incompatibility may arise. First, incompatibility exists when the actual performance of the judge’s judicial functions is significantly compromised as a result of a non-judicial function. Secondly, the personal integrity of the judge may be compromised or impaired by the non-judicial function.77

These first two bases of incompatibility have not been applied in the cases to date, despite arguable grounds for personal integrity incompatibility existing in Grollo.78

Thus, the findings in Grollo indicate that practical and personal incompatibility may only be established in circumstances where they could not have been avoided by an, albeit hypothetical, ‘appropriate practice’.79

The third way in which incompatibility may arise is where a non-judicial function is so repugnant to the judge’s judicial office that it diminishes public confidence in the

75 See, eg, Nicholas v R (1998) 193 CLR 173, 256 (Kirby J); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ); North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618-619 (Gummow J); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 530 (French CJ). 76 See, eg, Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J); Wainohu v New South Wales (2011) 243 CLR 1, 225-226 (Gummow, Hayne, Crennan and Bell JJ), 206 (French CJ and Kiefel J); Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261-266 (Weinberg, Bennett and Edmonds JJ). James Stellios has suggested that any proposed incompatibility test in the federal sphere be modelled on the guidance in Wilson and Grollo: Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 2, 135. 77 Grollo v Palmer (1995) 184 CLR 348, 364-365 (Brennan CJ, Deane, Dawson and Toohey JJ). 78 Walker, above n 66, 161; Grollo v Palmer (1995) 184 CLR 348, 366 (Brennan CJ, Deane, Dawson and Toohey JJ). 79 Grollo v Palmer (1995) 184 CLR 348, 366 (Brennan CJ, Deane, Dawson and Toohey JJ).

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judicial institution as a whole (‘public confidence incompatibility’).80 It is this form of incompatibility that has arisen in the key challenges and has been echoed in the Kable line of cases.

In Wilson, a majority of the High Court suggested a three-stage process to assist a determination of public confidence incompatibility. First, incompatible functions will be ‘an integral part of, or closely connected with, the functions of the legislative or executive government’.81 If this first condition is met, incompatibility will exist if either of two further factors are demonstrated. First, the judge must be reliant upon non- judicial instruction, advice or wish. Alternatively, the judge’s discretion must be exercised on political grounds.82

The focus on public confidence adopted in Wilson must be considered in light of the High Court’s later judgments, including in Nicholas v R (‘Nicholas’)83 in which

Brennan CJ warned against the ‘court’s opinion about its own repute’ becoming a test of constitutional validity.84 As discussed in Part Two, the developments in Nicholas indicate that public confidence incompatibility does not look to actual public perception, but for an inappropriate overlap in the functions of the judicial and non-

80 Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). 81 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 82 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 83 (1998) 193 CLR 173. 84 Nicholas v R (1998) 193 CLR 173, 197 (Brennan CJ), 275 (Hayne J). See also Heydon J’s strong criticism of the use of the term ‘public confidence’ in Wainohu v New South Wales (2011) 243 CLR 1, 248-249 (Heydon J). His Honour posed the question: ‘Or is it the case that to say of a provision that “it will damage public confidence in the courts” is merely a veiled way of saying “I dislike it”, and that it must therefore be constitutionally invalid? Does “public confidence” have any more meaning than expressions like “social justice” or “value to society” ?’. See also, Nicholas v R (1998) 193 CLR 173, 209 (Gaudron J), 224, 226 (McHugh J), 258 (Kirby J), and general discussion in Part Two, section III.

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judicial arms of government or the compromise of judicial processes.85 This was affirmed by most of the majority justices in Fardon, who said the criterion may be framed as actual and perceived institutional integrity, rather than public confidence.86

Since Wilson, the incompatibility test has been argued on numerous occasions but has never resulted in a finding of incompatibility in respect of a federal judge appointed persona designata.87 These cases have affirmed the suggestion arising from

Grollo and Wilson that maintaining a relatively formal sense of independence – by which the judge is not forced into an unavoidable conflict, integrated into the political branches or instructed to make political decisions – will avoid incompatibility.

The High Court has consistently validated the independence of the judicial institution as the touchstone of compatibility.88 The guidance provided in Grollo and

Wilson is just that, guidance, and was never intended to form the basis of strict tests.

Incompatibility cases after 1996 at times refer to the three kinds of incompatibility

85 Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution’ (2003) 31 Federal Law Review 57, 76. See also, Mistretta v United States 488 US 361, 407 (1989), quoted in, Grollo v Palmer (1995) 184 CLR 348, 364-365 (Brennan CJ, Deane, Dawson, Toohey JJ). 86 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 593 (Gleeson CJ), 629-630 (Kirby J), 617-618 (Gummow J), where Gummow J said: ‘Perception as to the undermining of public confidence is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity’. For discussion see, Zines, The High Court and the Constitution, above n 2, 278. 87 See discussion in, Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 266-271. The conferral of non-judicial functions on State judges has resulted in a finding of incompatibility: Wainohu v New South Wales (2011) 243 CLR 1. 88 See eg, Wainohu v New South Wales (2011) 243 CLR 181, 205 (French CJ and Kiefel J), 225- 226 (Gummow Hayne, Crennan, Bell JJ).

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identified in Grollo and the three-stage test in Wilson, but emphasise the centrality of independence to the overall determination.89

Between the High Court decisions in Kable in 1996 and International Finance

Trust Co Ltd v New South Wales Crime (‘International Finance Trust’)90 in 2009, the incompatibility test had been argued but never applied.91 In 2004 Kirby J suggested the

Kable rule may be ‘a constitutional guard dog that would bark but once’92 and in 2006

Gageler J, then Senior Counsel representing the Australian Securities and Investments

Commission, argued that any furtherance of the Kable rule was like asking the dog ‘to turn on the family’.93 These comments reflect the general view of the time that incompatibility was a very narrow standard, easily avoided except in the most rare and extreme cases.94 A number of incompatibility decisions from the period support this view. For instance, in K-Generation Pty Ltd v Liquor Licensing Court (‘K-

Generation’)95 and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police

(‘Gypsy Jokers’)96 the High Court upheld the use of secret evidence in judicial proceedings on the basis that the court was capable of independently reviewing the

89 See eg, Wainohu v New South Wales (2011) 243 CLR 1, 225-226 (Gummow, Hayne, Crennan and Bell JJ), 206 (French CJ and Kiefel J); Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261-266 (Weinberg, Bennett and Edmonds JJ); Momcilovic v R (2011) 245 CLR 1, 95-96 (Gummow J). 90 (2009) 240 CLR 319. 91 See discussion in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 266-271 (Weinberg, Bennett and Edmonds JJ). 92 Baker v The Queen (2004) 233 CLR 513, 535 (Kirby J). 93 Transcript of Proceedings, Forge v Australian Securities and Investments Commission [2006] HCATrans 25 (8 February 2006). 94 See also, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 601 (McHugh J). 95 (2009) 237 CLR 501. 96 (2008) 234 CLR 532.

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secret classification of the information. The preservation of the courts’ residual discretions enabled the judge to overcome potential incompatibility in each case.97

Since 2009 there has been a string of successful applications of the incompatibility test. These cases – discussed in Part Two – arguably demonstrate a shift towards a broader understanding of incompatibility, recognising that aspects of procedural fairness are required in order to preserve judicial independence and impartiality.

Perhaps surprisingly, however, these authorities also reaffirm that incompatibility is difficult to establish and easy to avoid.

For instance, the findings of incompatibility in International Finance Trust and

South Australia v Totani (‘Totani’)98 hinged upon provisions purporting to direct the court as to the manner and outcome of the exercise of its powers. The restricted capacity of the Supreme Court to remedy these directions by an exercise of its usual discretions, indicated a usurpation of the court’s decisional independence and, thus, supported the findings of incompatibility.99 Similarly, in the 2013 case of Assistant Commissioner

Condon v Pompano Pty Ltd (‘Condon’),100 the High Court unanimously upheld

Queensland’s organised crime control order scheme on the basis that the Supreme Court retained sufficient independence to remedy the unfairness in those proceedings.101

97 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 (Gummow, Hayne, Heydon and Kiefel JJ); K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 542-543 (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). 98 (2010) 242 CLR 1. 99 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 355 (French CJ), 364 (Gummow and Bell JJ), 385 (Heydon J); Totani v South Australia (2010) 242 CLR 1, 21 (French CJ), 56, 67 (Gummow J), 153, 159-160 (Crennan and Bell JJ), 171-172 (Kiefel J), 88-89 (Hayne J). 100 (2013) 87 ALJR 458. 101 Discussed in Part Two, section V.

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In the 2011 case of Wainohu v NSW (‘Wainohu’)102 the High Court applied the incompatibility test despite the maintenance of the judge’s overarching discretions.

Wainohu concerned a scheme for the issue of serious and organised crime control orders akin to the South Australian scheme held invalid in Totani.103 Following a declaration of an organisation by an eligible judge persona designata, the NSW Supreme Court was empowered to issue control orders with respect to members of the organisation. A majority of the High Court found that the provisions in their entirety were incompatible with judicial independence and impartiality. The sole basis for incompatibility was the removal of the eligible judge’s obligation to give reasons for his or her decision to declare an organisation. The scheme maintained the judge’s residual discretion to issue reasons. However, for a majority of the Court, the giving of reasons was so fundamental to the judge’s actual and perceived independence that the removal of the obligation to do so was sufficient to create incompatibility.104

Crucial to the Court’s decision in Wainohu was the fact that the declaration was issued by the eligible judge in proceedings with the appearance of open court. The judge’s decision to declare an organisation also involved important determinations of fact and enlivened the Supreme Court’s jurisdiction to issue control orders in relation to individuals and the organisation.105 It is not clear whether removing the appearance of open court from the declaration proceedings and allowing the judge to issue the

102 (2011) 243 CLR 181. 103 Crimes (Criminal Organisations Control) Act 2009 (NSW). 104 Wainohu v New South Wales (2011) 243 CLR 181, 192, 215, 213, 219-220 (French CJ and Kiefel J), cf, Heydon J in dissent: 238-239 (Heydon J). 105 Wainohu v New South Wales (2011) 243 CLR 181, 192, 215, 218-220 (French CJ and Kiefel J). It was on this basis that the Court concluded s 13(2) effectively rendered the entire Crimes (Criminal Organisations Control) Act 2009 (NSW) invalid: 220 (French CJ and Kiefel J), 231 (Gummow, Hayne, Crennan and Bell JJ).

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declaration behind closed doors (as in Grollo where reasons were also not given for the decision) would have avoided incompatibility.106

Wainohu reinforced the incompatibility test’s focus on the perceived impartiality of the judge or court performing the function. However, the provisions compromised fair process in a number of respects that the High Court did not find persuasive of incompatibility. For instance, an organisation could be declared on the basis of undisclosed information in administrative proceedings not governed by the rules of evidence.107 Arguably, the requirements for incompatibility to exist are less clear following the High Court’s decision in Wainohu. The case stands in contrast to earlier authorities indicating basic decisional independence will overcome incompatibility.

The 2013 case of Condon aligns with the earlier authorities and therefore presents an arguably different picture to Wainohu. In Condon, the challenge focussed on the capacity of secret ‘criminal intelligence’ evidence to compromise the procedural fairness of control order proceedings. Rather than looking to the persona designata cases or to notions of perceived independence as in Wainohu, the High Court upheld the impugned provisions on the basis that they did not substantially impair the defining or essential characteristics of the Supreme Court.108 Hayne, Crennan, Kiefel and Bell JJ conceived of independence and impartiality as one of these essential characteristics.

This approach allowed their Honours to discuss whether the challenged provisions were

106 Rebecca Welsh, ‘Incompatibility Rising? Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259, 264. The lack of any common law requirement that reasons be given for administrative decisions was instrumental in Heydon J’s dissenting opinion: Wainohu v New South Wales (2011) 243 CLR 1, 241, 244 (Heydon J). 107 Crimes (Criminal Organisations Control) Act 2009 (NSW) ss 8, 28, 29, 13(1). 108 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ), 497 (Gageler J).

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incompatible with independence and impartiality. In this way, their Honours’ invoked a more general concept of incompatibility that suggests their reasons may apply in, or at least overlap with, interpretations of the incompatibility standard in the persona designata context.109

French CJ and Gageler J adopted a more particular approach, describing procedural fairness as a defining characteristic of courts and assessing incompatibility in this respect.110 This path of reasoning focusses more narrowly on courts. It therefore may have little relevance to, or intersection with, cases concerning the permissible powers of judges personae designatae.

Despite Gageler J’s approach appearing to embrace strong fair process protections, his Honour reasoned that incompatibility only arises in cases where the compromise to fairness is unable to be remedied by the court by a procedural means.111 A similar view was also expressed by the other members of the bench.112 Thus, the case aligns with existing authorities (Wainohu aside) indicating that the preservation of a judge’s overarching discretions is sufficient to avoid invalidity.113 Gageler J justified this

109 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 496 (Hayne, Crennan, Kiefel and Bell JJ). 110 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ), 497 (Gageler J). French CJ described these characteristics as including ‘the reality and appearance of decisional independence and impartiality; the application of procedural fairness; adherence to the open court principle; and the provision of reasons’: 477 (French CJ). See also, French CJ’s similar comments in, Totani v South Australia (2010) 242 CLR 1, 43. 111 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 503 (Gageler J). See further discussion in Part Two, section V. 112 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 482, 483 (French CJ), 495 (Hayne, Crennan, Kiefel and Bell JJ), 503 (Gageler J). 113 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 480 (French CJ), 499 (Gageler J).

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departure from Wainohu on the basis that the Act in that case altered ‘the duty of the

Supreme Court to assess the cogency and veracity of the evidence’ tendered.114

Arguably, this reasoning draws a considerable consequence from a fine, even tenuous, distinction.

Some cases indicate that the Kable incompatibility test relating to State courts aligns with that introduced in Grollo relating to judges personae designatae, as the rulings ‘share a common foundation in constitutional principle’ which ‘has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State’.115 However, Condon reflects an alternate approach to the incompatibility test. In Condon the High Court considered arguments for Kable incompatibility without reference to the persona designata cases.

French CJ and Gageler J justified the protection of judicial independence and impartiality on the basis that State courts must qualify as courts, rather than on the basis of broader reference to constitutional principle or a singular notion of incompatibility.

This may suggest the incompatibility test is applied differently, or at least has markedly different emphases, in its separate contexts. It certainly reflects that not only is incompatibility a flexible standard, but the approaches that judges adopt in applying it may vary widely. Ultimately it must be conceded that the authorities can be difficult to reconcile in a number of different respects.116

114 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 496 (Gageler J). 115 Wainohu v New South Wales (2011) 243 CLR 181, 228 (Gummow Hayne, Crennan, Bell JJ). 116 For detailed argument on this point, see: Walker, above n 66, 159; Meyerson, ‘Extra-judicial Service on the Part of Judges’, above n 52, 196; Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 100, 106; Gabrielle Appleby, ‘State Law and Order Regimes and the High Court: A Study in Federalism and Rights Protection’

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In summary, Grollo and Wilson suggest that maintaining a relatively formal sense of independence by which the judge is not forced into an unavoidable conflict, integrated into the political branches or instructed to make political decisions will avoid incompatibility. The Kable cases – but for Wainohu perhaps – also reflect a narrow conception of incompatibility by which invalidity is only established where the court’s decisional independence is entirely usurped or controlled.

In Wainohu, the obligation to give reasons was found to be so essential that the injury to institutional integrity caused by its express removal could not be repaired, even by the preservation of the judge’s residual discretion to give reasons nonetheless. The later case of Condon seems to confirm that Wainohu is unusual – if a court maintains discretionary powers that enable it to address potential incompatibility then constitutional invalidity will almost certainly be avoided, even in cases involving procedural unfairness. In short, Wainohu suggests that judicial discretion will not remedy potential incompatibility; Condon and earlier cases suggest it will. Ultimately it seems that the usurpation or control of a feature of the courts’ decisional independence is required to establish incompatibility; the maintenance of essential independent characteristics, overarching discretions and fundamental arms-length independence has been repeatedly affirmed to be sufficient to overcome potential incompatibility.117

Condon appears to have opened the door to a more nuanced application of fairness by refocussing on specific measures the court may adopt in order to effectively preserve the integrity of proceedings, and drawing fairness within the essential features of courts.

(Paper presented to the Australian Association of Constitutional Law, Sydney, 23 October 2013) 18-27. 117 See discussion in Part Two, section V.

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However, it remains that across all the cases, the impact of the order on the individual, and compromises to fair process effected by factors such as ex parte proceedings,118 secret evidence119 and decisions based on information not governed by the rules of evidence,120 have proved largely irrelevant to the incompatibility analysis. The focus has tended to rest squarely on the independence with which the power is exercised.

IV. IS THE POWER TO ISSUE PDOS INCOMPATIBLE?

The PDO provisions confer the role of Issuing Authority on serving judges of State and federal courts in their personal capacities. This role involves determining whether an initial PDO may be continued to permit up to 48 hours of detention on the bases that: the person will engage in a terrorist act, possesses a thing that is connected with a terrorist act, or has done an act preparing or planning terrorist act,121 or the detention is necessary to preserve evidence of a terrorist act.122

The power to issue PDOs may only be conferred on judges personae designatae if it is not incompatible with judicial independence or impartiality. Drawing first upon the guidance from Grollo: the issuing of PDOs could not conceivably result in ‘so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not

118 Grollo v Palmer (1995) 184 CLR 348; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319. 119 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458. 120 Grollo v Palmer (1995) 184 CLR 348; Wainohu v New South Wales (2011) 243 CLR 181. 121 Ibid s 105.4(4). 122 Ibid s 104.4(6).

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practicable’.123 Moreover, any practical conflict between the judge’s judicial and non- judicial roles would be analogous to that considered in Grollo and, as in that case, the adoption of ‘appropriate practices’ to avoid such a conflict would be available.124 Thus, the power to issue PDOs would not meet the thresholds for either practical or personal incompatibility. The relevant branch of incompatibility is thus public confidence incompatibility, elaborated in Wilson and subsequent incompatibility cases.

Under the Wilson test, public confidence incompatibility is established when a function is ‘an integral part of, or closely connected with, the functions of the legislative or executive government’. The function must also be either reliant upon non-judicial instruction, advice or wish, or involve the exercise of discretion on political grounds for incompatibility to exist.125 Despite the administrative nature of the Issuing Authority’s role, he or she is not integrated into the investigation of the terrorist act in question, but is independent from it. Moreover, the Issuing Authority’s consideration of the AFP’s request is performed without interference.

The Issuing Authority may be reliant on executive instruction, but he or she also has access to information from the detainee and performs an independent review of the information presented for the purpose of reaching a determination.126 The Issuing

123 Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). 124 Grollo v Palmer (1995) 184 CLR 348, 366 (Brennan CJ, Deane, Dawson and Toohey JJ). 125 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 126 Criminal Code Act 1995 (Cth) s 105.11(5).

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Authority retains considerable discretion in exercising his or her role, including by retaining an ultimate discretion whether or not to order detention.127

The third factor that Wilson proposes for consideration is the basis upon which the

Issuing Authority exercises his or her discretion. The Issuing Authority’s decision is reached on the objective criteria of reasonableness: there must be reasonable grounds to suspect the person will engage in a terrorist act, possesses a thing that is connected with a terrorist act, or has done an act preparing or planning terrorist act,128 or it must be reasonably necessary to detain the person to preserve evidence of a terrorist act.129

Reasonable necessity is a familiar legal standard.130 Reasonable belief that a person has engaged in the conduct described forms the basis upon which a person may be charged with certain terrorism offences.131 Reasonable suspicion is a significantly lower standard, but it remains one that the courts have significant experience with, for example in assessing whether stop and search powers have been lawfully invoked.132

Thus, there are legal standards guiding the Issuing Authority’s exercise of power. In other words, the Issuing Authority is not compelled to exercise his or her discretion based on political considerations whilst fulfilling his or her role under Division 105.

127 Ibid s 105.4. 128 Ibid s 105.4(4). 129 Ibid s 104.4(6). 130 Reasonable necessity was considered in, Thomas v Mowbray (2007) 233 CLR 307, 352-353 (Gummow and Crennan JJ), 330-333 (Gleeson CJ). 131 Crimes Act 1914 (Cth) s 3W(1). 132 Reasonable suspicion forms the basis of certain police actions which are commonly reviewed by the courts such as the issuing of warrants under the Crimes Act 1914 (Cth) s 3E and searches under s 3T, it is also the common law standard for arrest, though this is lower than the statutory standard of ‘reasonable belief’ in the Crimes Act 1914 (Cth) s 3W(1). Reasonable suspicion is also is a standard applied in other contexts, such as in assessing bias on the part of a judge (where the ‘reasonable apprehension’ test looks to ‘reasonable suspicion’): Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, 364-365 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

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Whether the order will ‘substantially assist’ in preventing a terrorist act is not the kind of question that would usually face judges. However, in Grollo the inclusion of similar standards in the judge’s decisional role was found to be compatible with the exercise of administrative functions by the judge persona designata,133 and the control order cases, in particular Thomas v Mowbray (‘Thomas’)134 discussed in Part Three, positively endorsed this kind of predictive reasoning by courts.135

In all, the Issuing Authority retains significant decisional independence: analogous to the independence of the eligible judge issuing telephone-tapping warrants in Grollo, as opposed to the more integrated, advisory role of the reporter in Wilson. There is no indication that the legislation compels the Issuing Authority to follow executive instruction or to draw conclusions based on political considerations or criteria, as was the case in Wilson.136

The focus on the independence of the function from the political branches of government, adopted in Wilson, leads to a conclusion that the power to issue PDOs does not rival the level of incompatibility described in that case. There is no indication that the task conferred on the Issuing Authority is to be fulfilled on political or arbitrary grounds. The Issuing Authority retains significant independence and discretion in the

133 The Telecommunications (Interception) Act 1979 (Cth) ss 45 and 46(2) invited the judge to have regard to whether the warrant would be ‘likely to assist’ the criminal investigation, amongst a list of other factors. 134 (2007) 233 CLR 307. 135 See, Thomas v Mowbray (2007) 233 CLR 307, 333-334 (Gleeson CJ), 347 348 (Gummow and Crennan JJ), discussed above in Part Three, section III. See also Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 491-492 (Hayne, Crennan, Kiefel and Bell JJ); Thomas v Mowbray (2007) 233 CLR 307, 334 (Gleeson CJ), 417 (Kirby J). 136 Wilson v The Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 19 (Brennan CJ, Dawson, Toohey, McHugh Gummow JJ).

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exercise of his or her functions. The judge’s discretion is limited by the familiar legal criterion of reasonableness, to be established by an independent, fresh assessment of the submissions made to the judge or court.

The cases subsequent to Wilson reflect that incompatibility may also be established by the usurpation or control of an essential feature of a court’s (or a judge’s) decisional independence. The Issuing Authority in PDO proceedings retains overarching discretions, arms-length independence and fundamental control of the proceedings.

There are no obligations placed on the Issuing Authority as in Totani or International

Finance Trust. These factors are sufficient to support a finding that the Issuing

Authority’s decisional independence remains intact under Division 105. Moreover,

PDOs are issued in secret and are not a precursor to judicial proceedings. Applications for a continued PDO take place behind closed doors (similar to applications for telephone-intercept warrants upheld in Grollo). PDOs are clearly administrative in nature and their impact is constrained to the administrative sphere, distinguishing the power from that considered in Wainohu.

To the extent that the Court in Condon suggested procedural fairness is required to avoid incompatibility, the justices based their reasons on the essential characteristics of

Courts. Thus, it is not clear the extent to which that case (or the other State court cases for that matter) may assist a determination of incompatibility in the persona designata context. The authorities indicate that the characteristics of the warrant regime that give

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the provisions a ‘non-judicial flavour’,137 such as the warrant’s severe interference with the liberty of an innocent citizen, are not determinative of incompatibility.

In Totani and Wainohu, the control order schemes in question resulted in potentially severe and prolonged restrictions on liberty in the absence of criminal charge. In Grollo, Gypsy-Jokers and K-Generation too, the orders severely impacted the rights of individuals. In none of these cases did the impact of the order on individual play a weighty role in the incompatibility analysis. In fact, the Court in Grollo encouraged the involvement of judges in particularly rights intrusive schemes, observing that:138

The decision to issue a warrant is, for all practical purposes, an unreviewable in camera

exercise of executive power to authorise a future clandestine gathering of information.

Understandably a view might be taken that this is no business for a Judge to be involved

in, much less the large majority of the Judges of the Federal Court.

Yet it is precisely because of the intrusive and clandestine nature of interception

warrants and the necessity to use them in today's continuing battle against serious crime

that some impartial authority, accustomed to the dispassionate assessment of evidence

and sensitive to the common law's protection of privacy and property (both real and

personal), be authorised to control the official interception of communications. … It is

an eligible Judge’s function of deciding independently of the applicant agency whether

an interception warrant should issue that separates the eligible Judge from the executive

137 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 268 (Weinberg, Bennett and Edmonds JJ). 138 Grollo v Palmer (1995) 184 CLR 348, 367 (Brennan CJ, Deane, Dawson, Toohey JJ) (references omitted).

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function of law enforcement. It is the recognition of that independent role that preserves

public confidence in the judiciary as an institution.

As this passage suggests, and subsequent cases have affirmed, it seems that extra- judicial involvement in orders that severely impact rights and liberties will be valid, so long as the fundamental independence of the judge is maintained. As the Issuing

Authority retains an ultimate discretion whether to issue the warrant and exercises his or her functions to an objective standard free from interference, it is likely the PDO provisions would survive a Chapter III challenge. An opposite conclusion would represent a significant departure from existing authorities.

There may be an avenue, however, by which the power to issue PDOs may be subject to a more rigorous test of incompatibility. The High Court has tended to treat processes resulting in the incarceration of citizens as a special case, deserving of particular constitutional scrutiny. In the following section, I consider whether preventative detention laws may be a special case under the incompatibility test and, if so, whether the PDO provisions would pass the higher threshold arguably applicable to laws of this kind.

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V. INCOMPATIBILITY AND PREVENTIVE INCARCERATION: A SPECIAL CASE?

A. Suggestions that Preventative Incarceration is a Special Case

Detention of citizens in state custody presents a clear challenge to basic constitutional values. The fundamental aversion of the constitutional order to arbitrary detention is undoubted. As William Blackstone observed:139

Of great importance to the public is the preservation of this personal liberty: for if once

it were left in the power of any, the highest ... to imprison arbitrarily whomever he or

his officers thought proper there would soon be an end of all other rights and

immunities.

More recently, Gummow J drew upon a passage from the American case Hamdi v

Rumsfeld,140 ‘made with reference to Blackstone and Alexander Hamilton’,141 to observe: ‘The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive’.142

As Gummow J’s statement reflects, under the Australian constitutional system, adherence to liberty and freedom from arbitrary detention have found protection through the doctrine of the separation of powers. In respect of punitive detention, the constitution will not tolerate its use outside the judicial process of a criminal trial. This

139 William Blackstone, Commentaries on the Laws of England (1765) Book 1, 120-121, 130- 131. 140 72 USLW 4607. 141 Al-Kateb v Godwin (2004) 219 CLR 562, 127 (Gummow J), citing, The Federalist, No 84, reproduced in, Benjamin Wright (ed), The Federalist, (Barnes & Noble Books, 1996) 533. 142 Al-Kateb v Godwin (2004) 219 CLR 562, 127 (Gummow J).

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was recognised in by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for

Immigration (‘Lim’):143

[P]utting to one side the exceptional cases ... the involuntary detention of a citizen in

custody by the State is penal or punitive in character and, under our system of

government, exists only as an incident of the exclusively judicial function of adjudging

and punishing criminal guilt. Every citizen is ‘ruled by the law, and by the law alone’

and ‘may with us be punished for a breach of law, but he can be punished for nothing

else’.

On the one hand, the authorities clearly indicate that punitive detention falls exclusively within the judicial power of the Commonwealth and may not be ordered by the executive or legislature, that is, punitive detention requires full curial process.144 On the other hand, detention proportionate to a legitimate non-punitive end may be the subject of a civil or administrative order.145 That is not to say the legislature may ‘dress up’ punitive measures as non-punitive however.146 Moreover, it must be acknowledged

143 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan CJ, Deane and Dawson JJ), quoting, AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan and Co Ltd, 10th ed, 1959) 202. 144 See, Gummow J’s reformulation of the Lim immunity in, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 612 (Gummow J). 145 James Renwick, ‘The constitutional validity of preventative detention’ in Andrew Lynch, Edwina, MacDonald and George Williams (eds), Law and Liberty in the War on Terror (The Federation Press, 2007) 127, 133, citing, Chu Kheng Lim v Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1, 71 (McHugh J), following a valuable discussion of the evolution (and devolution) of the rule in that case: 132-133. See also, Zines, The High Court and the Constitution, above n 2, 288-289. For sophisticated discussion of this principle, acknowledging that ‘no dominant methodology for evaluating non-criminal imprisonment has emerged’: 43, and advancing an argument for developing constitutional principles, see: Jeffrey Steven Gordon, ‘Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention’ (2012) 36 Melbourne University Law Review 41. 146 This term was used in respect of the legislation in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, by Gaudron J in that case: 108 (Gaudron J).

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that distinguishing punitive and non-punitive detention is not necessarily an easy task.

Though the High Court has tended not to question the preventive or punitive purpose of a scheme as stated by the legislature, it has not been blind to the indeterminacy of the word ‘punishment’.147

Despite recognising that non-punitive detention may result from an administrative process, Gummow, Gaudron and Toohey JJ suggested that this kind of scheme would rarely be constitutionally permissible.148 In Lim, Gaudron J said that detention in the absence of a breach of criminal law and outside the well-accepted categories of exceptions ‘is offensive to ordinary notions of what is involved in a just society’.149 Her

Honour repeated these sentiments in later judgments, including in the observation that:150

[D]epriving an individual of his liberty, not because he has breached any law, whether

civil or criminal, but because an opinion is formed, on the basis of material which does

not necessarily constitute evidence admissible in legal proceedings, that he ‘is more

likely than not’ to breach a law by committing a serious act of violence ... That is the

antithesis of judicial process one of the central purposes of which is ... to protect ‘the

147 See, eg, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 613 (Gummow J). As Gummow J identifies, the distinction between preventive and punitive detention raises a host of issues, the exploration of which is beyond the scope of this Thesis. For further discussion see, eg: Patrick Keyzer (ed) Preventive Detention: Asking the Fundamental Questions (Intersentia, 2013); Patrick Keyzer and Sam Blay, ‘Double Punishment? Preventive Detention Schemes under Australian Legislation and their Consistency with International Law: The Fardon Communication’ (2006) Melbourne Journal of International Law 1444. 148 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 132, 134 (Gummow J), 106-107 (Gaudron J), 96-98 (Toohey J). 149 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 55, quoted in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 131(Gummow J). 150 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106-107 (Gaudron J), quoting, Re Nolan; Ex parte Young (1991) 172 CLR 460, 497 (Gaudron J).

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individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring

that punishment is not inflicted and rights are not interfered with other than in

consequence of the fair and impartial application of the relevant law to the facts which

have been properly ascertained’.

The issue becomes, for present purposes, whether the incompatibility test limits the ambit of detention capable of being ordered by judges persona designata – beyond the punitive/non-punitive distinction.151 The answer to this question is assisted by two cases in which the High Court considered the imposition of preventive detention by State

Supreme Courts.

B. Kable and Fardon: Judicially Authorised Preventive Incarceration

The High Court was called upon to determine whether the issuing of orders for preventive detention was incompatible with judicial independence and impartiality in the 1996 case of Kable and the 2004 case of Fardon. Read in a certain light, these cases may demonstrate that the Constitution requires that functions conferred on judges that result in the detention of citizens in state custody comply with the basic tenets of natural justice and fair process.

Kable concerned NSW legislation, the Community Protection Act 1994 (NSW)

(‘CPA’). This Act empowered the NSW Supreme Court to order the continued imprisonment of a person named in the Act, on community protection grounds, at the completion of his sentence for serious offences. Fardon concerned highly similar

Queensland legislation, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

151 For a valuable discussion of the Lim implied immunity from involuntary detention, see: Jeffrey Steven Gordon, ‘Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention’ (2012) 36 Melbourne University Law Review 41.

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(‘DPSOA’), providing for a Supreme Court to order the continued preventive detention of prisoners at the completion of their sentences for serious offences.

The DPSOA was of general rather than ad hominem application. Both schemes carried the potential for indefinite detention, provided a full right of appeal to the Court of Appeal,152 and had a purely non-punitive object.153 Both Acts also provided for preventive detention to be ordered following a hearing in open court at which submissions and arguments were heard from both sides.154 In Kable, the CPA was struck down as incompatible with the institutional independence and integrity of the

NSW Supreme Court. In Fardon, the DPSOA withstood the test of incompatibility.

Neither the CPA nor the DPSOA exhibited the kind of incompatibility described in

Wilson.155 The Court was not integrated into another branch of government, reliant to a severe degree on executive instruction, or compelled to exercise its discretion on political grounds. That said, a primary ground of invalidity in Kable was the usurpation of a key aspect of the Court’s decisional independence in that the Act named the single individual to whom it applied. This repugnant feature was absent from the DPSOA.

In Kable, the Court also based its finding of incompatibility in the fact the detention was ordered in circumstances ‘far removed’ from,156 or ‘dressed-up’ as,157 ordinary

152 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 617 (Gummow J), 658 (Callinan and Heydon JJ). 153 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 597 (McHugh J), 658 (Callinan and Heydon JJ). 154 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 615 (Gummow J), who emphasised that the respondent could appear at the proceeding. 155 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). 156 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 122 (McHugh J).

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judicial process. As to the nature of judicial process, Gummow J in Fardon quoted

Gaudron J’s description in Re Nolan: Ex parte Young:158

Open and public inquiry (subject to limited exceptions), the application of the rules of

natural justice, the ascertainment of the facts as they are and as they bear on the right or

liability in issue and the identification of the applicable law, followed by an application

of that law to those facts.

The majority justices were careful to stipulate that it was the procedural deficiencies of the CPA in addition to its ad hominem nature that rendered the function of issuing preventative detention orders incompatible with the Supreme Court’s institutional integrity. As summarised later by Callinan and Heydon JJ:159

Despite the differing formulations of the Justices in the majority [in Kable], the primary

issue remained whether the process which the legislation required the Supreme Court of

New South Wales to undertake, was so far removed from a truly judicial process that

the Court, by undertaking it, would be so tainted or polluted that it would no longer be a

suitable receptacle for the exercise of federal judicial power under Ch III of the

Constitution.

Incompatibility was established in Kable not only because the CPA was ad hominem, but also because it: removed the need to prove guilt beyond reasonable doubt or at all, replaced this burden with a predictive balance of probabilities standard,160

157 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 108 (Gaudron J). 158 (1991) 172 CLR 460, 496 (Gaudron J), quoted in, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 615 (Gummow J). Also adopted in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 491 (Hayne, Crennan, Kiefel, Bell JJ). 159 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 655 (Callinan and Heydon JJ). 160 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 98 (Toohey J), 106-107 (Gaudron J), 122-123 (McHugh J), 131, 132 (Gummow J).

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provided for proof by materials that may not satisfy the rules of evidence,161 and declared that the proceedings were civil proceedings although the court was not asked to determine the existing rights and liabilities of any party or parties.162 It is notable that these features of the CPA were not requirements or usurpations as such – the Act preserved the residual discretions of the court, including its capacity to stay proceedings for want of fairness.163

In Fardon, a similar preventative detention scheme withstood the incompatibility test. The legislation considered in that case was designed in light of the High Court’s decision in Kable. Not only was the Act of general application, but it remedied some of the procedural deficiencies identified in Kable. First, the standard of proof in the

DPSOA was substantially higher than the invalid CPA, being a high degree of probability as opposed to the balance of probabilities.164

Secondly, the DPSOA vested a substantial discretion with the Court as to what form the order should take, unlike the more limited choice of simply whether or not to

161 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106 (Gaudron J), 122 (McHugh J). The Community Protection Act s 17(1)(a) provided that the Court was bound by the rules of evidence, but as McHugh J observed, s 17(3) went ‘a long way to negating that protection’: 120 (McHugh J). Section 17(3) provided that: ‘Despite any Act or law to the contrary, the Court must receive in evidence any document or report of a kind referred to in subsection (1)’, referring to a range of medical and other professional reports, ‘that is tendered to it under the Act’. 162 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106 (Gaudron J), 122 (McHugh J). McHugh J concluded that the legislation rendered ‘the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person’: 122 (McHugh J). 163 For Gageler J, the Supreme Court’s capacity to stay proceedings saved Queensland’s organised crime control order legislation from potential invalidity: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 503 (Gageler J). 164 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 597 (McHugh J), 616 (Gummow J), 656 (Callinan and Heydon JJ).

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order detention under the CPA. This discretion was also subject to more precise standards under the DPSOA, including ‘serious danger to the community’ and

‘unacceptable risk’,165 compared to the broader standards of ‘more likely than not’ and appropriateness guiding decisions under the CPA.166

Each Act rested the onus of proof with the Attorney-General, but only the DPSOA imposed a duty to disclose on that party.167 The rules of evidence applied under both

Acts, but could not be avoided by the Court under the DPSOA.168 Lastly, only the

DPSOA obliged the Court to provide detailed reasons for its decision.169 The Court in

Fardon concluded that DPSOA orders were issued in accordance with ‘ordinary judicial process’.170

The lines of distinction drawn by the justices in Fardon may appear fine.171 There were substantial commonalities between the Acts, even with respect to the processes by which the orders were issued. The broader procedural frameworks, aims and outcomes of the schemes are all but identical. Yet, the High Court in Fardon was careful to

165 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 and 593 (Gleeson CJ), 597 (McHugh J), 657 (Callinan and Heydon JJ), all citing M v M (1988) 166 CLR 69, 78 in which that same magnitude of risk was found to be an acceptable justification for a court denying a parent access to a child. 166 Community Protection Act 1994 (NSW) s 5(1). 167 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 615, 616 (Gummow J), 656 (Callinan and Heydon JJ). 168 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 596 (McHugh J), 615-616 (Gummow J), 656 (Callinan and Heydon JJ). 169 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 617 (Gummow J), 658 (Callinan and Heydon JJ). 170 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 658 (Callinan and Heydon JJ), who used the similar phrase ‘full and proper legal process’. 171 Anthony Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventive Detention Laws’ (2005) 10 Deakin Law Review 177, 185. Fardon has been critiqued as implicitly overturning Kable, see: Keyzer, above n 116, 106-112.

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emphasise the points of distinction listed above, as viewed in all the circumstances, as carrying determinative weight.172

The incompatibility limits on parliaments’ powers to confer preventive detention functions on judges have not been tested in the High Court since Fardon. That said, the

High Court has faced a string of challenges to preventative restraints on liberty falling just short of incarceration. In Thomas, discussed at length in Part Three, the High Court upheld the capacity of Federal Courts to order anti-terrorism control orders. Totani,

Wainohu and Condon each concerned State control order schemes, similarly empowering courts to order potentially severe and prolonged restrictions on liberty for the purpose of preventing future serious crime. In the first two Chapter III challenges to control order schemes – Thomas and Totani – members of the Court were careful to distinguish the valid restraints under a control order from the more questionable instance of preventive incarceration.173

Two observations follow from this. First, while the Court continues to suggest incarceration may present a special case, distinguished even from severe prolonged restraints such as wearing a tracking device, being subject to curfews, or even the potential for house-arrest,174 the control order cases demonstrate the negligible weight that may be placed on the extent to which a power impacts on rights and liberties in assessing constitutional validity under Chapter III.

172 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 592 (Gleeson CJ), 615-617 (Gummow J), 656, 658 (Callinan and Heydon JJ). 173 Thomas v Mowbray (2007) 233 CLR 307, 330 (Gleeson CJ), 459 (Hayne J), 356 (Gummow and Crennan JJ); Totani v South Australia (2010) 242 CLR 1, 83 (Hayne J), 171 (Kiefel J). 174 For a description of the range of terms available under a control order see: Criminal Code Act 1995 (Cth) s 104.5(3), discussed in Part Three, section II.

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What is more, in Condon Gageler J expressed the clear view that procedural fairness is a defining characteristic of courts.175 This approach may support an argument

(albeit couched in hindsight) that the focus on procedural fairness in Kable and Fardon arose from the fact that those proceedings occurred in courts, not because they resulted in preventive incarceration. If this was the case, then the incompatibility cases since

Fardon affirm that the mere preservation of the judge’s capacity to avoid unfairness is sufficient to avoid incompatibility.176 In all, it is not clear whether a special case for preventive incarceration exists under the incompatibility test.

The clearest point to arise from Kable and Fardon is that ad hominem legislation is constitutionally impermissible. The cases may also suggest that the process of issuing preventive incarceration orders must comply with the central tenets of fair process.

These features include, but are not limited to, an open hearing at which both sides are heard, and the determination of a legal question according to precise standards and involving a real exercise of judicial discretion. A right of appeal ought to exist and reasons ought to be given. These features go to the preservation of actual and perceived judicial independence and impartiality, but may or may not be protected under the incompatibility test.

C. The Validity of PDOs as a Special Case

The existence of preventive incarceration as a special case under the incompatibility test is not clearly apparent. However, as the PDO provisions of the

Code effect the incarceration of a citizen in a state facility, if a special case does exist,

175 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 497 (Gageler J). 176 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 482, 483 (French CJ), 495 (Hayne, Crennan, Kiefel and Bell JJ), 503 (Gageler J).

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those provisions will be invalid insofar as they provide for PDOs to be issued in proceedings that lack core elements of fair process.

PDOs are issued in proceedings divorced entirely from fair process. The proceedings are not open. The decision is reached on the basis of information not governed by the rules of evidence. The only information the Issuing Authority sees from the detainee is provided through the detaining officer.177 The Issuing Authority does not hear directly from the detainee, nor is the detainee in a position to challenge the matter before the Issuing Authority. This could not be considered satisfactory according to minimum standards of natural justice, or to be in keeping with the hallmarks of fair process, such as openness and equality.

The detainee’s right of appeal is limited to merits review in the Administrative

Appeals Tribunal once the order is no longer in force.178 Full reasons are not given for the Issuing Authority’s decision. Unlike proceedings for preventative detention orders under the CPA or the DPSOA, at no stage of the PDO process is the detainee able to contest the detention in a full and fair hearing, with legal representation and sufficient notice or information to enable him or her to build and put a case. All these features of

Division 105 place the procedural protections in the PDO scheme considerably short of those provided for in the DPSOA and even well short of those held invalid in Kable.

Like the preventive detention scheme upheld in Fardon, PDOs are not ad hominem.

Issuing Authorities retain overarching discretions whether to issue PDOs and as to the appropriate period of detention. The scheme does not have a punitive object, and the

177 Criminal Code Act 1995 (Cth) s 105.11(5). 178 Ibid s 105.51.

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Issuing Authority’s constraints of ‘reasonableness’ are instrumental in ensuring that any period of detention ordered will be proportionate to the legitimate non-punitive purpose of the legislation, being the prevention and prosecution of acts of terrorism. The onus of proof is on the applicant, but the standard of proof is the balance of probabilities – features that align with the CPA in Kable but fall short of the standards in the DPSOA.

Each of these factors goes some way to ameliorating the inequality of the proceedings, but could not be seen to overcome the gross infringements to fair process listed earlier.

The power to issue continued PDOs may be constitutionally valid when assessed against the guidance in Wilson and Grollo. However, Fardon and Kable may support the existence of a special case whereby functions resulting in the imprisonment of a person by a judge require that basic elements of fair process be maintained. If this special case could be established, then the PDO provisions would not pass constitutional muster. Division 105 provides for serving judges to issue detention orders in circumstances entirely divorced from fairness, openness and equality. The process could not even be said to be dressed-up as ordinary judicial process. The provisions may be of general application rather than ad hominem, but beyond that characteristic they do even greater damage to the integrity of the issuing judge than the powers conferred under the CPA and held invalid in Kable. However, the existence of this special case is uncertain.

VI. THE STRENGTHS AND WEAKNESSES OF THE INCOMPATIBILITY TEST

The issuing of PDOs by serving State and federal judges challenges judicial independence and impartiality in a number of ways. The clearest threat the scheme poses arises from the fact that the proceedings lack the basic hallmarks of fairness or

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equality, yet involve one of the severest impositions on liberty available under

Australian law. Detailed consideration of how the incompatibility test may apply to the

PDO scheme reveals some key weaknesses in the test as a mechanism for achieving of judicial independence and impartiality.

A necessary initial observation is that the incompatibility test is hard to follow.

Gabrielle Appleby observed that the ‘inherent uncertainty of the [incompatibility] principle, together with its almost constant reformulation and re-explanation’ has led to confusion and other consequences for State executive and legislative branches of government.179 Similarly, in 2008 the Federal Court observed that ‘while the idea of incompatibility is familiar, its application to different factual situations is not’.180

Writing in 2011, Chris Steytler and Iain Field addressed some ‘unanswered questions’ concerning the meaning of incompatibility. These questions touched upon the test’s capacity to protect fair process, the role of public confidence in the analysis, and how the test intersected with the essential features of courts.181 More recent cases, such as

Condon, have done little to give clarity to these issues.182 It is difficult to grasp how interpretations of the incompatibility test in the persona designata cases intersect with interpretations in the Kable cases. The High Court’s new emphasis on the defining and essential characteristics of courts muddies these waters even further.

179 Appleby, ‘State Law and Order Regimes and the High Court’ above n 116, 2. 180 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261(Weinberg, Bennett and Edmonds JJ). 181 Chris Steytler and Iain Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35 University of Western Australia Law Review 227, 251-264. 182 Appleby, ‘State Law and Order Regimes and the High Court’ above n 116, 18-27.

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In applying the test to the power conferred on serving judges under the PDO provisions, it is not clear whether the Wilson and Grollo tests carried weight, or whether this guidance was out-dated and secondary to interpretations focussing on usurpations of decisional independence. Perhaps the Kable cases, or some aspects of these authorities, simply do not apply in persona designata contexts. Likewise, procedural fairness and the related concern of perceived impartiality is emphasised in some cases but given short shrift in others. It is difficult to grasp and apply a central notion of incompatibility, or to come to confident conclusions as to Chapter III validity under the test.

The incompatibility test continues to evolve, but the directions it takes and the bases for those developments are uncertain and unpredictable. In less than 20 years the test has been heralded as containing valuable potential for limiting government power and protecting judicial independence and impartiality,183 and has been effectively disregarded as a ‘dog that barked but once’.184 More recent cases and new suggestions that the test may provide an avenue for the development of meaningful due process protections hint at a resurgence, the nature and extent of which is unclear. In all, the test is difficult to predict, difficult to follow and difficult to apply. Even faced with an arguably clear challenge to liberty and judicial independence in the PDO provisions, the analysis is unavoidably complex, clouded and uncertain.185

183 Mason, above n 2, 8; Will Bateman, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411, 440-441; Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32 Federal Law Review 205, 220-224. 184 Baker v The Queen (2004) 233 CLR 513, 535 (Kirby J). 185 See, similar criticisms made of the incompatibility standard in: Appleby, ‘State Law and Order Regimes and the High Court’ above n 116, 2.

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Secondly, the principles that emerge from the authorities suggest an essentially narrow conception of incompatibility. Present interpretations of the test provide little scope for considering the most troubling aspects of PDOs. The facts that the orders involve serving judges in a secretive, rights offensive instance of administrative incarceration, entirely divorced from any semblance of fair process, carry negligible weight in the incompatibility analysis. Ex parte proceedings,186 secret evidence187 and decisions based on information not governed by the rules of evidence188 have not resulted in incompatibility, even where the power resulted in severe incursions on rights. A relatively formal sense of arms-length independence by which the judge has not been forced into an unavoidable conflict, integrated into the political branches or instructed to make political decisions has regularly been affirmed as avoiding incompatibility. The retention of overarching discretions and the capacity for the judge to remedy any potential unfairness also seems to avoid incompatibility. Ultimately, the test appears to provide only the scantest protection for the fairness, openness or equality of the process in which the judge is involved, despite the centrality of these qualities to judicial independence and impartiality.

The High Court’s apparent renewed emphases on fair process in Wainohu and

Condon may reflect an overall improvement in the capacity of the incompatibility test to achieve judicial independence and impartiality. However, the flexibility in the test renders it likely that more substantive interpretations of incompatibility may only be

186 Grollo v Palmer (1995) 184 CLR 348; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319. 187 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458. 188 Grollo v Palmer (1995) 184 CLR 348; Wainohu v New South Wales (2011) 243 CLR 181.

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harnessed by some members of the Court. Alternatively, the test may return to the prior narrow conception in which only extreme affronts to judicial independence qualified as incompatible.

The purposes of Chapter III, discussed in Part Two of this thesis, relate to the rule of law, the protection of rights and liberties, and the restraint of governmental power.

The issuing of PDOs by serving judges challenges these core constitutional values. The incompatibility test, however, focuses only on the overarching independent discretions of the judge, not on more substantive affronts to the independence or impartiality of the judicial institution. In this way the test provides a minimal and ultimately insubstantial mechanism for achieving the purposes of Chapter III. Truly the test has considerable potential in the achievement of judicial independence and impartiality, but that potential has not been borne out in the case law and was of little value to the PDO analysis.

The incompatibility test enables the incremental erosion of the separation of judicial power by failing to prevent compromises to independence and impartiality falling short of immersion, usurpation or control. This is seen in the limited success of the test in protecting fair process in PDO proceedings. It is insufficient that the incompatibility test only prevents complete usurpations of judicial independence. The test would be improved by a recognition that perceived judicial independence and impartiality are placed at risk by the mere involvement of judges in clearly unfair or biased proceedings. French CJ and Gageler J seemed to acknowledge this relationship in Condon. Their Honours similarly observed that ‘Chapter III ‘mandates the observance of procedural fairness’189 and that independent judges, presiding over courts

189 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 497 (Gageler J).

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held in public in which each party has a full opportunity to present its own case and to meet the case against it’ is ‘[a]t the heart of the common law tradition’.190 These comments suggest a greater recognition of the centrality of fair process to judicial independence and impartiality in the context of the incompatibility test. However, these reasons may relate only to Kable incompatibility, not to the functions that may be conferred on judges persona designata, and ultimately the Court in Condon confirmed that basic discretions can overcome potential invalidity.

The discussion of preventive incarceration as a potential special case under the incompatibility test highlights both the clear challenge to judicial independence and impartiality posed by PDOs, and the potential strengths of the incompatibility test. As the incompatibility test engages directly with the core purpose of Chapter III, it has the capacity to develop meaningful notions of judicial independence and impartiality and to achieve these aims. A special case for preventive incarceration under the incompatibility test allowed the most troubling features of the PDO provisions to be assessed for their impact on the independence and impartiality of the issuing judge and the judicial institution. However, this rested upon a special case being established, and that possibility was far from certain.

Whilst the High Court has acknowledged that non-punitive incarceration poses a unique challenge to the constitutional values that the separation of judicial power is designed to protect,191 it has not indicated that Kable or Fardon were decided on

190 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ). 191 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan CJ, Deane and Dawson JJ), and see discussion above in section V.A.

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principles markedly different to the other incompatibility cases.192 The Court may well consider that the same notion of incompatibility applies regardless of the extent to which the relevant provisions infringe on rights and liberties. This latter conclusion would be in line with the High Court’s approaches in the control order cases, in which the liberty infringing nature of the orders was largely irrelevant to the Courts’ ultimate findings.193

If Kable and Fardon could support the existence of a special case, this would be a clear advancement in the capacity of the incompatibility test to achieve judicial independence and impartiality. However this advancement would be strictly confined to the context of non-punitive incarceration. Not even prolonged severe restrictions on liberty (such as may arise under a control order) would attract a similarly substantive notion of incompatibility.

The strength of the incompatibility test lies in its potential to achieve judicial independence and impartiality by directly engaging these notions as determinative of constitutional validity. The weaknesses of the test lie in its unpredictable interpretation, in its unclear and dynamic relationship to other principles (such as the essential features of courts), in its steady narrowing, and in its failure to effectively prevent the erosion of judicial independence and impartiality. In Part Two, I submitted that the weaknesses in the test arise from its flexible interpretation. Flexibility has caused the incompatibility test to become difficult to follow or apply. It has also facilitated the whittling down of

192 Though, I note, in, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Gummow J remained concerned about the non-punitive nature of the incarceration and the link to the previous exercise of judicial power in the context of that Act: 613. 193 Totani v South Australia (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458.

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incompatibility to a lowest common denominator and its evolution to a narrow standard that permits all but the grossest infringements on judicial independence or integrity. I give further attention to the contention that flexibility and permissiveness are the root weaknesses in the incompatibility test in Part Five of the thesis.194 A stronger, clearer, more predictable approach is called for in order to achieve the aims of the separation of judicial power and avoid the incremental erosion of independence and impartiality.

Ideally, such an approach could also harness the direct, principled engagement that gives the incompatibility test such strong potential to achieve judicial independence and impartiality.

VII. PURPOSIVE FORMALISM AND PDOS

In Part Two, I introduced purposive formalism, a new method of interpreting the federal separation of judicial power. Purposive formalism is suggested as an alternative to the constitutional rule restricting federal courts to the exercise of judicial powers and ancillary or incidental non-judicial functions: it is designed to govern the permissible powers of federal courts. The purposive elements driving the method are context specific. The test would require reconsideration if it was to be extended to a context beyond federal courts. Until now, this Part has dealt with the functionalist limitations on conferrals of power on State courts and on judges personae designatae. So, why consider whether purposive formalism better achieves judicial independence and impartiality than the functionalist incompatibility test?

194 Part Five, section II.B.

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As earlier noted, since the inception of the second separation rule in the R v Kirby;

Ex parte Boilermakers’ Society of Australia,195 a number of leading commentators and

High Court justices have argued that the rule ought to be overruled and replaced with an incompatibility test. Today, some contend that the test arising from the Grollo and

Kable lines of cases should also govern the permissible powers of federal courts,196 or that a similar functionalist incompatibility standard should be adopted.197 I have considered the strengths and weaknesses in the incompatibility test in order to assess the legitimacy of these arguments. With this aim in mind, in this section I perform a purposive formalist analysis of the PDO provisions. This analysis queries whether a purposive formalist test is better able to achieve judicial independence and impartiality in the PDO context, and therefore whether it presents a preferable method as compared to the incompatibility test.

The two-tiered test of purposive formalism has been outlined in earlier Parts of this thesis. In sum, the test inquires, first, whether a power is judicial or non-judicial. A clear answer at this ‘definition limb’ resolves the issue entirely: judicial powers must be conferred on federal courts, non-judicial powers must not. Powers that are not clearly judicial or non-judicial are addressed at the second ‘compatibility limb’ of inquiry.

195 (1956) 94 CLR 254. See, R v Joske; ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87, 90 (Barwick CJ) (‘Joske (No 1)’). More recently, some have suggested that he second limb of Boilermakers’ be ‘reconceived’ as an incompatibility test: Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 2; Mason, above n 2. 196 Stellios, ‘Reconceiving the Separation of Judicial Power’ above n 2; Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1; George Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press, 1983) 60, 62-63; Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis, above n 2, 156. 197 Appleby, ‘Imperfection and Inconvenience’, above n 2, 280-286.

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These penumbral powers may only be conferred on federal courts if they are demonstrably compatible with judicial independence and impartiality.

The compatibility limb of purposive formalism bears clear resemblance to the incompatibility test. It directly engages the core purpose of the separation of judicial power – judicial independence and impartiality – to determine constitutional validity. In this way, the strength of the compatibility limb is the same as that of the incompatibility test. Both tests give the purposive aspect of Chapter III determinative weight, compel courts to engage meaningfully with these principles, and aim directly at the achievement of judicial independence and impartiality. But does purposive formalism’s focus on compatibility overcome the weaknesses in the incompatibility test? To answer this question I consider purposive formalism in action, assessing whether it would effectively protect the independence and impartiality of Issuing Authorities in PDO proceedings.

A. Is the Power to Issue PDOs Judicial or Non-Judicial?

The first step in the purposive formalist analysis is to consider whether the power is judicial or non-judicial. If the power to issue PDOs is judicial then it may be conferred on courts; if it is clearly non-judicial then it may not be conferred on courts. The nature of judicial power has been discussed at length in Part Three. In essence, judicial powers are indicated by binding and authoritative determinations of existing rights and liabilities according to law, resolving a controversy between parties.198

198 Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-375 (Kitto J); Zines, The High Court and the Constitution, above n 2, 220.

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The power to issue continued PDOs does not resemble an exercise of judicial power. The Issuing Authority is not presented with a controversy between parties with respect to existing rights. Rather, the PDO proceedings require the determination of a set of criteria resulting in the creation of rights and obligations. There is no alleged breach of law provoking legal consequence. The decision to issue a PDO does not create binding precedent or even result in the giving of reasons. Overall, there is little indication the power to issue PDOs is judicial, particularly as an almost identical power is conferred on senior officers of the AFP in respect of initial PDOs.

There are some arguably judicial features of the power to issue continued PDOs.

The criteria upon which the Issuing Authority exercises his or her discretion involve the familiar legal standard of reasonableness, and judges retain arms-length independence from the AFP. However, when viewed in context, the power to issue continued PDOs lacks the core indicia of judicial power, contains many characteristic features of administrative action, and is fairly clearly identifiable as an instance of administrative detention.

The purpose of the orders is an additional important factor in determining whether the power to issue continued PDOs is judicial or non-judicial. In Lim, the High Court indicated that incarceration for a punitive purpose falls exclusively within the judicial power of the Commonwealth.199 PDOs lack a punitive purpose. The orders are purely preventive, aimed squarely at preventing imminent terrorist acts and protecting evidence of recent terrorist acts. Division 105 provides mechanisms by which the orders made are proportionate to their preventive aims by requiring that the Issuing Authority only order

199 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan CJ, Deane and Dawson JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 612 (Gummow J).

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such detention as is reasonably necessary and reasonably appropriate and adapted to the purpose of the legislation. Thus, as detention under a PDO is directed and proportionate to a legitimate non-punitive purpose, the task of issuing PDOs is not exclusively judicial.

The non-judicial nature of the power to issue PDOs is unsurprising. It is undoubtedly a result of deliberate drafting on the part of the Commonwealth Parliament.

If the power were judicial it would not be capable of being conferred on the AFP in proceedings for initial PDOs, or on judges personae designatae or non-judicial persons in respect of continued PDOs. The administrative nature of the power reflects a deliberate intention that PDOs be valid executive orders issued in an administrative proceeding.

As the power to issue PDOs is non-judicial, it could not be conferred on courts in accordance with a purposive formalist interpretation of Chapter III. For the purpose of exploring the potential strengths and weaknesses of the purposive formalist approach, let us assume that this cautious legislative approach was not adopted and, like control orders discussed in Part Three, the power to issue PDOs was conferred on courts.

The hypothetical conferral of the non-judicial power to issue PDOs on federal courts would not satisfy the first step of a purposive formalist interpretation of Chapter

III. If Parliament was minded to confer the power to issue PDOs on federal courts, it would be compelled to redesign the orders to bring them more closely into line with judicial powers and proceedings. The control order provisions enacted alongside

Division 105 present a likely template for the conferral of such powers on federal courts. A federal court power to issue PDOs would likely involve a binding and

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authoritative determination according to similarly predictive but objective criteria, governed by the overarching legal standards of reasonableness, proportionality and the balance of probabilities. It may involve the usual trappings of judicial proceedings such as the rules of evidence and the giving of reasons. The orders may also retain some of their more unusual characteristics, such as their ex parte nature.

In such a scenario the power to issue PDOs would still fail to be clearly judicial.

The orders would remain fundamentally preventive and concerned with the creation, rather than determination, of rights and obligations. However, the power may no longer be so clearly non-judicial either. If the power to issue PDOs was conferred on a federal court, and if the provisions were amended to bring it more closely in line with the nature of judicial power, a court applying the purposive formalist test may identify the power as penumbral in nature. The validity of penumbral powers is determined at the second compatibility limb of the test.

Before proceeding to the second limb of the purposive formalist test, it is possible to identify some advantages of purposive formalism over the incompatibility test. First, purposive formalism has a clear starting point. It begins not with flexible notions, but by considering the definition of the function. It commences with the relatively distinct and simple exercise of identifying whether the power is judicial, non-judicial or penumbral according to established characteristics. The approach is not so readily confused by amorphous concepts such as the essential features of courts or public confidence.

This clarity, at least at the definition limb, gives purposive formalism a starting point of strictness and rigidity which has the capacity to facilitate consistency and predictability. The flexible compatibility analysis is relegated to a secondary tier,

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retaining the strengths of a purposive test but avoiding the likelihood of that flexibility creating inappropriate unpredictability. I return to this below.

Purposive formalism also inherently recognises and protects the core characteristics of judicial power. The mere decision to engage courts in issuing PDOs ought to require that the power adhere to at least some of the core features of judicial power. Purposive formalism directly and clearly acknowledges the integral importance that these characteristics bear on judicial independence and impartiality. There are, for instance, important reasons to ensure that judicial powers resolve questions of law not policy, and focus on existing rights and liabilities.200 The incompatibility test protects these characteristics in a tangential way, conceiving of them as essential features of courts or through the evolving prism of incompatibility. Compelling Parliament to only vest powers in courts that adhere to some, if not all, the defining characteristics of judicial power is itself is a key step in achieving judicial independence and impartiality.

Division 105 confers non-judicial power and, therefore, would not pass the first stage of the purposive formalist test. If the power was amended to comply with the classic characteristics of judicial power, to the point that it was no longer clearly non- judicial, it may qualify as a penumbral power and be assessed at the next ‘compatibility limb’ of analysis.

200 See, Australian Boot Trade Employees Federation v Whybrow and Co (1910) 10 CLR 266, 318 (Isaacs J); Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 268 (Deane, Dawson, Gaudron and McHugh JJ); Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 442-444 (Griffith CJ); Suri Ratnapala, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 2007) 127-128; Martin Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta’ (1989) 39 DePaul Law Review 299, 303. Discussed in Part Three, section III.

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B. Is the Power to Issue PDOs Compatible with Judicial Independence and Impartiality?

The second tier of purposive formalism looks to whether the power is compatible with judicial independence and impartiality. Only if a penumbral power is demonstrably compatible may it be conferred on a federal court.

Just because PDOs would likely be valid under the incompatibility test, does not mean the provisions would survive purposive formalism’s compatibility inquiry. The rationale behind the compatibility limb is that the conferral of penumbral powers on courts threatens the incremental erosion of the separation of federal judicial power.

Therefore, these powers ought not be conferred on courts unless they are demonstrated to be positively compatible with judicial independence and impartiality. As identified in

Part Two, the compatibility limb is therefore opposite to the incompatibility test which presumes constitutional validity in the absence of demonstrated incompatibility.

So, what does compatibility with judicial independence and impartiality require, and would the power to issue PDOs meet this standard? This is not a simple question, but some key observations are available. Judicial independence and impartiality are closely connected with fair process. If the equality or fairness of judicial proceedings is seriously compromised, such as through secret hearings or avoidance of the rules of evidence, then objective faith in courts as impartial arbiters of justice will be diminished, and the independence and impartiality of courts is challenged.201 Powers that are compatible with judicial independence and impartiality will therefore preserve

201 Gerard Brennan, ‘Lessons from a Life in the Law’ (Paper presented at The Annual Hal Wootten Lecture, Faculty of Law, University of New South Wales, 11 September 2012) 16-18; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 463 (French CJ).

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equality, justice and confidence in the legal system. They may also uphold the constitutional compact more broadly by, for example, ensuring political functions are vested in the representative branches.

In section V.B, above, I discussed the ways in which the power conferred on

Issuing Authorities departs from the core aspects of fair process. The PDO provisions empower judges to order the incarceration of citizens absent charge or hearing, in ex parte proceedings at which the detainee’s interests are represented only through the detaining officer. Accepting that judicial independence and impartiality require basic adherence to fair process mandates a conclusion that PDOs are constitutionally invalid under the compatibility limb. Thus, even in the hypothetical scenario in which the power to issue PDOs was conferred on federal courts, and the power amended to align more closely with the classic characteristics of judicial power, it is highly unlikely that

PDOs would survive a purposive formalist test of Chapter III validity.

C. A Valid PDO Scheme

In order for the PDO provisions to confer valid powers on federal courts, they would require amendment to bring them into line with the hallmarks of both judicial power and fair process. This would require, at a minimum, an open hearing governed by the rules of evidence at which both sides presented arguments in the form of evidence, submissions and cross-examination. It would also require a binding and authoritative decision resulting in the giving of reasons and providing an avenue of appeal.

If these procedural amendments were made to the PDO scheme it would differ enormously from its present state and may lose its workability as an urgent preventive measure. Similar conclusions were hinted at by COAG in its report on the scheme, and

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appeared to underpin its recommendation that the provisions be repealed.202 Even if the

PDO provisions were amended to align with basic fair process, a court applying the purposive formalist test may find that the involvement of judges in preventive incarceration, in the absence of any necessary allegations of criminal wrongdoing on the part of the detainee, set the scheme at odds with judicial independence and impartiality and are fundamentally repugnant to Chapter III.203

VIII. CONCLUSIONS: THE ADVANTAGES OF PURPOSIVE FORMALISM

The core purpose of the separation of federal judicial power is the achievement of an independent and impartial judicature. In Part Two of this thesis, I identified that judicial independence and impartiality are not ends in themselves, but the means by which a range of other constitutional aims – such as limited government, equality and the rule of law – are achieved.204 Incarceration outside judicial processes challenges these constitutional values. Detention in a state facility is one of the most severe forms of order available in Australia. Proceedings for detention orders deserve particular

202 Council of Australian Governments, above n 45, 68-70. The Committee noted that ‘the majority consider that the additional safeguards that would need to be built into the scheme … would simply diminish the operational effectiveness of the scheme and lead to an even greater level of reluctance and a determination on the part of police not to use the legislation, even in an emergency situation’: 70. 203 Such a finding would build upon the obiter dicta comments of, eg, Gaudron J, discussed above: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 55 (Gaurdon J), Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 106-107 (Gaudron J). It would also distinguish the detention schemes in Fardon and Kable on the basis that those schemes permitted preventive incarceration as an extension of a term of imprisonment for a serious offence. 204 See discussion in Part Two, section III. Mason, above n 2, 2; Peter Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1, 3; Stellios, ‘Reconceiving the Separation of Judicial Power’ above n 2; New Zealand Law Commission, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? Issues Paper No 1 (2011) 4; Ralf Dahrendorf, ‘A Confusion of Powers: Politics and the Rule of Law’ (1977) 40 Modern Law Review 1, 9; Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1, 3.

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constitutional scrutiny. By involving judges in proceedings for the secret, short-term incarceration of citizens outside criminal justice processes, the PDO provisions present an opportunity to assess whether the incompatibility test is capable of protecting judicial independence and impartiality from legislative infringement, and achieving constitutional values.

The discussion in this Part has demonstrated some keen failings in the capacity of the incompatibility test to achieve judicial independence and impartiality. The first set of weaknesses lie in the test’s complex and unpredictable nature. The meaning of incompatibility is susceptible to change over time. It is far from clear how the test intersects with related notions of public confidence, the essential features of courts, and procedural fairness in judicial and administrative proceedings.

Secondly, the principles that emerge from the authorities suggest a narrow conception of incompatibility in which arms-length independence and the preservation of basic discretions overcome potential invalidity. This thin notion of incompatibility proved inadequate to support any meaningful consideration of how the most troubling aspects of the PDO provisions might challenge judicial independence and impartiality.

Ultimately, the analysis of how the incompatibility test may respond to the powers conferred on judges by Division 105, demonstrated the test to be an unpredictable, unwieldy and ultimately insubstantial mechanism for achieving the purposes of Chapter

III.

Some support may be found for the existence of a special case for preventive incarceration under the incompatibility test, by which such orders would be subject to stronger scrutiny and be required to adhere to basic aspects of fair process. This

267 Part Four: Testing Incompatibility

arguable special case acknowledged the particular challenge that detention outside the criminal process poses to constitutional values. However, the existence of a special case is far from clear and it would at best be strictly limited to the preventive incarceration context.

Purposive formalism limits the impact of these weaknesses by confining the purposive inquiry to a secondary tier and rephrasing it to focus on compatible (rather than incompatible) features of a power. Purposive formalism is a clearer test than the incompatibility test. It commences with a more straightforward, simpler exercise, looking to the defining characteristics of judicial power rather than to an expansive and flexible consideration of incompatibility. This starting point of strictness and rigidity enhances the susceptibility of the test to consistent and reliable application.

Moreover, purposive formalism recognises and protects the core characteristics of judicial power. If the power to issue PDOs were, hypothetically, to be conferred on federal courts (like power to issue control orders discussed in Part Three) then it should more closely resemble the accepted, independent, traditional powers of courts.

Purposive formalism directly requires this, acknowledging the importance of these features in protecting judicial independence and impartiality. The incompatibility test, on the other hand, does not necessarily attribute any weight to these characteristics, and may therefore facilitate the erosion of previously accepted ideas of judicial roles and limits.

Purposive formalism positively frames the compatibility inquiry, thus propelling engagement with the meaning of compatibility rather than focussing upon offensive incompatible features. Therefore the approach avoids the narrow focus of the

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incompatibility cases discussed in this Part, and has the capacity to better facilitate the development of fair process jurisprudence. In this way, purposive formalism enables grave offences to fair process, such as the circumstances in which PDOs are issued, to weigh heavily into the Chapter III validity analysis.

Importantly, purposive formalism harnesses and strengthens the principled engagement that is the incompatibility test’s greatest advantage. Any decision engaging purposive formalism’s compatibility limb would be openly and accountably justified by reference to the purposes of Chapter III and the requirements of judicial independence and impartiality. This engagement could not be overshadowed by discussion of the essential features of courts, thus overcoming some of the confusion and complexity arising from the incompatibility test authorities.

But what of powers that do not reach the compatibility limb? It may be perceived as a weakness in purposive formalism that the compatibility limb only applies to penumbral powers. This arguably creates the potential for clearly defined powers to be allocated on technical grounds that focus on defining characteristics rather than the power’s impact on judicial independence and impartiality. Some may advocate the adoption of a single-tiered compatibility test to govern the permissible functions of federal courts.

A single-tiered compatibility test would fail to attribute appropriate importance to the preservation of the core characteristics of judicial power. Crucially, it would rest upon a core ethos of flexibility, risking the incremental erosion of judicial independence and the unpredictable turns of interpretation seen in the incompatibility cases. The problematic nature of functionalism’s underlying flexibility is discussed further in Part

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Five. The challenge in interpreting Chapter III is to couple direct purposive engagement with a more rigid, less flexible approach so this strength is not whittled down over time.

Purposive formalism strikes this balance by relegating the compatibility inquiry to a secondary-tier.

Both the incompatibility and purposive formalist tests recognise the purposive nature of the separation of judicial power and attribute considerable weight to those purposes. This seems the clearest path towards achieving judicial independence and impartiality. The potential for a functionalist inquiry to fulfil this aim was demonstrated in the discussions of a potential special case in this Part. Purposive formalism avoids the need to argue a special case in order to engage a substantive notion of compatibility. It recognises the importance of considering the impact of a power on judicial independence and impartiality in all contexts, not just those resulting in incarceration. It could be said that purposive formalism makes a special case of all powers that are not obviously judicial or non-judicial.

Purposive formalism is not without its weaknesses. The content of the compatibility limb remains undeveloped, and reasonable minds could easily differ in distinguishing clearly defined powers from penumbral powers. But these weaknesses are less serious than those posed by the formalist separation rules or the functionalist incompatibility test. A purposive formalist interpretation of Chapter III at once harnesses the strengths and overcomes the weaknesses of the incompatibility test. It is ultimately better able to protect judicial independence and impartiality, even in the highly controversial scenarios such as the preventative detention of citizens. In the next Part of the thesis I draw together my findings in Parts Two, Three and Four to make a final assessment of

270 Part Four: Testing Incompatibility

the relative strengths and weaknesses of each interpretive approach and to conclude as to which is better able to achieve the independence and impartiality of federal courts.

271 Part Five: Conclusion

PART FIVE

CONCLUSION:

PURPOSIVE FORMALISM A PREFERABLE APPROACH

I OVERVIEW

Courts play a vital role in upholding the rule of law. They are charged with objectively determining legal disputes between citizens and involving the institutions of state. They interpret statutes and develop the common law in accordance with principles aimed at maintaining basic values such as equality, open justice and limited government. Courts provide an important check on executive powers by reviewing the legality of administrative action. The High Court in particular bears responsibility for interpreting and upholding the Constitution, determining disputes as to the scope of government powers, and reviewing the legislative actions of Federal, State and Territory

Parliaments. In these ways, courts play an important role in upholding the rights and liberties of citizens.

Judicial independence and impartiality are crucial if courts are to fulfil these roles effectively. Fundamental constitutional values, such as equality, accountability and freedom from arbitrary decision-making, hinge upon the capacities of courts to act independently and impartially. Not only must these qualities exist in practice, but they must be perceived to exist in order for the judicature and its decisions to maintain legitimacy, community acceptance and obedience.1

1 Stephen Parker, ‘The Independence of the Judiciary’ in Fiona Wheeler and Brian Opeskin (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 62, 63; Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional

272 Part Five: Conclusion

Notwithstanding the recognised importance of judicial independence and impartiality, these qualities are under persistent threat of erosion. The case studies in this thesis demonstrate, for example, that the openness and equality of court proceedings may be compromised by secret evidence or closed proceedings for reasons of state secrecy or national security. A drive for urgency may even lead to proceedings being held ex parte and without notice to an affected party, or with severely limited notice periods. These compromises to rule of law values may occur even when the proceedings result in onerous restrictions on liberty. The case studies present but a few instances in which fundamentally political concerns may impact the capacity of a court to fulfil its functions with independence and impartiality. The legislature has considerable control over the conduct of legal proceedings, including the clear capacity to alter court processes and to dictate the grounds of judicial decisions. In sum, judicial independence and impartiality may come under direct or indirect challenge in many ways, often for legitimate political reasons.

As judicial independence and impartiality are so central to the Commonwealth constitutional framework and yet at risk of erosion, the issue becomes how these qualities may be effectively and appropriately maintained. Chapter III of the

Constitution has been interpreted to enshrine a separation of federal judicial powers aimed at the achievement of independent and impartial federal courts. To this end, section 72 of the Constitution provides direct protections for judicial tenure and remuneration and section 71 confers judicial powers on properly constituted courts.

Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 185.

273 Part Five: Conclusion

Chapter III has also been interpreted to separate the judicial and non-judicial powers of government by vesting them in distinct institutions.2

In Part Two, I introduced the separation of federal judicial power under the

Constitution, its purposive nature and the issues surrounding its interpretation.

However, the exact nature and degree of this separation remains open to interpretation.

This prompts the driving question of this thesis, namely, how should the separation of federal judicial power derived from Chapter III of the Constitution be interpreted to best achieve the independence and impartiality of federal courts? The two key viewpoints that have arisen in this debate are formalism and functionalism. I suggest that a third interpretation is available, one that blends elements of both these approaches to create a preferable model. I have called this new approach purposive formalism.

The strict formalist interpretation of Chapter III was introduced in Part Two. Its strengths and weaknesses are demonstrated in a case study analysis in Part Three, focussing on anti-terrorism control orders and the decision of Thomas v Mowbray.3

Formalists advocate a strict, definition-based separation of judicial and non-judicial powers. This separation is achieved by two rules. The first separation rule is that judicial powers may only be vested in courts. The second rule is that courts may only exercise judicial powers and ancillary or incidental non-judicial functions. A formalist test has governed the powers of federal courts since the 1956 case of R v Kirby; Ex parte Boilermakers’ Society of Australia.4 Since that time the strict formalist separation,

2 The Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Attorney-General (Cth) v The Queen (1957) 95 CLR 529. 3 (2007) 233 CLR 307. 4 (1956) 94 CLR 254.

274 Part Five: Conclusion

in particular the second separation rule, has attracted significant criticism. A number of leading commentators have called for the rule to be overruled and replaced with a functionalist incompatibility test.5 This thriving contemporary debate frames the present investigation as to which method best achieves the purposes of Chapter III.

Functionalists advocate a more flexible approach, setting questions of definition aside and hinging validity on some other, more principled standard. This approach was also introduced in Part Two of the thesis. In Australia, the functionalist approach is characterised by an incompatibility test that prevents courts only from being vested with powers that are incompatible with institutional independence or integrity. In the 1995 case of Grollo v Palmer6 and the 1996 case of Kable v Director of Public Prosecutions,7 the High Court interpreted Chapter III to require that functions vested in judges personae designatae and in State and Territory courts, respectively, comply with an incompatibility test. In Part Four, I critiqued the functionalist incompatibility test for its capacity to achieve judicial independence and impartiality, engaging in a case study analysis of anti-terrorism preventative detention orders (‘PDOs’). In the present Part I give more sustained attention to the argument (raised in Part Two) that the weaknesses in the functionalist test stem from its inherent flexibility and permissiveness.

5 See, eg, Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1; James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113; Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law Journal 265; George Winterton, Parliament, the Executive and the Governor-General (Melbourne, 1983), 60, 62-63; Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University, 1999) 156. 6 (1995) 184 CLR 348. 7 (1996) 189 CLR 51.

275 Part Five: Conclusion

The parallel development of formalist and functionalist interpretations of Chapter III in Australian jurisdictions presents an opportunity to assess the strengths and weaknesses of each approach in achieving judicial independence and impartiality. The broad doctrinal analysis in Part Two and focussed case studies in Parts Three and Four not only demonstrate these strengths and weaknesses, but they consistently support the adoption of a purposive formalist interpretation of Chapter III.

Purposive formalism is a two-tiered, hybrid model combining elements of formalist and functionalist tests. At the first tier, a formalist test rests validity on whether a power is clearly defined as judicial or non-judicial. If a power defies clear definition its validity is assessed at the second tier, which requires that powers may only be vested in courts if they are demonstrably compatible with judicial independence and impartiality.

Despite some clear weaknesses, which I discuss in section III below, purposive formalism emerges as a preferable approach better able to achieve the core aims of

Chapter III than either the formalist separation rules or the functionalist incompatibility test.

II MAIN FINDINGS

A Formalism: The Limitations of a Definition-Based Approach

The strict formalist approach to the separation of judicial power has much to commend it as a means of achieving the purposes of Chapter III. The clarity and rigidity of the separation rules support their capacity to provide robust protection for judicial independence and impartiality. However, formalism also suffers from serious weaknesses in this respect. By resting validity entirely on the identification of a power as judicial or non-judicial, the approach requires that all functions are susceptible to

276 Part Five: Conclusion

clear definition. But this is clearly not always so. The rules then fail to provide a clear and appropriate mechanism to assess the validity of functions that defy clear definition.

Moreover, by focussing narrowly on a limited set of defining characteristics, the rules have evolved to provide awkward and insubstantial protections for fair process in judicial proceedings. The case study analysis in Part Three demonstrates the existence and impact of these weaknesses in the capacity of the separation rules to achieve judicial independence and impartiality.

1 Determining the Validity of Penumbral Powers

The separation rules hinge constitutional validity entirely on whether a function is judicial, non-judicial, or ancillary to judicial power. Thus, the capacity of the separation rules to achieve judicial independence and impartiality rests upon the legitimacy of the rules’ primary assumption that powers may be defined with enforceable precision. It is well accepted that judicial power is generally indicated by the binding and authoritative resolution of a dispute between parties regarding existing rights and liabilities, according to law.8 In many cases functions may be easily defined according to this established set of characteristics. However, these classic characteristics of judicial power are not determinative. Identifying a power as judicial or non-judicial will generally take the form on an unpredictable balancing exercise, weighing the present characteristics against those that are absent or contrary. At the end of the day, many functions are penumbral in nature, that is, they exist in the space between clearly judicial and clearly non-judicial powers.

8 Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 220.

277 Part Five: Conclusion

The power to issue control orders is, I submit, one such penumbral power. This power is vested in federal courts and was upheld as judicial in the 2007 case of Thomas.

It involves a conclusive decision culminating in a binding order. However, the Issuing

Court is not determining a controversy about existing rights but creating a fresh set of rights and obligations between parties. Moreover, the predictive, community-protection- focussed criteria that form the basis of the Issuing Court’s determination are arguably too broad to qualify as legal standards. The power to issue control orders does not fit within traditional conceptions of judicial power, nor does it contain features that are strikingly antithetical to judicial exercise. In short the power is neither clearly judicial nor non-judicial.

In Thomas, the High Court was bound to resolve the question of Chapter III validity by an application of the formalist separation rules. In order to define the power to issue control orders the Court adopted broad, highly flexible interpretations of the characteristics of judicial power. Negligible weight was attributed to a key characteristic of judicial power, namely, that it concerns existing rights and duties. The Court suggested that an exercise of judicial power may as readily create rights as duties as determine them. The majority justices further indicated that a judicial decision made according to law may involve vague, imprecise, predictive, even political standards.

Thomas highlights that when definition is the primary criterion of validity, the characteristics of judicial power risk being stretched and contorted until they lose concrete meaning. This indeterminacy in the characteristics of judicial power undermines the fundamental rigidity and strength of the separation rules.

278 Part Five: Conclusion

When the defining characteristics of judicial power proved insufficient to resolve the constitutional question in Thomas, the majority justices looked to additional considerations – namely, the traditional functions of courts and parliamentary intent – to determine the validity of the power. In essence, something more beyond the classic characteristics was needed to resolve the question of Chapter III validity. The dissenting justices Hayne and Kirby JJ emphasised the considerable risks associated with drawing on those factors relied upon by the majority. Instead their Honours adopted more robust interpretations of the defining characteristics and took a more principled approach overall. This inconsistency in judicial approaches further demonstrates the inadequacy of definition as a sole criterion of validity, and is itself a weakness in the formalist framework.

The failure of the separation rules to stipulate a clear and appropriate mechanism for resolving the validity of penumbral powers permits problematic factors to become determinative. The factors relied upon by the majority justices in Thomas, parliamentary intent and historical analogy, have the potential to seriously undermine judicial independence and impartiality. Gleeson CJ harnessed parliamentary intent to determine the nature of the power to issue control orders. His Honour’s approach appears to expand the potential scope of judicial power to encompass all powers lacking peculiarly legislative or executive features.9 There are significant problems with this approach. As was suggested in argument for the Commonwealth in Thomas, this path of reasoning undermines the formalist separation to the point of irrelevance.10

9 Thomas v Mowbray (2007) 233 CLR 307, 327 (Gleeson CJ), discussed in Part Three, section III. 10 Thomas v Mowbray (2007) 233 CLR 307, 316.

279 Part Five: Conclusion

Gummow, Crennan and Callinan JJ supported their conclusion that the power to issue control orders was judicial by reference to analogous functions performed by courts. These analogies were imperfect and problematic. Some were drawn from jurisdictions subject to more permissive separation of powers principles. Others functions were in fact incidental powers, subject to a specific exception that permits their conferral on courts. All of the analogies relied upon contained important points of distinction from the power to issue control orders.11 By drawing on loose and distinguishable analogies the majority justices risked expanding the potential ambit of judicial power exponentially. This approach facilitates a whittling down of the strict separation of judicial power and the erosion of judicial independence and impartiality.

In essence, it comes close to defining judicial power by reference to ‘what courts do and the way they do it’.12

Thomas demonstrates two related weaknesses in the separation rules framework. It fails to outline a clear approach to determining the Chapter III validity of penumbral powers and, in doing so, it permits additional considerations that undermine judicial independence and impartiality to determine constitutional validity. A third weakness in the separation rules arises from the rules’ limited capacity to protect certain core aspects of judicial independence and impartiality, notably, fair process in judicial proceedings.

11 Discussed in Part Three, section III.E. 12 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 179-180; Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ).

280 Part Five: Conclusion

2 Limited capacity to protect fair process

Formalism rests on the assumption that a definition-based allocation of powers will achieve judicial independence and impartiality. Fair process is central to judicial independence and impartiality. In Part Two, I discussed the two ways in which fair process protections have been envisaged within the formalist separation rules framework. Elements of fair process may be conceived of as within the defining features of judicial power, or of courts themselves. Of course, fair process may inform the defining features of both judicial power and courts at once. Despite the High Court adopting both of these approaches in this way in Thomas,13 fair process concerns were given limited and inconsistent attention in that case.

The essential or defining features approach to protecting fair process lends itself to allowing cumulative compromises to the fairness and equality. In order to qualify for constitutional protection a feature must define either courts’ or judicial powers. This approach invites judges to consider each individual compromise to fair process in isolation, as reflected in the majority judgments in Thomas. So, although secret evidence and ex parte hearings, for example, have an accepted place in some judicial proceedings they could not (and ought not) qualify as defining features of courts or their powers, regardless of their context or impact. As none of the particular compromises to fair process in control order proceedings met the significant threshold of being a defining feature, the power withstood the test of Chapter III validity. A more comprehensive analysis of the proceedings’ overall impact on judicial independence or impartiality is not necessarily required by the separation rules.

13 See, Thomas v Mowbray (2007) 233 CLR 307, 355 (Gummow and Crennan JJ), 335 (Gleeson CJ).

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That said, a court may conceive of judicial independence and impartiality as defining features of courts and of judicial powers. This has the potential to facilitate a more substantive consideration of how procedural aspects of a power may impact judicial independence and impartiality. In Thomas, Kirby J gave relatively detailed consideration to each compromise to fair process both individually and cumulatively.

His Honour’s analysis ended with the broad conclusion that the control order provisions were at odds with judicial independence, impartiality and integrity.14

Kirby J’s approach in Thomas stretches the potential of the formalist test, but demonstrates the capacity for meaningful consideration of the impact of a power on judicial independence and impartiality within this framework. At best, it may be said that the separation rules allow for, but do not require or encourage, principled engagement with the purposes of Chapter III. At worst, the narrow focus on definition provides a significant obstacle to substantive engagement with considerations of fair process. Any discussion of the principled, purposive aspect of Chapter III within the separation rules framework has been relatively ad hoc and inconsistent throughout the authorities. The rules have tended to focus more closely on particular defining characteristics, in line with the central ethos of the formalist method. This approach is reflected in the majority judgments in Thomas.

The inconsistency with which justices engage with the purposes of Chapter III in assessing fair process arguments creates unpredictability and complexity. Despite the

14 Thomas v Mowbray (2007) 233 CLR 307, 436 (Kirby J), cf, Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 488, 492-493 (Hayne, Crennan, Kiefel and Bell JJ) in which their Honours envisaged independence and impartiality as defining features of courts, yet found that these features were preserved by a relatively formal sense of independence whereby the judge retained fundamental discretions. See discussion in Part Four, section III.B.

282 Part Five: Conclusion

centrality of fair process to judicial independence and impartiality, the relationship between the formalist separation of judicial power and protections for fair process remains one of the most complex aspects of Chapter III jurisprudence.

B Functionalism: Too Flexible to Achieve Judicial Independence and Impartiality

One potential response to the weaknesses in the separation rules is to reject the formalist approach entirely and advocate a wholly substantive test that does not suffer the problems of definitional imprecision and formalistic technicality discussed. The functionalist incompatibility test presents one such alternative. The incompatibility test embodies the rationale that powers may be conferred on multiple branches of government unless the conferral is incompatible with institutional independence or integrity. The definition of a power is not determinative under this functionalist approach. Thus, the incompatibility test avoids problems arising from the insusceptibility of functions to clear definition. Moreover, by giving determinative weight to the impact of a power on judicial independence and impartiality, the test precludes other considerations such as parliamentary intent or the historical functions of courts from determining constitutional validity, and provides a direct and substantive avenue for protecting fair process in judicial proceedings.

In all, the functionalist approach overcomes each of the key weaknesses in the formalist test. It seems clear, even incontrovertible, that rendering judicial independence and impartiality directly determinative of Chapter III validity will provide the most effective way of achieving those aims. However, the incompatibility test has not lived up to its potential in this respect.

283 Part Five: Conclusion

The two primary criticisms of the functionalist incompatibility test are, first, that incompatibility is too vague a concept to provide an appropriate criterion of constitutional validity and, secondly, that the test is ineffective at preventing the incremental erosion of judicial independence and impartiality. In Part Two, I introduced the incompatibility test and I suggested that the notion of incompatibility has developed an enforceable meaning, but that it has become very narrow and ultimately incapable of protecting judicial independence and impartiality.

The analysis of the PDO provisions in Part Four supports, even builds upon, the criticisms of the incompatibility test introduced in Part Two. The flexibility underpinning the test has led to it developing in a highly complex and unpredictable manner, to the point that it arises as a vague standard. The clearest notion of incompatibility that emerges from the case law is extremely narrow and did not give appropriate weight to the most troubling features of the PDO provisions.

1 Vague and Unpredictable

The early incompatibility cases of Grollo and Wilson v Minister for Aboriginal and

Torres Strait Islander Affairs15 provided clear guidance on the meaning and indicia of incompatibility. In Grollo the Court identified three forms of incompatibility, and in

Wilson the Court outlined a three-step test to assist in identifying public confidence incompatibility. However, subsequent cases render this guidance of uncertain weight.

Grollo and Wilson are regularly referred to, but courts have tended to rest incompatibility findings on the more general notions of judicial independence and institutional integrity.

15 (1996) 189 CLR 1.

284 Part Five: Conclusion

Applying the incompatibility test to the conferral of the power to issue PDOs on judges personae designatae highlighted the difficulty in identifying a clear notion of incompatibility. It was not clear whether the authorities on Kable incompatibility (in respect of State courts) carried weight in a persona designata context.16 Some cases, such as Wainohu v New South Wales,17 support a singular notion of incompatibility that cuts across these separate scenarios. Other cases, like Assistant Commissioner Condon v

Pompano Pty Ltd,18 suggest otherwise and link Kable incompatibility to the essential features of courts.

Complicating the test further are the uncertain relationships between incompatibility and the notions of public confidence, the essential features of courts, and procedural fairness. Judgments have at times embraced public confidence as of central concern to incompatibility, and at other times disregarded it as a problematic consideration. Public confidence may be incorporated within the concept of institutional integrity, though this does little to clarify the test’s application. In cases concerning

State courts, incompatibility has at times been strongly linked to the essential or defining features of courts. In Condon, this suggestion was expanded to include fair process as a related defining feature. It is far from clear whether this indicates that a distinct incompatibility standard applies in cases concerning courts as opposed to cases concerning judges personally. Moreover, the key incompatibility authorities are regularly subject to strong dissents, incur pointed criticism and, as a whole, appear to

16 Referring to the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, discussed in Part Two, section IV, and again in detail in Part Four. 17 (2011) 243 CLR 181. 18 (2013) 87 ALJR 458.

285 Part Five: Conclusion

offer contradictory or inconsistent views on these issues. Ultimately, incompatibility emerges as a vague, unpredictable and highly complex notion.

In applying the test to the power to issue PDOs, it was not clear which authorities carried weight or the extent to which procedural fairness and perceived impartiality may have been determinative of incompatibility. The cases on the whole are at times contradictory.19 For instance, the preservation of overarching discretions, as in PDO proceedings, was sufficient to avoid incompatibility in cases such as Gypsy Jokers

Motorcycle Club Inc v Commissioner of Police20 and Condon, but not in Wainohu.21 On the other hand, these cases that developed incompatibility as it relates to State courts were of uncertain relevance to assessing the PDO provisions. Even faced with an arguably clear challenge to liberty and judicial independence in the PDO provisions, the analysis was clouded and uncertain. The clearest way to apply the incompatibility test with some confidence was to seek consistent threads in the case law and settle upon a lowest-common-denominator interpretation of incompatibility.

2 Ineffective and Insubstantial

Emerging most clearly from the cases is a minimalistic, narrow interpretation of incompatibility. Under this interpretation a relatively formal sense of arms-length

19 Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 159-160; Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 100; Gabrielle Appleby, ‘State Law and Order Regimes and the High Court: A Study in Federalism and Rights Protection’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 23 October 2013) 18-27. 20 (2008) 234 CLR 532. 21 See discussion in, Rebecca Welsh, ‘Incompatibility Rising? Some Potential Consequences of Wainohu v New South Wales’ (2011) 22 Public Law Review 259.

286 Part Five: Conclusion

independence – whereby the judge is not forced into an unavoidable conflict, integrated into the non-judicial branches, or required to make a political decision – is likely to avoid incompatibility.

Adopting this interpretation left little room for considering the overall impact of

PDOs on judicial independence and impartiality, or for giving appropriate weight to troubling aspects of the PDO provisions. For instance, the fact that the provisions involve serving judges in highly secretive administrative incarceration absent fair process, proved largely irrelevant to the incompatibility analysis. Incompatibility was difficult to establish simply because the judges issuing PDOs maintained overarching discretions and arms-length independence from the executive.

By permitting compromises to independence and impartiality falling short of immersion, usurpation or control, the incompatibility test facilitates the incremental erosion of the separation of judicial power. Ultimately, the test appears to provide only the scantest protection for the fairness, openness or equality of the process in which the judge is involved, despite these qualities being integral to judicial independence and impartiality.

In section VI of Part Four, I considered the possibility that a special case may exist under the incompatibility test, requiring that powers resulting in incarceration comply with the basic tenets of fair process. This discussion highlights some of the potential strengths of the incompatibility test. A special case for preventive incarceration would allow the most troubling features of the PDO provisions to be assessed for their impact on judicial independence and impartiality, and would undoubtedly result in the invalidity of the conferral of the power to issue PDOs on serving judges. That said, the

287 Part Five: Conclusion

existence of a special case is far from clear and would nonetheless be strictly limited to instances of preventive incarceration. Not even extended restrictions on liberty, such as those that may occur under a control order, would attract a similarly substantive notion of incompatibility.

3 The Root Weaknesses: Flexibility and Permissiveness

The incompatibility test has considerable potential to achieve judicial independence and impartiality. However, the test has failed to live up to this potential, instead developing to become complex, unpredictable and, in most cases, ineffective. As discussed in Part Two, advocates of formalist approaches predict that these weaknesses will afflict any approach grounded in flexibility and permissiveness rather than rigidity and caution.22 The discussion of the incompatibility test and the power to issue PDOs in

Part Four demonstrates that these weaknesses afflict the incompatibility test in

Australia, but why is this the case? In this section, I develop the argument, raised in Part

Two, that the weaknesses of the incompatibility test arise from its inherent flexibility and permissiveness as a functionalist test. This important argument deserves to be revisited as it was not a primary focus in the context of Part Four’s more practical analysis of the PDO provisions.

Three reasons can be identified to account for why the incompatibility test has not developed to provide an effective means of achieving judicial independence and impartiality. First, particular cases may not have arisen which provide the opportunity for the strengths of the test to have been developed. This argument may be dealt with

22 Martin Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta’ (1989) 39 DePaul Law Review 299, 306.

288 Part Five: Conclusion

briefly. Incompatibility has been argued on numerous occasions across a diverse range of fact scenarios.23 The test has been invoked repeatedly in the contexts of preventive detention schemes,24 control orders,25 and to contest the use of secret evidence in judicial proceedings.26 Even in these relatively extreme scenarios incompatibility has been affirmed as narrow and easily avoided.

A stronger argument is that the test has been interpreted poorly. The narrowness that characterises the incompatibility test may simply be the result of particular styles of judging and not actually indicate this functionalist test is less apt than the formalist separation rules to achieve the purposes of Chapter III.27 This argument would support the adoption of an incompatibility test to govern the permissible functions of federal courts. The argument emphasises the potential for the test to develop into an effective mechanism for achieving judicial independence and impartiality, subject to a certain interpretational approach.

Speaking generally, the inception of the incompatibility test coincides with a period of the High Court that is characterised by functionalist interpretations of the

23 See discussion in, Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 261-271 (Weinberg, Bennett and Edmonds JJ). 24 Kable v DPP (NSW) (1996) 189 CLR 51; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575. 25 Totani v South Australia (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458. 26 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K- Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458. 27 See, Will Bateman, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411, 442.

289 Part Five: Conclusion

Constitution.28 The period in which the incompatibility test was not applied, and therefore narrowed in scope with each unsuccessful attempt to rely on it, coincides with a period of increased legalism that arguably characterised majority opinion through much of Gleeson CJ’s term as Chief Justice.29 Taking these factors into account, one may suggest that a new court with a less legalistic approach might breathe new life into the incompatibility test – a contention that could account for the string of cases successfully applying the incompatibility test since the recent changes to the constitution of the High Court bench, including French CJ’s appointment as Chief

Justice.

There is a certain appeal to this argument and it merits further research. Recent cases may reflect that a more robust conception of incompatibility is being adopted by the High Court, resulting in an overall improvement in the capacity of the test to achieve judicial independence and impartiality. However, it would be a gross oversimplification, and simply wrong, to suggest that a clear notion of incompatibility has arisen from each period of the High Court described above.30 Even the first two incompatibility cases, Grollo and Wilson, have been criticised as contradictory,31 and the same has been said of some of the more recent cases that have been decided by a

28 Leslie Zines, ‘2002 Sir Maurice Byers Lecture: Legalism, Realism and Judicial Rhetoric in Constitutional Law’ Summer 2002/2003 Bar News 13, 15. 29 Leslie Zines, ‘Chief Justice Gleeson and the Constitution’ in HP Lee and Peter Gerangelos, Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (Federation Press, 2009) 269, 269-271. 30 See, Gabrielle Appleby’s compelling critique of the principle: Appleby, ‘State Law and Order Regimes and the High Court’, above n 19. 31 Walker, above n 19, 159-160. See also, the critique of Fardon and Kable in: Keyzer, above n 19.

290 Part Five: Conclusion

largely continuous bench.32 The flexibility that underpins the incompatibility test suggests that any revitalised, more effective interpretations of incompatibility are likely to be harnessed by only some members of the Court, or may be subject to the changeable interpretations that have characterised the development of the test since its inception. If anything, this argument highlights the capacity for the test to result in different outcomes depending on subjective interpretational preferences of particular justices. This flexibility is itself a weakness in the capacity of the test to offer robust protection for fundamental constitutional principles and arrangements. I return to this point below.

Importantly, the Court has been careful not to disturb the existing authorities when interpreting the incompatibility test. Rather, it has adopted and reinforced narrow interpretations of incompatibility. In recent cases, findings of incompatibility have rested on very narrow grounds, usually on a single provision. In taking this approach the

Court has legitimised broader features of the legislation as constitutionally valid.

Therefore, the fact that a judge was involved in administrative detention absent fair process carried almost no weight in suggesting incompatibility existed in the PDO analysis. In all, the flexibility in the incompatibility test indicates that the concept is apt to change with each case, as well as with the interpretational approaches of each justice.

The notion of incompatibility is also far more likely to shrink than to grow. The latter may require a break with prior authorities and the Court has consistently demonstrated a very appropriate reticence to take steps in that direction.

32 See, Appleby, ‘State Law and Order Regimes and the High Court’, above n 19, 18-27.

291 Part Five: Conclusion

A third argument presents a clearer, more comprehensive picture of why the incompatibility test has failed to provide an effective protection for judicial independence and impartiality. The weakness in the incompatibility test may not arise from the cases it has been considered in, or from the interpretive approaches of particular justices, but from the test itself.

The functionalist adherence to permissiveness and flexibility undermines the prophylactic nature of the separation of judicial powers.33 This flexibility enables particular styles of judging to strongly impact the effectiveness of the test. It also enables incompatibility to evolve unpredictably from effective, to ineffective, and back again. It facilitates incoherence, uncertainty and fuels critique of the test as contradictory and plagued by questions rather than clarity.

As the test is fundamentally permissive it is designed to permit small affronts to judicial independence and impartiality that fail to reach the considerable threshold of

‘incompatible with judicial independence or institutional integrity’. In Part Two, I argued that the legitimisation of these small affronts creates the potential for a snowball effect and the incremental erosion of the separation of judicial powers. In Part Four, we saw the reality and consequence of that erosion in the case study analysis of the PDO provisions. For instance, the fact that PDOs involve secretive ex parte proceedings and result in severe impositions on rights was unlikely to indicate incompatibility. The control order schemes in Totani, Wainohu and Condon also resulted in potentially severe and prolonged restrictions on liberty in the absence of criminal charge. In Grollo,

33 Redish, ‘Separation of Powers, Judicial Authority, and the Scope of Article III’, above n 22, 306.

292 Part Five: Conclusion

Gypsy-Jokers, K-Generation Pty Ltd v Liquor Licensing Court 34 and, again, Condon the orders severely impacted the rights of individuals and involved secret evidence or closed proceedings. In none of these cases did the impact of the order on the individual or broader notions of fair process play a weighty role in the incompatibility analysis.

It is true that a judge tending towards judicial restraint may raise the bar of incompatibility higher than one adopting a more substantive, purposive approach.

However, a judge adopting either approach is equally bound by precedent as well as by the concern to maintain clarity and consistency in the law. Once a feature of a power or of judicial process is upheld as compatible, it would take a significant step to base a later finding of incompatibility on that same feature. This creates a natural widening effect, as both the ambit of the range of functions exercisable by the judicature, and the range of ways in which Parliament may control the exercise of those functions, increases but is not easily contracted. The result has been the incremental erosion of a potentially robust conception of incompatibility, and the evolution of an ineffective protection for judicial independence and impartiality under which even the basic elements of fair process are difficult to protect from legislative interference.

Flexibility and permissiveness are inherent features of the functionalist approach. It is highly likely any approach grounded in these qualities will evolve in a manner that gradually narrows the scope of constitutional repugnancy and permits greater and greater compromises to judicial independence and impartiality. The flexibility that characterises the incompatibility test may facilitate its unpredictable evolution from ineffective to effective, but this is likely to lead to further confusion and incoherence in

34 (2009) 237 CLR 501.

293 Part Five: Conclusion

the incompatibility authorities. Undoubtedly, the incompatibility test’s direct engagement with the purposes of Chapter III is an important advantage in achieving judicial independence and impartiality. The challenge becomes coupling this direct engagement with a less flexible and permissive approach, so this strength is retained in the long term.

C Purposive Formalism: Striking a Balance

In Part Two, I introduced a new interpretation of Chapter III called purposive formalism. Purposive formalism is a hybrid approach designed to combine the strictness, rigidity and prophylactic strength of the formalist separation rules, with the direct purposive engagement of a functionalist test. The approach is constructed as a two-tiered test. If a power is susceptible to clear definition according to the established characteristics of judicial and non-judicial powers then its validity is determined on that basis (the ‘definition limb’). If, however, the power is insusceptible to clear definition, it may only be conferred on federal courts if it is demonstrably compatible with judicial independence and impartiality (the ‘compatibility limb’).

Purposive formalism is designed to not only harness the strengths of the formalist and functionalist tests, but also to address their key deficiencies. In this way, it presents a preferable mechanism for achieving the independence and impartiality of federal courts. The analyses of the control order and PDO provisions in Parts Three and Four respectively, demonstrate and affirm purposive formalism as an interpretation of the separation of federal judicial power better able to achieve the core purpose of Chapter

III. Purposive formalism does not produce a clear result as to the Chapter III validity of either control orders or PDOs. These case studies in fact do no more than illustrate how

294 Part Five: Conclusion

purposive formalism might play out in practice. The advantage is that it enhances the overall likelihood that judicial independence and impartiality will be achieved in all

Chapter III cases. Six key advantages of purposive formalism arise from this study, though the approach is not without its weaknesses.

1 Limiting Flexibility and Permissiveness

As the weaknesses in the functionalist approach stem from its inherent flexibility and permissiveness, purposive formalism adopts a rigid formalist starting point. By commencing with a strict formalist inquiry, determining validity first and foremost by the identification of a function as judicial or non-judicial, purposive formalism harnesses the prophylactic strength of a formalist test and avoids functionalist flexibility. Purposive formalism is thus built on an ethos of rigidity and caution rather than flexibility and permissiveness.

Powers may only proceed to the second tier of analysis if the definition-based formalist separation is inappropriate in the circumstances, that is, if the power is insusceptible to clear definition. Crucially, the caution underpinning purposive formalism is reflected in the fact that powers reaching the second tier are presumed not to be valid unless they are demonstrably compatible with judicial independence and impartiality. Thus, even though the second tier resembles the functionalist incompatibility test it works in the opposite way. Flexibility is avoided at the first tier, and permissiveness is avoided at both stages of the purposive formalist analysis. The compatibility limb requires substantive engagement with, and development of, the meaning of compatibility, rather than the ad hoc identification of incompatible features

295 Part Five: Conclusion

as seen in the incompatibility test cases. I return to this aspect of purposive formalism below.

2 Acknowledging Penumbral Powers

Unlike the formalist separation rules, purposive formalism permits and invites courts to acknowledge when a power is not judicial or non-judicial. The separation rules have developed alongside an acknowledgment that some powers defy clear definition, but nonetheless the rules hinge constitutional validity on definition alone. This has led decision-makers to stretch and contort the defining characteristics of judicial power, and to invoke an unpredictable and often problematic range of factors to determine the validity of penumbral powers. These consequences of the formalist approach were demonstrated in the context of control orders in Part Three. Purposive formalism rescues decision-makers from the necessity of defining powers of this nature.

3 Preserving the Characteristics of Judicial Power

By averting the risk that the characteristics of judicial power will be stretched and contorted to the point that they lose meaning, purposive formalism preserves the defining characteristics of judicial power. In this way, the approach protects these important attributes from incremental erosion even more effectively than the definition- focussed separation rules. Moreover, unlike the functionalist incompatibility test, purposive formalism acknowledges the importance of preserving these defining characteristics in achieving independent and impartial courts. It valuably builds upon the considerable body of separation of powers jurisprudence interpreting the defining characteristics of judicial and non-judicial powers and acknowledging their importance in preserving institutional independence and integrity.

296 Part Five: Conclusion

4 Enhancing Clarity and Consistency

Unlike the formalist approach, purposive formalism does not leave the method of resolving the validity of penumbral powers to the discretion of the court, leading to the kinds of inconsistent and problematic approaches seen in Thomas. By clearly stipulating that the validity of powers is determined by their definition or, in the case of penumbral powers, by their compatibility with judicial independence and impartiality, purposive formalism enhances the potential for clarity and consistency in Chapter III jurisprudence. Parliamentary intent and the historical functions of courts will remain relevant considerations, but their utilisation as determinative factors ultimately undermines the strength of the separation rules and risks the independence and impartiality of federal courts. Purposive formalism clarifies that compatibility is the determinative factor and that the range of other relevant considerations are of secondary weight, thereby avoiding the risks associated with overreliance on these factors.

5 Compelling Purposive Analysis

In Thomas, the High Court was prepared to acknowledge the purposive nature of

Chapter III, but their Honours’ approaches to applying these purposes were varied and inconsistent.35 Purposive formalism clarifies how purposive considerations play into the

Chapter III inquiry and gives them appropriate importance in the separation of judicial powers framework. In essence, purposive formalism strikes a balance between compelling direct, open and accountable engagement with the purposive aspect of

35 See, Thomas v Mowbray (2007) 233 CLR 307, 342 (Gummow and Crennan JJ), 327, 329, 335 (Gleeson CJ), 413, 428, 432, 436-437 (Kirby J), 442 (Hayne J).

297 Part Five: Conclusion

Chapter III, and maintaining the strictness and rigidity of the formalist framework that give rise to its strengths.

Purposive formalism compels decision-makers to justify the conferral of penumbral powers in courts by reference to the core purpose of Chapter III. In this way, the approach harnesses the key strength of the functionalist approach. Like the incompatibility test, the compatibility limb of purposive formalism recognises the purposive nature of the separation of judicial power, attributes considerable weight to those purposes and compels courts to discuss the impact of provisions on judicial independence and impartiality in an open and direct manner.

6 A Positive Compatibility Requirement

Finally, by being framed in the positive – unlike the incompatibility test – the compatibility limb facilitates the development of meaningful notions of judicial independence and impartiality. The incompatibility cases may guide the outer-limits of the compatibility limb by indicating the incompatible aspects of a power, such as: the usurpation of an element of decisional independence, executive control of a power or its exercise, or the integration of a judge into the non-judicial branches. However, the incompatibility cases focus narrowly on the identification of offensive, incompatible features, and therefore do not engage with the content of judicial independence and impartiality in the manner required under the compatibility limb. Purposive formalism provides the court with an opportunity to substantively engage with and develop jurisprudence around the purposes of Chapter III, within the formalist framework. The concept of compatibility could conceivably develop more freely and substantively within its limited role of governing the validity of penumbral powers. To simply adopt

298 Part Five: Conclusion

the existing incompatibility test to determine the compatibility limb would be at odds with the role and nature of that inquiry, and neglect an opportunity to develop meaningful and enforceable understandings of the constitutional concepts of judicial independence and impartiality.

Throughout this thesis I have discussed the centrality of fair process to judicial independence and impartiality. A power that meets the purposive formalist standard of compatibility could be expected to preserve equality, confidence in the legal system, appropriate accountability, and basic rule of law values.36 In this way, the compatibility limb of purposive formalism provides a direct avenue by which fair process may be considered and protected. The positively framed compatibility requirement more effectively facilitates the development of fair process jurisprudence under Chapter III, as compared to either the incompatibility test or the separation rules.

III CONCLUSION: A PREFERABLE APPROACH

The strengths and weaknesses of the methods discussed in Part Two are to a large extent borne out in the case studies. Purposive formalism strikes a balance between the direct purposive engagement of a compatibility test and the rigidity of the formalist separation rules. It is consistently supported as a preferable interpretation of Chapter III capable of more effectively achieving independent and impartial federal courts than either the formalist separation rules or the functionalist incompatibility test.

But purposive formalism has its weaknesses. Three of these deserve particular attention. One arises at the definition limb, one at the compatibility limb, and the third

36 Discussed in Part Two, section III.

299 Part Five: Conclusion

in respect of the capacity for the test to protect fair process. Ultimately, however, the risks of purposive formalism undermining judicial independence and impartiality are significantly less than the risks arising from either the formalist separation rules of the functionalist incompatibility test.

First, judges interpreting the definition limb may still opt to stretch and contort the characteristics of judicial power, or draw on historical analogy or parliamentary intent, to identify a power as judicial or non-judicial. This is, of course, not what is intended by the two-tiered purposive formalist framework, and I have endeavoured to make this clear throughout the thesis. But the definition of a power is ultimately in the hands of the judiciary, and judges may reinforce the separation rules precedent, despite this new test presenting a significant development from that approach. Ultimately this outcome is unlikely. The Court has readily acknowledged that the defining characteristics determine how a function is defined, and that penumbral powers exist and pose problems when it comes to the formalist approach.

More significant risks present themselves at the compatibility limb of the purposive formalist analysis. The content of the compatibility limb remains undeveloped, and reasonable minds will differ in interpreting what is required for a power to be compatible with judicial independence and impartiality. Some justices may resort to the incompatibility cases but, for the reasons outlined above and developed in Parts Two and Four, this would be at odds with the design and nature of the compatibility limb. It is difficult to predict with confidence how a court might interpret and give content to purposive formalism’s compatibility limb. A significant risk exists that this inherently flexible test will be weakened over time, permitting greater and greater offence to

300 Part Five: Conclusion

judicial independence and impartiality. I have argued at length in Parts Two and Four that flexibility carries an inherent risk of facilitating the erosion of the separation of powers. As the compatibility limb is such a test, will it too weaken to the point of ineffectiveness?

The compatibility limb may be flexible, but it is not permissive. By reformulating an incompatibility test to a compatibility test, purposive formalism requires substantive compliance with independence and impartiality to be demonstrated in each and every case. This is designed to move away from an approach that identifies particular offensive features, and to instead consider the overall impact of a power and its exercise on judicial independence and impartiality. This is an important point of distinction between the incompatibility test and the compatibility limb, and one that has the potential to preserve the effectiveness of purposive formalism as a mechanism to achieve judicial independence and impartiality in the long-term.

The risk of purposive formalism leading to the incremental erosion of the separation of powers is present, but it is less than the risk arising from the purely functionalist approach. The flexibility and permissiveness of the functionalist incompatibility test has led to the incremental erosion of judicial independence and impartiality in all cases. The purposive formalist framework limits the potential risk of incremental erosion by adopting a cautious rather than permissive approach, and by strictly confining the compatibility inquiry to penumbral powers. It is conceivable that the concept of compatibility may develop substantively within its limited role of patrolling the grey areas of judicial power.

301 Part Five: Conclusion

Purposive formalism is likewise less apt to weaken judicial independence and impartiality than the strict formalist separation. The formalist separation rules leave the resolution of penumbral powers to the discretion of the court, whereas purposive formalism prescribes a clear purposive approach to determining the validity of these powers. Whatever the risks associated with the compatibility limb, they are less than those arising from an approach that harnesses loose historical analogy, parliamentary intent, or an uncertain and unpredictable combination of factors.

Fair judicial process is central to judicial independence and impartiality, but the definition-focussed rules have only provided for its protection through the awkward mechanisms of conceiving of it as within the essential or defining features of courts or of judicial power. Even then, the jurisprudence on fair process remains patchy and convoluted. The compatibility limb of purposive formalism compels courts to consider the impact of a power and its exercise as a whole on judicial independence and impartiality. In this way it enhances the capacity for the rules to achieve fair process and the purposes of Chapter III.

It may be perceived as a weakness in purposive formalism that the compatibility limb only applies to penumbral powers. This may create the potential for clearly defined powers to be allocated on technical grounds, focussed on defining characteristics rather than the power’s impact on judicial independence and impartiality. Some may advocate the adoption of a single-tiered compatibility test to govern the permissible functions of federal courts.

Purposive formalism recognises that clearly judicial powers pose less risk to judicial independence and impartiality than penumbral powers. That is, penumbral

302 Part Five: Conclusion

powers present a risk of eroding the separation of judicial power in a way that the continued exercise of clearly accepted judicial powers by courts simply does not. A single-tiered compatibility test would be a functionalist test and suffer from the weaknesses that arise from this approach. It would fail to attribute appropriate importance to the preservation of the core characteristics of judicial power and, crucially, it would rest upon a core ethos of flexibility, risking the incremental erosion of judicial independence and the unpredictable turns of interpretation seen in the incompatibility cases.

Purposive formalism balances the caution and rigidity required for a test to provide a strong protection for judicial independence and impartiality, with appropriate engagement with the purposive aspect of Chapter III. It is not an ideal approach, but it is a preferable one that at once harnesses the strengths and overcomes the weaknesses of the formalist and functionalist approaches.

There is no panacea for the ills that plague the interpretation of Chapter III. Despite the risks, purposive formalism has much to commend it, not as an ideal but certainly as a preferable approach. Purposive formalism avoids the doctrinal inconsistencies and weaknesses of the existing tests and delivers a more robust protection for judicial independence and impartiality. By relegating the purposive element to a limited, secondary role the test directly engages the purposes of Chapter III, but retains the strictness, caution and prophylactic strength of the formalist separation rules. By elevating the purposive element to a clear position within the test of Chapter III validity, purposive formalism clarifies the place and relevance of other considerations that may pose a threat to constitutional values. Purposive formalism compels courts to be more

303 Part Five: Conclusion

open and accountable about their approach, particularly with respect to the purposive considerations that do and should play a part in Chapter III reasoning.

By acknowledging and developing the purposive nature of a formalist test, this thesis highlights the common ground between the formalist and functionalist viewpoints. The approach of purposive formalism strikes a balance between strict rules and the principles at which they aim. This balance can never be exact. The two-tiered purposive formalist approach introduced and advocated in this thesis is a new option in the interpretation of Chapter III. It is not perfect. But, as this thesis has demonstrated, purposive formalism has the capacity to significantly strengthen the independence and impartiality of federal courts under the Australian Constitution.

304

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314

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Brian Tamberlin and Lucas Bastin, ‘David Hicks in the Australian Courts: Past and Future Legal Issues’ (2008) 82 Australian Law Journal 774.

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Fiona Wheeler, ‘The Rise and Rise of Judicial Power Under Chapter III of the Constitution: A Decade in Overview’ (2000) 20 Australian Bar Review 1

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1983).

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SPEECHES/PRESENTATIONS

Gabrielle Appleby, ‘State Law and Order Regimes and the High Court: A Study in Federalism and Rights Protection’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 23 October 2013).

David Bennett, ‘Thomas v Mowbray: The Constitutionality of Control Orders’ (Speech delivered to the 35th Australian Legal Convention, Sydney, 24 March 2007).

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Gerard Brennan, ‘Lessons from a Life in the Law’ (Paper presented at the Annual Hal Wootten Lecture, Faculty of Law, University of New South Wales, 23 August 2012).

Owen Dixon, ‘The Separation of Powers in the Australian Constitution’, American Foreign Law Association, Proceedings No. 24 (December 1942).

Robert French, ‘Executive Toys – Judges and Non-Judicial Functions’ (Speech delivered at the District Court Judges’ Conference, Joondalup, 11 April 2008).

Murray Gleeson, ‘The Role of the Judge and Becoming a Judge’ (Speech delivered at the National Judicial Orientation Programme, Sydney, 16 August 1998).

Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 15 August 2013).

John Laws ‘The Good Constitution’ (Speech delivered at the Sir David Williams Lecture, Cambridge, 4 May 2012).

Anthony Mason, ‘The Separation of Judicial Power: Commentary on James Stellios’ Paper’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 20 October 2010).

Robert McClelland, ‘Speech to the Supreme and Federal Court Judges’ Conference’ (Speech delivered to the Supreme and Federal Court Judges’ Conference, Canberra, 25 January 2010).

James Stellios, ‘The Separation of Judicial Power’ (Paper presented to the Australian Association of Constitutional Law, Sydney, 20 October 2010).

Mark Weinberg, ‘Australia’s Anti-Terrorism Legislation – Is There a Boilermakers Spanner in the Works?’ (Paper presented at the Supreme and Federal Court Judges’ Conference, Perth, 24 January 2007).

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George Williams, ‘Criminal Law a Century On – Control Orders – Sword or Shield?’ (Speech delivered to the 35th Australian Legal Convention, Sydney, 24 March 2007).

CASES

Al-Kateb v Godwin (2004) 219 CLR 562

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458.

Attorney-General (Cth) v The Queen (1957) 95 CLR 529.

Australian Boot Trade Employees Federation v Whybrow and Co (1910) 10 CLR 266.

Australian Communist Party v Commonwealth (1951) 83 CLR 1.

Baker v The Queen (2004) 233 CLR 513.

Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245.

Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372.

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

City of Collingwood v Victoria (No 2) [1994] 1 VR 652.

Cominos v Cominos (1972) 127 CLR 588.

Davis v Commonwealth (1988) 166 CLR 79.

DPP (Cth) v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006).

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.

Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575.

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Forge v Australian Securities and Investments Commission (2006) 228 CLR 45.

Grollo v Palmer (1995) 184 CLR 348.

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532.

Ha v New South Wales (1997) 189 CLR 465.

Hamdan v United States (DC Circuit Oct. 16, 2012).

Hamdi v Rumsfeld 72 USLW 4607.

Hilton v Wells (1985) 157 CLR 57.

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.

Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.

Jabbour v Hicks [2008] FMCA 2139.

Jabbour v Thomas (2006) 165 A Crim R 32.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501.

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

Leeth v Commonwealth (1992) 174 CLR 455.

Mabo v Queensland (No 1) (1988) 166 CLR 186.

Medical Board (Vic) v Meyer (1937) 58 CLR 62.

Momcilovic v R (2011) 245 CLR 1.

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New South Wales v Commonwealth (1915) 20 CLR 54.

Nicholas v R (1998) 193 CLR 173.

North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146.

Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25.

Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399.

Plaut v Spendthrift (1995) 514 US 211.

Polyukovich v Commonwealth (1991) 172 CLR 501.

Precision Data Holdings Ltd v Willis (1991) 173 CLR 167.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (Tramways Case ( No 1)) (1913) 18 CLR 54.

R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Amalgamated Engineering Union Case) (1960) 103 CLR 368.

R v Davison (1954) 90 CLR 353.

R v Joske; Ex parte Australian Building Construction Employees and Builders Labourers Federation (1974) 130 CLR 87.

R v Joske; Ex parte Shop Distributive & Allied Employees Association (1976) 135 CLR 194.

R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

R v Quinn; Ex parte Consolidated Food Coop (1977) 138 CLR 1.

R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR

322

277.

R v Thomas (2006) 14 VR 475.

Re Nolan; Ex parte Young (1991) 172 CLR 460.

Re Tracey; Ex parte Ryan (1989) 166 CLR 518.

S (a child) (1995) 12 WAR 392.

The Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434.

Thomas v Mowbray (2007) 233 CLR 307.

Totani v South Australia (2010) 242 CLR 1.

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

Wainohu v New South Wales (2011) 243 CLR 181.

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.

LEGISLATION

Acts Interpretation Act 1901 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth).

Anti-Terrorism Act (No 2) 2005 (Cth).

Australian Constitution.

Australian Security Intelligence Organisation Act 1979 (Cth).

Community Protection Act 1994 (NSW).

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Crimes Act 1914 (Cth).

Crimes (Criminal Organisations Control Act) 2009 (NSW).

Criminal Assets Recovery Act 1990 (NSW).

Criminal Code Act 1995 (Cth).

Criminal Code Regulations 2002 (Cth).

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

Prevention of Terrorism Act 2005 (UK).

Telecommunications (Interception) Act 1979 (Cth).

Temporary Prevention and Investigation Measures Act 2011 (UK).

Serious and Organised Crime Control Act 2008 (SA).

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Passports Act 1938 (Cth).

OTHER

J Madew, ‘Federal Court Lifts ‘Terror’ Restrictions on Jack Thomas’, The Age (Melbourne) 24 August 2007.

Fiona Wheeler, The Separation of Federal Judicial Power: A Purposive Analysis (doctoral thesis, Australian National University, 1999).

‘Thomas control order “silly”‘, The Age (Melbourne) 31 August 2006.

ABC Radio, ‘Hicks fails to appear at control order hearing’, PM, 18 February 2008.

Australian Broadcasting Corporation, ‘The Convert’, Four Corners, 27 February 2006.

324

Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity (2002).

Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan (26 August 1985), endorsed by GA Res 40/32 (29 November 1985) and 40/146 (13 December 1985).

Convention Debates, vol III, Adelaide, 1897.

Queensland, Legislative Assembly, Criminal Organisation Bill 2009, Explanatory Notes.

Transcript of Proceedings, Forge v Australian Securities and Investments Commission [2006] HCATrans 25 (8 February 2006).

325