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A Purposive Formalist Interpretation of Chapter III of the Australian

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A Purposive Formalist Interpretation of Chapter III of the Australian 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 i 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. ii 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 iii 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). iv 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 v 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 vi 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
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