JUDICIAL POWER OF THE COMMONWEALTH
The separation of judicial power
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Doctrine: P makes laws, Exec executes law, Judicature interprets/applies law.
Reflected in the chapter divisions of the Constitution: P (Ch I, s1), Exec (Ch II, s61), Judicature (Ch
III, s71).
Section 71
“The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the
High Court of Australia, and in such other federal courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many
other justices, not less than two, as the Parliament prescribes.”
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The purpose of the separation of powers: Wilson v Minister for Aboriginal and Torres Strait Islander
Affairs (1996) 189 CLR 1 at 10-11,
o The functions of government are not separated because the powers of one branch could not be
exercised effectively by the repository of the powers of another brand. To the contrary, the
separation of functions is designed to provide checks and balances on the exercise of power by
the respective organs of government in which the powers are reposed.
o Advances two constitutional objectives: the guarantee of liberty and, to that end, the
independence of CH III judges  Judicial independence
Only Chapter III Courts can exercise Chapter III power
 New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54: Interstate Commission set up
law using s101 to adjudicate disputes in interstate trade/commerce and grand remedies eg. injunction
o Challenged that Commission’s powers to “adjudication” under s101, did not extend to
exercising Ch III powers (injunction). Can only vest that within Ch III court.
o Majority of HC agreed – thus law invalid.
Chapter III Courts cannot exercise non-Chapter III power
 Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia) (1956) 94 CLR 254:
Commonwealth Court of Conciliation and Arbitration with power to conciliate and arbitrate industrial
“awards”, and judicial power to enforce awards/punish breach. Boilermakers fined.
o B challenged that CCCA does not have BOTH judicial and arbitral power.
o HC/PC: structure of court unconstitutional
Exceptions/Qualifications To Rule of Separation of powers
 Courts Martial – incidental to exercise of power of Executive under Con to maintain discipline in
armed forces: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; Re Tracey; Ex parte Ryan
(1989) 166 CLR 518
 Contempt of Parliament – both Houses of Fed P may commit people for contempt of P as part of
powers, privileges and immunities they have under s49 of Con; R v Richards; Ex parte Fitzpatrick &
Browne (1954) 92 CLR 157; Re Colina; Ex parte Torney (1999) 200 CLR 386
Functions incidental to the exercise of judicial power
 Constitution allows Ch II courts to exercise judicial power “auxiliary or incidental thereto”
 s 51(xxxix) – Parliament power to make laws with respect to matters incidental to the exercise of
power by other branches of government (eg. the judicature)
 Solomons v District Court of New South Wales (2002) 211 CLR 119: s51(xxxix) and s71 (or 77) can
authorise law conferring jurisdiction to engage in activities necessary or convenient for effective
exercise of that jurisdiction.
 Some types of judicial power can be delegated to non-judicial officers.
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Harris v Caladine (1991) 172 CLR 84: provisions of Family Law Act 1975 (Cth) empower Family
Court judges to make rules of court enabling registrars and non-judicial officers to exercise powers of
court. Deputy registrar made order by consent of parties about settlement of property dispute.
o Challenged as this allowed person without judicial tenure of s72 to exercise judicial power.
o Rejected by majority of court.
o Many functions committed to Ch II courts are administrative in nature. Unnecessary for every
function to be exercised by Ch III judge.
o Delegation is permissible if:
 Delegation is not to extent where it can no longer properly be said that judges constitute
the court – ie, judge must bear major responsibility in relation of important aspects of
contested matter.
 Delegation is not inconsistent with obligation of court to at judicially and decisions by
non-judges must be subject to review/appeal by judges.
Luton v Lessels [2002] HCA 13: Callinan J – some delegation of judicial power does not necessarily
contravene Ch III.
Persona Designata
 Ch III judge may be appointed to undertake Ch II (executive) tasks/roles.
 This is NOT Ch III judge exercising non-Ch III power. It is appointee exercising Ch II in their
capacity as a member of Exec branch.
 Confirmed Hilton v Wells (1985) 157 CLR 57: Fed telecommunications law prohibit interception of
communications, unless with warrant issued by “a judge of the Fed Court of Australia”. H charged
with evidence via phone taps.
o Provision empowering Fed Court judge to issue warrant  infringe SOP?
o Maj recognised existence of this exception. Whether such conferral of power/appointment 
depend upon construction of statute making that conferral.
o Held: “a judge” referred to designated judges in their personal capacity. Also power was admin
and was not vested in the judge in their judicial capacity.
o Power was not INCOMPATIBLE with judicial office (independence and impartiality).
o Mason, Deane JJ (dissent): rule would undermine the Boilermakers doctrine.
Incompatibility Condition
 Grollo v Palmer (1995) 184 CLR 348: same facts as Hilton. Argued that PD was bad law and contrary
to Boilermakers. Adopted the following test:
o 1) no non-judicial function that is not incidental to judicial function can be conferred without
judge’s consent
o 2) no function can be conferred that is incompatible either with judge’s performance of his/her
judicial functions or with the proper discharge by the judiciary of its responsibilities as an
institution exercising judicial power. (INCOMPATIBILITY).
o Held: Judges are eminently suited to task of issuing warrants and it is NOT incompatible.
 Wilson v Minister for Aboriginal & Torres Strait Islanders Affairs (1996) 189 CLR 1: Fed Minister
appointed Fed Court judge to conduct public inquiry and prepare report about Fed Aboriginal heritage
protection legislation. Minster to consider and decide whether report to be implemented.
o Quoted from Mistretta v United States that: legitimacy of Judicial Branch ultimately depends
upon its reputation for impartiality and non-partisanship. That reputation may not be borrowed
by the political branches to cloak their work in the neutral colors of judicial action.
o Maj held: appointment was incompatible. Left ultimate discretionary power to make a decision
in the Minister rather than the PD.
 Kable v DPP (1995) 189 CLR 51: certain functions in judges/courts are so INCOMPATIBLE with
judicial power that it causes the public to think less of the competency of the judiciary.
Judicial Tenure, remuneration and independence
Judicial Tenure:
Section 72 - The Justices of the High Court and of the other courts created by the Parliament-
(i) Shall be appointed by the Governor-General in Council:
(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of
the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or
incapacity:
(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be
diminished during their continuance in office. The appointment of a Justice of the High Court shall be for
a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice
of the High Court if he has attained that age.The appointment of a Justice of the High Court shall be for a
term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice
of the High Court if he has attained that age...
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Purpose of judical tenure is to support judicial independence by insulating judiciary from political
pressure: Harris v Caladine (1991) 172 CLR 84 at 159.
Judicial tenure is an ESSENTIAL feature of Ch III courts: Waterside Workers Federation of Australia
v JW Alexander Ltd.
o CCCA issued summons saying JWA breach industrial award.
o Challenged that CCCA could not exercise both judicial AND arbital power. Also that CCCA
was NOT a Ch III court because president of court did not have judicial tenure.
o Unanimous court: agreed that tenure was essential feature.
Does not apply to Territory courts (powered by s122 which is outside Ch III): Spratt v Hermes (1965)
114 CLR 226.
o Stipendiary magistrate appointed without s72 tenure under ACT ordinance authorised by s122.
Mag determined matter under Fed postal law and authority challenged. Did not have s72 tenure
 cannot exercise judicial power?
o Barwick CJ: s72 is not of universal application  only Federal courts. s122 is plenary –
creating Territory courts which are NOT Fed courts within meaning of s71.
Applied in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322:
Eastman convicted in ACT by Supreme Court judge appointed for a short time on an “acting” basis.
Argued that appointment contravened s72.
Despite above, recently argued - Territory cannot appoint a judge, putatively until a statutory
retirement age, but then only guarantee that judge a salary for a shorter period: NAALAS v Bradley
o Place judge capable of exercising Fed jurisdiction in weakened position.
Remuneration:
 Remuneration amounts are set by independent tribunal, public, and done by “open determination”
from time to time – set for an indefinite amount of time.
 Austin v The Commonwealth [2003] HCA 3: Fed law imposed Fed tax on State judges’ superannuation.
Invalidated by Melbourne Doctrine.
o Gaudron, Gummow, Hayne JJ: secure judicial remuneration…encourage persons learned in the
law…”to quit the lucrative pursuits of private business, for the duties of that important station”.
Judicial power of the Commonwealth
How should ‘judicial power’ be defined?
 There is no single superior approach to questions of constitutional interpretation
 SGH Limited v Commissioner of Taxation (2002) 210 CLR 51: cannot be answered by “adoption or
application of any particular, all-embracing and revelatory theory or doctrine of interpretation”.
 Various approaches:
o Historical – historical/traditional understanding of the power
o Analytical – essential characteristics of judicial decisions distinguished from other types
o Functional – whether relevant powers have been/can be vested in court.
Judicial power at 1900: historical approach
 Connotation at the time of Federation: A-G for NSW v Brewery Employees Union of NSW (1908) 6
CLR 469
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R v Davison (1954) 90 CLR 353: Fed deputy registrar of bankruptcy issued sequestrian order upon
petition by D. Argued that sequestrian order involved exercise of judicial power (taking possession of
debtor’s property, affected status of bankrupt etc).
o Majority agreed using historical approach: “In doubtful cases…we employe a historical
criterion. We ask whether, at the time our constitutions were adopted, the power in question
was exercised by the Crown, by Parliament or by the judges” at 369.
o Kitto J: “when…requiring a distinction to be maintained between powers…it is using terms
which refer, not to fundamental differences between powers, but to distinctions generally
accepted at the time when the Constitution was framed between classes of powers requiring
different “skills and professional habits” in the authorities” at 381.
o Held: power to make sequestrian order  established branch of judicial activity.
Some powers historically regarded to be judicial may now be vested in non-judicial tribunals
 Eg. R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1: Fed Registrar of Trade
Marks vested with power to remove trade marks from register if application of a “person aggrieved”.
Challenged that this was exercise of judicial power.
 Jacobs J: “If the legislation requires the exercise of a power to determine questions the deter­mination
of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the
power springs from the effect which the exercise of the decision-making function under the legislation
will have on legal rights rather than from the history of similar legislation reposing the function in a
judicial tribunal”
1. Central to understanding meaning of “judicial power” is recognition of doctrines: rule of law,
independent judiciary, separation of judicial power.
2. Traditionally, purpose of judiciary to determine availability of “basic rights” by judicial review.
Also other roles eg. criminal trial, determine legal rights.
3. Not EVERY power which traditionally was “judicial” will be TODAY. Still, the power to
make an enforceable determination of judicial rights is exclusive to courts and cannot be vested
in non-judicial tribunal.
Other powers exclusive to courts:
 Power of judicial review of legislative and executive action: Australian Communist Party v The
Commonwealth (1951) 83 CLR 1; Marbury v Madison 1 Cranch 137 (1803).
 Power to adjudicate on existing legal rights and liabilities between persons is exclusive to court:
Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442, 464-465
 Power to determine criminal guilt: Re Tracey; ex parte Ryan (1989) 166 CLR 518 at 580; Chu Kheng
Lim v Minister for Immigration (1992) 176 CLR 1 at 22); and cannot be excluded from courts:
Polyhukovich v The Commonwealth (1991) 172 CLR 501.
 SOP guarantees that Ch III courts will not take instructions from the legislature regarding the manner
in which their jurisdiction will be exercised, or the result of a case: Chu Kheng Lim v Minister for
Immigration (1992) 176 CLR 1; Kable v DPP (NSW) (1996) 189 CLR 51.
o In Chu: P cannot require/authorise courts exercising judicial power “to exercise judicial power
in a manner which is inconsistent with the essential character of a court or with the nature of
judicial power”.
 Ch III court has a duty to act and to be seen to be acting impartially: R v Watson; Ex parte Armstrong
(1976) 136 CLR 248; Nicholas v The Queen (1998) 193 CLR 173 at 188.
Ch III courts enjoy particular implied or inherent powers that are incidental to judicial activity
 Determine what practice and procedure should be adopted in exercising its jurisdiction (Nicholas v
The Queen (1998) 193 CLR 173 at 188-189 per Brennan CJ);
 To refuse to exercise its jurisdiction where to do so would be contrary to law or would involve the
court in sanctioning fraud or oppression, or would permit parties to participate in an abuse of process:
Pasini v United Mexican States [2002] HCA 3 at [93];
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To grant bail as an incident of the exercise of their jurisdiction under s 75: Cabal v United Mexican
States [2001] HCA 42 at [15] per Kirby J.
To compel the appearance of persons (Waterside Workers’ Federation of Australia v J W Alexander
Ltd (1918) 25 CLR 434 at 442; see further, and generally, the discussion of Justice Gaudron in Sue v
Hill (1999) 199 CLR 462 at 515-516.
To commit for contempt of court: eg. Re Colina; Ex parte Torney (1999) 200 CLR 386Re Plaintiff
S157/2002 v Commonwealth [2003] HCA 2
o Torney: law provide that Family Court of Aus has same power to punish contempt as HC does.
Regarded power as merely declaratory of implicit power of Ch III to punish contempt.
The analytical approach to judicial power
 Usually need to supplement historical approach with analysis of nature and effect of power exercised:
R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1
 Huddart Parker Pty Ltd v Moorehead (1909) 8 CLR 330: Australian Industries Preservation Act
provide that, where Comptroller-General of Customers believed offence had been committed, could
require corporations to answer qs and produce documents in relation to alleged offence and impose a
penalty in default. Argued vested judicial powers in non-judicial body.
o Disagreed.
o Griffith CJ defined judicial power: “the power which every sovereign authority must of
necessity have to decide controversies between its subjects or between itself and its subjects,
whether the rights relate to life, liberty or property. The exercise of this power does not begin
until some tribunal which has power to give a binding and authoritative decision is called upon
to take action”.
o THUS: Judicial power involves a “binding and authoritative decision”.
A binding decision
 Power to make binding decision is essential part of judicial power.
 BUT “binding” means ENFORCEABILITY  only a Court exercising judicial power can make a
legally enforceable decision.
 Confirmed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245:
Commission given power to register its determinations in Fed Court. Determinations to be taken as
judgment of Court if not reviewed by respondent to the proceedings within certain time. Court
challenged that provisions claimed to give registered determination the effect of an order of the Fed
Court.
o “there is one aspect of judicial power which may serve to characterise a function as judicial
when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of
judicial power” at 268.
Authoritative, conclusive decision
 Power to make “authoritative” decision  meaning CONCLUSIVE (no appeal)
 Does not preclude non-Ch III bodies from making decisions which AFFECT legal rights or, based on
their OPINION, of the applicability of laws to facts.
 Confirmed in Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530:
Fed law set up a Taxation Board of Review with power to determine questions of fact/law from
taxation determinations. Argued usurped exclusive judicial power to determine questions of law.
o Rejected: retained right to appeal to Ch III court  respected exclusive power of Ch III courts
to make authoritative decisions
o PC: the “convincing distinction” between a “decision of the Board and a decision of the court”
o “An administrative tribunal may act judicially, but still remain an administrative tribunal as
distinguished from a court, strictly so-called”
Controversies regarding rights relating to life, liberty or property — the distinction between
questions of fact and questions of law
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Recently: court used expression “questions of law” to define type of questions which fall within
exercise of judicial power.
Test: whether the non-judicial tribunal claims to determine LEGAL rights, as opposed to stating its
opinion whether the law applies to facts as found. OPINION is allowed but not a conclusive
determination.
Re Cram; Ex parte Newcastle Wallsend Coal Company (1987) 163 CLR 140: Coal Industry Tribunal
make industrial awards. Determination of application for the interpretation and enforcement of two
Fed awards (including a claim for wages owing)  judicial power?
o Held exercised judicial power: “a claim for the payment of wages due and payable by an
employer to an employee is a claim for the enforcement of an existing legal right”
o “Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial
power”
o “But there is no substance in the suggestion that an industrial tribunal cannot interpret laws,
awards and other legal instruments…the formation of views and opinions on matters of
interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial
power”.
Power of non-judicial tribunals to ascertain facts  common feature of admin and does not usurp.
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361: power to identify
a restrictive/deceptive trade practice and determine whether practice was contrary to public interest 
not judicial power.
o “Duties of adjudication may be incidental to administrative tasks which are performed as part
of the executive power of government”
Judicial power to review determinations of fact by non-judicial tribunals:
Rola Company (Australia) Proprietary Ltd v Commonwealth & Anor (1944) 69 CLR 185, Latham CJ
at 210-211
“No-one doubts that the ascertainment or determination of facts is part of the judicial process, but that
function does not belong exclusively to the judicial power … Unless, however, the determination of
facts is an exclusive attribute of judicial power, then it is a matter for the consideration of the
legislative body how and to what extent facts should be submitted to administrative tribunals in aid of
or to supplement judicial power”
Only a Chapter III Court can make a final determination of mixed questions of fact and law.
 Determination of law turns upon determination of fact.
 Thus: mixed questions of law and fact may only be determined with finality by CH III court: British
Imperial Oil Company v Federal Commissioner of Taxation (1925) 35 CLR 422.
Administrative and judicial bodies may engage in the same tasks — the distinction is based on the
purpose for which the powers have been exercised
 R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617: “It is…recognised that there are
functions which may be classified as either judicial or administrative, according to the way in which
they are to be exercised….Thus, if a function is entrusted to a court, it may be inferred that it is
exercised judicially”
 Ch III and non-Ch III courts may engage in identical tasks.
 Confirmed in Precision Data Holdings v Wills (1991) 173 CLR 167: Fed corp leg that gave
corporation and securities panel power to declare certain share acquisitions unacceptable and unlawful.
Argued that power was judicial.
o FC disagreed: “the finding of facts and the making of value judgments…are common
ingredients in the exercise of judicial power, they may be elements in the exercise of
administrative and legislative power”
Any powers that may not be vested in a court? Distinction between legal decisions and policy
decisions
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One difference between administrative and judicial power  policy considerations can raise and
inform decision making in admin, whereas judicial power is characterised by application of objective
legal standards: Precision Data Holdings v Wills
Thus: so long as court power “is to be exercised according to legal principle or by reference to an
objective standard of test…and not by reference to policy considerations or other matters not specified
by the legislature, it will be possible to conclude that the determination by the court gives effect to
rights and obligations for which the statute provides”
Where statute vests powers in tribunal to determine matters WITH regard to policy  indicate that
body is not exercising
Judicial power is characterised by the conclusive ascertain-ment of existing rights and obligations,
rather than the determination of what legal rights and obligations should be created
 Precision Data Holdings Ltd & Ors v Wills (1991) 173 CLR 167:
o “if the object of adjudication is not to resolve a dispute about existing rights and
obligations…but to determine what legal rights and obligations should be created, then the
function stands outside the realm of judicial power”
o “if its object is to ascertain what right and obligations should exist, it is properly characterised
as an arbitral function”
Access to Constitutional Justice:
 s75 and 76 confer juridiction on the HC in certain types of “matters”: Re Judiciary and Navigation Act
(1921) 29 CLR 257.
o Matter – does not mean legal proceedings, but subject matter for determining in a legal
proceeding.
o No “matter” unless there is some immediate right, duty or liability to be established by
determination of the court
 Where declaration of constitutional invalidity is sought  only necessary for party to demonstrate that
they are “an interested person”: Croome v Tasmania (1997) 191 CLR 119
 Citizen’s right to know whether a law applies to them  sufficient interest: “”
Judicial Remedies:
 Power to order remedies entrenched by s75 (v) and 75 (iii).
 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476: “two fundamental propositions…First, the
jurisdiction of this court to grant relief under s75 (v) of the Constitution cannot be removed by or
under any law made by the Parliament…Secondly, the judicial power of the Commonwealth cannot be
exercised otherwise than in accordance with Ch III”
 So long as powers conferred by P are consistent with Ch III  can confer power to make orders that
create rights or imposes liabilities: Precision Data Holdings Ltd & Ors v Wills & Ors (1991) 173 CLR
167 at 191.
Judicial Power and Civil Rights
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No Bill of Rights  any implied rights as consequences of SOP?
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1: “The separation
of the judicial function from the other functions of government advances two constitutional objectives:
the guarantee of liberty and to that end the independence of Ch III judges”
R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1: Jacobs J:
“we have inherited and were intended by our Constitution to live under a system of law and
government which has traditionally protected the rights of persons by ensuring that those rights are
determined by a judiciary independent of the parliament and executive.
Implied rights arising from exclusive power of courts to determine criminal guilt
 Judgment of criminal guilt is classic part of judicial function.
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Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, Brennan, Deane and Dawson JJ at 27
“There are some functions which, by reason of their nature or because of historical considerations,
have become established as essentially and exclu-sively judicial in character. The most important of
them is the adjudgement and punishment of criminal guilt under a law of the Commonwealth. That
function appertains exclusively to…and “could not be excluded from”…the judicial power of the
Commonwealth…That being so, Ch III of the Constitution precludes the enactment, in purported
pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part
of that function in the Commonwealth Executive.
“Every citizen is ‘ruled by 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”.
Separation of powers and the rules of evidence and burden of proof
 While P cannot tell court how to exercise its criminal jurisdiction  has power to regulate fact-finding
exercise leading to determination and maybe even reverse onus of proof.
 Nicholas v The Queen (1998) 193 CLR 173: amendment to Fed Crimes Act 1914 require courts to
determine crim guilt in matters about controlled importation of narcotics. Argued that it removed
discretion of judges to exclude unfairly obtained evidence  usurped judicial power.
o Maj rejected.
o P can prescribe what evidence may be used in legal proceedings and maybe even burden of
proof.
Legislation which purports to remove power to Ch II to make a determination of criminal guilt
before incarceration is INVALID.
 SOP prevents power of legislature to enact a “bill of attainder” or “bill of pains and penalties” – a law
which automatically declared the guilt of a person and subjected them to punishment: Polyukhovich v
The Queen (1991) 172 CLR 501; Chu Keng Lim v Minister for Immigration and Ethnic Affairs (1992)
176 CLR 1.
 Confirmed in Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51.
 Failed to apply Kable in Bachrach (NA) v QLD (1998) 195 CLR 547: argued that principle prevents
State Ps from enacting legislation changing rights pending litigation  well established power of State.
 Failed to apply in Silbert v DPP (WA) (2004) 78 ALJR 464; WA law deemed that person who died
before criminal determination  convicted of serious offence for purpose of confiscating their
criminal proceeds.
 Applied in NAALAS v Bradley (2004) 78 ALJR 977.
 One proposition in Kable: person can only be incarcerated in prison following a finding of crim guilt
according to ordinary due process.
 Significantly qualified by Fardon v A-G (QLD) (2004) 78 ALJR 1519: Dangerous Prisoners (Sexual
Offenders ) Act 2003 (Qld) authorises Supreme Court of QLD to incarcerate a person in prison
AFTER the expiry of sentence if court could predict danger to community. HC upheld.
o Incarceration based on prediction of risk  radical departure from traditional thoughts.
Parliament can change statutory rights at issue in pending litigation
 P can legislate with prospective and retrospective effect  thus, can criminalise conduct
retrospectively: Polyukhovich v Commonwealth (1991) 172 CLR 501.
 Legislature can change statutory rights at issue in pending litigation: Australian Building Construction
Employees’ & Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88: Fed law
cancelling registration of ABCE&BLF and excluding from re-registration under Conciliation and
Arbitration Act 1904 (Cth). Held: valid
o “Chapter III contains no prohibitions, express or implied, that rights in issue in legal
proceedings shall not be the subject of legislative declaration or action”
 Only exception: P cannot pass law with restrospective effect that would deny operation of s109 in
respect of past inconsistency of laws: The University of Wollongong v Metwally (1984) 158 CLR 447.
Courts must exercise their functions in accord-ance with principles of natural justice
o Implication that courts can only exercise function in accordance with natural justice.
o Flows from the character of the power; judges must behave JUDICIALLY: Wilson v Minister for
Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
o Leeth v Commonwealth (1992) 174 CLR 455: “any attempt on the part of the legislature to cause a
court to act in a manner contrary to natural justice would impose a non-judicial requirement
inconsistent with the exercise of judicial power”.
o Natural justice – require right to fair hearing free from bias
No implied constitutional right to a fair trial
o Has NOT attracted majority support of HC yet.
o Cf Hinch v Attorney-General for Victoria (1987) 164 CLR 15: “The right of a fair and unprejudiced
trial is an essential safeguard of the liberty of the individual under the law…indeed, it is a touchstone
of the existence of the rule of law”.
o Dietrich v The Queen (1992) 177 CLR 292: D charged with Fed crime of importing heroin into Aus.
Applied for legal aid and rejected. Numerous times rejected, convicted and leave to appeal rejected.
o HC: recognised a constitutionally entrenched right to a fair trial.
o Deane J: “the observance of judicial process and fairness that is implicit in the vesting of the
judicial power of the Com
o Gaudron: “the fundamental requirement that a trial be fair is entrenched in the Commonwealth
Constitution”
Implied ‘open justice’ of Ch III justice:
o Principle “publicity is the authentic hallmark of judicial as distinct from administrative procedure:
McPherson v McPherson [1936] AC 177 at 200; approved by Gibbs J in Russell v Russell (1976) 134
CLR 495 at 520.
o Re Nolan; Ex parte Young (1990) 172 CLR 460, Gaudron J: judicial process included “open and public
enquiry (subject to limited exceptions) (and) the application of the rules of natural justice” at 496
Implied constitutional right of equality?
o Has been suggested by some judges – equality before the law: Leeth v Commonwealth (1992) 174
CLR 455: Fed law let prisoners for Fed offences to have non-parole periods determined under local
law of State/Territory where they were tried/convicted. Argued that it infringed right to equality before
law.
 Maj rejected: “There is no general requirement contained in the Constitution that
Commonwealth laws should have a uniform operation throughout the Commonwealth”
 Any inequality of treatment between different State/Territory provisions was already
contemplated by s120.
 Deane and Toohey JJ (dissenting): struck down law as it “discriminated in such a way which
was inconsistent with doctrine of the underlying equality of the people of the Commonwealth
under the law and before the courts” at 492.
 Gaudron J: “manifestly absurd that legal consequences…should vary merely on account of the
location or venue of the court in which proceedings were brough” at 499.
 Gaudron J: “All are equal before the law. And the concept of equal justice…is fundamental to
the judicial process”.