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Editors --- "Dorothy Ann Wilson and Ors v Minister for Aboriginal and Torres Strait Islander Affairs and Anor - Case Summary" [1997] AUIndigLawRpr 12; (1997) 2(1) Australian Indigenous Law Reporter 66

Dorothy Ann Wilson and Ors v
Minister for Aboriginal and Torres Strait Islander Affairs and Anor

September 6 1996, Canberra

Commonwealth Constitution -- Separation of powers -- Vesting of non-judicial power in persona designata -- doctrine of incompatability -- s. 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) -- Aborigines.

Held: (Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ and Gaudron J; Kirby J dissenting):

The appointment of Justice Mathews as a reporter conferred on her a non-judicial function constitutionally incompatible with her performance of judicial functions as a judge of the Federal Court of Australia under Chapter III of the Commonwealth Constitution. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s. 10 must therefore be read down so as to preclude the appointment as a reporter of a person who holds office as a Chapter III judge. Justice Mathews' appointment was therefore invalid.

Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, followed.

Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ:

[224] The question which does arise in this case is whether performance of the function of reporting to the Minister under s 10 is a function which is constitutionally compatible with the holding of office as a judge appointed under Ch III of the Constitution. That there is a constitutional restriction on the availability of Ch III judges to perform non-judicial functions is undoubted. The general principle was stated by the joint judgment in Grollo v Palmer [(1985) [1995] HCA 26; 184 CLR 348 at 364-365]:

"The conditions ... on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge's consent; and, second, no function can be conferred 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 (the incompatibility condition). ...

One reason why the Constitution restricts the availability of Ch III judges to perform non-judicial functions was stated in a passage in the opinion of the Supreme Court of the United States in Mistretta [(1989) [1989] USSC 9; 488 US 361 at 407] adopted by McHugh J [(1995) [1995] HCA 26; 184 CLR 348 at 377] and Gummow J [(1995) [1995] HCA 26; 184 CLR 348 at 392] in Grollo:

[225] "The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action."

...

Chapter III provides for the appointment of judges to constitute Courts vested with the judicial power of the Commonwealth ... "The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes -- legislative, executive and judicial" [In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 264 referred to in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 273.] ... The Constitution reflects the broad principle that, subject to the Westminster system of responsible government [ibid], the powers [226] in each category -- whose character is determined according to traditional British conceptions -- are vested in and are to be exercised by separate organs of government [ibid at 276; A G v the Queen [1957] HCA 12; (1957) 95 CLR 529 at 537-538;(1957) AC 288 at 311-312]. 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 branch. 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 see Polyukhovich v Cth (War Crimes Act Case) [(1991) [1991] HCA 32; 172 CLR 501 at 684-685]. ... The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation ... The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government.

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. In R v Davison [(1954) [1954] HCA 46; 90 CLR 353], Kitto J identified the conceptual basis of the Constitution's division of the functions of government:

" It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed. As an assertion of the two propositions that government is in its nature divisible into law-making, executive action and judicial decision, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers as developed in political philosophy was based upon observation of the experience of democratic states, and particularly upon observation of the development and working of the system of government which had grown up in England."

...

[227] The separation of the judiciary is no mere theoretical construct. Blackstone rightly perceived that liberty is not secured merely by the creation of separate institutions, some judicial and some political, but also by separating the judges who constitute the judicial institutions from those who perform executive and legislative functions. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [(1970) [1970] HCA 8; 123 CLR 361 at 390], Windeyer J said that -

"it is well-recognised dogma for us that the judicial power is to be exercised separately from the exercise of the other two powers, and by different people. This is a necessity of our written constitutional law as well as a compelling part of our inheritance of the British tradition of the independence of the judges." (Emphasis added.)

... That independence is especially important in a federal system. In Attorney-General of the Commonwealth of Australia v The Queen [(1957) [1957] HCA 12; 95 CLR 529 at 540-541], Viscount Simonds said:

"in 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."

...

[228] The separation of judicial functions from the political functions of government is not so rigid as to preclude the conferring on a Ch III judge with the judge's consent of certain kinds of non-judicial powers. The difficult question is to determine the dividing line between the kinds of non-judicial powers that can, and those that cannot, be so conferred.

...

The constitutional condition on the vesting of non-judicial power in (or the conferring of a non-judicial function on) a Ch III judge is that the exercise of the power (or the performance of the function) be compatible with performance of judicial functions as stated in Grollo. When that condition is satisfied, judges not only are, but are seen to be, independent of the other branches of government. The appearance of independence preserves public confidence in the judicial branch.

The majority in Grollo [(1995) [1995] HCA 26; 184 CLR 348 at 365], another case relating to judicial warrants for telephonic interception, described the kinds of incompatibility which preclude the availability of a Ch III judge to perform non-judicial functions:

"The incompatibility condition may arise in a number of different ways. Incompatibility might consist 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 practicable. ... in the performance of non-judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth."

... [230] In the present case, the category of incompatibility that arises for consideration is "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished" [Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 365].

Bearing in mind that public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons exercising the political functions of government, no functions can be conferred on a Ch III judge that would breach that separation ... Where a non-judicial power is purportedly conferred, constitutional incompatibility is ascertained by reference to the function that has to be performed to exercise the power.

The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter "any non-judicial instruction, advice or wish"). If an affirmative answer does not appear, it is clear that the separation has been breached [see R v Anderson; Ex parte Ipec - Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177; Ansett Transport Industries Corporations Pty Ltd v The Cth [(1977) [1977] HCA 71; 139 CLR 54]. The [231] breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds -- that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

A judge who conducts a Royal Commission may have a close working connection with the Executive Government yet will be required to act judicially in finding facts and applying the law and will deliver a report according to the judge's own conscience without regard to the wishes or advice of the Executive Government except where those wishes or advice are given by way of submission for the judge's independent evaluation. The terms of reference of the particular Royal Commission and of any enabling legislation will be significant. Similarly, where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision [Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 2 ALD 1]. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the Tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a Minister.

... [232] The only power conferred by s. 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister's power to make a declaration. The function of a reporter under s. 10 is not performed by way of an independent review of an exercise of the Minister's power. It is performed as an integral part of the process of the Minister's exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made [Acts of Interpretation Act 1901 (Cth), s. 33(4)] and shorn of the usual judicial protections ... Significantly, the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined. Such a determination is essentially a political function. A reporter may choose to act independently of the Minister in determining the interests to be preferred, but the Act does not require the reporter to disregard ministerial instruction, advice or wish in preparing the report. The report may be prepared so as to accord with ministerial policy. If the Minister has no policy instruction or intimation to give to the reporter, the reporter himself or herself must make political decisions: "the extent of the area that should be protected" [s. 10(4)(c)], "the prohibitions and restrictions to be made" [s. 10(4)(d)] and "the duration of any declaration" [s. 10(4)(f)]. ... The decisions to be made by a reporter are political in character. In addition, the reporter is required by s. 10(4)(g) to furnish advice to the Minister upon a question of law, namely, the extent to which the area in question is or may be protected by or under a law of a State or Territory. Yet the giving to the executive of advisory opinions on questions of law is quite alien to the exercise of the judicial power ... The separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge.

It seems that the criteria of incompatibility above expressed have not always been observed in practice. However, disconformity of practice with constitutional requirement is no inhibition against truly expounding the text and implications of the Constitution. Indeed, any practice of departure from the constitutional requirement makes the necessity to declare the requirement more imperative. It cannot be avoided by a judge choosing to adopt a procedure designed to erect a cordon sanitaire between the judge and the Legislature or the Executive Government. The Constitution is concerned not with the conduct of a judge who exercises his or her discretion to maintain independence from the Legislature or the Executive Government but with the limits on legislative and executive power that might be exercised to confer a function bridging the separation of the Judiciary from the Legislature and the Executive Government.

In the present case, no doubt Justice Mathews would have followed a judicial or quasi-judicial procedure and her Honour's report might well evidence an independence of view as to the course which she regards as a desirable one for a Minister to follow. Nevertheless, if the Act be read down as it must, it follows that the function was one which the Minister could not properly nominate her to perform, nor one which her Honour was capable of accepting.

Gaudron J:

[235] Although it may be assumed that a judge will ordinarily act impartially and with propriety in the performance of a function conferred in his or her individual capacity, it cannot be assumed that that will also be the public perception. In this regard, the rule as to apprehended bias provides a useful analogy. That rule obliges an unbiased judge to withdraw from proceedings if a fair-minded observer, with knowledge of the actual circumstances of the case, would conclude that he or she would bring other than an unprejudiced and impartial mind to the resolution of the issues involved Livesey v NSW Bar Association [(1983) [1983] HCA 17; 151 CLR 288 at 293-294; Laws v Australian Broadcasting Tribual [1990] HCA 31; (1990) 170 CLR 70 at 87].

If a question arises whether a particular non-judicial function would, if performed by a judge in his or her individual capacity, diminish confidence in the judge's integrity or that of the judiciary as an institution, it will often be appropriate to ask how its performance would be viewed by a fair-minded observer. In that regard, the rule as to apprehended bias provides another useful analogy. That rule proceeds on the basis that "it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of (a judge) to make an independent decision uninfluenced by previously expressed opinions" [Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87, referring to Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568]. So too, it is not proper to attribute to the fair-minded observer a belief or assumption that judges will ordinarily act impartially and conformably with judicial standards in the performance of functions conferred upon them as individuals.

... [237] Public confidence in the independence of the judiciary is diminished if, even in their capacity as individuals, judges perform functions which place them or appear to place them in a position of subservience to either of the other branches of government. Similarly, public confidence is diminished if the performance of non-judicial functions gives the appearance that a judge is acting as the servant or agent of either of those other branches of government.

Whether or not a function gives or is capable of giving the appearance that there is an unacceptable relationship between the judiciary and the other branches of government is a question that has to be answered both by reference to functions that have, historically, been carried out by judges in their capacity as individuals (for example, Royal Commissions) and by a consideration of contemporary needs.

...

In general terms, a function which is carried out in public, save to the extent that general considerations of justice otherwise require, which is and which is manifestly free of outside influence and which results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches of government.

... [238] The function purportedly conferred on Justice Mathews pursuant to s. 10 of the Act is not one that has, historically, been performed by judges. Moreover, it is not a function that must be carried out in public. Perhaps the interests of justice require that the matter upon which she was asked to report be considered in confidence. Whether or not that is so, the function of reporting under s. 10 of the Act is not one which, in my view, can be conferred on a judge in his or her individual capacity. As the report need not be made public, it cannot be judged according to its own terms. Moreover, the report need not be carried into effect: the decision whether an area should be protected under s. 10(1) is for the Minister alone. Reporting is simply a process which assists the Minister to decide what, if any, action should be taken.

The function of reporting under s. 10 of the Act is one which, if performed by a judge in his or her individual capacity, gives the appearance that the judge is acting, not in any independent way, but as the servant or agent of the Minister. Thus, it is not a function that Parliament may confer on a judge of a court exercising the judicial power of the Commonwealth.

Kirby J:

... [244] A reflection on the extended list of federal inquiries in Australia conducted by judges, federal and state, demonstrates that the use of judges, as Royal Commissioners, statutory office-holders or otherwise, to investigate sensitive and complex issues (some of them very controversial and partisan in their potential) has been a settled feature of Australian public life during the whole history of the Commonwealth. If in the early days such inquiries were typically undertaken by state judges, this was because, until the last decades of this century, there were comparatively few federal judges.

... The Act here in question is to be understood against the background of the language of the Royal Commissions Act, the practice of the Executive of the Commonwealth in appointing judges as "persons" to conduct such Commissions, other inquiries under statute and inquiries resting on nothing more than the Executive's powers, derived from the Constitution or by analogy from the residue of the royal prerogative. Statutes and practice, even over nearly a hundred years, cannot confer constitutional validity where it is missing. But they can and do require the Court to pause before establishing a rule which would, or might, cast doubt on such settled activity, until now seen as compatible with the separation of the judicial power of the Commonwealth from the other branches of federal government in this country.

... [246] The primary duty of a court in construing the provisions of the Act is to accord to the words used their natural meaning so as to fulfil the imputed purpose of the Parliament in enacting the Act. A court must eschew giving words of generality a narrow meaning, simply to fulfil its own view of what is desirable, for example, in the use of federal judges to perform functions in relation to the Executive. Upon such a matter different judges will hold different opinions. In performing its function of construing valid legislation, a court must not substitute its opinions on policy for the plain language of the Act. It is only by such language that the Parliament, elected by the people, can express its will.

By the use of the word "person", unlimited and unqualified, it is clear that the Parliament's purpose was that the Minister should have available the widest possible pool of appropriate individuals from whom to choose a reporter [cf Leske v SA Real Estate Investment Co Ltd [1930] HCA 36; (1930) 45 CLR 22 at 25; Re Jeffcock's Trusts (1882) 51 LJ Ch 507; Rex v Sheppard (1919) 2KB 125 at 126; Digby v General Accidents Fire and Life Assurance Corp Ltd (1943) AC 121 at 136-137; Re Section 24 of the BNA Act (1928) 4 DLR 98; (1928) SCR at 276]. It is true that the pool is not completely unlimited. Thus, any person who for constitutional reasons could not perform the function of reporter would be excluded. It is on this ground that the Queen or the Governor-General personally would probably be excluded. But for the moment, I have put to one side the constitutional issue concerning the use of federal judges.

There is no apparent reason why a judge, federal or state, does not fall within the ambit of the word "person" where appearing in the Act. The history of the use of judges in Australia to conduct inquiries and to provide reports to the Executive contradicts the suggestion that, as a matter of construction, judges are not "persons" for the purposes of the Act. The very qualities which, over the entire history of the Commonwealth, have led to the appointment of judges for that purpose, suggests the contrary. Those qualities include training and skill to gather facts, identify those which are relevant, assess the honesty of evidence, evaluate competing arguments, act with sensitivity and neutrality in unravelling controversial issues and present an impartial report evidencing legal accuracy and dispassion. These are the qualities (apart from personal and professional reputation for integrity) which have caused federal governments of every political persuasion for nearly a hundred years, to use judges to conduct inquiries and provide reports to the Executive branch of government. Why should it be different in the case of a report under this Act where those qualities may be greatly needed?

... [247] The suggestion, made during argument, that a judge could not have been contemplated because he or she would be the "servant or agent of the Minister" completely misconceives the independent function conferred on the reporter by the Act. The Minister has no role to play between the nomination of a person to report and the receipt of the report from that person.

... The manner in which representations are to be obtained under the Act is established by the Parliament. The process is to be carried out exclusively by the reporter s. 10(3). The matters with which the report must deal are specified in the Act s.10(4). The Minister cannot vary those matters. Nor has the Minister any power to interfere in the performance of the reporting function. The procedural rulings of Justice Mathews indicate a lively appreciation of her independence as reporter in the conduct of the inquiry. It is a serious mis-statement of the functions of the reporter under the Act, and a misconception of the statutory office of reporter, to describe the reporter as lacking independence and as a mere "emanation of the Minister" [Plantiff's submissions, para 34]. I also consider that it is erroneous to characterise the reporter, as envisaged by the Act, as no more than an integral part of the process of the Minister's decision making or as akin to a ministerial adviser. The integrity of the reporter's function has been upheld by decisions of the Federal Court which have also emphasised that a reporter must conform to the principles of procedural fairness ("natural justice") [Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451; Minister for Aboriginal and Torres Strait Islander Affairs v Douglas, (unreported, Federal Court (Full Court), 28 May 1996, especially pages 23-24)].

... [250] No express prohibition is stated in the Constitution which forbids a federal judge from performing extra-judicial duties outside the judicature. Therefore, the appointment by another branch of government of a person who happens to be a federal judge to perform such duties is not, as such, incompatible with the text of the Constitution Mistretta v United States [1989] USSC 9; (1989) 488 US 361 at 404, 407.

... [251] Australia's relatively small population, scarce governmental resources and limited numbers of trained personnel argue strongly against the imposition of a new and rigid constitutional rule which history, past practice and constitutional understandings to date would deny.

... [253] Where what is involved falls short of the participation of a judge in a function characterised as incompatible with the kinds of activities which judges have typically performed, more complex questions arise. These involve a need to analyse whether the functions envisaged draw upon those features of judicial experience which are normal to its character. Such features typically include exhibiting neutrality, detachment and disinterestedness; receiving evidence, assessing its credibility and evaluating submissions upon it; and reaching conclusions, conformable with the law, which are expressed with efficiency and promptness in a stated conclusion [Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 366-7; Mistretta v United States [1989] USSC 9; (1989) 488 US 361 at 404, 407]. It is not necessarily incompatible with the judicial office for a judge to be involved in highly controversial matters and even matters which concern partisan or political questions. ... The closer the performance of the functions assigned to a judge are to those usually involved in the performance of the judicial function, the less objectionable is the utilisation of the judge to perform those functions outside the judiciary.

... [255] When the stated principles are applied to the undisputed facts of the present case there is no constitutional invalidity either in the Act pursuant to which Justice Mathews was nominated as reporter or in the conduct of the Minister in so nominating her.

The separation of powers dividing the judiciary from the other branches of government remains intact. There is a clear divorce, in law and in appearance, between Justice Mathews' appointment as a judge of the Federal Court (on the one hand) and her other appointments to non-judicial duties under legislation enacted by the Parliament, including that of reporter here in question (on the other).

... The actual duties of a reporter are considerably closer to those of the holder of a judicial office than, say, the duties of an "eligible judge" in providing a warrant for telephonic interception which the authority of this Court has upheld. Justice Mathews is in no way involved in functions incompatible with those of a judge as, for example, involvement in criminal investigation and prosecutorial duties arguably is. On the contrary, the very reason for her appointment to provide a report in the instant case is clearly to utilise the particular qualities which are normal to a judge in Australia: accuracy in the application of the law; independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion.

... [256] Far from the provision of a report damaging the federal judiciary, or Justice Mathews personally, I consider that the Australian community, in such an inquiry, would feel much more comfortable that the task of reporting was being performed by a judge, with nothing to gain or fear by the discharge of the accepted duty. Far from sapping and undermining the separation of powers, the provision of such a report of potential importance to Australians -- Aboriginal and non-Aboriginal alike -- would be in complete harmony with a century of unbroken experience during which numerous reports on troublesome and controversial subjects have been provided to the Executive Government by appointed judges, federal and state.

See [1996] HCA 18; (1996) 138 ALR 220; (1996) 70 ALJR 743.