DUE PROCESS, JUDICIAL POWER AND CHAPTER III IN
THE NEW HIGH COURT
Fiona Wheeler*
I
INTRODUCTION
A decade ago, members of the High Court recognised an implied guarantee of
procedural due process in the exercise of federal judicial power. Polyukhovich v
Commonwealth,1 Leeth v Commonwealth2 and Chu Kheng Lim v Minister for Immigration3
were the leading cases.4 Thus in Lim's Case, Brennan, Deane and Dawson JJ said that
the Commonwealth Parliament cannot require or authorise a Chapter III court 'to
exercise judicial power in a manner which is inconsistent with the essential character of
a court or with the nature of judicial power.'5 Opinions about the content of this due
process principle varied. Most judges accepted that federal judicial power must be
exercised consistently with the rules of natural justice.6 Deane and Gaudron JJ went
further, however. They argued that the due process principle guaranteed the fair trial
of a federal offence,7 a requirement that, among other things, would prevent abolition
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*
Faculty of Law, ANU.
1
(1991) 172 CLR 501 ('Polyukhovich'), 607 (Deane J), 685, 689 (Toohey J), 703–4 (Gaudron J).
2
(1992) 174 CLR 455 ('Leeth'), 470 (Mason CJ, Dawson and McHugh JJ), 486–7 (Deane and
Toohey JJ), 502 (Gaudron J).
3
(1992) 176 CLR 1 ('Lim's Case'), 27 (Brennan, Deane and Dawson JJ).
4
But see also, eg, Harris v Caladine (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte
Young (1991) 172 CLR 460, 496 (Gaudron J); Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs (1996) 189 CLR 1, 22 (Gaudron J); Kable v Director of Public Prosecutions
(NSW) (1996) 189 CLR 51 ('Kable'), 98 (Toohey J), 108 (Gaudron J). See generally, Christine
Parker, 'Protection of Judicial Process as an Implied Constitutional Principle' (1994) 16
Adelaide Law Review 341; Leslie Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney
Law Review 166; George Winterton, 'The Separation of Judicial Power as an Implied Bill of
Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185;
Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched
Due Process in Australia' (1997) 23 Monash University Law Review 248.
5
(1992) 176 CLR 1, 27 (footnote omitted).
6
Harris v Caladine (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte Young (1991) 172
CLR 460, 496 (Gaudron J); Leeth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh
JJ), 487 (Deane and Toohey JJ) referring to 'the obligation to act judicially'; Kable (1996) 189
CLR 51, 116 (McHugh J).
7
Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J); Dietrich v The Queen (1992)
177 CLR 292, 326 (Deane J) and 362 (Gaudron J).
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of the inherent power of a court to stay an unfair criminal trial.8 In addition, they
accepted that due process prohibited the application by courts of retroactive federal
criminal laws9 and required 'equal justice' in the exercise of federal judicial power.10
These last two requirements were controversial and the High Court was divided over
their existence.11 In particular, commentators noted that they seemed to control the
substantive law applied by a Chapter III court.12
These developments occurred at a time when the High Court was taking an
expansive approach to express and implied constitutional rights and freedoms as
demonstrated by cases such as Street v Queensland Bar Association13 and Australian
Capital Television Pty Ltd v Commonwealth.14 The constitutional climate today, however,
has changed. Express and implied rights are no longer at the forefront of constitutional
interpretation15 and the High Court has sought to confine the scope of some of its
earlier findings in this area.16 Decisions such as Re Wakim; Ex parte McNally17 and
extra-judicial comments by members of the Court, notably Chief Justice Gleeson, have
led to claims of a resurgence of legalism in constitutional reasoning.18 As Professor
Leslie Zines has shown, this 'new legalism'19 is not necessarily a uniform trend. In
particular, some recent High Court decisions are consistent with the 'more purposive
or policy oriented form of jurisprudence'20 that typified the Mason Court.21 At the very
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8
See generally, Wheeler, 'Constitutionally Entrenched Due Process in Australia', above n 4,
263–79. See also Wendy Lacey, 'Inherent Jurisdiction, Judicial Power and Implied
Guarantees under Chapter III of the Constitution' (2003) 31 Federal Law Review 57.
9
Polyukhovich (1991) 172 CLR 501, 612–14 (Deane J), 704–8 (Gaudron J). See also at 689
(Toohey J).
10
Leeth (1992) 174 CLR 455, 487 (Deane and Toohey JJ), 502–3 (Gaudron J); Kable (1996) 189
CLR 51, 107 (Gaudron J).
11
Cf the judgments of Mason CJ, Dawson J and McHugh J in Polyukhovich (1991) 172 CLR 501
and the joint judgment of Mason CJ, Dawson and McHugh JJ in Leeth (1992) 174 CLR 455.
12
See, eg, Winterton, 'Implied Bill of Rights', above n 4, 201–4.
13
(1989) 168 CLR 461.
14
(1992) 177 CLR 106.
15
George Williams, 'Implied Rights under the Gleeson Court' (1999) 2 Constitutional Law and
Policy Review 44.
16
In relation to the implied freedom of political communication, see Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520. On the implied guarantee of equality
recognised by Deane and Toohey JJ in Leeth (1992) 174 CLR 455, see Kruger v Commonwealth
(1997) 190 CLR 1 ('Kruger'), 63–8 (Dawson J), 112–13 (Gaudron J), 142 (McHugh J), 153–5
(Gummow J).
17
(1999) 198 CLR 511.
18
See Leslie Zines, 'Legalism, Realism and Judicial Rhetoric in Constitutional Law' (2002) 5
Constitutional Law and Policy Review 21, especially 26–9 (referring to Chief Justice Gleeson's
extra-judicial observations); Sir Anthony Mason, 'The Centenary of the High Court of
Australia' (2003) 5 Constitutional Law and Policy Review 41, 45. See also Justice J D Heydon,
'Judicial Activism and the Death of the Rule of Law' (2003) 23 Australian Bar Review 1
(noting, however, that this paper does not deal directly with constitutional and statutory
interpretation: at 4).
19
Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 26.
20
Sir Anthony Mason, 'Trends in Constitutional Interpretation' (1995) 18 University of New
South Wales Law Journal 237, 245.
21
Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 28.
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least, however, many of the Court's judgments 'have become more difficult, technical
and complicated.'22
In this uncertain legal environment, this paper explores the High Court's recent
treatment of the due process principle. What have members of the High Court said
about the principle? What developments have occurred since the early cases? As I
show, the due process principle continues to be endorsed by the High Court, at least in
its natural justice heartland. This is not surprising as the principle is not a radical one.
It is simply an aspect of the increasingly influential doctrine of the separation of federal
judicial power from legislative and executive power. The real issue is the scope of the
principle and the controls it places on the way in which judicial power is exercised. In
this regard, recent developments indicate that the due process principle is capable of
reaching into non-federal jurisdiction and the common law to insulate key features of
the Australian judicial system against governmental interference. However, the
retirement of Gaudron J — for many years the High Court's chief supporter of due
process — raises questions about the extent to which the outer limits of the principle
will continue to be explored.
This paper is structured as follows. Part II briefly surveys the separation of federal
judicial power as a prelude to an analysis of the interpretative basis of the due process
principle. This analysis emphasises the secure foundation on which the principle is
based. Part III then turns to recent developments, focusing on the scope of due process.
The potential reach of the principle's core requirement that federal judicial power must
be exercised consistently with the rules of natural justice is explored, primarily through
an examination of the judgment of Gaudron J in Ebner v Official Trustee in Bankruptcy.23
Recent insights into the evolution of the principle beyond natural justice are also
explored.
II
GENERAL PRINCIPLES
A
Separation of federal judicial power
The separation of federal judicial power developed by the High Court centres on two
related prohibitions. First, that federal judicial power cannot be exercised by bodies
other than the 'courts' identified in s 71 of the Constitution (the 'first limb' of the
separation doctrine)24 and, secondly, that federal courts cannot exercise legislative or
executive functions unless those functions are incidental to judicial power (the 'second
limb' of the separation doctrine).25
Sections 1, 61 and 71 of the Constitution read with the general provisions of Chapter
III (ss 71–80) provide the textual foundation for the separation doctrine. The
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22
Ibid 26.
23
(2000) 205 CLR 337 ('Ebner').
24
New South Wales v Commonwealth ('Wheat Case') (1915) 20 CLR 54 and Waterside Workers'
Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434. In relation to the 'first' and
'second' 'limbs' of the separation doctrine, see Cheryl Saunders, 'The Separation of Powers'
in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 3, 11.
25
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ('Boilermakers' Case')
affirmed on appeal to the Privy Council in A-G (Cth) v The Queen (1957) 95 CLR 529.
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Constitution does not expressly incorporate the separation of powers, however.26 The
doctrine is an implication from the text and structure of the Constitution when
interpreted in light of the traditional legal values of judicial independence and
impartiality.27 From a constitutional perspective, these values are 'vital for the rule of
law, and integral to the federal state.'28 As Dixon J said of the Constitution in Australian
Communist Party v Commonwealth:
[it] is an instrument framed in accordance with many traditional conceptions, to some of
which it gives effect, as, for example, in separating the judicial power from other
functions of government, others of which are simply assumed. Among these I think that
it may fairly be said that the rule of law forms an assumption.29
As I have explained elsewhere,30 the first limb of the separation doctrine specifically
promotes the independent and impartial exercise of judicial power by directing such
power away from the legislative and executive branches to 'courts' (s 71) including
'federal courts' whose judges cannot be arbitrarily removed from office (s 72). The
second limb of the doctrine reinforces this goal by distancing federal courts from the
activities of the political branches.31
Two features of the separation of federal judicial power are of particular
significance in understanding its role in giving effect to the due process principle. First,
the separation doctrine is deeply embedded in the High Court's conception of the
Constitution.32 The doctrine, and the rule of law values it serves, was recognised as
early as 1909.33 Both limbs of the separation doctrine are now well-established.34 The
strength of the separation of powers has fluctuated over time, but it is presently in a
period of expansion. Cases such as Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs35 and Re Wakim; Ex parte McNally36 illustrate its present force.
The other feature of the separation of federal judicial power of importance here is
its purposive nature. The High Court has recognised that the doctrine operates to
promote the independent and impartial exercise of judicial functions and, more
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26
For a constitution that adopted an express doctrine of separation of powers, see the
discussion of the Virginia Constitution of 1776 in M J C Vile, Constitutionalism and the
Separation of Powers (1967) 119.
27
This has been repeatedly recognised by commentators. See, eg, Leslie Zines, The High Court
and the Constitution (4th ed, 1997) 169–70, 212–18.
28
Justice Michael Kirby, 'Australia' in Shimon Shetreet and Jules Deschênes (eds), Judicial
Independence: The Contemporary Debate (1985) 8, 12.
29
(1951) 83 CLR 1, 193.
30
Fiona Wheeler, 'The Boilermakers Case' in H P Lee and George Winterton (eds), Australian
Constitutional Landmarks (2003) 160, 168.
31
George Winterton, 'Judges as Royal Commissioners' (1987) 10 University of New South Wales
Law Journal 108, 124.
32
See generally Wheeler, 'The Boilermakers Case', above n 30. See also Fiona Wheeler, 'The
Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in
Overview' (2001) 20 Australian Bar Review 283, 284.
33
Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330, 381–5 (Isaacs J).
34
There were signs in the 1970s and 1980s that the High Court might overturn the second
limb of the separation doctrine, but subsequent developments have affirmed it: see
Wheeler, 'The Boilermakers Case', above n 30, 172–3.
35
(1996) 189 CLR 1.
36
(1999) 198 CLR 511.
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Chapter III in the New High Court
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broadly, the supremacy of law over arbitrary power.37 That the doctrine serves these
objectives, and is not an end in itself, also reflects our legal traditions. Judicial power
has historically been exercised by courts because of a belief that certain functions, like
the trial of a person for a criminal offence, are best performed in a manner that is
detached from government and free from bias.38 This in turn helps preserve the ideal
of 'freedom under law'.39 As five judges said in Wilson v Minister for Aboriginal and
Torres Strait Islander Affairs: '[t]he 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.'40
As the next section shows, the rule of law objectives served by the separation of
federal judicial power and the idea of due process are closely linked.
B
Basis of the due process principle
The cases disclose two alternate theories for derivation of the due process principle.
One theory, espoused by Deane J, is based on the first limb of the separation
doctrine.41 The other theory, advocated by Gaudron J, is based on the second limb.
In Polyukhovich and Leeth, Deane J argued that to give effect to the first limb of the
separation doctrine, it was not enough that federal judicial power was exclusively
vested in Chapter III courts. The rule of law objectives supporting this requirement
would only be met if 'the judicial power so vested is exercised by those courts in
accordance with the essential attributes of the curial process'.42 As his Honour pointed
out, 'to construe Ch III of the Constitution as being concerned only with labels and as
requiring no more than that the repository of judicial power be called a court would be
to convert it into a mockery, rather than a reflection, of the doctrine of separation of
powers.'43 Thus, Deane J's approach was explicitly based on substance over form and
the purposive character of the separation doctrine.44
By contrast, Gaudron J consistently argued that it was part of the definition of
judicial power in s 71 of the Constitution that it must be exercised in accordance with
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37
See, eg, Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330, 382–3 (Isaacs J);
Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 469–70
(Isaacs and Rich JJ); R v Davison (1954) 90 CLR 353, 380–2 (Kitto J); Boilermakers' Case (1956)
94 CLR 254, 267–8 and 275–6 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) and in the Privy
Council A-G (Cth) v The Queen (1957) 95 CLR 529, 540–1; R v Trade Practices Tribunal; Ex
parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 390–3 (Windeyer J); Wilson v Minister
for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 10–13 (Brennan CJ, Dawson,
Toohey, McHugh and Gummow JJ).
38
Stephen Parker, 'The Independence of the Judiciary' in Brian Opeskin and Fiona Wheeler
(eds), The Australian Federal Judicial System (2000) 62, 67–71; Huddart, Parker and Co Pty Ltd v
Moorehead (1909) 8 CLR 330, 382–3 (Isaacs J discussing the views of Sir William Blackstone).
39
Zines, The High Court and the Constitution, above n 27, 212.
40
(1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
41
I have previously discussed Deane J's approach to derivation of the due process principle
in Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 250–1, 254.
42
Polyukhovich (1991) 172 CLR 501, 607 (footnote omitted).
43
Ibid. To the same effect, see Leeth (1992) 174 CLR 455, 486–7 (Deane and Toohey JJ).
44
Cf Parker, 'Protection of Judicial Process', above n 4, 354. See also Russell Blackford,
'Judicial Power, Political Liberty and the Post-Industrial State' (1997) 71 Australian Law
Journal 267, 283.
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the 'judicial process'. Under this approach, a function not exercised in accordance with
the judicial process is not judicial power and thus, under the second limb of the
separation doctrine, cannot be exercised by a federal court45 or invested by the
Commonwealth in a state court.46 Of course, the Constitution does not define judicial
power. As a consequence, the definitions of judicial power developed by the High
Court have drawn largely from the historical functions of courts. Gaudron J's approach
to the due process principle is an extension of this mode of analysis.47 Thus, in Nicholas
v The Queen,48 discussed below, her Honour said that:
[j]udicial power is not adequately defined solely in terms of the nature and subject matter
of determinations made in exercise of that power. It must also be defined in terms that
recognise it is a power exercised by courts and exercised by them in accordance with the
judicial process.49
It is unclear which of these approaches has prevailed. Many High Court judgments
that discuss the due process principle do not explore the foundations of the
requirement. Arguably, this is indicative of confidence in the legitimacy of the
implication either way. On both views, the implication is a modest one. Indeed, on
Gaudron J's view, it is no more than what judges have been doing since Griffith CJ in
Huddart, Parker and Co Pty Ltd v Moorehead50 first attempted to define judicial power for
the purposes of s 71. As Christine Parker has explained, all that Gaudron J has done is
insist that judicial power is characterised not only by a particular functional outcome
(for example, the conclusive determination of disputes about existing legal rights51)
but also by the process by which that outcome is achieved (such as impartially and
having heard both sides).52
Despite the persuasiveness of Gaudron J's view, I prefer that of Deane J. It is
notorious that the High Court has been unable to frame a universal definition of
judicial power. Experience has shown that the terms 'legislative', 'executive' and
'judicial' must largely be defined by reference to historical and social practice
considered in light of the general purposes of the separation doctrine.53 In this context
it seems unwise to place further emphasis on the abstract meaning of judicial power.
By contrast, Deane J's approach goes to the heart of the matter by explicitly invoking
the values served by vesting federal judicial power in Chapter III courts. It too is a
modest and persuasive implication, insisting that the separation doctrine is concerned
with 'who' is given judicial power because of an ultimate concern with 'how' that
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45
Polyukhovich (1991) 172 CLR 501, 703–4 (Gaudron J); Leeth (1992) 174 CLR 455, 501–3
(Gaudron J); Ebner (2000) 205 CLR 337, 362–3 (Gaudron J). See also Harris v Caladine (1991)
172 CLR 84, 150 (Gaudron J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs
(1996) 189 CLR 1, 22 (Gaudron J).
46
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.
47
See Parker, 'Protection of Judicial Process', above n 4, 346–7, 354–5.
48
(1998) 193 CLR 173 ('Nicholas').
49
Ibid 208 (footnote omitted).
50
(1909) 8 CLR 330, 357.
51
Zines, The High Court and the Constitution, above n 27, 171–2.
52
Parker, 'Protection of Judicial Process', above n 4, 347, 354–5.
53
Zines, The High Court and the Constitution, above n 27, 173. See also E D Elliott, 'Why Our
Separation of Powers Jurisprudence is so Abysmal' (1989) 57 George Washington Law Review
506, 527.
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Chapter III in the New High Court
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power is exercised.54 A further reason for preferring Deane J's approach is that the
second limb of the separation doctrine has not historically been as stable as the first. In
the 1970s and 1980s it appeared that the High Court might overturn the second limb
and replace it with an incompatibility test.55 As Professor George Winterton has
observed, this would not be fatal to Gaudron J's approach.56 Williams J's dissent in the
Boilermakers' Case57 and Kable58 show that functions exercised in a non-judicial manner
may be incompatible with judicial power. Nonetheless, the first limb of the separation
doctrine provides a more secure foundation for the due process principle.
On either view, it is important to bear in mind the basis of the due process principle
when considering its scope and application. The 'due process' label, although
convenient, can obscure the implication's foundations in the separation doctrine and
suggest unwarranted parallels with United States due process jurisprudence.59 When
the objects and purposes of the exclusive vesting of federal judicial power in Chapter
III courts are examined, however, it is evident that whatever else due process may
mean, judges in federal jurisdiction must resolve disputes by legal reasoning — in
most situations by finding the facts and applying the relevant law.60 In addition, the
rules of natural justice must be observed.61 These are the core due process
requirements, for unless judges find facts and apply law impartially and having heard
both sides, the constitutional rationale for investing judicial power in courts is
significantly undermined.62
III
RECENT DEVELOPMENTS
What then is the present status of the due process principle? The High Court could
have chosen to retreat from the early cases. The due process principle was not essential
to the majority decisions in Polyukhovich, Leeth and Lim’s Case.63 The principle featured
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54
Adapting Parker, 'Protection of Judicial Process', above n 4, 354.
55
See R v Joske; Ex parte Australian Building Construction Employees and Builders' Labourers'
Federation (1974) 130 CLR 87, 90 (Barwick CJ), 102 (Mason J); Hilton v Wells (1985) 157 CLR
57.
56
Winterton, 'Implied Bill of Rights', above n 4, 202 n 117.
57
(1956) 94 CLR 254, 314–15 (referred to in Winterton, 'Implied Bill of Rights', ibid).
58
(1996) 189 CLR 51. See also Polyukhovich (1991) 172 CLR 501, 703 (Gaudron J).
59
For a brief comparison of the Australian and United States doctrines, see George Williams,
'Due Process' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford
Companion to the High Court of Australia (2001) 226–7.
60
Polyukhovich (1991) 172 CLR 501, 607 (Deane J), 704 (Gaudron J). See also, eg, Re Nolan; Ex
parte Young (1991) 172 CLR 460, 496–7 (Gaudron J).
61
See the authorities above n 6. See also Grollo v Palmer (1995) 184 CLR 348, 394–5 (Gummow
J); Nicholas (1998) 193 CLR 173, 188 (Brennan CJ), 208 (Gaudron J); Bass v Permanent Trustee
Co Ltd (1999) 198 CLR 334 ('Bass'), 359 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne
and Callinan JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 101 (Gaudron
and Gummow JJ); Ebner (2000) 205 CLR 337, 362–3 (Gaudron J), 372–3 (Kirby J); Justice
Michael McHugh, 'Does Chapter III of the Constitution Protect Substantive as Well as
Procedural Rights?' (2001) 21 Australian Bar Review 235, 238–9.
62
Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 253–4.
63
The finding in Lim's Case that s 54R of the Migration Act 1958 (Cth) was invalid is best
regarded as an application of the principle that the Commonwealth Parliament cannot
interfere with the exercise of federal judicial power: see Winterton, 'Implied Bill of Rights',
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in the majority judgments in Kable but a conservative court might decide to interpret
this controversial case narrowly.
High Court judgments have continued to recognise the due process principle,
however. As a consequence, the legitimacy of the principle — whether based on the
Deane J or Gaudron J view — must surely be regarded as settled. In a speech in 2001,
Justice McHugh claimed that '[f]ew would now doubt that Ch III protects some
procedural rights' and described the passage from Lim's Case quoted at the start of this
paper as supported by authority.64 The four recent cases discussed below underscore
this assessment. They are Nicholas,65 Bass,66 Ebner67 and Cameron v The Queen.68 The
first three cases are discussed in the context of the general notion of due process and its
operation in its natural justice heartland. The fourth case, Cameron, shows that even in
the absence of Gaudron J there may be continuing support from some members of the
High Court for the idea that federal judicial power must be exercised in accordance
with 'equal justice'.
A
Due process heartland
1
Due process affirmed: Nicholas v The Queen and Bass v Permanent Trustee
Co Ltd
In Nicholas, decided in 1998, Brennan CJ, Toohey, Gaudron and Gummow JJ in
separate majority judgments each acknowledged the due process principle.69 The case
concerned the validity of s 15X of the Crimes Act 1914 (Cth). Section 15X had been
enacted in 1996 in response to the High Court's decision on entrapment in Ridgeway v
The Queen.70 Ridgeway found that courts have a discretionary power, exercisable on
public policy grounds, to exclude evidence of an offence, or an element of an offence, if
law enforcement officers were unlawfully involved in its commission. Section 15X
regulated this discretion in federal drug prosecutions by providing that if certain
conditions were met, a court was to disregard the fact that a law enforcement officer
had committed an offence in bringing the drugs into Australia. Thus, s 15X eliminated
a ground for the exercise of the discretion. Section 15X only applied to importations
organised prior to its commencement.
It was found that s 15X was valid and did not infringe Chapter III. In so concluding,
the majority emphasised its limited effect. In particular, s 15X simply widened the facts
potentially before a court and did not interfere with the determination of guilt or
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above n 4, 193–4. This is the same principle that was applied by the Privy Council in
Liyanage v The Queen [1967] 1 AC 259.
64
McHugh, above n 61, 237 and 238–9. See also at 241.
65
(1998) 193 CLR 173.
66
(1999) 198 CLR 334.
67
(2000) 205 CLR 337.
68
(2002) 209 CLR 339 ('Cameron').
69
(1998) 193 CLR 173, 185 (Brennan CJ), 202 (Toohey J), 207–9 (Gaudron J), 232 (Gummow J).
Hayne J, also in the majority, was silent on the issue. Kirby J, one of the dissentients in
Nicholas, has also recognised the generalised due process principle: see, eg, Abebe v
Commonwealth (1999) 197 CLR 510, 592 and Ebner (2000) 205 CLR 337, 372–3.
70
(1995) 184 CLR 19 ('Ridgeway').
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innocence in individual cases.71 Several overlapping Chapter III arguments were
rejected in reaching this conclusion, including a due process submission that s 15X
required a court to act in a manner contrary to the essential character of a court or the
nature of judicial power. The various arguments before the Court were difficult to
separate and possibly for this reason the judges did not specifically discuss the due
process principle at length. Gaudron J nonetheless took the opportunity to restate her
broad view of the scope of the implication:
In my view, consistency with the essential character of a court and with the nature of
judicial power necessitates that a court not be required or authorised to proceed in a
manner that does not ensure equality before the law, impartiality and the appearance of
impartiality, the right of a party to meet the case made against him or her, the
independent determination of the matter in controversy by application of the law to facts
determined in accordance with rules and procedures which truly permit the facts to be
ascertained and, in the case of criminal proceedings, the determination of guilt or
innocence by means of a fair trial according to law.72
She added: 'a court cannot be required or authorised to proceed in any manner which
involves an abuse of process, which would render its proceedings inefficacious, or
which brings or tends to bring the administration of justice into disrepute.'73
Subsequently in Bass,74 the due process principle was endorsed in a joint judgment
of six members of the Court. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and
Callinan JJ said that judicial power involved 'proceedings conducted in accordance
with the judicial process.' This required 'the application of the relevant law to facts as
found' and that 'parties be given an opportunity to present their evidence and to
challenge the evidence led against them.'75 The passage from Gaudron J's judgment in
Nicholas quoted above was among the authorities cited.76
Bass did not involve the validity of legislative or executive action. However, the
majority used the due process principle to show why answers to questions formulated
by a single judge of the Federal Court for consideration by the Full Court of that Court
should be set aside. No facts had been agreed or found in the case. Nonetheless, the
answers given by the Full Court were based on certain factual assumptions made by it.
In these circumstances, the High Court said the Full Court's answers had a
hypothetical quality which did not 'assist the efficient administration of justice.'77 In
addition, to let the answers stand 'would be to sanction departure from the judicial
process'. This was because there would be 'a determination of rights by applying the
law to facts which are neither agreed nor determined by reference to the evidence in
the case.'78 Kirby J dissented from this finding, arguing that the procedures adopted by
_____________________________________________________________________________________
71
(1998) 193 CLR 173, 191, 193 (Brennan CJ), 202 (Toohey J), 208, 210–11 (Gaudron J), 236,
238–9 (Gummow J), 276–9 (Hayne J). McHugh J dissented finding that s 15X infringed
Chapter III by interfering to an unacceptable extent with the capacity of a Chapter III court
'to protect the integrity of its processes' (at 222–6). Kirby J dissented on a similar basis (at
264–6).
72
Ibid 208–9.
73
Ibid 209.
74
(1999) 198 CLR 334.
75
Ibid 359 (footnotes omitted).
76
Above, text accompanying n 72.
77
(1999) 198 CLR 334, 357.
78
Ibid 359.
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the Federal Court had been an appropriate response to complex litigation. He pointed
out that the parties were given ample opportunity to object to the course taken by the
Federal Court, but had not done so prior to reaching the High Court.79
Reflecting on these cases, neither Nicholas nor Bass significantly develops the due
process principle. Each adds to our understanding of it, however. In particular,
Nicholas suggests that the High Court regards Parliament as having a legitimate role,
consistent with the separation of powers, in regulating the rules of evidence that courts
apply in federal jurisdiction. In finding s 15X of the Crimes Act 1914 (Cth) valid, several
judges emphasised that evidence has traditionally been regarded as an appropriate
area for legislative intervention.80 On the other hand, these remarks did not preclude
the possibility that specific evidentiary provisions might breach Chapter III by
requiring a court to act contrary to the judicial process or by usurping judicial power in
some way.81 The fact that s 15X did not impinge on a court's determination of guilt or
innocence in specific cases was a significant factor in its validity.82
In contrast to Nicholas, the issues in Bass as perceived by the majority fell directly
within the core of the due process requirement. The principle that a federal court
cannot affect rights 'by applying the law to facts which are neither agreed nor
determined by reference to the evidence in the case'83 can be seen as an aspect of the
hearing limb of natural justice.84 Thus, Bass underscores the strength of the due
process requirement in this area. Later, in Re Refugee Review Tribunal; Ex parte Aala,85
Gaudron and Gummow JJ reiterated that 'procedural fairness is a concomitant of the
vesting of the judicial power of the Commonwealth in [a] federal court' adding that in
this regard 's 75(v) operates to maintain s 71 of the Constitution.'86 It is significant,
however, that the joint judgment in Bass did not comment on the broader reach of the
due process principle or, for example, specifically endorse all that Gaudron J said in
Nicholas about its scope. It is unlikely the six judges would have agreed, especially in
relation to Gaudron J's insistence that federal judicial power must be exercised in such
a way as to 'ensure equality before the law'.87
Whatever the eventual limits of the due process principle, it would be a mistake to
assume that its natural justice application — on which all judges seem to concur — is
of limited significance to Australian law. The third recent case for discussion, Ebner,88
shows the opposite is the case.
_____________________________________________________________________________________
79
Ibid 363–71.
80
(1998) 193 CLR 173, 189–91 (Brennan CJ), 202–3 (Toohey J), 234–6 (Gummow J), 273–4
(Hayne J). See also, albeit in dissent, at 225 (McHugh J).
81
See generally Enid Campbell, 'Rules of Evidence and the Constitution' (2000) 26 Monash
University Law Review 312.
82
See also ibid 315.
83
(1999) 198 CLR 334, 359.
84
See generally Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed,
2000) 435–6, 438–41.
85
(2000) 204 CLR 82.
86
Ibid 101. See also Kruger (1997) 190 CLR 1, 63 (Dawson J).
87
Nicholas (1998) 193 CLR 173, 208. See also Justice Douglas Drummond, 'Towards a More
Compliant Judiciary? – Part I' (2001) 75 Australian Law Journal 304, 306.
88
(2000) 205 CLR 337.
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Chapter III in the New High Court
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____________________________________________________________________________________
2
Due process, non-federal jurisdiction and the common law: Ebner v Official
Trustee in Bankruptcy
In Ebner, the High Court heard two appeals concerning the principles governing
judicial disqualification for apprehended bias in situations where it is claimed that a
judge has some form of pecuniary interest in a case. One appeal was from a decision in
federal jurisdiction, the other in non-federal jurisdiction. Gleeson CJ, McHugh,
Gummow and Hayne JJ in a joint judgment said the test to be applied was whether 'a
fair-minded lay observer might reasonably apprehend that the judge might not bring
an impartial mind to the resolution of the question'.89 They denied there was a
separate rule that automatically required a judge with a 'direct pecuniary interest' in
the outcome of litigation to step aside.90 Callinan J agreed.91 Gaudron J also agreed,
but identified specific situations where a judge's pecuniary interest would inevitably
result in disqualification under the reasonable apprehension of bias test.92 Kirby J
disagreed, arguing that the reasonable apprehension of bias test operated in parallel
with a separate rule requiring the automatic disqualification of any judge with 'a direct
pecuniary interest in the outcome of the proceedings.'93
The joint judges and Callinan J approached these issues from the perspective of the
common law. They did not discuss the Constitution. However, both Gaudron J and
Kirby J regarded the Constitution as relevant. In particular, Gaudron J found that the
principles of impartiality under consideration were 'constitutional requirements'94
whether federal or non-federal jurisdiction was concerned. As in Nicholas, she reasoned
that impartiality and the appearance of impartiality were essential features of federal
judicial power. It followed that Chapter III impliedly guaranteed 'that matters in
federal jurisdiction are determined by a court constituted by a judge who is impartial
and who appears to be impartial.'95 Kable then transmitted this guarantee to nonfederal jurisdiction. Invoking Kable, Gaudron J said that the need to uphold public
confidence in state courts as repositories of federal judicial power required 'they be
constituted by persons who are impartial and who appear to be impartial even when
exercising non-federal jurisdiction.'96 Territory courts were in the same position
because they too could exercise federal judicial power.97 Thus, she concluded that
Chapter III 'guarantee[s] impartiality and the appearance of impartiality throughout
the Australian court system.'98
Applying this reasoning to the questions before her, Gaudron J found that the
common law reasonable apprehension of bias test conformed to the Constitution's
impartiality standards.99 However, in her opinion these standards demanded a strict
approach to the necessity exception to the apprehended bias test. The exception did
_____________________________________________________________________________________
89
Ibid 344, 350.
90
Ibid 356.
91
Ibid 396.
92
Ibid 366–7.
93
Ibid 390 quoting Webb v The Queen (1994) 181 CLR 41, 75 (Deane J) (footnote omitted).
94
Ebner (2000) 205 CLR 337, 368.
95
Ibid 362–3.
96
Ibid 363.
97
Ibid.
98
Ibid.
99
Ibid 363–4.
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not arise on Gaudron J's view of the facts in Ebner, but influenced by constitutional
considerations she expressed a narrow view of its scope:
[N]otions of necessity should be resorted to only in a case where, if the judge in question
does not sit, a court cannot be constituted to hear and determine the matter in issue.
Constitutional requirements cannot yield to expediency or convenience. Certainly that is
so with respect to the requirements of Ch III of the Constitution.100
By contrast, Kirby J's discussion of the 'implied constitutional requirement of due
process of law'101 was more limited than that of Gaudron J. He seems to have shared
the gist of Gaudron J's views, stating that:
in my view, in Australia, the ultimate foundation for the judicial requirements of
independence and impartiality rests on the requirements of, and implications derived
from, Ch III of the Constitution. And it does as much in the case of a State Supreme Court
as it does in a federal court.102
Kirby J declined to comment further, however, saying the parties had not argued the
case as a constitutional one. Thus, he analysed the issues in terms of the common law
without direct reference to constitutional requirements.
Despite the other judges in Ebner adopting a common law approach, Gaudron J's
view that the rules governing judicial disqualification for bias in Australia are
constitutional requirements is surely correct in federal jurisdiction.103 Under the due
process principle, all judges would agree that federal judicial power must be exercised,
both in actuality and appearance, in an impartial manner.104 A number of interlocking
rules and institutional arrangements help preserve public confidence in judicial
impartiality.105 But on any view, if judicial power is to be exercised with confidence in
its complete detachment, a judge must step aside from a case when actual or
apprehended bias is established. Significantly, there is support for Gaudron J's
conclusion in earlier cases. In Grollo v Palmer,106 Gummow J said that 'the rules as to
reasonable apprehension of bias in their application to the courts have, at their root,
the doctrine of the separation of the judicial from the political heads of power.'107 In
Gummow J's opinion,108 the Privy Council in the Boilermakers' Case had understated
matters when it observed that the principle that makes the union of the functions of
actor and judge 'appear contrary to natural justice' was 'not remote from that which
inspires the theory of the separation of powers.'109
_____________________________________________________________________________________
100 Ibid 368. Cf at 359 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
101 Ibid 373.
102 Ibid (footnote omitted). See also Johnson v Johnson (2000) 201 CLR 488, 500 (Kirby J); Re
Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, 147
(Kirby J); Roberts v Bass (2002) 212 CLR 1, 55 n 196 (Kirby J); Austin v Commonwealth (2003)
195 ALR 321, 392, 401, 409 (Kirby J).
103 See also Enid Campbell, 'Waiver of Judicial Disqualification for Bias or Apprehended Bias
— A Constitutional Issue' (1999) 2 Constitutional Law and Policy Review 41; Enid Campbell
and H P Lee, The Australian Judiciary (2001) 144–5, 151.
104 In addition to the authorities collected above n 61, see also R v Federal Court of Bankruptcy;
Ex parte Lowenstein (1938) 59 CLR 556, 588–9 (Dixon and Evatt JJ).
105 See, eg, Parker, 'The Independence of the Judiciary', above n 38, especially 88–92.
106 (1995) 184 CLR 348.
107 Ibid 394 (footnote omitted).
108 Ibid.
109 A-G (Cth) v The Queen (1957) 95 CLR 529, 542. See also McHugh, above n 61, 240.
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Judicial disqualification for bias thus provides a further illustration, along with the
law of defamation considered in Lange v Australian Broadcasting Corporation,110 of a
situation in which the common law must conform to the Constitution.111 Alternatively
(although it may amount in substance to the same thing) it may be that the general law
of apprehended bias should now be seen as 'an attribute of the judicial power of the
Commonwealth' with its source directly in Chapter III of the Constitution.112 In Ebner,
Gaudron J noted that the High Court had developed the reasonable apprehension of
bias test 'by reference to common law principles and without regard to … the
Constitution.'113 Her conclusion that the test 'properly reflects the requirement of Ch
III'114 is not surprising, however. Chapter III has long been read in light of the common
law. For example, and as already noted, the meaning of judicial power in s 71 has been
strongly influenced by the historical functions of English and colonial courts.115
Nonetheless, the introduction of a constitutional standard may lead to development
of a stricter doctrine of apprehended bias in specific respects. Gaudron J's discussion of
the necessity exception in Ebner provides one possible example. The issue of waiver of
bias may provide another. Professor Enid Campbell has suggested that if impartiality
and the appearance of impartiality are constitutionally guaranteed in federal
jurisdiction, then arguably the Constitution 'does not allow disqualifying causes to be
waived by parties.'116 She points out that the rules governing judicial disqualification
for bias exist to maintain public confidence in the judicial process, not simply to benefit
individual litigants.117 Gaudron J did not discuss waiver in Ebner, but she recognised
that the purpose of Chapter III impartiality was to promote public confidence in the
judiciary.118 On this basis, and bearing in mind Gaudron J's comments in Ebner
concerning the scope of the necessity exception ('[c]onstitutional requirements cannot
yield to expediency or convenience'119) there is logical force in Professor Campbell's
suggestion.120
Does this general reasoning extend to non-federal jurisdiction, however? Gaudron
J's view that Kable transmits to the states the impartiality limb of the due process
principle is consistent with the finding in that case that the Community Protection Act
1994 (NSW) was invalid. In Kable, Gaudron, McHugh and Gummow JJ held that under
Chapter III neither the Commonwealth nor the states can 'undermine'121 the
_____________________________________________________________________________________
110 (1997) 189 CLR 520.
111 See also the discussion in Campbell, 'Rules of Evidence and the Constitution', above n 81,
328–9.
112 Re Colina; Ex parte Torney (1999) 200 CLR 386, 395 (Gleeson CJ and Gummow J) describing
the power of the High Court to deal with contempts as deriving from s 71 of the
Constitution.
113 (2000) 205 CLR 337, 363.
114 Ibid 364.
115 For a good example, see the joint judgment of Dixon CJ and McTiernan J in R v Davison
(1954) 90 CLR 353. See also, eg, Nicholas (1998) 193 CLR 173, 185 (Brennan CJ); Re Colina; Ex
parte Torney (1999) 200 CLR 386, 395 (Gleeson CJ and Gummow J).
116 Campbell, 'Waiver of Judicial Disqualification for Bias', above n 103, 42.
117 Ibid 42. See also Campbell and Lee, above n 103, 146, 151.
118 (2000) 205 CLR 337, 363, 364, 368.
119 Ibid 368.
120 See also ibid 393 (Kirby J).
121 (1996) 189 CLR 51, 116 (McHugh J).
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constitutionally ordained role of state courts as recipients of federal judicial power by
giving them functions 'incompatible with'122 or 'repugnant to'123 the exercise of such
power.124 The Community Protection Act 1994 (NSW) was accordingly invalid because
the function it purported to confer on the Supreme Court of New South Wales (making
a preventive detention order in relation to a single named individual) was liable to
weaken public confidence in the impartiality of the Court and required it to act
contrary to traditional judicial process.125 Several specific features of the Community
Protection Act 1994 (NSW) contributed to this outcome, including its ad hominen
nature, the basis on which a detention order was to be made and the evidentiary rules
to be applied. It is hard to believe, however, that if a state legislated to impair the
operation of the reasonable apprehension of bias test in state jurisdiction that a
different result would follow.126 Thus, unless a future High Court seeks to confine
Kable to its facts or limit its effect on some other basis, it seems that judicial impartiality
is, as Gaudron J and Kirby J suggest, an entrenched requirement of both federal and
state jurisdiction.127 The extension of this to the territories turns on the unresolved
question whether territorial courts exercise, at least in part, federal jurisdiction.128 But
if they do, as Gaudron J believed, the Kable incompatibility doctrine must apply to
them.129
The finding that 'Ch III of the Constitution operates to guarantee impartiality and
the appearance of impartiality throughout the Australian court system'130 clearly has
significance beyond the rules governing actual and ostensible bias. As already noted,
many other rules and institutional arrangements contribute to actual and perceived
judicial impartiality. Examples include guaranteed judicial tenure and conditions of
_____________________________________________________________________________________
122 Ibid 103 (Gaudron J), 116 (McHugh J).
123 Ibid 103 (Gaudron J).
124 Ibid 103, 106 (Gaudron J), 116, 118–19 (McHugh J), 126, 128 (Gummow J).
125 Ibid 106–8 (Gaudron J), 121–4 (McHugh J), 132–4 (Gummow J). The reasoning of the fourth
member of the Kable majority, Toohey J, was somewhat narrower than the others. For a
summary of his approach, see Leslie Zines, Federal Jurisdiction in Australia (3rd ed, 2002)
244–5.
126 See the view of Zines, Federal Jurisdiction in Australia, above n 125, 245 ('It is clear that Kable
would restrict State legislative power to control the judicial process so as to impair the
principles of natural justice and due process'). See also Enid Campbell, 'Constitutional
Protection of State Courts and Judges' (1997) 23 Monash University Law Review 397, 416–17;
John Fairfax Publications Pty Ltd v A-G (NSW) (2000) 181 ALR 694, 701 (Spigelman CJ); Re
Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40.
127 The scope of the Kable doctrine is currently before the High Court in the appeal in Fardon v
A-G (Qld) (B104/2003 and B105/2003, judgment reserved 2 March 2004).
128 The present state of the law in this regard is discussed in Zines, Federal Jurisdiction in
Australia, above n 125, 172–86. There appears to be a growing acceptance that territory
courts exercise some federal jurisdiction, however: see, eg, Putland v The Queen (2004) 204
ALR 455, 456 (Gleeson CJ), 472, 473–4 (Kirby J).
129 Cf North Australian Aboriginal Legal Aid Service Inc v Bradley (2002) 192 ALR 701, 724–9
(Black CJ and Hely J), 732 (Drummond J) rejecting an argument that Kable applies to
territory courts. This was because Spratt v Hermes (1965) 114 CLR 226 and Capital TV and
Appliances Pty Ltd v Falconer (1971) 125 CLR 591 established that territory courts do not
exercise federal jurisdiction. The Federal Court noted it was bound by these decisions,
despite recent suggestions from some High Court judges that territory courts may exercise
federal jurisdiction.
130 Ebner (2000) 205 CLR 337, 363 (Gaudron J).
2004
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219
____________________________________________________________________________________
service,131 adequate court funding132 and judicial control over 'the assignment of
judges, court listings, and sittings'.133 Impartiality is also promoted by judicial
immunity from 'actions undertaken or words spoken in the course of carrying out
judicial duties'134 and even the principle that, save in exceptional circumstances,
judicial proceedings take place in public.135 Whether and to what extent these and
related rules and practices have a constitutional dimension in federal and non-federal
jurisdiction must be an open question.
In relation to judicial tenure, the question whether states and territories can
continue to use the services of acting judges consistently with the principles in Kable
has been much discussed.136 The statements of Gaudron J and Kirby J in Ebner
squarely raise this issue because they were there concerned with individual judicial
impartiality, rather than the grant of functions to a court potentially incompatible with
such impartiality. There are strong arguments that the use of acting judges is
inconsistent with public confidence in judicial impartiality.137 On the other hand, as
the Federal Court recognised in North Australian Aboriginal Legal Aid Service Inc v
Bradley,138 there are barriers to the due process principle affecting state and territorial
judicial tenure.139 In particular, the High Court recently held in Re Governor, Goulburn
Correctional Centre; Ex parte Eastman140 that appointments to the Supreme Court of the
Australian Capital Territory are not governed by s 72 of the Constitution. Thus on the
facts of the case it was found that the use of an acting judge was not invalidated by that
provision.141 In her majority judgment in Eastman, Gaudron J noted that if territory
courts exercise federal jurisdiction, a question might arise whether Kable limits 'the
manner in which [such a court] is constituted before federal jurisdiction can be vested
in it'.142 She did not develop this point. However, a finding that due process prevents
_____________________________________________________________________________________
131 Parker, 'The Independence of the Judiciary', above n 38, 76–9, 89–90. Of course, s 72 of the
Constitution protects the tenure and remuneration of judges of federal courts. Whether
Chapter III of the Constitution impliedly protects the tenure and remuneration of state
judges is discussed in Peter Johnston and Rohan Hardcastle, 'State Courts: The Limits of
Kable' (1998) 20 Sydney Law Review 216, 236–42. See also Austin v Commonwealth (2003) 195
ALR 321, 390 (Kirby J).
132 Parker, 'The Independence of the Judiciary', above n 38, 79–81, 91.
133 Ibid 91.
134 Ibid 90.
135 A number of judges have indicated that 'open justice' is a requirement of the due process
principle. However, the reasons for courts being open to the public are wider than the need
to safeguard the appearance of impartiality in judicial proceedings. Thus, 'open justice' is
probably a freestanding aspect of due process. See the authorities collected in Wheeler,
'Constitutionally Entrenched Due Process in Australia', above n 4, 261–3. See also McHugh,
above n 61, 239; John Fairfax Publications Pty Ltd v A-G (NSW) (2000) 181 ALR 694, 707
(Spigelman CJ), 721 (Priestley JA).
136 See, eg, Justice Michael Kirby, 'Acting Judges — A Non-theoretical Danger' (1998) 8 Journal
of Judicial Administration 69, 72; Drummond, above n 87, 313.
137 Kirby, 'Acting Judges', above n 136, 72–5.
138 (2002) 192 ALR 701.
139 Ibid 729–31 (Black CJ and Hely J), 732 (Drummond J).
140 (1999) 200 CLR 322 ('Eastman').
141 Ibid 333 (Gleeson CJ, McHugh and Callinan JJ), 340 (Gaudron J), 348–50 (Gummow and
Hayne JJ). Cf at 356, 383–4 (Kirby J) (dissenting).
142 Ibid 340. See also at 353 (Gummow and Hayne JJ), 364–5 (Kirby J).
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the states and territories from appointing acting judges would require the High Court
to revisit the outcome in Eastman. It would also deepen Kable-based incursions into
conventional understandings associated with the requirement that the Commonwealth
must take a state court 'as it finds it' when investing federal jurisdiction.143
If the High Court declined to recognise a general constitutional prohibition on state
and territory acting judges, it is possible that due process-based challenges to
particular acting appointments in specific circumstances may still be open. Although
not directly concerned with the situation of acting judges, the forthcoming decision of
the High Court in North Australian Aboriginal Legal Aid Service Inc v Bradley144 may cast
light on some of these issues.
3
Summary
In summary, the due process principle continues to feature in High Court judgments
and should now be regarded as a settled implication from Chapter III. Even if its scope
is confined to what I have termed its 'heartland' area of operation, its potential impact
on the Australian legal system is significant. The discussion of Ebner has fleshed out
some of these potentialities in relation to the impartiality limb of the natural justice
obligation. However, the natural justice hearing rule and the basic requirement that
courts proceed by finding facts and applying the law are replete with similar
potentialities.145
B
Other Due Process Applications
At the start of this paper it was noted that in the early due process cases, Deane J and
Gaudron J argued that the due process principle had several extended applications.
They said it guaranteed the fair trial of a federal offence, prohibited the application by
courts of retroactive federal criminal laws and required 'equal justice' in the exercise of
federal judicial power. None of these applications has been decisively accepted or
rejected by the High Court. Moreover, since the first half of the 1990s, case law
concerning them has been sparse.
Of the three, the notion that there is an implied guarantee of a fair trial of a federal
offence has the greatest prospect of future development. Elsewhere I have shown that
there are strong links between key elements of this idea and the requirement that
federal judicial power must be exercised consistently with the rules of natural
justice.146 Speaking extra-judicially, Justice McHugh has directly supported the fair
trial guarantee.147 Kirby J has also kept its acceptance alive in dicta in recent cases.148
_____________________________________________________________________________________
143 On this principle see Zines, Federal Jurisdiction in Australia, above n 125, 204–9, 242–3. See
also Kable (1996) 189 CLR 51, 102 (Gaudron J), 110, 115 (McHugh J) and the expressio unius
argument based on s 72 of the Constitution discussed in Johnston and Hardcastle, above n
131, 241. This expressio unius argument seems to have been accepted by the Federal Court in
North Australian Aboriginal Legal Aid Service Inc v Bradley (2002) 192 ALR 701, 730 (Black CJ
and Hely J), 732 (Drummond J).
144 D2/2003 (judgment reserved 8 October 2003).
145 See, eg, Drummond, above n 87, for a discussion of whether the movement towards
externally imposed 'judicial performance' standards offends core aspects of the due process
principle, especially the natural justice requirement.
146 Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 263–70.
147 McHugh, above n 61, 240–1. See also KRM v The Queen (2001) 206 CLR 221, 227 (McHugh
J).
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By contrast, the retroactivity and equal justice manifestations of the due process
principle espoused by Deane J and Gaudron J in Polyukhovich and Leeth attracted
opposition at the time from within the Court.149 Following Gaudron J's retirement in
early 2003, one might have thought these implications would recede from view. In
particular, the retroactivity guarantee has not been endorsed by any member of the
current High Court. However, it is possible that the equal justice due process
requirement may survive in some form given recent comments of McHugh J in
Cameron.
Cameron was an appeal by a prisoner against the sentence imposed by the District
Court of Western Australia. The prisoner had pleaded guilty to possession of a
prohibited drug with intent to sell/supply contrary to the Misuse of Drugs Act 1981
(WA). As the offence occurred in a 'Commonwealth place' under s 52(i) of the
Constitution (Perth Airport), the District Court sentenced the prisoner in federal
jurisdiction. The question before the High Court was whether the sentencing judge had
erred in not sufficiently reducing the sentence in light of the prisoner's guilty plea.
Gaudron, Gummow and Callinan JJ, with Kirby J concurring, found in favour of the
prisoner. McHugh J dissented taking a different view about the timing of the prisoner's
guilty plea.
In their judgments, all members of the Court discussed how the practice of
'discounting' the sentence of a defendant who pleads guilty should be reconciled with
the principle that 'a convicted person may not be penalised for having insisted on his
or her right to trial'150 (that is, for having pleaded not guilty).151 In this regard, it was
recognised that courts should generally proceed in a non-discriminatory way in
exercising their sentencing discretion.152 The case was not argued as a constitutional
one, but in a passage under the heading 'Federal jurisdiction', McHugh J seemingly
elevated this discussion of non-discrimination in sentencing practice to constitutional
status. He said:
It is … one thing for courts, exercising State jurisdiction, to give a discount for a bare plea
of guilty even though it results in persons who plead guilty receiving shorter sentences
than persons in similar circumstances who plead not guilty. But it is another matter
whether, consistently with the exercise of the judicial power of the Commonwealth,
courts exercising federal jurisdiction can give 'discounts' in such cases. If there is one
principle that lies at the heart of the judicial power of the Commonwealth, it is that courts,
exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that
proposition is to deny that equal justice under the law is one of the central concerns of the judicial
power of the Commonwealth. And it is at least arguable that it is relevantly discriminatory
to treat convicted persons differently when the only difference in their circumstances is
_____________________________________________________________________________________
148 See, eg, Bull v The Queen (2000) 201 CLR 443, 483; Crampton v The Queen (2000) 206 CLR 161,
208; KRM v The Queen (2001) 206 CLR 221, 254; Cameron (2002) 209 CLR 339, 370; Ng v The
Queen (2003) 197 ALR 10, 27.
149 On the retroactivity aspect of the due process principle, see the judgments of Mason CJ,
Dawson J and McHugh J in Polyukhovich (1991) 172 CLR 501. On Gaudron J's view that
'equal justice … is fundamental to the judicial process', see Leeth (1992) 174 CLR 455, 469–70
(Mason CJ, Dawson and McHugh JJ), 502 (Gaudron J).
150 Cameron (2002) 209 CLR 339, 343 (Gaudron, Gummow and Callinan JJ) (footnote omitted).
151 Ibid 343–4 (Gaudron, Gummow and Callinan JJ), 350–1 (McHugh J), 358–61 (Kirby J).
152 Ibid 343–4 (Gaudron, Gummow and Callinan JJ), 350–4 (McHugh J).
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that one group has been convicted on pleas of guilty and the other group has been
convicted after pleas of not guilty.153
Curiously, McHugh J did not cite Leeth for this proposition.154 Kirby J noted that
Leeth had been raised in argument,155 but he declined to consider the point noting it
was not formally before the Court as a ground of appeal.156 For the same reason,
McHugh J concluded that 'whether the discount principle applies in federal
jurisdiction must … be left for another day.'157 The remaining judges in Cameron were
silent on this aspect of the case.
It is hard to know what to make of the quoted passage from McHugh J's judgment
in Cameron, particularly as it seems contrary to his position in Leeth.158 Leeth concerned
the validity of Commonwealth legislation that required a court sentencing a federal
offender to set a non-parole period according to the law of the state or territory where
the offender was convicted. The relevant state and territory laws were not the same.
Accordingly, persons convicted of the same federal offence in different parts of the
country could have different non-parole periods. McHugh J was in the majority that
upheld the legislation. Deane and Toohey JJ dissented, finding the legislation infringed
a guarantee of equality implied from the Constitution as a whole.159 They did not need
to consider a separate argument that the legislation violated Chapter III.160 Deane and
Toohey JJ nonetheless accepted that federal judicial power must generally be exercised
in a non-discriminatory manner.161 Gaudron J also dissented, but relied on Chapter III.
She said that 'equal justice … is fundamental to the judicial process.' In her opinion the
legislation infringed the due process principle by directing a court to exercise federal
jurisdiction in a discriminatory fashion.162
It has been widely assumed that the joint judgment of Mason CJ, Dawson and
McHugh JJ in Leeth rejected both the broad, generalised equality guarantee applied by
Deane and Toohey JJ and the narrower equal justice manifestation of the due process
principle applied by Gaudron J.163 In particular, Mason CJ, Dawson and McHugh JJ
seemed to reject Gaudron J's approach on the basis that it amounted to a restriction on
the substantive law to be applied in federal jurisdiction, as opposed to a control on the
manner in which federal judicial power is exercised.164 The discrete basis upon which
_____________________________________________________________________________________
153 Ibid 352–3 (emphasis in third and fourth sentences added).
154 At the end of the quoted passage, he referred to Wong v The Queen (2001) 207 CLR 584, 608
(Gaudron, Gummow and Hayne JJ).
155 Cameron (2002) 209 CLR 339, 368.
156 Ibid 369.
157 Ibid 353.
158 See also Milat v The Queen (2004) 205 ALR 338, 342–3 (McHugh J).
159 (1992) 174 CLR 455, 486–8, 490–3.
160 Ibid 493.
161 Ibid 487.
162 Ibid 502–3.
163 Ibid 467–71. See Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 281–2;
Parker, 'Protection of Judicial Process', above n 4, 353; Winterton, 'Implied Bill of Rights',
above n 4, 203; Zines, The High Court and the Constitution, above n 27, 205–6.
164 (1992) 174 CLR 455, 469–70; Wheeler, 'Constitutionally Entrenched Due Process', above n 4,
281–2; Parker, 'Protection of Judicial Process', above n 4, 353; Winterton, 'Implied Bill of
Rights', above n 4, 203; McHugh, above n 61, 251; Zines, The High Court and the Constitution,
above n 27, 205–6.
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the fourth member of the majority, Brennan J, dealt with the case meant these were not
majority findings, however. Subsequently the existence of the wider equality guarantee
was rejected by a majority in Kruger.165 By contrast, McHugh J's judgment in Cameron
suggests he regards the narrower implication as surviving in some form consistently
with the decision on the facts in Leeth and the joint majority judgment in that case.166
As has been seen, Gaudron J remained committed to the 'equal justice' due process
requirement throughout her time on the Court.167 Kirby J may also support it.168
More recently, in Putland v The Queen169 a majority of the High Court (Gleeson CJ
and Gummow, Callinan and Heydon JJ) rejected an argument that s 68 of the Judiciary
Act 1903 (Cth) could not 'pick up' a Northern Territory provision enabling a court to set
an aggregate sentence where an offender had been convicted of two or more offences
joined in one indictment. The claim that this application of s 68 of the Judiciary Act
would result in unconstitutional discrimination between persons convicted of the same
federal offence — not all states and territories had such an aggregate sentencing
provision — was quickly rejected on the authority of Leeth.170 The majority did not
discuss the reasoning in Leeth, however, or specifically elaborate upon their
conclusion.171 As a result, whether they have any sympathy for the views expressed by
McHugh J in Cameron is unclear.
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165 (1997) 190 CLR 1, 63–8 (Dawson J), 112–13 (Gaudron J), 142 (McHugh J), 153–5 (Gummow
J).
166 Mason CJ, Dawson and McHugh JJ said in Leeth that even assuming the existence of
Gaudron J's equal justice due process requirement, the legislation in question was not
relevantly discriminatory: (1992) 174 CLR 455, 470–1. See also at 493 (Deane and Toohey JJ).
Speaking extra-judicially, Justice McHugh seems to have expressed at least some support
for Gaudron J's equal justice due process guarantee (see McHugh, above n 61, 251: 'the
more limited Ch III doctrine proposed by Gaudron J, and at least partially endorsed in
Kruger by Dawson J and myself, appears to be still open'). The judgments of Dawson J and
McHugh J in Kruger support a procedural due process guarantee, but reject a doctrine of
substantive due process. It may be then that McHugh J supports a guarantee of procedural
equality in the exercise of federal judicial power. As he has acknowledged, however, the
distinction between procedure and substance is far from clear: McHugh, above n 61, 237.
167 Kable (1996) 189 CLR 51, 107–8 (Gaudron J); Kruger (1997) 190 CLR 1, 112 (Gaudron J);
Nicholas (1998) 193 CLR 173, 208 (Gaudron J).
168 See his comment in the New South Wales Court of Appeal in Ngoc Tri Chau v Director of
Public Prosecutions (Cth) (1995) 132 ALR 430, 445. See also Putland v The Queen (2004) 204
ALR 455, 484–5 (Kirby J) and, for a more specific commitment, Muir v The Queen [2004]
HCA 21 (Unreported, McHugh, Hayne and Kirby JJ, 2 April 2004) [28] (Kirby J). Cf,
however, Cameron (2002) 209 CLR 339, 369 (Kirby J).
169 (2004) 204 ALR 455.
170 Ibid 462 (Gleeson CJ), 470–1 (Gummow and Heydon JJ), 486 (Callinan J). Cf at 483–5 (Kirby
J) (dissenting). The case arose from the trial by the Supreme Court of the Northern
Territory of offences under the Crimes Act 1914 (Cth) and the Bankruptcy Act 1966 (Cth).
Gleeson CJ said that the Supreme Court was exercising federal jurisdiction here (at 456).
Kirby J said that 'the existence of federal jurisdiction was not challenged by either party to
this appeal' (at 474). The other members of the High Court did not directly comment on
whether federal jurisdiction was attracted.
171 However, Gleeson CJ observed that '[s]ection 68 of the Judiciary Act reflects a permissible
legislative choice, and one which, for a century, has resulted in some differences in the
sentencing of federal offenders according to where they are sentenced': ibid 462 (footnote
omitted).
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There are good reasons for accepting that the due process principle requires a
degree of procedural equality in the exercise of federal judicial power and this may be
what McHugh J had in mind in Cameron. After all, procedural equality is a key concern
of the rules of natural justice.172 In addition, it is probably fair to say that courts have
historically sought to exercise their discretionary powers in a consistent and nonarbitrary way, albeit that our notions of what constitutes non-discrimination have
evolved over time with social change. Bearing in mind the origins of the due process
principle in the rule of law rationale for the exclusive vesting of certain functions in
courts, there may be justification for a form of due process guarantee that, as Gaudron
J claimed in Kruger, prevents 'the conferral on courts of discretionary powers which are
conditioned in such a way that they must be exercised in a discriminatory manner.'173
The problem though is how to set boundaries on this notion to prevent due process
expanding into an unprincipled form of judicial merits review of the activities of
Parliament. After all, the separation of powers also obliges the courts to recognise the
authority of the elected Parliament.174
IV
CONCLUSION
In Roberts v Bass,175 Kirby J remarked that the implied guarantee of 'due process in
judicial proceedings … [is] still in the course of evolution.'176 Moreover, the
constitutional implication of 'judicial impartiality' in Ebner had, in his words, 'only just
begun … [its] journey to acceptance.'177 As these remarks imply, the recent
development of the due process principle has been characterised by a process of
evolution, not revolution or radical shifts in direction. There has been a consolidation
of what I have described as the 'core' or 'heartland' requirements of the due process
principle, especially those associated with natural justice. The due process principle
has also begun to penetrate new spheres — state and territorial jurisdiction and the
common law. In the current judicial climate, cautious development across both these
constitutional axes is likely to be the order of the day. The legacy of Deane J and
Gaudron J in this regard seems assured, even if not all elements of their due process
vision come to pass.
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172 Wheeler, 'Constitutionally Entrenched Due Process', above n 4, 282–3. See also Geoffrey
Kennett, 'Individual Rights, the High Court and the Constitution' (1994) 19 Melbourne
University Law Review 581, 603 where a similar argument is made; Jeremy Kirk,
'Constitutional Implications (II): Doctrines of Equality and Democracy' (2001) 25 Melbourne
University Law Review 24, 39; Kruger (1997) 190 CLR 1, 66 (Dawson J), 155 (Gummow J);
Muir v The Queen [2004] HCA 21 (Unreported, McHugh, Hayne and Kirby JJ, 2 April 2004)
[23]–[28] (Kirby J).
173 (1997) 190 CLR 1, 112 (footnote omitted). See also Kennett, above n 172, 594; Melissa Castan
and Sarah Joseph, Federal Constitutional Law: A Contemporary View (2001) 159.
174 See Kruger (1997) 190 CLR 1, 68 (Dawson J). Cf Kennett, above n 172, 604 commenting on
the application of the broader equality guarantee recognised by Deane and Toohey JJ in
Leeth.
175 (2002) 212 CLR 1.
176 Ibid 55 (footnote omitted).
177 Ibid (footnote omitted).