INHERENT JURISDICTION, JUDICIAL POWER AND
IMPLIED GUARANTEES UNDER CHAPTER III OF THE
CONSTITUTION
Wendy Lacey*
INTRODUCTION
The separation of judicial power from executive and legislative power has long been
recognised as an important measure for guaranteeing individual liberty and for
safeguarding against tyranny.1 As Winterton has noted, '[d]ividing governmental
power is the oldest device for restraining it, and thereby protecting liberty'.2 However,
it has also been widely recognised, particularly in recent years, that by entrenching the
separation of federal judicial power, Chapter III of the Australian Constitution may offer
individual guarantees beyond the arbitrary exercise of executive or legislative power.3
Consideration of exactly what these guarantees may include has significantly
contributed to the recent interest in Chapter III of the Constitution. As one commentator
proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the
defining features of the last decade of Australian constitutional law'.4 This trend has
raised many questions relating to the nature of judicial power and judicial
independence, and the extent to which it does, and can, protect individual liberties.
The emergence of these questions has been influenced and shaped by developments in
international law on human rights generally. In this respect, it reflects a broader trend
in Australian law to consider the domestic relevance and application of international
_____________________________________________________________________________________
*
Lecturer, School of Law, University of Adelaide; PhD candidate, University of Tasmania.
1
James Madison wrote in The Federalist No 47, 'The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very definition of
tyranny.'
2
George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in
Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of
Professor Leslie Zines (1994) 185.
3
W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1997) 322;
Winterton, above n 2, 187-8; George Williams, Human Rights Under the Australian
Constitution (1999) 198.
4
Fiona Wheeler, 'The Rise and Rise of Judicial Power under Chapter III of the Constitution: A
Decade in Overview' (2000) 20 Australian Bar Review 283, 283.
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human rights standards,5 despite the general absence of express statutory or
constitutional protection of human rights.
Of central importance within this trend, has been the issue of what rights or
guarantees are capable of implication from the specific sections of Chapter III. In
grappling with this question, attention has largely centred on the right to a fair trial,6
rights to due process or judicial process,7 and the right to equality.8 This 'rights-based'
approach has tended to dominate analysis of implications drawn from Chapter III and,
consequently, may have prevented the detailed consideration of alternative
approaches more reflective of the actual text and structure of Chapter III. One such
approach includes as its basis (and, therefore, its point of departure) the drawing of
implications that relate to the powers and jurisdiction of federal courts, and
specifically, what is commonly referred to as the 'inherent jurisdiction' of the courts.
In many respects, it should come as no surprise that commentators refer to 'rights'
within the curial process and, particularly, within criminal procedure. The
international instruments to which Australia is bound, together with guarantees at
common law, are largely considered to be declaratory of specific individual 'rights'.
Thus, we refer to the 'right' to a fair trial, the 'right' to silence, and the 'right' to legal
representation. In some instances, we refer to negatively expressed rights in the sense
of freedoms, including the freedom against self-incrimination and the freedom from
arbitrary detention. Yet, in all cases we speak generally of the rights (whether positive
or negative) of individuals, though rarely of absolute rights. While 'rights-based'
language is common in modern legal settings, it often betrays the fact that individual
rights (whether referred to as rights, guarantees, freedoms, protections, safeguards or
liberties) are protected, and are capable of protection, through various means. Included
within those means are methods more subtle than the legally enforced, and legally
enforceable, positively expressed individual rights. The relative absence, however, of
many such rights within Australian domestic law (whether under the Constitution,
statute or common law)9 appears to have influenced the debate regarding implied
guarantees under Chapter III of the Constitution. Thus, we have witnessed a tendency
to refer to the potential implied protection of various rights or guarantees under
Chapter III: the right to a fair trial or the right to due process being the most prominent
examples.
_____________________________________________________________________________________
5
See, eg, David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential
(1998).
6
Dietrich v The Queen (1992) 177 CLR 292, 362 (Gaudron J) and 326 (Deane J); Re Tracey; Ex
Parte Ryan (1989) 166 CLR 518, 579 (Deane J); Re Nolan; Ex Parte Young (1991) 172 CLR 460,
493 (Gaudron J).
7
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1, 29 (Brennan, Deane and Dawson JJ); Re Tracey; Ex Parte Ryan (1989) 166 CLR 518, 580
(Deane J); Re Tyler; Ex parte Foley (1993) 181 CLR 18, 34 (Deane J); Polyukhovich v
Commonwealth (‘War Crimes Act Case’) (1991) 172 CLR 501, 614–6 (Deane), 684–5 (Toohey J),
and 703–4 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 502–3 (Gaudron J).
8
Leeth v Commonwealth (1992) 174 CLR 455, 483–92 (Deane and Toohey JJ), and 502–3
(Gaudron J); Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 247–8
(Deane J); Kruger v Commonwealth (‘Stolen Generations Case’) (1997) 190 CLR 1, 94–7 (Toohey
J).
9
See, eg, George Williams, 'Civil Liberties and the Constitution—A Question of
Interpretation' (1994) 5 Public Law Review 82, 83.
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An alternative approach is one that focuses on the courts' inherent powers: powers
that are developed and utilised on the basis of the inherent jurisdiction of courts. This
jurisdiction involves the ability of superior courts to prevent an abuse of process and to
develop rules that regulate and protect its procedures and process.10 It has long been
accepted that a court's inherent powers may be invoked by a court to ensure the
integrity, efficiency and fairness of its process, and in a manner that protects, among
other things, due process and the provision of a fair trial. Clearly there are links
between individual rights within the curial process and the scope of a court's inherent
jurisdiction. Yet, according to this alternative approach, the relationship with Chapter
III rests on the implication of powers of the court rather than the implication of the
rights of individuals.
That Chapter III may actually protect the inherent jurisdiction of federal courts and
courts exercising federal jurisdiction, has yet to be fully explored. At least one case of
the High Court,11 however, includes judgments that touch upon the issue of inherent
powers and their relationship with Chapter III, though that case did not offer any
direct and detailed consideration of inherent jurisdiction as the basis of any
constitutional implication. Notwithstanding this fact, support for such an approach can
be drawn from various judgments of the High Court, most notably from the
jurisprudence surrounding the exercise of federal judicial power. It is, in addition,
arguable that, in some respects, certain decisions of the High Court give stronger
support to the notion that it is indeed the inherent jurisdiction of Chapter III courts
which is to be implied from that Chapter, and through which certain 'rights' may be
protected. This is in contrast to the more common 'rights-based' approach, which has
tended to focus on the direct implication of individual guarantees. It is submitted that
the former approach is more in keeping with the actual text and structure of the
Constitution,12 both in respect of the general absence of express rights, and in the very
nature of Chapter III as a section more concerned with the creation and functions of
federal courts.
The question to be addressed is, therefore, what exactly is protected by Chapter III
of the Constitution? Is it the specific right to due process or a fair trial (and all that that
right encompasses), or is it that what is actually protected is the inherent power of
federal courts to protect the judicial process in the administration of justice? While the
former implication results in guarantees for individuals, the latter leads to the
implication or recognition of a power or jurisdiction that may be exercised by federal
courts. The distinction is clear, and while the former approach has commanded the
attention of certain judges and commentators, the genesis of the latter approach is also
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10 I H Jacob, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 51;
Keith Mason, 'The Inherent Jurisdiction of the Court (1983) 57 Australian Law Journal 449,
458.
11 Nicholas v The Queen (1998) 193 CLR 173, 196 (Brennan CJ), 201 (Toohey J), 216 (McHugh J),
259, 266 (Kirby J), 275–6 (Hayne J).
12 While the constitutional text alone is recognised as being inadequate for the purposes of
constitutional interpretation, it still remains fundamental. As Sir Anthony Mason has
observed, 'There is a need to identify other reference points and indicators to supplement
the text without deserting it, for fidelity to the text is generally regarded as the foundation
of constitutional interpretation, a badge of legitimacy, so to speak': 'Theoretical Approaches
to Constitutional Interpretation' in Charles Sampford and Kim Preston (eds), Interpreting
Constitutions: Theories, Principles and Institutions (1996) 13.
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to be found in recent decisions of the High Court. A preoccupation, however, with a
'rights-based' approach has perhaps stifled consideration of alternative approaches by
the Court and commentators alike.
What are the practical implications of this alternative approach to the drawing of
implications from Chapter III? In one sense, the inherent jurisdiction of a court is much
broader than a right to due process, a fair trial, or any other individual right associated
with the curial process. Inherent jurisdiction is both flexible and able to be expanded,13
whereas rights tend to be fixed or defined in either or both their expression and
protection. The inherent powers of a court are exercised in order to protect the
integrity, efficiency and fairness of the curial process as a whole, and are thus able to
be employed to ensure equities amongst all affected persons, whether parties to a
dispute or not.14 Rights, on the other hand, are (for the most part) individualist in
nature, including in their concern for the defendant within the criminal process.
In another respect, inherent powers are concerned first and foremost with the
'processes' of a court rather than the interests of individuals. In protecting that process,
however, inherent powers are exercised often for the benefit of individuals. For
example, a court may exercise its power to stay proceedings if to continue with the
matter would require the court to conduct a trial that was unfair. While the right to a
fair trial is protected in a negative sense at common law, it has also been suggested that
it is protected by implication under Chapter III. By adopting an approach based on the
implied protection of the court's inherent powers, however, what is taken to be
protected under Chapter III is the power of the court to stay the proceedings in order
to protect its process, rather than the right to a fair trial as such. Yet, the fact that
constitutional protection is afforded to the court's powers, rather than to individual
rights or guarantees, does not mean that the latter is irrelevant for the purposes of
Chapter III considerations. The essential features or attributes of the curial process that
the court must protect are obviously influenced by society's understanding of a fair
trial and the various guarantees that should ordinarily form a part of that process. To
this end, individual rights (especially universally recognised human rights standards)
relevant to the trial process are going to shape the exercise of a court's inherent
jurisdiction in both the development and exercise of the court's inherent powers. Thus,
individual guarantees will be relevant in shaping the content of inherent jurisdiction.
In addition, constitutional protection of a court's inherent jurisdiction and powers
could also potentially provide the legal basis upon which individual guarantees may
be further implied.
The alternative approach posited in this paper assumes that the scope of judicial
power under Chapter III extends to the implied powers of federal courts to protect
their own processes. This is distinct from the more commonly expressed assertion that
Chapter III includes an implied guarantee of due process. The fact that each of the
federal courts has been created by statute and possesses limited jurisdiction, raises
additional issues in relation to whether they actually possess 'inherent' jurisdiction.
_____________________________________________________________________________________
13 Justice Paul de Jersey, 'The Inherent Jurisdiction of the Supreme Court' (1985) 15 Queensland
Law Society Journal 325, 330.
14 Jacob, above n 10, 25: 'Because it is part of the machinery of justice, the inherent jurisdiction
of the court may be invoked not only in relation to the litigant parties in pending
proceedings, but in relation also to anyone, whether a party or not, and in respect of matters
which are not raised as issues in the litigation between the parties.'
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Inherent jurisdiction was initially possessed by the common law courts of
Westminster, which were superior courts of record with unlimited jurisdiction.15
While the state Supreme Courts are similarly described16 and also possess inherent
jurisdiction,17 the federal courts are, however, differently situated. As superior courts
of record created by statute and possessing limited jurisdiction, they appear to lack the
necessary attributes of a court considered to possess inherent jurisdiction. Australian
jurisprudence on this matter, however, reflects a relative absence of any major legal
obstacle to declaring the possession of such jurisdiction by federal courts.18 It appears
though, at least from recent decisions of the High Court, that it is now considered to be
more appropriate in law to refer to the 'implied' jurisdiction or powers of the federal
courts, which is (or are) akin to the 'inherent' jurisdiction or powers of common law
courts with unlimited jurisdiction.19 For the purposes of this paper, however, the term
inherent is used nonetheless. This is principally in order to avoid over-complication of
the issues, and given the basic similarity in content between the 'implied' jurisdiction
of the federal courts, and the 'inherent' jurisdiction of superior courts with unlimited
jurisdiction. This similarity in content relates to the functional nature of the jurisdiction
(which is the same for both state and federal courts), rather than the jurisdiction’s
source (which may be considered as 'inherent' or 'implied', and which consequently
differs between the state and federal courts).
Another practical legal consequence arising from an approach based on the implied
protection of inherent jurisdiction under Chapter III, is the potential for certain
discretionary powers of the court to be protected under the Constitution. This is by
virtue of the fact that the inherent jurisdiction and the powers within its ambit are
discretionary in nature. An obvious issue to arise, then, is the potential for limitations
to restrict the ability of the legislature to regulate or remove specific instances of
judicial discretion. In this respect, the power of federal Parliament to prevent or limit
the consideration of human rights concerns, and specifically international human
rights law, in the exercise of a discretion could be significantly curtailed by the
constitutional implication. The extent of that limitation, however, would certainly be
affected by the foundation for any implication, as well as the degree to which any
enactment offended Chapter III. If, as is submitted with a 'rights-based' approach, the
protection offered by Chapter III related to an 'implied freedom', like all such
implications it may be limited by statute, provided that certain conditions are met and
that the right is not altogether abrogated.20 This is another important distinction
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15 De Jersey, above n 13, 330.
16 See, eg, s 200 of the Supreme Court Act 1995 (Qld), which provides that the Supreme Court
'shall have the same jurisdiction power and authority as the superior courts of common law
and the High Court of Chancery in England'. Differently worded provisions may be found
in relation to the Supreme Courts of other states: Supreme Court Act 1970 (NSW) ss 22–24;
Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s 16; Supreme Court Act 1935
(SA) s 6; for Tasmania see, Supreme Court Act 1856 (Tas) s 2, Supreme Court Act 1887 (Tas) s 9,
Criminal Code Act 1924 (Tas) s 400(3), Australian Courts Act 1828 (Imp) 9 Geo 4, c 83.
17 See, eg, Grassby v The Queen (1989) 168 CLR 1, 21 (Dawson J).
18 See text accompanying nn 53-80.
19 DJL v Central Authority (2000) 201 CLR 226, 240–1 (Gleeson CJ, Gaudron, McHugh,
Gummow and Hayne JJ).
20 Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due
Process in Australia' (1997) 23 Monash University Law Review 248, 266.
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between the two approaches, as the same may not necessarily apply to the court's
'inherent jurisdiction' and to Parliament's ability to regulate the court's process and
procedures. This is a direct consequence of the actual nature and purpose of inherent
jurisdiction in protecting the integrity of the curial process. There is a natural
connection between the exercise of a power to preserve and protect the integrity of that
process, and the desire to act 'judicially'. Of course, where compliance with a statute
would require the court to act in a non-judicial manner, the enactment would be
invalid by virtue of Chapter III.
THE SEPARATION OF JUDICIAL POWER UNDER CHAPTER III OF THE
CONSTITUTION
The Commonwealth Constitution divides power between the Parliament, the Executive
Government, and the Judicature in Chapters I-III respectively. While power cannot be
said to be strictly separated between the two political institutions of government, as
the Parliament also contains the members of the executive, Chapter III is considered to
firmly entrench the separation of judicial power. That Chapter, which is headed 'The
Judicature', contains 10 sections which include provision for the creation of federal
courts, the conferral of federal jurisdiction and judicial tenure, as well as the right to
trial by jury for indictable offences. Arguably the most significant of those 10 sections,
at least in respect of the separation of federal judicial power, is s 71 which provides as
follows:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to
be called the High Court of Australia, and in such other federal courts as the Parliament
creates, and in such other courts as it invests with federal jurisdiction. The High Court
shall consist of a Chief Justice, and so many other Justices, not less than two, as the
Parliament prescribes.
The words 'judicial power of the Commonwealth' have proved difficult to precisely
and exhaustively define.21 However, the courts have approached the concept as
encompassing the traditional or primary functions of a court, such as the adjudication
and settlement of disputes between parties according to law.22 On this point, the oftcited passage of Griffith CJ from Huddart, Parker & Co Pty Ltd v Moorehead is worth
noting:
I am of opinion [sic] that the words 'judicial power' as used in sec. 71 of the Constitution
mean the power which every sovereign authority must of necessity have to decide
controversies between its subjects, or between itself and its subjects, whether the rights
relate to life, liberty or property. The exercise of this power does not begin until some
tribunal which has power to give a binding and authoritative decision (whether subject to
appeal or not) is called upon to take action.23
The separation of judicial power under Chapter III of the Constitution has resulted
in the development of two principles: (i) power, other than judicial power, cannot be
conferred on a Chapter III court or a court exercising federal jurisdiction; and (ii)
judicial power cannot be conferred on any body that is not a 'court' within the meaning
of s 71.24 According to Winterton, the first principle, espoused in the High Court's 1956
_____________________________________________________________________________________
21 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188. See also Williams, above n 3, 202.
22 See Leslie Zines, The High Court and the Constitution (4th ed, 1997) 171.
23 (1909) 8 CLR 330, 357.
24 Zines, above n 22, 171.
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decision in the Boilermakers' case25, is the most controversial.26 It acts as a significant
limitation on legislative and executive action, and was adopted to
protect the independence of federal judges, who must determine the legality of action by
the political branches, by freeing them from the supposedly contaminating influence of
involvement with government policy and other non-judicial issues.27
This principle, derived from the separation of judicial power under Chapter III, has
assumed even greater significance in recent years, prompted in large part by the
developing concern with the manner in which judicial power is exercised.28 Rather
than focusing on the nature of a particular power, or the institution that is empowered
to exercise a particular power, such concern is directed at whether judicial power is
exercised in an essentially judicial manner.
This development has also been influenced by the adoption of a doctrine of
'incompatibility' in relation to the persona designata exception to the Boilermakers'
principle. That exception allows judges to perform non-judicial functions provided that
they are appointed or assigned in their personal capacity.29 The 'incompatibility'
doctrine, however, will prevent a judge from performing non-judicial functions where
they would be 'incompatible' with the holding of judicial office.30 Originally developed
in relation to the persona designata rule, since the High Court decision in Kable v Director
of Public Prosecutions (NSW),31 the doctrine now extends to the valid conferral of
functions on Chapter III courts generally. In that case, it was considered that the
Community Protection Act 1994 (NSW) conferred functions on the Supreme Court of
New South Wales that were 'incompatible' with the potential exercise of federal
judicial power by that Court. The function in question related to the preventive
detention of one individual in the absence of a conviction for any specific or additional
crime. Since the decision in Kable, it may now be said with confidence that Chapter III
would prevent the exercise of judicial power in a manner that is incompatible with the
essential attributes of the curial process. This development is considered in much
greater detail below, together with the implication of guarantees under Chapter III.
However, given that this paper articulates an alternative approach to implications
based on inherent jurisdiction, it is first necessary to address the nature and scope of
that concept before proceeding.
THE MEANING, NATURE AND SCOPE OF 'INHERENT JURISDICTION'
The term 'inherent jurisdiction of the court' is one that few lawyers would be
unfamiliar with, though it is certainly one that most lawyers would struggle to
adequately define. 'Inherent jurisdiction' falls within that category of legal terms often
invoked in court, yet rarely understood in a tangible and well-defined sense. Described
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25 (1956) 94 CLR 254, affirmed [1957] AC 288 (PC).
26 Winterton, above n 2, 188.
27 Ibid.
28 Ibid.
29 See Tony Blackshield and George Williams, Australian Constitutional Law and Theory:
Commentary and Materials (3rd ed, 2002) 629–47.
30 Grollo v Palmer (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait Islander
Affairs (1996) 189 CLR 1. See also Blackshield and Williams, above n 29, 638–47.
31 (1996) 189 CLR 51.
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as a metaphysical and amorphous concept,32 one commentator has even gone so far as
to describe the term as involving a 'peculiar concept', so 'amorphous and ubiquitous
and so pervasive in its operation that it seems to defy the challenge to determine its
quality and to establish its limits'.33 Part of the problem in obtaining a definition was
aptly described by Justice Paul de Jersey as follows:
What is this species of jurisdiction? We have all heard Judges, anxious to make obviously
just orders, but uncertain of an express statutory authority, resorting, sometimes—I have
thought, rather coyly—to the inherent jurisdiction of the court. We have also heard
inadequately prepared Counsel, inviting resort to the inherent jurisdiction, and being
chided by a Judge who is acquainted with a specific statutory authorisation.34
Despite these problems, numerous definitions have been offered of the term from
which an understanding of its nature and meaning can be understood. However, in
order to appreciate the nature of this particular jurisdiction it is first necessary to
understand its juridical basis. The jurisdiction was originally conferred on the superior
courts of the common law in England, and was derived not by virtue of any statute or
rule of law but by the very nature of such courts as superior courts of record—hence
the term 'inherent'.35 The link between inherent jurisdiction and superior courts of law
is explained by the jurisdiction's historical beginnings, but also informs the nature and
scope of the powers that fall within its ambit. As Jacob has explained:
… the essential character of a superior court of law necessarily involves that it should be
invested with a power to maintain its authority and to prevent its process being
obstructed and abused. Such a power is intrinsic in a superior court; it is its very lifeblood, its very essence, its immanent attribute. Without such a power, the court would
have form but would lack substance. The jurisdiction, which is inherent in a superior
court of law, is that which enables it to fulfil itself as a court of law. The juridical basis of
this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to
fulfil the judicial function of administering justice according to law in a regular, orderly
and effective manner.36
The inherent jurisdiction may be seen as an independent and separate basis of
jurisdiction possessed by superior courts of record.37 Its essential function is to provide
such courts with an array of powers necessary to protect their capacity to administer
justice and to retain their very nature as superior courts.38 According to Jacob, it
constitutes that residual or reserve source of powers 'which the court may draw upon
as necessary whenever it is just or equitable to do so, and in particular to ensure the
observance of the due process of law, to prevent improper vexation or oppression, to
do justice between the parties and to secure a fair trial between them'.39
That the powers falling within the scope of a court's inherent jurisdiction are
ancillary or incidental to a court's general jurisdiction40 and are, therefore, procedural
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32 Mason, above n 10, 458; de Jersey, above n 13, 326.
33 Jacob, above n 10, 23.
34 De Jersey, above n 13, 326.
35 Jacob, above n 10, 25.
36 Ibid 27–8 (citations omitted).
37 Ibid 51.
38 Ibid.
39 Ibid.
40 P Twist, 'The Inherent Jurisdiction of Masters' [1996] New Zealand Law Journal 351; Jacob,
above n 10, 24–5. It must be noted that Jacob actually views the court's inherent jurisdiction
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in nature,41 is widely recognised. As Abernathy describes, inherent jurisdiction 'is the
power to decide the manner in which the Court will adjudicate upon a subject-matter,
adjudicate between parties, decide upon relief or decide upon any combination of
these factors.'42 However, despite the extent to which statute now provides the
multitude of rules governing the procedural aspects of a trial, a court's inherent
jurisdiction continues to exist.43 It does so by virtue of the fact that a superior court's
inherent jurisdiction derives independently of statute or other rule of law, and arises
from its very nature as a superior court of record. This distinction was discussed by
Menzies J in R v Forbes as follows:
Inherent jurisdiction is not something derived by implication from statutory provisions
conferring particular jurisdiction; if such a provision is to be considered as conferring
more than is actually expressed that further jurisdiction is conferred by implication
according to accepted standards of statutory construction and it would be inaccurate to
describe it as 'inherent jurisdiction', which as the name indicates, requires no authorizing
provision.44
The fact that only superior courts of record with unlimited jurisdiction are said to
possess inherent jurisdiction creates obvious problems when one begins to refer to the
inherent powers of Australia's federal courts. The High Court, the Federal Court and
the Family Court, all of which are superior courts of record,45 possess limited
jurisdiction granted by either the Constitution or statute. The general jurisdiction of
each federal court, unlike the state Supreme Courts46 and even the High Court of New
Zealand,47 is not defined by reference to the jurisdiction of the common law courts of
Westminster. Accordingly, problems arise when attempting to apply the notion of
'inherent jurisdiction' to Australia's federal courts. This issue is addressed in greater
detail below.
It is difficult to list in a comprehensive manner the array of powers that are taken to
fall within the ambit of a court's inherent jurisdiction. They are many and varied, and
are subject to variation in nature and scope, both over time and between different
cases. However, several commentators have attempted to list some of the powers, and
Keith Mason classified each power according to the particular function of inherent
jurisdiction to which the power related.48 This classification is helpful in analysing the
functional aspect of each power, and so is replicated below. However, the list of
inherent powers includes examples from other commentators, including Jacob49 and
de Jersey.50 From these sources one may include within a court's inherent jurisdiction,
_____________________________________________________________________________________
as being only a part or an aspect of its general jurisdiction, rather than as incidental or
ancillary to it as Twist does. This point is, however, qualified by his assertion that inherent
jurisdiction is certainly part of procedural rather than substantive law.
41 See Twist, above n 40; Jacob, above n 10, 24–5.
42 Seonaid Abernathy, 'The Status of the District Court' [1990] New Zealand Law Journal 360.
43 Twist, above n 40, 351; De Jersey, above n 13, 326; Jacob, above n 10, 24; Mason, above n 10,
449.
44 (1972) 127 CLR 1, 7.
45 High Court of Australia Act 1979 (Cth) s 5; Federal Court of Australia Act 1976 (Cth) s 5(2);
Family Law Act 1975 (Cth) s 21(2).
46 De Jersey, above n 13, 326.
47 Twist, above n 40, 351.
48 Mason, above n 10, 449–58.
49 Jacob, above n 10, 32–51.
50 De Jersey, above n 13, 326–9.
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classified according to Mason's four primary functions of the jurisdiction, the following
powers:
(1)
Ensuring convenience and fairness in legal proceedings:
•
Developing rules of court and practice directions;
•
Remedying breaches of the rules of natural justice and setting aside default
orders;
•
The power to correct, vary or extend an order to prevent injustice;
•
The power to order that a case be heard in camera;
•
The power to prohibit the publication of part of proceedings;
•
The power to decline to proceed with a matter if the proceedings are not
properly constituted;
•
The power to dismiss an action for want of prosecution, including cases where
a prolonged or inordinate delay means that the defendant is likely to suffer
prejudice;
•
The power to compel observance of the court's process and obedience of and
compliance with its orders;
•
The power to punish for contempt of court, including any conduct calculated to
interfere with the due administration of justice;
•
The power to exercise protective and coercive powers over certain classes of
persons (i.e. parens patriae, control over practitioners and officers of the Court);
•
The right to inspect documents denied to one of the parties.
(2) Preventing steps from being taken that would render judicial proceedings
inefficacious:
•
The power to order security for costs in civil actions;
•
The power to stay the execution of a judgment;
•
The power to grant certain remedies including Anton Piller Orders and Mareva
Injunctions.
(3) Preventing abuse of process:
•
The power to stay or dismiss proceedings where an action is frivolous,
vexatious, oppressive, or groundless;
•
The power to stay proceedings where a more suitable alternative forum is
available or has already been invoked;
•
The power to stay proceedings where a criminal charge is pending;
•
The power to stay proceedings for want of prosecution;
•
The power to order a stay of proceedings, whether permanent or temporary,
whether conditional or unconditional, and where such order is demanded by
the circumstances of the case in order to prevent injustice.
(4) Acting in aid of superior courts and in aid or control of inferior courts and tribunals:
•
The power to order a stay of proceedings pending an appeal to a superior
court.
The actual content of a court's inherent jurisdiction becomes critical in determining
the scope of any constitutional protection. Whether the High Court would accept all of
the powers listed above as falling within the protective ambit of Chapter III is open to
speculation. In this respect, debates such as that which Mason CJ detailed in Jago v
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District Court of New South Wales51 take on a new significance. In that case, his Honour
considered whether the notion of abuse of process could be broadened to include a
general objective of preventing unfairness, or whether it was limited to its traditionally
accepted categories including bad faith and oppression.52 Yet, rather than adopting an
expanded notion of abuse of process, Mason CJ preferred to state that the courts
should be taken to 'possess an inherent power to prevent their processes being used in
a manner which gives rise to injustice'. 53 While this represents a broad approach to the
scope of inherent powers possessed by a court, narrow approaches which focus more
closely on the traditional aspects of inherent jurisdiction (preventing an abuse of
process and punishment for contempt) certainly remain open to adoption by the High
Court.
INHERENT JURISDICTION AND THE FEDERAL COURTS
As earlier mentioned, the federal courts occupy a unique position in relation to
inherent jurisdiction and powers. As Wilson and Dawson JJ stated in Jackson v Sterling
Industries Ltd,54 'federal courts differ from the supreme courts of the States which,
although of statutory origin, are truly designated superior courts because they are
invested with general jurisdiction by reference to the jurisdiction of the courts at
Westminster.' The High Court, the Federal Court and the Family Court are each
described by statute as constituting superior courts of record.55 Their jurisdiction is,
however, statutorily limited. The consequence with respect to the Federal Court was
stated by Wilson and Dawson JJ as follows:
Ordinarily a superior court of record is a court of unlimited jurisdiction which means
that, even if there are limits to its jurisdiction, it will be presumed to have acted within it.
That is a presumption which is denied to inferior courts and is denied to a federal court
such as the Federal Court.56
Despite this, the federal courts have all been considered to possess inherent
jurisdiction, or at least a jurisdiction which is akin to inherent jurisdiction. In the same
judgment, Wilson and Dawson JJ held that the declaration of the Federal Court as a
superior court of record was to be given effect as far as it could be, and 'the vesting of
judicial power in the specific matters permitted by the Constitution (see ss 75, 76, 77)
carries with it such implied power as is necessarily inherent in the nature of judicial
power itself'.57 Accordingly, their Honours decided the matter as follows:
Having regard to the declaration of the Federal Court as a superior court and a court of
law and equity, the implied power should be construed as being no less in relation to the
_____________________________________________________________________________________
51 (1989) 168 CLR 23.
52 Ibid 27-30 (Mason CJ).
53 Such an approach had been adopted in the New Zealand case of Moevao v Department of
Labour [1980] 1 NZLR 464, 470–1, 473–6, 478–82. Mason CJ quoted from the judgment of
Richardson J in his decision in Jago v District Court of New South Wales (1989) 168 CLR 23, 29–
30.
54 (1987) 162 CLR 612, 618.
55 High Court of Australia Act 1979 (Cth) s 5; Federal Court of Australia Act 1976 (Cth) s 5(2);
Family Law Act 1975 (Cth) s 21(2).
56 Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 618.
57 Ibid 619.
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jurisdiction vested in it than the inherent power of a court of unlimited, or general,
jurisdiction.58
Justice Kirby considered the position of the High Court in the case of Merribee
Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd:59
Although this Court was not created out of the Royal Prerogative but by the Constitution,
it enjoys and has exercised the inherent or implied powers traditionally belonging to the
Royal Courts of Justice of England and proper to a final court of appeal.60 It also enjoys
and has exercised large powers implied from its functions. Once this history is
understood, the apparent lacuna in the Rules of the Court is explained.
In relation to the Family Court, Mason J stated in Taylor v Taylor that, '[a]lthough
the Family Court is a court created by statute it none the less possesses an inherent
jurisdiction to set aside a judgment obtained by default.'61 His Honour also went so far
as to state that it was power inherent in every superior court unless displaced by
statute.62 In fact, this approach has also been adopted by other judges of the High
Court.63 It is, however, unlikely to be considered in this manner by the present High
Court, who have rejected the notion that the federal courts possess jurisdiction that
may be referred to as 'inherent'. In a joint decision of Gleeson CJ, Gaudron, McHugh,
Gummow, and Hayne JJ, in the case of DJL v The Central Authority, the following
statements were made:
The Family Court is … not a common law court as were the three common law courts at
Westminster. Accordingly, it is 'unable to draw upon the well of undefined powers'
which were available to those courts as part of their 'inherent jurisdiction'. The Family
Court is a statutory court, being a federal court created by the Parliament within the
meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred
by statute 'has powers expressly or by implication conferred by the legislation which
governs it' and '[t]his is a matter of statutory construction'; it also has 'in addition such
powers as are incidental and necessary to the exercise of the jurisdiction or the powers so
conferred'. It would be inaccurate to use the term 'inherent jurisdiction' here, and the term should
be avoided as an identification of the incidental and necessary power of a statutory court.64
In the same case, Kirby J modified his earlier approach, and shared the concern of
the majority in employing the phrase 'inherent jurisdiction' in relation to federal courts.
His Honour made the following comments:
I agree with the joint reasons that it is desirable, in relation to courts created by statute,
that the expression 'inherent powers' should not be used. That appellation may be
appropriate to courts originally created out of the Royal Prerogative. It is not apt to a
court, such as the Family Court, which is created by federal legislation. In such a case it is
necessary to attribute the power (where it is not conferred expressly by or under such
legislation) to an implication derived from the legislation establishing the body. It may
_____________________________________________________________________________________
58 Ibid.
59 (1998) 193 CLR 502, 511.
60 Ibid n 39: cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125,
137; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29, 38–9
(Mason and Wilson JJ), 45 (Brennan J). (Kirby J’s footnote).
61 (1979) 143 CLR 1, 16 (Mason J).
62 Ibid.
63 See Jago v District Court of New South Wales (1989) 168 CLR 23, 73 (Gaudron J); Wentworth v
New South Wales Bar Association (1992) 176 CLR 239, 251–2 (Deane, Dawson, Toohey and
Gaudron JJ).
64 (2000) 201 CLR 226, 240–1 (emphasis added, footnotes omitted).
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also be implied from the character of the court as a court of the designated kind, and
from the place which it enjoys in the Judicature of the Commonwealth for which the
Constitution provides. There is no difficulty in ascribing these implications to the Family
Court within the field of its jurisdiction.65
This approach had earlier been taken by Deane and Toohey JJ in Jackson v Sterling
Industries Ltd.66 In that case, Deane J quoted with approval the judgment of Bowen CJ
in the Federal Court in the same litigation:
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the
words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given
certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing
so it must be taken to be given by implication whatever jurisdiction or powers may be
necessary for the exercise of those expressly conferred. The implied power for example to
prevent abuse of its process, is similar to, if not identical with, inherent power.67
Justice Toohey adopted a similar line of reasoning, advocating the use of the phrase
'incidental and necessary power of a statutory court', rather than 'inherent power'.68
Yet, the similarity between inherent jurisdiction and what is implied jurisdiction in
relation to statutory courts has been identified in other judgments of the High Court.
Justice Gaudron has actually considered the historical basis of certain inherent powers
when considering an implied power, as 'statutory authority aside, [it would]
commonly be identified as inherent power.'69 In her view, having regard to that
historical basis 'reveals the nature and effect' of such implied powers and 'may provide
assistance in the future development of the law and practice' in the relevant area.70
Justice Dawson also highlighted the issue in his judgment in Grassby v The Queen, in
which he offered the following analysis:
[N]otwithstanding that its powers may be defined, every court undoubtedly possesses
jurisdiction arising by implication upon the principle that a grant of power carries with it
everything necessary for its exercise … Those implied powers may in many instances
serve a function similar to that served by the inherent powers exercised by a superior
court but they are derived from a different source and are limited in their extent. The
distinction between inherent jurisdiction and jurisdiction by implication is not always
made explicit, but it is … fundamental.71
While implied powers may be limited or affected in some way by statute, in most
cases the difference between an inherent power, and an implied power akin to an
inherent power, will be minimal if not absent altogether. As Gaudron J stated in Jago v
District Court of New South Wales, 'a court necessarily has power (whether that power is
identified as inherent power or a power necessarily to be implied from relevant
statutory provisions) to control its own process and proceedings', and this will only be
subject 'to any limitation or restriction to be found in statute'.72 In addition, this power
_____________________________________________________________________________________
65 Ibid 268 (Kirby J) (footnotes omitted).
66 (1987) 162 CLR 612.
67 Ibid 623–4 (Deane J), quoting from the judgment of Bowen CJ in the same dispute: (1986) 12
FCR 267, 272.
68 Ibid 630–1, quoting from a decision of the Federal Court in Parsons v Martin (1984) 5 FCR
235, 241.
69 Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 640 (Gaudron J).
70 Ibid.
71 (1989) 168 CLR 1, 16–17 (Dawson J).
72 (1989) 168 CLR 23, 74 (Gaudron J).
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will not be restricted to defined and closed categories, 'but may be exercised as and
when the administration of justice demands.'73 It would appear that the so-called
'implied powers' of federal courts will be considered to include the powers normally
associated as falling within the ambit of 'inherent jurisdiction' possessed by courts of
unlimited jurisdiction. However, this will always remain subject to any statutory
provisions to the contrary. On this point, the rule necessitating clear and unambiguous
statutory language to remove the jurisdiction of superior courts applies.
In the 1944 case of Cameron v Cole, Rich J considered the power of the legislature to
remove a court's inherent jurisdiction. He stated that:
[I]n the absence of clear words, a statute should not be treated as depriving a court of the
inherent jurisdiction possessed by every court to ensure that trials before it are conducted
in accordance with the principles of natural justice.74
In the joint decision of Deane, Dawson, Toohey and Gaudron JJ in Wentworth v New
South Wales Bar Association, this statement was considered to have application to every
aspect of inherent jurisdiction and power.75 However, their Honours also gave the
principle a wider application:
There are certain matters in relation to which legislative provisions will be construed as
effecting no more than is strictly required by clear words or as a matter of necessary
implication … They include … safeguards of individual rights and freedoms and the
jurisdiction of superior courts (see Clancy v Butchers' Shop Employés Union (1904) 1 CLR
181 at pp 196-197, 204; Hockey v Yelland (1984) 157 CLR 124 at pp 130, 142; Bropho v
Western Australia (1990) 171 CLR at p 17; Public Service Association (SA) v Federated Clerks'
Union of Australia (SA) Branch (1991) 173 CLR 132 at p 160).76
From the foregoing analysis it would appear that the federal courts do possess
inherent jurisdiction or powers, but these should be appropriately referred to as the
implied 'incidental and necessary powers of a statutory court'.77 It may also be more
appropriate to refer to the 'powers' of the federal courts rather than the 'jurisdiction',
given the apparent unease of the current High Court with the notion of inherent
jurisdiction being possessed by statutory courts.78 If this represents the approach that
is taken by the High Court to the powers of the federal courts, akin to inherent powers,
then the principle espoused in Cameron v Cole79 and Wentworth v New South Wales Bar
Association,80 may have no application. That principle applies to a court's 'jurisdiction'
rather than its 'powers'. While the distinction between these two terms is often blurred,
particularly in the context of inherent jurisdiction, it remains of significance in some
respects for the High Court.81 In this context, the relevance of Chapter III assumes even
greater significance, and it is to this issue that the discussion now turns.
_____________________________________________________________________________________
73 Ibid.
74 (1944) 68 CLR 571, 589.
75 (1992) 176 CLR 239, 252.
76 Ibid.
77 DJL v The Central Authority (2000) 201 CLR 226, 240–1 (Gleeson CJ, Gaudron, McHugh,
Gummow and Hayne JJ).
78 See also the decision in ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 (Gleeson
CJ, Gaudron and Gummow JJ).
79 (1944) 68 CLR 571, 589.
80 (1992) 176 CLR 239.
81 ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 (Gleeson CJ, Gaudron and
Gummow JJ).
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DRAWING
IMPLICATIONS
CONSTITUTION
FROM
CHAPTER
III
OF
THE
To date, no human right or individual guarantee has been implied by a majority of the
High Court from Chapter III of the Commonwealth Constitution. For many, however,
this circumstance belies the untapped potential within the constitutional separation of
powers, and which remains to be fully explored and articulated by the High Court.
Whether one speaks of the right to a fair trial, guarantees of due process, rights of
equality, or judicial process, sentiment in recent years has largely reflected the view
that Chapter III constitutes a potential source of significant guarantees for individual
liberty. This sentiment has been spurred by the tentative judicial forays into this area
made initially by Deane, Gaudron and Toohey JJ, and more recently by McHugh and
Kirby JJ, of the High Court. No doubt influenced by the implication of a freedom of
political communication derived from the system of representative government
established under the Constitution, implications arising from Chapter III have tended to
be considered from a 'rights based' approach. Consequently, references are readily
made to 'implied rights' arising under the Constitution and, in respect of Chapter III, to
the implied right to a fair trial and accompanying rights to due process.
There is, however, an alternative approach to rights or guarantees derived from the
separation of powers, and one that does not adopt a strict 'rights based' approach. As
earlier stated, that alternative is to view Chapter III as entrenching the 'inherent
jurisdiction' of the Court to protect its processes, the effect of which may be to protect
procedurally various rights or liberties where justice demands it. Such an approach
would indeed be more in keeping with the absence of widespread rights or guarantees
contained in the Constitution, and provides a preferable basis for drawing implications
from the separation of judicial power. Put simply, inherent jurisdiction offers a more
appropriate and logical basis upon which the protection of rights may be attained.
By entrenching the inherent jurisdiction of Chapter III courts, the ability of a court
to protect its processes in the administration of justice and the exercise of judicial
power is recognised, without the need to entrench certain specific individual rights. In
adopting such an approach to Chapter III, any implications are more consistent with
the structure of the Constitution and avoid the potential for allegations of the selective
and artificial implication of specific individual rights. As George Williams has
observed, the High Court 'cannot, without altering the balance of the Australian polity
or undermining its own legitimacy, pronounce the existence of constitutionally
enforceable freedoms unless such freedoms are derived from the Constitution by a
sustainable interpretative scheme'.82 The point is also aptly stated in the following
extract:
[T]here can be only a limited scope for implications arising from the text itself. The text,
understandably, speaks much more of responsible government and political institutions
than it does of many other matters related to fundamental liberties of importance equal to
or greater than rights to participate freely in the political processes of the Westminster
system. It will be much more difficult to find implications in the text on matters on which
_____________________________________________________________________________________
82 Williams, above n 9.
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it is substantially silent. It follows that implication from the text can only advance the
cause of human rights to a limited extent.83
That Chapter III may protect the inherent jurisdiction of courts exercising federal
jurisdiction already finds support in the decisions of several judges of the High Court.
This support is derived from a general compatibility with the Court's view of 'judicial
power', that the courts' inherent powers fall within its scope. In addition, specific
statements included within the judgments of McHugh, Kirby and Hayne JJ in Nicholas
v The Queen,84 give express support to this position. Indeed, that case offers particular
insight into the relationship between inherent jurisdiction and Chapter III,
notwithstanding the fact that the decision was comprised of seven separate judgments
(with McHugh and Kirby JJ in dissent). For these reasons, it is clear that Nicholas
represents the most significant and recent case on point.
Judicial Power, Inherent Jurisdiction and the Decision in Nicholas v The Queen
The issues in Nicholas involved a discretion, known as the Ridgeway85 discretion, to
exclude evidence illegally obtained based on public policy grounds. The accused had
been charged with offences under the Customs Act 1901 (Cth) relating to the possession
of heroin, which had been imported by law enforcement officers in contravention of
the Act. Though a judge had granted a permanent stay of proceedings based on the
Ridgeway discretion, an application was sought to vacate that stay based on
amendments to the Crimes Act 1914 (Cth).86 The effective consequence of the
amendments was to exclude the fact of illegality on the part of officers (acting for the
purposes of a 'controlled operation', and in respect of certain offences under the
Customs Act) from the question of whether evidence of illegal importation of narcotics
should be admitted. In essence, s 15X (the relevant provision) removed a significant
fact from consideration by the court, and thereby sought to prescribe the exercise of the
Ridgeway discretion in specific cases. Counsel for the defendant challenged the
constitutional validity of the section on several bases, but most importantly on the
ground that s 15X constituted an impermissible interference with, or usurpation of, the
judicial power of the Commonwealth.
The majority of the Court, including Brennan CJ, Toohey, Gaudron, Gummow and
Hayne JJ, dismissed the argument, upholding the validity of the section. Justices
McHugh and Kirby gave dissenting, and separate, judgments, however, the majority
judgments contained a number of elements compatible with some of the basic
reasoning of the minority judges. Among these were: confirmation of the interpretation
of 'judicial power' taken by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister
for Immigration;87 acceptance of the discretion as an incident of the Court's inherent
_____________________________________________________________________________________
83 D A Smallbone, 'Recent Suggestions of an Implied "Bill of Rights" in the Constitution,
Considered as Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal Law
Review 254, 267.
84 (1998) 193 CLR 173 ('Nicholas').
85 Ridgeway v The Queen (1995) 184 CLR 19.
86 Crimes Amendment (Controlled Operations) Act 1996 (Cth).
87 (1992) 176 CLR 1, 27; Nicholas v The Queen (1998) 193 CLR 173, 185 (Brennan CJ), 208
(Gaudron J), 220–1 (McHugh J), 232 (Gummow J).
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power;88 and recognition of the Court's power to develop procedural rules for the
protection of its own process.89
The High Court has chosen not to take a formalistic approach to the interpretation
of 'judicial power' under Chapter III, focusing instead on the manner in which judicial
power is exercised, in addition to the question of which institution of government
should exercise a particular power.90 In rejecting an approach based on form over
substance, the Court has begun to develop its jurisprudence on the limits on legislative
power arising as a consequence of rules regarding the manner in which judicial power
is to be exercised. As Brennan, Deane and Dawson JJ pointed out in Chu Kheng Lim v
Minister for Immigration,91 the legislative powers of the Commonwealth contained in
s 51 of the Constitution do not
extend to the making of a law which requires or authorizes the courts in which the
judicial power of the Commonwealth is exclusively vested to exercise judicial power in a
manner which is inconsistent with the essential character of a court or with the nature of
judicial power.
This point was further expanded in a later statement by their Honours, and was also
quoted with support by Brennan CJ in Nicholas v The Queen.92 That statement was as
follows:
It is one thing for the Parliament, within the limits of the legislative power conferred
upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing
for the Parliament to purport to direct the courts as to the manner and outcome of the
exercise of their jurisdiction. The former falls within the legislative power which the
Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an
impermissible intrusion into the judicial power which Ch III vests exclusively in the
courts which it designates.93
Chu Kheng Lim was not the first case of the High Court in which some judges had
begun to develop rules pertaining to the exercise of judicial power. Earlier, in the case
of Polyukhovich v Commonwealth, Deane J had made the following statement:
The Parliament cannot, consistently with Ch III of the Constitution, usurp the judicial
power of the Commonwealth by itself purporting to exercise judicial power in the form
of legislation. Nor can it infringe the vesting of that judicial power in the judicature by
requiring that it be exercised in a manner which is inconsistent with the essential
requirements of a court or with the nature of judicial power.94
In addition, Deane J considered in that case that the objective for separating judicial
power would only be achieved if judicial power was exercised 'in accordance with the
_____________________________________________________________________________________
88 (1998) 193 CLR 173, 196 (Brennan CJ), 201 (Toohey J), 216 (McHugh J), 259, 266 (Kirby J),
275–6 (Hayne J).
89 Per 188–9, 196 (Brennan CJ), 209 (Gaudron J), 216, 224–6 (McHugh J), 258–9, 266 (Kirby J),
275–6 (Hayne J).
90 Winterton, above n 2, 190, 199.
91 (1992) 176 CLR 1, 27 ('Chu Kheng Lim').
92 (1998) 193 CLR 173, 186. Brennan CJ also added his own statement that '[s]ubject to the
Constitution, the Parliament can prescribe the jurisdiction to be conferred on a court but it
cannot direct the court as to the judgment or order which it might make in exercise of a
jurisdiction conferred upon it'.
93 (1992) 176 CLR 1, 36–7.
94 (1991) 172 CLR 501, 607 (Deane J).
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essential attributes of the curial process'.95 In the same case, Gaudron J adopted an
approach to federal judicial power that invoked the use of the essential aspects of
'judicial process' to determine requirements for its exercise. She stated that:
An essential feature of judicial power is that it be exercised in accordance with the
judicial process. I attempted to identify the features of that process in Harris v Caladine
[(1991) 172 CLR 84, 150-2], and in Re Nolan; Ex parte Young [(1991) 172 CLR 460, 496]. To
adopt the words of Kitto J in [R] v Trade Practices Tribunal; Ex parte Tasmanian Breweries
Pty Ltd [(1970) 123 CLR 361, 374], the essential features of that process include the
determination of legal rights, obligations or consequences by the ascertainment of the
facts as they are and as they bear on the matter for determination, and the identification
of the applicable law, followed by an application of that law to those facts.96
For Toohey J, the limitations on legislative power rested on the fact that, 'only if a
law purports to operate in such a way as to require a court to act contrary to accepted
notions of judicial power that a contravention of Ch III may be involved'.97
In the decision of Leeth v Commonwealth,98 Deane and Toohey JJ delivered a joint
judgment taking their analysis further. They offered the following statements on the
exercise of judicial power:
Those provisions [of Chapter III] not only identify the possible repositories of
Commonwealth judicial power. They also dictate and control the manner of its exercise.
They are not concerned with mere labels or superficialities. They are concerned with
matters of substance. Thus, in Ch III's exclusive vesting of the judicial power of the
Commonwealth in the 'courts' which it designates, there is implicit a requirement that
those 'courts' exhibit the essential attributes of a court and observe, in the exercise of that
judicial power, the essential requirements of the curial process, including the obligation
to act judicially.99
The majority in Leeth did not consider it necessary to address the requirements of
judicial process arising from Chapter III, considered by Deane, Toohey and Gaudron
JJ.100 However, the Court left open the possibility that implied guarantees would be
identified at a later stage. In a joint judgment, Mason CJ, Dawson and McHugh JJ made
the following statement:
It may well be that any attempt on the part of the legislature to cause a court to act in a
manner contrary to natural justice would impose a non-judicial requirement inconsistent
with the exercise of judicial power, but the rules are essentially functional or procedural
and, as the Privy Council observed in the Boilermakers' Case [[1957] AC 288 at 317], a
fundamental principle which lies behind the concept of natural justice is not remote from
the principle which inspires the theory of separation of powers.
From each of these earlier judgments it can be seen that the genesis for developing
requirements for the exercise of judicial power were present. Cases such as Nicholas v
The Queen illustrate that the court has taken up these early judicial attempts to develop
_____________________________________________________________________________________
95 Ibid.
96 Ibid 703–4.
97 Ibid 689.
98 (1992) 174 CLR 455.
99 Ibid 486–7.
100 Gaudron J stated [at 502] that '[i]t is an essential feature of judicial power that it should be
exercised in accordance with the judicial process', and that, '… the concept of equal justice—
a concept which requires the like treatment of like persons in like circumstances, but also
requires that genuine differences be treated as such—is fundamental to the judicial process.'
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jurisprudence in this area, although the implication of a principle of equality cannot be
said to have been subsequently endorsed.101 Support, however, for the statement of
Brennan, Deane and Dawson JJ in Chu Kheng Lim, indicates the emergence of an
approach to the exercise of judicial power that focuses on the essential characteristics
of a court and its power. This point is of critical importance in considering the nature
of any implied guarantees likely to be identified by the Court. The general principle
underlying this approach was well stated by McHugh J in Nicholas v The Queen:
If the doctrine of the separation of powers is to be effective, the exercise of judicial power
needs to be more than separate from the exercise of legislative and executive power. To
be fully effective, it must also be free of legislative or executive interference in its exercise.
As a result, legislation that is properly characterised as an interference with or
infringement of judicial power… contravenes the Constitution's mandate of a separation
of judicial from legislative and executive power.102
In considering what the essential nature of judicial power is, and what the essential
characteristics of a court are, Brennan CJ stated that reference was to be made to both
the Constitution and the common law.103 His Honour considered that some
characteristics could be derived from the court's function in fact-finding, including the
duty to act, and to be seen to be acting, impartially.104 For Gaudron J, other essential
characteristics (in addition to impartiality) included, natural justice, equality before the
law, the independent determination of the matter, and the determination of guilt or
innocence by a fair trial in criminal proceedings.105 However, Gaudron J also added a
further statement that extended the limitations on legislative and executive power
from interference with, or usurpation of, judicial power and its exercise. That
statement was as follows:
[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.106
Both McHugh and Kirby JJ also considered the power of the court to protect the
integrity of its own processes and to maintain public confidence in the administration
of justice as falling within the scope of judicial power under Chapter III.107 Each
considered s 15X of the Crimes Act 1914 (Cth) (the relevant provision in Nicholas v The
Queen) to have constituted an impermissible interference with those powers of the
court. These inherent powers of the court had been critical in the development of the
public policy discretion in Ridgeway v The Queen,108 and had been relied upon in
argument by counsel in Nicholas. The significance of these considerations was critical in
the dissenting opinions of McHugh and Kirby JJ, who viewed interference with the
powers as going to the very core of the court's exercise of judicial power. For McHugh
J:
_____________________________________________________________________________________
101 See the decisions of Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ in Kruger v
Commonwealth (1997) 190 CLR 1.
102 (1998) 193 CLR 173, 220.
103 Ibid 185.
104 Ibid 188.
105 Ibid 208–9 (Gaudron J).
106 Ibid 209.
107 Ibid 224 (McHugh J), 258 (Kirby J).
108 (1995) 184 CLR 19, 31.
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The capacity of the federal courts to protect themselves from abuse of their processes and
the necessity for those courts to maintain public confidence in the administration of
justice is of the highest constitutional importance.109
However, Hayne J also considered the issue, holding that the Ridgeway discretion
was one 'which is exercised by the courts to protect the integrity of their processes'
and, when exercised, involved the court exercising judicial power.110 Hayne J also
accepted that the power of the court to protect the integrity of its own processes was an
inherent power,111 a point that had been endorsed by Mason CJ, Deane and Dawson JJ
in Ridgeway.112 Hayne J's support did not extend, however, to protection of the court's
reputation in the administration of justice.
The views articulated by Gaudron, McHugh and Kirby JJ, dealing with the
protection of the court's reputation in the administration of justice, must be considered
in light of the views espoused by Brennan CJ and Hayne J in Nicholas. Their Honours
rejected its use as a basis for constitutional validity, with Brennan CJ approaching the
issue as follows:
To hold that a court's opinion as to the effect of a law on the public perception of the
court is a criterion on the constitutional validity of the law, would be to assert an
uncontrolled and uncontrollable power of judicial veto over the exercise of legislative
power. It would elevate the court's opinion about its own repute to the level of a
constitutional imperative.113
The failure of counsel for the applicant to make this distinction led Toohey J to
conclude that their argument went too far, in that it 'would seem to invalidate any
legislative provision that bore on the exercise of the judicial power.'114 From this
perspective then, it may well be that the position endorsed by Gaudron, McHugh and
Kirby JJ must be modified to focus on the power of the court to protect its processes
only, rather than to protect the reputation of the court in administering justice—at least
as a source of limitation on executive and legislative power.
While the inherent jurisdiction of the court clearly informs the rule regarding abuse
of process, the protection of inherent powers is not incompatible with the views of the
other judges. It remains for the court's inherent powers to be generally classed as
falling within the scope of the court's 'essential characteristics', and as reflecting
specific requirements for the exercise of judicial power. Indeed, the crucial point in
distinguishing the minority and majority judgments in Nicholas, was not that the
majority rejected that legislative interference in the exercise of the discretion could
amount to an impermissible interference with judicial power. Rather, the point of
distinction was that no such interference had occurred by the amendment to the Crimes
Act 1901 (Cth). Crucial to the findings of the majority judges was the fact that the
discretion to exclude the evidence was not removed entirely by the statutory
amendment.115
_____________________________________________________________________________________
109 (1998) 193 CLR 173, 226 (McHugh J).
110 Ibid 272 (Hayne J).
111 Ibid 275.
112 (1995) 184 CLR 19, 34.
113 (1998) 193 CLR 173, 197 (Brennan CJ).
114 Ibid 202 (Toohey J).
115 See, eg, ibid 191 (Brennan CJ), 202 (Toohey J), 210–11 (Gaudron J), 238 (Gummow J), 273
(Hayne J).
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When one considers the very nature and function of a court's inherent jurisdiction
alongside the attempts of the High Court to articulate rules for testing the validity of
legislation that affects the exercise of judicial power, the links are patently clear. A
court's essential characteristics—those aspects of the curial process fundamental to the
proper exercise of a court's power—have long been protected by resort to the inherent
powers of the court to protect its own processes. In giving content to the rule
articulated by the High Court in Chu Kheng Lim, there is a very strong basis for
asserting that resort should be made to the rules and practice of the courts developed
under the umbrella of its inherent jurisdiction. Such resort has already occurred in the
judgments of Gaudron, McHugh, Kirby and Hayne JJ, on the issue of a court's power
to prevent an abuse of its process. Whether inherent powers are simply part of judicial
power for the purposes of Chapter III, or additionally the source of various implied
guarantees, remains to be answered. It is an answer that will rest largely on the actual
nature and scope of inherent powers. It is not, however, the intention of this paper to
consider the further implication of individual rights based upon the constitutional
protection of inherent powers. It is merely to consider the protection of inherent
powers within the scope of judicial power itself. It must be acknowledged, however,
that inherent jurisdiction offers a seemingly strong foundation for the further
protection of various guarantees.
INFRINGEMENTS AND USURPATIONS OF JUDICIAL POWER AND ITS
EXERCISE: DEVELOPING A TEST FOR CONSTITUTIONAL VALIDITY
The case of Nicholas v The Queen provides wide support for the notion that a court's
inherent powers, and specifically the power of the court to protect its own processes,
fall within the scope of judicial power, given that they pertain directly to the manner in
which a court exercises judicial power. In addition, inherent powers may also reflect
essential features of a court, the interference with, or removal of, would require the
court to act in a manner inconsistent with the very nature of a court. In these respects,
therefore, inherent jurisdiction must impact on the test for validity of any enactment
that affects the exercise of judicial power.
It is submitted that the test for validity may in fact include considerations beyond
those that arise strictly by virtue of the separation of powers under Chapter III. Among
these are questions of implied freedoms and proportionality. The significance, and
indeed presence, of any additional requirements for validity rests ultimately, however,
on the future articulation and acceptance of rules regarding legislation that affects the
exercise of judicial power. In this context, the degree to which the court's inherent
powers are considered to incorporate individual guarantees will affect this
development. If judicial power includes an inherent power of the court that is
exercised for the protection of individual liberty, any legislative interference with the
exercise of that power may be subject to tests of proportionality and reasonableness.116
Whether this view will find a place in the future jurisprudence of the High Court,
however, remains to be seen. The principal criteria for validity—an Act's consistency
_____________________________________________________________________________________
116 On proportionality see Adrienne Stone, 'The Limits of Constitutional Text and Structure:
Standards of Review and the Freedom of Political Communication' (1999) 23 Melbourne
University Law Review 668; Jeremy Kirk, 'Constitutional Guarantees, Characterisation and the
Concept of Proportionality' (1997) 21 Melbourne University Law Review 1, H P Lee,
'Proportionality in Australian Constitutional Adjudication', in Lindell (ed), above n 2, 126.
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with Chapter III—is, however, able to be derived from the available decisions of the
Court.
(1)
The Scope of Legislative Power to Prescribe or Regulate the Exercise of
Implied Judicial Power
As incidental powers implied under Chapter III, the inherent powers of federal courts,
and courts exercising federal jurisdiction, are not outside the scope of legislative
interference or prescription. It is this fact of implication that gives Parliament the
power to regulate or prescribe inherent powers falling within the scope of judicial
power, rather than the fact that these powers are generally procedural in nature.
Indeed, this same reasoning was applied in Nicholas to find that the discretion did not
offend the separation of powers under Chapter III,117 having little to do with the fact
that the discretionary power was procedural in nature.118 The Chief Justice discussed
the matter in the following way:119
The judicial power of a court is defined by the matters in which jurisdiction has been
conferred upon it. The conferral of jurisdiction prima facie carries the power to do
whatever is necessary or convenient to effect its exercise. The practice and procedure of a
court may be prescribed by the court in exercise of its implied power to do what is
necessary for the exercise of its jurisdiction120 but subject to overriding legislative
provision governing that practice or procedure.
For Brennan CJ, the ultimate test of validity in respect of such implied powers is
whether the legislative prescription reflects 'a reasonable approach to the assessment of
the kind of evidence to which it relates.'121 This approach needs to be distinguished
from that of Gaudron J. Her Honour considered that the various ancillary powers of
the court relevant to the exercise of judicial power, were not 'ultimate powers' of the
kind to which Chapter III of the Constitution was directed.122 By 'ultimate powers',
Gaudron J referred to 'the kind involved in the making of binding determinations as to
guilt or innocence or as to existing rights, liabilities, powers, duties, or status, or, in
making binding adjustments of rights and interests'.123 Consequently, ancillary powers
were not to be treated as properly falling within the scope of judicial power for the
purposes of Chapter III. This approach of Gaudron J appears to be a rather confusing
treatment of the fact that ancillary powers regarding the admission of evidence is a
subject accepted as falling within the legislature's competence. Other ancillary powers
identified by her Honour include the power to grant an adjournment and to make
procedural rulings.124
The approach of Gaudron J is only further confused by the fact that she expressly
states that judicial power is 'a power which is exercised in accordance with the judicial
process and, in that process, many specific and ancillary powers are also exercised'.125
In addition, Gaudron J's support for the position that the court cannot be forced to
_____________________________________________________________________________________
117 Nicholas v The Queen (1998) 193 CLR 173, 188–9 (Brennan CJ).
118 See, eg, ibid 234–8 (Gummow J).
119 Ibid 188–9 (Brennan CJ).
120 See Grassby v The Queen (1989) 168 CLR 1, 16 n 67 (Brennan CJ).
121 Nicholas v The Queen (1998) 193 CLR 173, 190 (Brennan CJ).
122 Ibid 208 (Gaudron J).
123 Ibid.
124 Ibid.
125 Ibid 207.
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proceed 'in any manner which involves an abuse of process',126 is difficult to reconcile
with her position on ancillary powers, given that abuse of process is generally
prevented by the development and invocation of ancillary powers. For these reasons, it
is submitted that the approach of Brennan CJ, acknowledging that implied judicial
powers are susceptible to reasonable legislative regulation and prescription, is
preferable to that of Gaudron J.
This approach finds support also in the judgment of Hayne J. Directly on this point,
his Honour made the following comment:
The facts that the discretion is a creature of the common law and is concerned with the
protection of the integrity of the courts' processes do not mean that the discretion cannot
be affected by legislation.127
Justice Hayne also rejected the idea that simply because a discretion fell within the
inherent powers of the court, the discretion was beyond legislative prescription by
virtue of Chapter III. However, his Honour declined to consider whether other
considerations would arise if Parliament had attempted to abolish the discretion
altogether,128 as well as the question of whether certain inherent powers of the court
could not be abolished at all.129 Notwithstanding this, Hayne J did make the following
comments in respect of s 15X of the Crimes Act 1901 (Cth):
If the rejection of evidence of illegally procured offences had been held to be inevitably
required in all cases because only in that way could the reputation of the courts be
protected, the question whether Parliament might change or abolish that rule might (I do
not say would) have arisen. But that is not the case with this rule.130
From this, it appears that removal of the discretion entirely would, therefore, have
changed the issue somewhat before the Court. It would also appear from Hayne J's
perspective that, although not comprising an independent test for constitutional
validity, the reputation of the courts remains an important consideration in protecting
the integrity of the court's processes.
The above statements indicate that the Court is yet to fully address the various
matters that may touch upon the validity of legislation affecting the exercise of judicial
power. Are certain inherent powers beyond legislative prescription altogether or, at
the very least, unable to be removed or abrogated entirely? In addition, what will be
the effect where the inherent power is exercised to protect individual liberty? Though
it is unclear whether that liberty would be raised to the status of an 'implied
constitutional freedom', it remains open to the Court to apply tests of reasonableness
or proportionality in considering the validity of the legislation. This issue is, however,
beyond the scope of this paper.
(2)
Consistency of Legislative Enactments With Chapter III
In considering an Act's constitutional validity, the issue arises as to when legislation
will constitute an impermissible interference with, or usurpation of, federal judicial
power. To hold that certain aspects of the court's judicial power are not beyond
legislative prescription is not to hold that Parliament possesses a plenary power in this
_____________________________________________________________________________________
126 Ibid 209.
127 Ibid 272 (Hayne J).
128 Ibid.
129 Ibid 276.
130 Ibid.
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context. Not only may the legislative power itself be subject to certain requirements,
but its exercise remains subject to Chapter III generally. Based on the rule established
in Chu Kheng Lim,131 Parliament cannot require the courts to exercise their judicial
power in a manner that is inconsistent with the essential character of a court or with
the nature of judicial power. The point may be illustrated through consideration of
evidence laws and their relationship with Chapter III. Legislative prescription of the
rules of evidence has previously been rejected by the High Court as constituting a
usurpation of federal judicial power.132 However, a rule of evidence that merely
prescribes or regulates the admission of evidence will not impair 'the curial function of
finding facts, applying the law or exercising any available discretion in making the
judgment or order which is the end and purpose of the exercise of judicial power'.133
There is a distinct difference, however, if a rule of evidence does in truth impair this
curial function, as Isaacs J noted in Williamson v Ah On:
It is one thing to say, for instance, in an Act of Parliament, that a man found in possession
of stolen goods shall be conclusively deemed to have stolen them, and quite another to
say that he shall be deemed to have stolen them unless he personally proves that he got
them honestly.134
For the majority judges in Nicholas, the fact that the discretion to exclude the
evidence was retained, despite the removal of a particular fact from consideration in
exercising the discretion, contributed to the fact that the section did not offend the
separation of judicial power under Chapter III.135 However, Chapter III also places a
specific requirement upon any legislative prescription affecting such implied and
incidental powers. That requirement is that neither the Parliament nor the Executive
can effectively direct the exercise of judicial power, nor can it attempt to usurp that
power. The ultimate test is whether a legislative prescription affecting an implied
power of the court would require the court to act in a manner 'which is inconsistent
with the essential character of a court or with the nature of judicial power.'136
Consideration of the actual content of this test, and of its application, marks significant
points upon which the judges in Nicholas disagreed.
Chief Justice Brennan adopted a rather technical approach to the consideration of
this principal question. He did this by focusing on the fact-finding function of a court
in exercising its judicial power to determine guilt or innocence. In considering the
essential aspects of judicial power, Brennan CJ referred to the statement he had made,
together with Mason, Murphy and Deane JJ, in Fencott v Muller.137 Their Honours had
offered the following comments in order to identify the essential steps that a court is
bound to take in exercising judicial power:
_____________________________________________________________________________________
131 (1992) 176 CLR 1, 27.
132 Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1, 12 (Knox CJ, Gavan
Duffy and Starke JJ); Williamson v Ah On (1926) 39 CLR 95, 122 (Higgins J).
133 Nicholas v The Queen (1998) 193 CLR 173, 189 (Brennan CJ).
134 (1926) 39 CLR 95, 108.
135 193 CLR 173, 191.
136 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson
JJ).
137 (1983) 152 CLR 570, 608.
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The unique and essential function of the judicial power is the quelling of such
controversies by ascertainment of the facts, by application of the law and by exercise,
where appropriate, of judicial discretion.138
Chief Justice Brennan was influenced by the wide power of the legislature to enact
laws of evidence, and considered that s 15X did not impair the judicial function of factfinding, nor the judicial power in determining guilt or innocence.139 His Honour took
the view that s 15X actually facilitated those functions by promoting the admission of
evidence, and considered that even if the discretion had been removed entirely, these
functions would not have been affected. This is a very technical approach, and
highlights the fact-finding function of the court at the expense of judicial discretion. In
doing so, it fails to adequately address the importance of judicial discretion as an
essential step in the exercise of judicial power—something which Brennan CJ had
earlier supported in Fencott v Muller, and later quoted with support in Nicholas.
Brennan CJ's approach can be distinguished by the fact that each of the other majority
judges considered the importance of a discretion being retained under the legislation
in considering its validity.
For Justice Toohey, the point at which legislation would require a court to act in a
non-judicial manner was not entirely clear. His Honour rejected the argument that the
effect of s 15X of the Crimes Act 1914 (Cth) on the Rideway discretion required the Court
to act in a manner which was inconsistent with its essential character.140 However, he
did indicate a particular instance where a question of an Act's compatibility with
Chapter III may arise. In this context, Toohey J stated that:
It might be necessary, in a particular situation, to look closely at the consequences of
rejecting or admitting the evidence. Those consequences may, for instance, be so inimical
to the idea of a fair trial that a question arises as to the power of the legislature, at any
rate where the judicial power of the Commonwealth is involved.141
In adding to this statement, Toohey J referred to his earlier statement in
Polyukhovich v Commonwealth.142 In that case, his Honour had held that Chapter III
would be contravened only where a law 'purports to operate in such a way as to
require a court to act contrary to accepted notions of judicial power'.143 The reference
by Toohey J to the issue of a fair trial gives rise to the question of whether that right is
actually protected through implication under Chapter III. The failure of Toohey J to
fully consider whether this was indeed what he meant by those words, however,
means that only qualified guidance can be taken from them. Additionally, it needs to
be remembered that the impact on the provision of a fair trial is ultimately caused by
interference with an aspect of 'judicial power', not with an implied right. This is
consistent with the view previously outlined that Chapter III is concerned with
protecting the judicial powers of federal courts, rather than individual liberties. The
statement by Toohey J does, however, highlight the potential relevance of interference
with certain due process rights in considering an Act's compatibility with Chapter III.
_____________________________________________________________________________________
138 Ibid; quoted in Nicholas v The Queen (1998) 193 CLR 173, 187 (Brennan CJ).
139 (1998) 193 CLR 173, 191.
140 (1998) 193 CLR 173, 202 (Toohey J).
141 Ibid.
142 (1991) 172 CLR 501, 689.
143 Ibid.
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Justice Gaudron listed a range of characteristics that she felt were essential to a
court in the exercise of judicial power. These characteristics included the following:
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.144
Attempting to bring these factors together, her Honour added the following
statement:
It means, moreover, that 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.145
Though Gaudron J found that s 15X did not offend any of these characteristics, her
Honour listed a number of important factors as to why that was not the case.146
Among these were the fact that the Ridgeway discretion had not been negated, and that
several relevant facts had not been excluded from the court's consideration of whether
the evidence should be admitted. Included in these facts were: the consequences of the
unlawful conduct; the consequences of admitting the evidence; the tendency of the
evidence to bring the administration of justice into disrepute; and, whether the accused
would have committed an offence but for the illegal conduct of officers.147
Consequently, Gaudron J was able to make the following finding:
[I]t is clear that it does not prevent independent determination of the question whether
that evidence should be excluded or, more to the point, independent determination of
guilt or innocence. And so construed, it is also clear that it neither authorises nor requires
a court to proceed in circumstances which bring or tend to bring the administration of
justice into disrepute.148
Justice Gummow, along with the rest of the majority judges, also held that s 15X did
not contravene Chapter III. His Honour considered that preservation of a discretion to
exclude evidence (apart from on the basis that the law enforcement officers had acted
illegally) was significant.149 Though Gummow J recognised that the case for the
accused was made that much harder by the enactment of s 15X, he stated that:
[T]he section does not deem any ultimate fact to exist, or to have been proved. It leaves
untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X
change the amount or degree of proof essential to convict him from that required when
the alleged offences were committed.150
Accordingly, Gummow J held that s 15X did not operate to prescribe the manner of
exercise of judicial power.
_____________________________________________________________________________________
144 (1998) 193 CLR 173, 208–9 (Gaudron J).
145 Ibid 209.
146 Ibid 210.
147 Ibid.
148 Ibid 211.
149 Ibid 238 (Gummow J).
150 Ibid.
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The judgment of Hayne J is an interesting one, and one that sheds light on various
aspects of other judgments in Nicholas. Some of these issues, including whether certain
inherent powers are beyond legislative prescription and the reputation of the courts as
a test for constitutional validity, have been considered elsewhere. However, in
considering the validity of legislation that affects the exercise of judicial power, Hayne
J articulated an element to that test based on a distinction between procedural laws,
and laws dealing in a substantive manner with the determination of guilt or
innocence.151 This distinction was also directly considered by Brennan CJ and
Gummow J.152 In his judgment, Hayne J made a distinction between legislation which
would 'affect only the procedures to be followed in litigation', from legislation which
would affect 'the rights of the parties'.153 While the former was unlikely to offend
Chapter III, the latter most probably would. In determining which category legislation
fell into, Hayne J offered the following comments:
The distinction between legislation dealing only with questions of evidence or procedure
and legislation dealing with questions of guilt or innocence is, of course, concerned with
substance, not form,154 and will not always be easy to draw, but it is a distinction of great
importance.155
For Hayne J, the fact that s 15X did not deal with ultimate issues of guilt or
innocence, but simply the reception of certain evidence, and did not deal with selective
prosecutions, meant that it did not constitute an impermissible interference in the
judicial process.156 Both Hayne and Gummow JJ did, however, acknowledge the
potential for a case to involve changes to evidence or procedure that would constitute
such an interference.157
The approaches of the majority judges are, not surprisingly, quite different to that
of McHugh and Kirby JJ. Certain similarities can be drawn, however, between
Gaudron J's consideration of the court's power to prevent an abuse of its processes, and
to prevent the administration of justice from falling into disrepute. Additionally,
Hayne J's consideration of the inherent powers of the court has some bearing on the
approach of the minority judges, despite the fact that his Honour declined to consider
whether certain powers were beyond legislative prescription. These similarities should
be borne in mind when analysing the minority judgments.
The decision of McHugh J contains a number of general statements of benefit that
help illustrate the principal question in determining the validity of legislation in
relation to its compatibility with Chapter III. The general limit on legislative power
that applies by virtue of Chapter III was described by McHugh J as follows:
[L]egislation that is properly characterised as an interference with or infringement of
judicial power, as well as legislation that purports to usurp judicial power, contravenes
_____________________________________________________________________________________
151 Ibid 277–8 (Hayne J).
152 Ibid 191 (Brennan CJ), 234–7 (Gummow J).
153 Ibid 278 (Hayne J).
154 Ibid n 410: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane
and Dawson JJ). (Hayne J’s footnote).
155 Ibid 278 (Hayne J).
156 Ibid 277.
157 Ibid 278 (Hayne J), 237 (Gummow J).
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the Constitution's mandate of a separation of judicial from legislative and executive
power.158
According to McHugh J, usurpation occurs 'when the legislature has exercised judicial
power on its own behalf', whereas infringement occurs 'when the legislature has
interfered with the exercise of judicial power by the courts'.159
His Honour acknowledged that s 15X did not fall within any of the factual
situations involving an impermissible intrusion or interference with judicial power:
Section 15X does not contemplate a 'legislative judgment' against specified individuals,
nor does it serve to inflict punishment on specified persons without a judicial trial or to
adjudge criminal guilt. Nor does it direct the federal courts not to make a finding
concerning rights or duties that an accused person would otherwise be entitled to under
the existing law or to change the direction or outcome of pending judicial proceedings.160
In this respect, McHugh J was completely in agreement with the majority. Where,
however, he adopted an alternative approach to those judges (with the exception of
Gaudron J), was in the identification of an additional basis for invalidity. According to
McHugh J, s 15X:
direct[s] courts exercising federal jurisdiction to disregard a fact that is critical in
exercising a discretion that is necessary to protect the integrity of Ch III courts and to
maintain public confidence in the administration of criminal justice. That being so, s 15X
infringes the judicial power of the Commonwealth just as effectively as if it purported to
change the direction or outcome of pending proceedings.161
It was only once McHugh J came to consider the nature of the discretion itself that
he parted company with Gaudron J. In her judgment, Gaudron J had considered the
continued ability of a court to consider other relevant facts upon which the discretion
to exclude the evidence could be based, thereby protecting the court from an abuse of
its process, and its reputation in administering justice. For McHugh J, however, the fact
of illegality on the part of the police officers that s 15X had removed from
consideration by a court, was so significant in relation to the court's ability to
determine whether its processes were being abused or demeaned, that it amounted to a
direction that interfered with the exercise of judicial power.162 In this respect, s 15X
was distinct from those statutory provisions commonly found where judicial discretion
is regulated by the listing of matters which are required to be taken into account. In
contrast to such provisions, s 15X was 'a direction to a court exercising federal
jurisdiction that it cannot have regard to a fact that is relevant and often critical in
determining whether the court's processes are being demeaned.'163
For Kirby J also, s 15X amounted to a direction obliging a court to disregard a
significant fact that was relevant to the court's ability to prevent an abuse of its own
processes. Consequently, this meant that it amounted to 'an impermissible legislative
intrusion upon, or derogation from, the judicial power committed by the Constitution
to the courts.'164 Unlike any of the other members of the court, however, Kirby J also
_____________________________________________________________________________________
158 Ibid 220 (McHugh J).
159 Ibid.
160 Ibid 222 (McHugh J).
161 Ibid.
162 Ibid 224–5.
163 Ibid.
164 (1998) 193 CLR 173, 266 (Kirby J).
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considered that s 15X was too particularised and, in a material sense, was aimed at a
limited number of identifiable individuals. On the basis of this fact and the authority in
Liyanage v The Queen,165 his Honour considered that an interference with judicial
power had occurred.166
CONCLUSION
The approach taken in this paper towards the implication of guarantees arising out of
the separation of judicial power under Chapter III appears at first to be novel. The
reality is, however, that its very genesis can already be found in certain judgments of
the High Court and, particularly, from the various judgments delivered in Nicholas v
The Queen. That an approach based on the 'inherent jurisdiction' of Chapter III courts is
closely related to existing approaches to implications drawn from that Chapter, is also
reflected in the comments of at least one commentator.167 Wheeler espouses the view
that due process guarantees may be implied by expanding our understanding of
'judicial power' to include the manner in which it is exercised, and by drawing links
between the compatibility doctrine and curial due process.168 In doing so, she briefly
considers the significance of inherent jurisdiction in her summation of the judgments
of Gaudron J and Deane J in Dietrich. Indeed, she actually refers to inherent jurisdiction
in establishing the link between the so-called right of an accused not to be tried
unfairly and the implication derived from Chapter III that federal judicial power
should be exercised in accordance with the judicial process.169 While Wheeler accepts
that both Justices failed to elaborate upon this link, she offered the following analysis
to support their reasoning:
Their … comments, taken in the context of the case as a whole, suggest, however, that
Deane J and Gaudron J would regard the inherent power of a court exercising federal
jurisdiction to stay or adjourn proceedings to prevent what would otherwise be an abuse
of its process—an unfair trial of a criminal offence—as immune from legislative
abrogation. To put matters another way, were Parliament to deprive a Chapter III court
of this aspect of its inherent jurisdiction, then an unrepresented accused in the situation
of Mr Dietrich would be forced to submit to an unfair exercise of federal judicial
power.170
These words appear to reflect the view that it is the inherent powers of the court that are
protected from legislative abrogation, where their removal or derogation would result
in a Chapter III court acting in manner which is incompatible with federal judicial
power. This is despite the fact that Wheeler's ultimate claim is that a guarantee of
curial due process can and should be implied from Chapter III, rather than the inherent
powers of the courts. Her argument, therefore, retains as its centrepiece 'due process',
which is simply a generic term used to describe a host of individual rights and
guarantees. Thus, Wheeler ultimately espouses a 'rights-based' approach, despite her
brief acknowledgement that it is the inherent jurisdiction of the court which is
_____________________________________________________________________________________
165 [1967] 1 AC 259.
166 (1998) 193 CLR 173, 262–4 (Kirby J).
167 Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due
Process in Australia' (1997) 23 Monash University Law Review 248.
168 Ibid 265–6.
169 Ibid 265.
170 Ibid 265–6.
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effectively protected through implications drawn from Chapter III. Wheeler's reliance
on the compatibility doctrine to provide the link in reasoning between implied
guarantees and the exercise of federal judicial power is, however, persuasive. Where
the present author departs from Wheeler's approach is in respect of what is actually
impliedly guaranteed under Chapter III. Whereas Wheeler would assert that it is due
process that is protected, here it is asserted that it is in fact the inherent powers of
Chapter III courts that are impliedly guaranteed through the separation of powers.
Finally, an approach based on the implied protection of inherent jurisdiction under
Chapter III bears some similarity to approaches that advocate the protection of
procedural, as opposed to substantive, guarantees. Such an approach has been
advocated by both Winterton171 and Blackford.172 Inherent powers are essentially
procedural in nature, given their association with the curial 'process'. Consequently,
there exists a point of comparison between the views of Winterton and Blackford that
any implied guarantees should be limited to procedural guarantees and an approach
based on the protection of inherent powers under Chapter III. The latter approach
could, however, potentially form the basis upon which further substantive guarantees
may be implied. Whether that is likely or desirable is not an issue addressed in this
paper. In choosing to consider this matter, however, one would need to address the
concerns raised by commentators such as Winterton and Blackford. In addition to their
substantive arguments, it would appear that the very nature of inherent powers as
'procedural' tools must affect (at least to some extent) the nature of protection afforded
to any individual right to which the exercise of inherent power is directed.
In conclusion, what may be said is that the question of implied guarantees arising
from the separation of powers has been dominated by approaches that adopt human
rights and freedoms as their centrepiece. Though not surprising, this trend has
prevented the consideration of alternative bases for implications under Chapter III, in
particular, the inherent powers of federal courts. It may well prove to be that what is
protected under the provisions of that Constitutional Chapter is the capacity of the
federal courts to protect the integrity, efficiency and fairness of their own processes, as
the most basic and fundamental aspect of the judicial process. To unduly interfere
with, or remove that capacity of, the courts, could potentially require the courts to act
in a non-judicial manner in the exercise of their jurisdiction, and accordingly, could
also violate the separation of powers under Chapter III. Whether a constitutionally
guaranteed capacity of Chapter III courts to exercise their inherent powers could also
involve the implied protection of individual liberties, or would merely be shaped and
informed by such matters, remains to be addressed. Yet, what inherent jurisdiction
offers this debate is a sound basis for the drawing of further implications, and an
approach that more closely reflects the very text and structure of Chapter III itself.
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171 Winterton, above n 2, 207.
172 Russell Blackford, 'Judicial Power, Political Liberty and the Post-Industrial State' (1997) 71
Australian Law Journal 267, 283.