'Persuade thyself that imperfection and inconvenience are the natural lot of mortals, and there will be no room for discontent, neither for despair.'
I IMPERFECTION AND INCONVENIENCE: AN INTRODUCTION
This article explores the imperfection and inconvenience of the 1956 decision of R v Kirby; Ex parte Boilermakers' Society of Australia. (1) It does so by drawing on several illustrations borne out in cases from the last 20 years and thereby fitting somewhat into the more contemporary theme of this special edition of the University of Queensland Law Journal.
Boilermakers' consolidated a number of previous High Court decisions forbidding non-judicial bodies to exercise federal judicial power, (2) and some earlier judicial comments to the effect that federal courts could not exercise non-judicial power, (3) to establish two negatively drawn principles, subject only to narrow exceptions. The twin principles are that a non-chapter III court cannot exercise the judicial power of the Commonwealth, and that a federal chapter III court cannot exercise anything other than the judicial power of the Commonwealth. Part I of this article provides an analysis of the imperfection of the reasoning employed by the majority in Boilermakers' in drawing these principles.
Part II of the article establishes the inconveniences of the decision by reference to four areas of jurisprudence and governance, each of which will be illustrated using a number of cases from the last two decades. In each area, the Boilermakers' doctrine's rigidity has reduced Parliament's flexibility in responding to contemporary problems and expectations. The first area is the inhibition on the development of a system of efficient and accessible administrative decision-making tribunals. The second is the prohibition on cross-vesting of judicial power across the State and federal systems leading to difficult and technical choice of laws questions for litigants. The third is the inability to modernise the military justice system through the introduction of greater independence and impartiality while maintaining a separate military system. The last is the impossibility of introducing a statutory bill of rights that maintains the supremacy of Parliament through the system of statements of incompatibility.
Part II of the article demonstrates the High Court's preoccupation with the doctrine as enunciated in Boilermakers' rather than the objectives of the doctrine. (4) Tony Blackshield warned of 'the error of mechanically applying the words of a judgment as if they were the words of a statute'. (5) Similarly, Callinan J said that 'Reasons for judgment can only state principles, and not express rules as instruments and enactments do.' (6) This ought to be remembered when considering the Boilermakers' doctrine, ameliorating the rigidity of the judicially constructed test with the objectives and constitutional context in which it was stated.
While I agree with Tokagawa that this mortal construct must be consigned to imperfection and inconvenience, I disagree that we should persuade ourselves to become content with this position, although many judges have forced themselves to be. (7) We should strive for betterment: can the objectives underpinning Boilermakers' be achieved in a less imperfect, less inconvenient way?
My objective in this article is not simply to deconstruct the current jurisprudence relating to the separation of judicial power. In Part III therefore I consider an alternative limitation on the Parliament's power that focuses on maintaining the independence, impartiality, and status of those bodies that exercise judicial power. This is a purposive, functionalist driven approach in lieu of the formalism of the Boilermakers' doctrine. (8)
II PART I--THE IMPERFECTIONS OF BOILERMAKERS'
A The preceding decisions
Boilermakers' was decided against the background of the Wheat Case, (9) Alexander's Case, (10) and Dignan. (11) These early decisions must be understood in their political context. The High Court in the Wheat Case considered the constitutionality of the Inter-State Commission Act 1912 (Cth). The framers had made provision for the Inter-State Commission in s 101 of the Constitution to alleviate some of the difficulties caused by the creation of the new free-trade area and the language of s 92 of the Constitution. Under s 101, the Commission was to have 'such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and all laws made thereunder.' An appeal was available from the Inter-State Commission to the High Court 'as to questions of law only'. (12) Andrew Inglis Clark wrote in 1901 that the Inter-State Commission, so far as it was vested with powers of adjudication, 'will be a court of judicature'. (13) J M Finnis said: 'The Inter-State Commission was undoubtedly intended by the founders to have, or be able to have, judicial powers'. (14)
But in the Wheat Case, a 4:2 majority (Griffith CJ, Isaacs, Powers and Rich JJ; Barton and Gavan Duffy JJ dissenting) found the conferral of judicial powers on the Inter-State Commission by the Inter-State Commission Act invalid, (15) under what would become the first limb of the Boilermakers' doctrine. As a justice of the High Court in the Wheat Case, Isaacs J achieved his intention expressed as a delegate to the drafting Convention in Melbourne, to 'eliminate the constitutional creation of the Inter-State Commission.' (16) While not eliminating the Commission, the judgment emasculated the body so that its utility was undermined; it was eventually disbanded in 1920. (17)
Isaacs J's opposition to the Inter-State Commission was matched by his opposition to the appointment of High Court justices to the Court of Conciliation and Arbitration. The Court was established in 1904 with a President who had to be appointed from the justices of the High Court for a seven-year term, eligible for reappointment. (18) In Alexander's Case, a 4:3 majority of the High Court (Barton, Isaacs, Rich, Powers JJ; Griffith CJ, Higgins and Gavan Duffy JJ dissenting) struck down legislation conferring judicial functions on the Commonwealth Court of Conciliation and Arbitration on the basis that a body other than a court could not exercise judicial power.
Isaacs and Rich JJ in Alexander's Case also suggested what would become the second limb of the Boilermakers' doctrine. They warned against the commingling of functions in judicial bodies, commenting that 'A court of law has no power to give effect to any but rights recognized by law'. (19)
In Dignan, Dixon J, generally thought to be the architect of the majority decision in Boilermakers', had also suggested a restriction that mirrored the second limb. (20) In a course of reasoning that largely follows the first strand employed by the majority in Boilermakers' and heavily influenced by, inter alia, Isaacs J's judgment in the Wheat Case, Dixon J came to the conclusion that:
Parliament is restricted both from reposing any power essentially judicial in any other organ or body, and from reposing any other than that judicial power in such tribunals. (21)
B The decision in Boilermakers'
Reacting to the decision in Alexander's Case, the Commonwealth Parliament reconstituted the Commonwealth Court of Conciliation and Arbitration with judges appointed in accordance with s 72 of the Constitution. Nonetheless, a 4:3 majority in Boilermakers' (Dixon CJ, McTiernan, Fullagar, and Kitto JJ; Williams, Webb and Taylor JJ dissenting) still found the conferral of judicial powers on it invalid. First, the High Court found that the body still failed the constitutional definition of a 'court' on the basis it primarily exercised non-judicial powers (its arbitral function). As such, its exercise of judicial power was in breach of the principle used in the Wheat Case and Alexander's Case: the first limb of the Boilermakers' doctrine. (22) The High Court also provided us with the second limb of the Boilermakers' doctrine: federal courts can only exercise judicial power, (23) although the addition of this limb was in obiter.
C The two foundations of Boilermakers'
In Boilermakers', the majority's reasoning underpinning the drawing of the two-limbed doctrine rested on two foundations, both of which are imperfect on further examination. (24)
First, the majority argument looked to the structure of the Constitution to support the doctrine's negative principles. They looked at the distribution of the three 'powers' of government in different branches, closely following the division in the United States Constitution. Our Constitution owes a large debt to the draft Constitution of Andrew Inglis Clark which itself was heavily modelled on the American document. (25) American theory and jurisprudence, however, has always acknowledged the flexibility that must be built into the separation of powers. Thus, the reliance on the United States comparator does not seem to support the narrowly drawn and formalistic principles enunciated by the High Court.
Charles de Secondat, Baron de Montesquieu, one of the first proponents of the principle in his Defense de L'espirit des Lois, (26) argued that separation of powers requires both the separation of functions and the separation of persons exercising those functions. Thus, it diffuses the concentration of power and protects individual liberty against tyrannical abuse of power. (Strangely enough Montesquieu based his analysis on the English system, which is not generally thought to centrally embody the separation of powers; (27) commentators have argued that he was describing an idealised form of the British Constitution.) (28) Philip Pettit explains that Montesquieu's rationale for dispersing power does not require exact division, 'provided that power still remains effectively dispersed.' (29) The American founding fathers, while embracing the concept of diffusion of power espoused by Montesquieu, also accepted some flexibility in the doctrine. (30) This was for three reasons. The first was the difficulties of defining the different powers with any rigour, the second was the desirability of some overlap to facilitate a system of checking and balancing between the three branches, and the last was the necessary overlapping and commingling of functions in the interests of 'good government'. (31) The emphasis on 'good government' reflects ideas of efficiency in government administration.
Even without the influence of the United States separation of powers, the majority in Boilermakers' argued that the 'face of the Constitution' made the position clear, that the express grant of the three powers of government to different branches in the first three chapters necessarily implies the separation of government power (at least in relation to judicial power). The majority said: 'It would be difficult to treat it as a mere draftsman's arrangement ... This cannot all be treated as meaningless and of no legal consequence.' (32) The majority bolstered their argument regarding the separation of judicial power by reference to the prescriptive nature of Chapter III itself, (33) particularly that s 71 is an 'exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested'. (34)
This is also fallacious. Robert Garran recollected that the division was, in fact, simply a 'draftman's neat arrangement, without any hint of further significance.' (35) The maxim expressio unius est exclusio alterius has been expressed to be 'a valuable servant, but a dangerous master', (36) that is, it is better used as additional evidence of an otherwise determined outcome, rather than the primary evidence of the outcome. (37)
Its application to s 71 and Chapter III ignores the complete context in which these provisions are found in the Constitution. As has recently been emphasised by Gummow and Bell JJ in Williams v Commonwealth, 'constitutional coherence' must be the touchstone for constitutional interpretation. (38) The approach of the majority in Boilermakers', while recognising the existence of the overlap between the executive and legislative arms to provide for responsible government, (39) fails to interpret Chapter III in the context that this creates. Responsible government compromises any sort of strict separation between the legislative …