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High Court of Australia |
HARRIS v. CALADINE [1991] HCA 9; (1991) 172 CLR 84
F.C. 91/008
Constitutional Law (Cth) - Family Law (Cth)
High Court of Australia
Mason C.J.(1), Brennan(2), Deane(1), Dawson(3), Toohey(4), Gaudron(5) and
McHugh(6) JJ.
CATCHWORDS
Constitutional Law (Cth) - Judicial power of the Commonwealth - Family Court - Delegation of powers to Registrar - Decisions of Registrar reviewable by Court - Hearing de novo - Validity of delegation - The Constitution (62 and 63 Vict. c. 12) ss. 71, 77, 79 - Family Law Act 1975 (Cth), ss. 37A, 79, 79A - Family Law Rules, O. 36A.Family Law (Cth) - Family Court - Registrar - Delegation of powers of Court - Validity - Decisions of Registrar reviewable by Court - Hearing de novo - Nature of hearing - Family Law Act 1975 (Cth), s. 37A - Family Law Rules, O. 36A.
HEARING
1990, August 31; 1991, April 17. 17:4:1991DECISION
MASON C.J. AND DEANE J. Over the years some Justices have expressed the view that functions which, when undertaken, are essentially and invariably exercises of judicial power cannot be undertaken in conformity with s.71 of the Constitution by officers of federal courts such as masters and registrars and must be undertaken by judges appointed to those courts in accordance with ChIII: Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481, per Isaacs J. at p 511; Starke J. at p 523; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, per Evatt J. at p 116; Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, per Windeyer J. at pp 91-92. This view has never been confirmed by a decision of this Court. Nor has it ever won general or majority acceptance. In Reg. v. Davison (1954) [1954] HCA 46; 90 CLR 353 Dixon C.J. and McTiernan J. regarded the question whether certain duties falling upon a ChIII court could be executed, subject to judicial confirmation or review, by an officer of the court as being open: at p 365. Subsequently, in The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 ("the HCF Case"), Mason J. said (at p 64) that the vesting of judicial power in a federal court "should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court ... provided that the exercise is subject to review or appeal". In the same case Murphy J. considered that, in respect of any federal court, "Parliament may authorize the exercise of its jurisdiction by officers or others who are not justices provided that these are under the real supervision and control of the justices of the court": at p 66.2. Underlying the view that a function involving the exercise of federal judicial power could not be entrusted to an officer of a Ch III court was the proposition that a court is composed exclusively of its judges as distinct from any of its officers. The next step was to say that, when s.71 ordains that the judicial power is vested in the courts which it describes, the judicial power is exercisable by the judges, and not the officers of those courts. That is what Kotsis and Knight v. Knight [1971] HCA 21; (1971) 122 CLR 114 decided in the context of State courts exercising federal jurisdiction.
3. But the ways in which a court may be organized or structured for the
purpose of exercising its jurisdiction, powers and functions
admit of
considerable variation. As Windeyer J. noted in Kotsis, "(a)ccording to the
tradition of the common law, a superior court
of record is a court sitting in
banc for the administration of justice": at p 91. However, as his Honour went
on to point out:
"In the course of time it became settled that, for some
purposes, the jurisdiction of a superior court of common
law could be exercised by a single judge. For the due
administration of justice courts had officers who in
some cases were, and are, empowered to perform specified
functions on behalf of the courts to which they belonged."
legislation which provides that the Supreme Court shall consist not only of
judges but also of masters: see s.75(2) of the Constitution Act 1975 (Vict.)
and s.7(1) of the Supreme Court Act 1935 (W.A.). Just what effect these
provisions have is not altogether clear. Perhaps they do no more than ensure
that a master constitutes
the court for certain purposes. In that respect the
provisions may have an effect similar to s.118(5) of the Supreme Court Act
1970 (N.S.W.) which expressly provides that a master shall constitute the
court for the purpose of the exercise of the powers conferred
upon him. Be
that as it may, the provisions to which we have referred mark a further stage
in the process of evolutionary development
in the constitution of courts for
purposes connected with the exercise of their jurisdiction. Although they are
developments which
have taken place since 1900, they serve to confirm what we
have already said, namely, that a court may be organized or structured
in a
wide variety of ways for the purpose of exercising its jurisdiction. A court
may, for example, be authorized to refer a case
or an issue to arbitration or
to assessors for examination and report.
4. The recent decision of this Court in the HCF Case, which overruled the earlier decisions in Kotsis and Knight, is quite inconsistent with the notion that the exercise of jurisdiction by judges to the exclusion of masters and registrars is an essential characteristic of a Ch III court. In the HCF Case the Court held that "court" in s.77(iii) of the Constitution means a court as an institution being "an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions", to use the words of Windeyer J. in Kotsis, at p 91. Whatever connotation the adjective "ministerial" may have in other contexts, it was plainly intended in the HCF Case to refer to officers such as masters and registrars.
5. True it is that the HCF Case did not go on to decide that the word "court" had a similar meaning in the other sections in Ch III in which the word appears. But it would be somewhat surprising if the word were to bear a different meaning elsewhere in Ch III, particularly in ss.71 and 77(i) and (ii). There are, of course, special reasons for interpreting the word as referring to the institution rather than its members in the context of s.77(iii). Those reasons are identified in the judgments in the HCF Case and in the dissenting judgment of Gibbs J. in Kotsis and they are sufficiently encapsulated in the proposition that the Parliament cannot alter the organization or structure of a State court as it exists under State law. Parliament cannot alter that organization or structure, for to do so would interfere with the State's freedom to constitute and organize its courts as it sees fit. However, as Gibbs C.J. pointed out in the HCF Case (at p 58), one would expect jurisdiction to be vested in a court as an entity rather than in the persons who compose its membership, so that, in the context of s.77(i), as well as s.77(iii), the reference to "court" should also be understood as a reference to the court as an entity. Likewise with the vesting of judicial power in s.71. Indeed, it would be quite arbitrary to assign a different meaning to the word in that section.
6. One other aspect of the decision in the HCF Case is important for present
purposes. The majority accepted that a State court
may be so organized that
its federal jurisdiction is exercised by an officer of the court. Thus Gibbs
C.J. (with whom Stephen and
Aickin JJ. agreed) said (at p 59):
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an
officer of the court, under the rules of the court. In the
present case the jurisdiction and powers which Master Allen
was called on to exercise were undoubtedly the jurisdiction
and powers of the Supreme Court. He was the officer of the
court by whom the jurisdiction and powers of the court in
the matter in question were normally exercised, and an order
made by him, if not set aside or varied by the court, would
take effect as an order of the court. Although he was not
a member of the court he was, in my respectful opinion,
part of the organization through which the powers and
jurisdiction of the court were exercised in matters of State
jurisdiction, and through which they were to be exercised in
matters of federal jurisdiction also, once the court was
invested with federal jurisdiction."
7. Now that it has been established by the HCF Case that some part of the federal jurisdiction of a State court may be exercised by a master or registrar in conformity with State legislation, it becomes difficult, if not impossible, to assert that s.71 vests the exercise of judicial power in the judges of the courts specified in the section. It makes little sense either as a matter of logic or policy to require that the power be exercised solely by federal judges to the exclusion of officers of a court when, in the case of invested federal jurisdiction, the power may be exercised by officers of State courts. More importantly, as a matter of construction, it is not permissible to read s.71 as speaking differently in its application to federal and State courts.
8. The difficulties which have invariably attended attempts to define judicial power in a comprehensive fashion and to identify those functions which constitute an exercise of the power and those that do not provide yet another reason for refusing to imply in s.71 a restriction limiting the exercise of all federal jurisdiction to judges. It was pointed out in Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at p 151, that "(m)any functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator." Subsequently, in Davison (at p 368), it came to be acknowledged that the exercise of judicial power included a range of functions which might be given to courts or administrators. If a particular function can be entrusted to an administrator, there is nothing inherent in the function itself which requires that it must be discharged by a judge when it is entrusted to a court.
9. It would not be correct to read into s.79 an implication that the entire federal jurisdiction of a Ch III court must be exercised by a judge. The HCF Case is inconsistent with such an implication. All that the section does is to enable the Parliament to prescribe the number of judges who shall exercise the federal jurisdiction of a court, whether generally or in the particular class of case: see Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087, per Isaacs J. at p 1145; Lorenzo v. Carey [1921] HCA 58; [1921] HCA 58; (1921) 29 CLR 243, at p 253. The section enables Parliament to preclude a delegation of federal jurisdiction to persons who are not judges. To that extent it is inconsistent with the notion that s.71 itself impliedly prohibits such a delegation. Whether s.79 confers power on the Parliament to prescribe a number of judges for the exercise of federal jurisdiction in excess of the number prescribed by State law and, in so doing, to impose an obligation on the State court is possibly open to question. But even if that question is to be answered in the affirmative, it does not follow that the section contemplates that the entirety of a court's federal jurisdiction must be exercised by judges.
10. The legislative power of Parliament to authorize the exercise by officers of the Family Court of part of its jurisdiction, powers and functions is subject to some limitation, as is the power of the Court to delegate some part of its jurisdiction, powers and functions, whether in the exercise of its rule-making power under s.123 of the Family Law Act 1975 (Cth) ("the Act") or in the exercise of its inherent jurisdiction. The limitation is that the legislative power and the power of delegation cannot be exercised in a manner that is inconsistent with the continued existence of the Family Court as a federal court constituted under Ch III. In other words, both the legislative power and the power of delegation must be exercised in conformity with the requirement that the Court's federal jurisdiction, powers and functions are to be exercised by a court whose members are judges appointed pursuant to s.72 of the Constitution. Because a federal court, in common with other courts, may be organized or structured in a variety of ways for the purpose of the exercise of its jurisdiction, it does not follow that all the jurisdiction, powers and functions of the Family Court must be exercised by a judge or judges of that Court. But the requirement does mean that the judges of the Court do effectively control and supervise the exercise of its jurisdiction, powers and functions by participating in the hearing and determination of cases and otherwise by having the capacity to review the decisions of officers of the Court and other persons to whom jurisdiction, powers and functions may be delegated. We must emphasize that the role of the officers of the Court such as Judicial Registrars and Registrars is secondary to that of the judges. The role of the officers is to assist the judges in the exercise of the jurisdiction, powers and functions of the Court. Although it is a commonplace characteristic of modern courts that officers such as masters and registrars exercise jurisdiction, powers and functions in a wide variety of matters, those matters are, generally speaking, subsidiary in importance to matters which are heard and determined by judges.
11. It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.
12. The power of delegation conferred by s.37A of the Act does not transgress the limits just discussed. Section 37A(2) expressly excepts from the power of delegation decrees of dissolution in defended proceedings, decrees of nullity, declarations of validity of a marriage or of a dissolution or annulment, as well as orders in relation to custody, guardianship or welfare of, or access to, a child, other than orders made in undefended proceedings or consent orders.
13. The judges of a superior court have power to delegate which they may
exercise by rules of court, whether pursuant to a general
rule-making power or
in the exercise of an inherent jurisdiction. They stand in no need of a
statutory power to delegate. However,
the terms of a relevant statutory power
may serve to restrict any inherent power to delegate. In the present case
O.36A, r.2(1)
of the Family Law Rules (Cth) delegated to each registrar
certain powers, including "the power to make an order the terms of which
have
been agreed upon by all the parties to proceedings": par.(n). This power was
exercisable by the Deputy Registrar and his order
became reviewable pursuant
to O.36A, r.7(4) which then provided:
"A court reviewing an exercise of power by a Judicial
Registrar or a Registrar shall proceed by way of a hearing
de novo but may have regard to the proceedings, including
the evidence given and any affidavit filed, before the
Judicial Registrar or Registrar, as the case requires."
14. The direction that the review is to be by way of hearing de novo plainly indicates that the jurisdiction of the Court on review is not relevantly confined and extends not only to any issue which might have arisen before the Deputy Registrar but also to any issue which might properly arise in the meantime. In the instant case Maxwell J. was required to hear and determine afresh an application under s.79(1) of the Act for such order as her Honour considered appropriate altering the property interests of the parties. The complication was that before Maxwell J. the making of the consent order was contested, whereas the making of that order was not in contest before the Deputy Registrar. Maxwell J. considered that the consent order could only be set aside in proceedings under s.79A, which specifically makes provision for cases in which there has been a miscarriage of justice by reason of fraud, duress or any other circumstance. With respect, we consider that this approach is too restricted. By its very nature, a review by way of hearing de novo enables the reviewing court to examine, inter alia, whether the consent order is vitiated by fraud, duress or mistake. Clearly the grounds mentioned in s.79A are open to be raised on a review under O.36A, r.7(4). What we have said about a review under O.36A, r.7(4) has equal application to a review under s.37A(9) and (10).
15. Moreover, in our opinion, the reviewing judge, as well as the Deputy Registrar, was required to have regard to the matters mentioned in s.79(4), though, in the case of the Deputy Registrar, as a consent order was sought, comparatively little was required to satisfy him on that score. We do not understand why the fact that a consent order was initially sought absolved the reviewing court from the need to comply with the obligation cast upon it by s.79(4).
16. In the result the delegation of powers to Judicial Registrars and Registrars (including Deputy Registrars) under O.36A, r.2 and s.37A was valid. The order made by the Deputy Registrar was valid and effective (and not conditional only) until set aside on review under O.36A, r.7(4) or s.37A(10).
17. However, in accordance with what we have said, the Full Court was in error in concluding that upon the review of the Deputy Registrar's decision the Court could not have regard to the withdrawal by the wife of her consent to the making of the order and that the Court could not treat the matter as a contested application under s.79 which it was required to determine for itself.
18. We would allow the appeal.
BRENNAN J. The wife (as I shall call the appellant who had been married to the respondent) applied to the Family Court of Australia for an order with respect to the property of the parties to the marriage. Section 79(1) of the Family Law Act 1975 (Cth) ("the Act") provides that "the court may make such order as it considers appropriate altering the interests of the parties in the property". The Court's discretionary jurisdiction under s.79(1) is not at large. The Act provided that "the court shall take into account" the several matters listed in pars (a) to (f) of s.79(4) in considering what order (if any) should be made "under this section". (Paragraph (g) of s.79(4) was added after the time relevant to these proceedings.) However, by s.80(1)(j), the powers which the Court may exercise under s.79 include the power to "make an order by consent" altering the interests of the parties in property. The Act is silent as to whether, in the making of such a consent order, the Court is required to take into account the matters listed in s.79(4).
2. It appears that the wife and the husband (the respondent) attended a
conference before a Deputy Registrar of the Family Court
and signed a document
titled "Short Minutes" relating to the property interests of the parties.
Thereafter an order was made "by
consent" on 19 October 1988 by Deputy
Registrar Lee in terms of pars 1-16 inclusive of the Short Minutes. Those
paragraphs contained
provisions for the sale of a house property and the
distribution of the net proceeds between them and the division of certain
chattels.
It appears that a formal order was duly signed and sealed. The
Deputy Registrar made such a consent order in exercise of powers
purportedly
delegated to him by O.36A, r.2(1) of the Family Law Rules (Cth), which
delegates to each Registrar the powers of the
Court mentioned in sub-r.(1),
including "the power to make an order the terms of which have been agreed upon
by all the parties to
proceedings": par.(n). On 25 October 1988 - within the
7-day period limited by O.36A, r.5(2) for applications to review an exercise
of powers by a Registrar - the wife applied for review of the order made by
the Deputy Registrar, seeking a larger proportion of
the proceeds of the house
property and chattels than the proportion specified in the consent order made
by the Deputy Registrar.
Order 36A, r.7(4), in the form in which it then
stood, provided:
" A court reviewing an exercise of power by a Judicial(The sub-rule was subsequently amended. The present sub-rule, like its predecessor, directs that a court reviewing an exercise of power by a Registrar "shall proceed by way of a hearing de novo".)
Registrar or a Registrar shall proceed by a way of a
hearing de novo but may have regard to the proceedings,
including the evidence given and any affidavit filed, before
the Judicial Registrar or Registrar, as the case requires."
3. The application for review came on for hearing before Maxwell J. No
evidence was tendered at that stage. Her Honour was asked
to decide whether
the review "should proceed simply by way of rehearing or whether ... the
consent orders cannot now be reviewed
in that way and the only possible bases
for interference are to be found in Section 79A." Section 79A(1) provides:
" Where, on application by a person affected by an orderMaxwell J. held that the consent order, made under delegated power to make consent orders, could be reviewed only "within the framework of Section 79A". The wife's application was dismissed accordingly. She appealed. The appeal was allowed and the application was remitted to a single judge for rehearing.
made by a court under section 79 in proceedings with respect
to the property of the parties to a marriage or either of
them, the court is satisfied that -
(a) there has been a miscarriage of justice by reason of
fraud, duress, suppression of evidence, the giving of
false evidence or any other circumstance;
(b) in the circumstances that have arisen since the order
was made it is impracticable for the order to be
carried out or impracticable for a part of the order
to be carried out;
(c) a person has defaulted in carrying out an obligation
imposed on the person by the order and, in the
circumstances that have arisen as a result of that
default, it is just and equitable to vary the order or
to set the order aside and make another order in
substitution for the order; or
(d) in the circumstances that have arisen since the making
of the order, being circumstances of an exceptional
nature relating to the welfare of a child of the
marriage, the child or, where the applicant has the
custody of the child, the applicant, will suffer
hardship if the court does not vary the order or set
the order aside and make another order in substitution
for the order,
the court may, in its discretion, vary the order or set the
order aside and, if it considers appropriate, make another
order under section 79 in substitution for the order so set
aside."
4. Fogarty J. in the Full Court noted that the appeal had proceeded on the
basis that the power to delegate powers to a Registrar
was to be found in
s.37A of the Act which provides, in its relevant parts, as follows:
" (1) The Judges, or a majority of them, may, subject toHis Honour held that the reference to "all or any" of the Court's powers in s.37A made the power of delegation too wide to be valid and that, if statutory authority were required for the power to delegate, the authority might be found in s.123 which enables the Judges to make rules in relation to practice and procedure. However, his Honour preferred the view "that the source of power of a superior Court to delegate is the existence of the Court itself and it does not in any strict sense require legislative support." Although Fogarty J. thought that the Judges could not delegate "the core or essential aspects of federal judicial power" to non-judicial officers, it appeared to his Honour "that the delegation of power to record in an order the agreement of the parties relating to a subject matter within the Court's jurisdiction is a proper matter for delegation." As some of the Justices of this Court in The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 ("the HCF Case") had emphasized the importance of the availability of review by a judge of an exercise of delegated judicial power, his Honour held that the "existence of an efficacious procedure for the review of the Registrar's decision is an essential ingredient of the process of delegation."
sub-section (2), make Rules of Court delegating to the
Registrars all or any of the powers of the Court, including,
without limiting the generality of the foregoing, all or any
of the following powers of the Court:
...
(g) the power to make, in proceedings under this Act,
an order the terms of which have been agreed upon
by all the parties to the proceedings;
...
(2) The powers of the Court that may be delegated under
subsection (1) do not include the power to make:
(a) a decree of dissolution of marriage in proceedings
that are defended;
(b) a decree of nullity of marriage;
(c) a declaration as to the validity of a marriage or
the dissolution or annulment of a marriage; or
(d) an order in relation to the custody, guardianship
or welfare of, or access to, a child, other than an
order made in undefended proceedings or with the
consent of all the parties to the proceedings.
(3) A power delegated by Rules of Court under
sub-section (1), when exercised by a Registrar, shall, for
all purposes, be deemed to have been exercised by the Court
or a Judge, as the case requires."
5. The provision that the Court, on review of an exercise of power by a Registrar, should "proceed by way of a hearing de novo" (O.36A, r.7(4)(a)) was then construed by his Honour as requiring the Judge hearing an application for review to "examine afresh the facts and determine whether it is appropriate to make the consent orders". Strauss and Nygh JJ. agreed with the conclusion "that the exercise of the power delegated to the Deputy Registrar to make the orders the terms of which have been agreed upon by all the parties to the proceedings was valid." Observing that this Court in the HCF Case had rejected the view that the judicial power of the Commonwealth, when vested in the Supreme Court of a State, could be exercised only by judges, their Honours thought that "it would be illogical to draw a distinction in this regard between Federal and State Courts."
6. Their Honours did not find it necessary to determine the source of the
power to delegate, but they agreed with Fogarty J. on
the nature of the review
to be undertaken by a Judge reviewing a consent order. Their Honours saw a
review of that kind as involving
two main issues:
"(a) whether the terms of the order were agreed upon by allThe review was thus limited to a consideration of the propriety of the Deputy Registrar's making of an order by consent. The Full Court did not suggest that, on a review of the consent order, the Court or a Judge should simply consider de novo the wife's original application under s.79(1). Presumably, the wife's original application for an order under s.79(1) would not be revived for redetermination unless the Court or a Judge were to order that the consent order of the Deputy Registrar be set aside. It is inherent in the approach of the Full Court that the Deputy Registrar was not required to take account of the factors mentioned in s.79(4) of the Act although the consent order, once made, disposed of the wife's original application for an order under s.79(1).
the parties;
(b) whether the terms agreed upon were in a form appropriate
to the type of order sought.
As to the former, the signatures purporting to be those
of the parties or their attorneys on the record would
normally suffice. The latter may involve a consideration
whether the terms of the order agreed upon are such as to
constitute an order all the terms of which are enforceable."
7. The wife's appeal from the Full Court's order calls for an examination of
the Act to ascertain the jurisdiction which the Act
and Rules purport to
confer on Registrars to make a consent order in a s.79(1) application, the
effect of a consent order when made,
and the means available to impugn a
consent order. When these questions are
addressed, the nature of a Deputy
Registrar's power to
make a consent order will be perceived and the
constitutional issue - the
validity of the delegation of power to make the
consent
order - can be explored.
1. The jurisdiction purportedly conferred by statute.
8. Assuming that a sufficient power is conferred by s.37A, by s.123 or by the common law on the Judges of the Family Court or a majority of them to delegate to Registrars a power to make consent orders, the Judges' power of delegation has been exercised by O.36A, r.2(1)(n). The power so delegated is a power to make a consent order, that is, a power expressly conferred on the Court by s.80(1)(j). This is one of the powers which is expressed by s.80(1) to be exercisable by the Court "in exercising its powers under this Part" (Pt VIII). In other words, a consent order is one of the ways in which the Court may exercise its jurisdiction under s.79(1) to alter the interests in property of parties to a marriage.
9. Is the making of a consent order by a Judge pursuant to s.80(1)(j) of the
Act an exercise of the judicial power of the Commonwealth?
Consent orders
finally disposing of the issues between parties to proceedings
in a court have
always been regarded as a judicial
determination of those issues and
nonetheless so because they are made in accordance
with a contract between the
parties: Huddersfield
Banking Company, Limited v. Henry Lister and Son,
Limited (1895) 2 Ch 273; Ainsworth
v. Wilding (1896) 1 Ch 673, at p 676; Kinch
v. Walcott (1929) AC 482; Permanent Trustee Co. (Canberra) Ltd. v. Stocks and
Holdings
(Canberra) Pty.Ltd. (1976) 28 FLR 195, at
p 199. Moreover, as a
judicial order of a superior court affords protection to a person
executing it
(Howard v. Gosset (1845) 10
QB 359, at pp 453-454 [1845] EngR 817; (116 ER 139, at p 173);
Williams v. Smith [1863] EngR 631; (1863) 14 CB(NS) 596, at pp 620-621,623,625 [1863] EngR 631; [1863] EngR 631; (143 ER 579, at
pp 588,589,590);
Williams v. Williams and Nathan (1937) 2 All ER 559, at pp
562-563), the very purpose of procuring
the making of orders by consent
is to
ensure that the terms agreed are susceptible of enforcement as a curial order.
The Act declares the Family Court to be a superior
court of record (s.21(2)),
and a consent order by the Court disposing of an application to alter property
interests therefore has
the character of a final
judicial order by a superior
court of record. If such a consent order did not have that character, its
execution would be fraught
with risk for the officer executing it. As a
consent order in an application under s.79(1) determines
the rights and
obligations of the parties in controversy and as it gives protection to those
charged with its execution
according
to its tenor, the making of such an order
by a Judge is an exercise of judicial power. The power to make consent orders
purportedly
delegated to Registrars by O.36A, r.2(1)(n) is the same power as
that conferred by s.80(1)(j). Further, s.37A(3) of the Act provides
that -
" A power delegated by Rules of Court underIf it be right to regard the making of a consent order by a Judge under s.80(1)(j) as an exercise of the judicial power of the Commonwealth, the making of a consent order under O.36A, r.2(1)(n) is no less an exercise - or purported exercise - of that judicial power. So much was accepted in argument before the Full Court.
sub-section (1), when exercised by a Registrar, shall, for
all purposes, be deemed to have been exercised by the Court
or a Judge, as the case requires."
10. In making a consent order determining the matters in issue between the parties in an application under s.79(1), is the Court bound to take into account the matters prescribed by s.79(4)? If the Court is bound to do so, the making of a consent order is no mere formality. Prima facie, the parties to a marriage are at liberty to agree in whatever terms they choose upon the interests they should respectively hold in the property owned by them or either of them. It has been held that an agreement between the parties, on separation or divorce, affecting their respective interests in such property can be specifically enforced: Wilson v. Wilson [1848] EngR 515; (1848) 1 HLC 538 (9 ER 870). However, such an agreement in writing between the parties to a marriage falls literally within the definition of "maintenance agreement" in s.4(1) of the Act as "an agreement that makes provision with respect to financial matters". If an agreement provides that it should operate in relation to those financial matters in substitution for any rights of the parties under Pt VIII of the Act - the Part which includes s.79 - the agreement is unenforceable unless it has been approved by the Court: s.87(1) and (2). Section 87 does not have any direct application to the present case, however, for the Short Minutes were not in substitution for the rights of the parties under Pt VIII. The Short Minutes were evidently intended to be incorporated into, and to take effect as, an order of the Court under s.79 and thus to determine the rights of the parties under Pt VIII. The terms of the consent were in conformity with the requirements of s.81 that the Court should, as far as practicable, "finally determine the financial relationships between the parties ... and avoid further proceedings between them." Section 87 nevertheless manifests an intention that consensual arrangements as to financial matters between parties should, if those arrangements dispose of financial rights, be approved by the Court. If the contracting parties were entitled as of right to the making of a consent order in an application under s.79(1), the provisions of s.87 would be largely otiose. The parties could simply require the Court to make an order giving effect to their agreement rather than seek the Court's approval of their "maintenance agreement". Presumably, the reason why court approval of a "maintenance agreement" in any of its possible forms is required when the agreement is in substitution for rights under Pt VIII of the Act is that the community has an interest in ensuring that "provisions ... with respect to financial matters are proper", to use the words of s.87(3). The same reason equally calls for the exercise of a discretion in the making of a consent order with respect to financial matters when the parties have reached agreement on their respective interests in their property. To ascertain whether a provision is "proper" it is necessary to take account of the factors listed in s.79(4). The provisions of s.87 thus suggest that the direction given to the Court by s.79(4) to have regard to the factors therein mentioned applies to the making of consent orders as well as to the making of orders not by consent.
11. It does not follow that, when a consent order is sought in a s.79
application, it is necessary to conduct an inquiry into each
of those factors.
The Court may be satisfied that a provision is proper
by reference not only to
the material before the Court relating
to the factors mentioned in s.79(4) but
by reference to the advice available to the respective parties and the consent
which they
respectively give to the making of
the order. In the majority of
cases, once it appears that the parties are conscious of the factors
mentioned
in pars (a) to (f)
and have taken them into account before consenting, the
provisions "with respect to financial matters"
proposed for incorporation
in
the consent order will be seen to be "proper". The factor mentioned in
par.(g) may require independent
inquiry by the Court,
but that question does
not arise in this case. Nevertheless, when an application for a consent order
in a
s.79(1) matter is made there is a discretion to be exercised with
reference to the propriety of the provisions with respect to financial
matters. The making of a consent order in a s.79(1) matter is not automatic.
2. The effect of a consent order under s.80(1)(j).
12. A consent order under s.80(1)(j), though made in accordance with the
parties' contract, takes effect as an order of the Court
and is enforceable as
such rather than
as a contract to be sued on in a separate action: de Lasala
v. de Lasala (1980) AC 546, at
p 560. If a consent order made by a Registrar
is treated as having been made by a Court or a Judge, as s.37A(3) requires, it
too
is enforceable as an order of the Court rather than as a contract.
3. Impugning a consent order.
13. When the parties to a contract choose to have the contract embodied in a
consent order of the court, the court "will only interfere
with such an order
on the same grounds as it would with any other contract": per Lord Denning
M.R. in Siebe Gorman Ltd. v. Pneupac
Ltd. (1982) 1 WLR 185, at p 189; (1982) 1
All ER 377, at p 380. And see Harvey v. Phillips [1956] HCA 27; (1956) 95 CLR 235, at
pp
243,244; Huddersfield
Banking, at p 280. The general rule is that once a
consent order is perfected, it
can be set aside only
in a fresh action brought
for the purpose (Harvey v. Phillips, at p 242, Ainsworth v. Wilding, at p 676)
unless,
perhaps, the parties
consent to the setting
aside: Permanent Trustee
Co., at pp 200-201. That is because a court in which a consent
order is
perfected
usually has no jurisdiction
subsequently to set the order aside. If
the court does have jurisdiction to set aside
a consent order
in the same
proceeding, then,
of course, it may do so. The position is stated by Lord
Diplock, speaking for the
Privy Council in
de Lasala v. de Lasala, at p
561:
"Where a party to an action seeks to challenge, on the groundThere is no reason why, on a review of a consent order made by a Registrar or on an application under s.79A, the Family Court should not exercise a jurisdiction to set aside a consent order obtained by fraud, duress or mistake. By neither procedure would the statutory objective of securing a final determination of financial relationships (s.81) be frustrated: cf. Dinch v. Dinch (1987) 1 WLR 252; (1987) 1 All ER 818.
that it was obtained by fraud or mistake, a judgment or
order that finally disposes of the issues raised between the
parties, the only ways of doing it that are open to him are
by appeal from the judgment or order to a higher court or by
bringing a fresh action to set it aside. The test whether a
judgment or order finally disposes of the issues raised
between the parties is not determined by inquiring whether
for the purposes of rules of court relating to time or leave
to appeal it attracts the label 'final' or 'interlocutory.'
The test is: has the court that made the order a continuing
power to vary its terms, as distinct from making orders in
aid of enforcing those terms under a liberty to apply?"
14. In the present case, though no evidence of circumstances warranting the setting aside of the consent order was placed before Maxwell J., we were informed that the wife claims to have been misled by advice given at the conference as to her right to resile from the consent which she was asked to give to the proposed order. That ground arguably falls within s.79A(1)(a) of the Act. The majority of the Full Court put aside the jurisdiction under s.79A as distinct from the jurisdiction to review the consent order pursuant to s.37A of the Act. Their Honours were of the view - incorrectly, in my respectful opinion - that the review of such a consent order was confined to the two issues earlier stated. It is not clear whether their Honours would have included in the first issue - "whether the terms of the order were agreed" - the question of fraud vitiating the wife's consent. However, in the way in which the proceedings were conducted before Maxwell J. the question whether the wife's consent to the order made by the Deputy Registrar had been procured by fraud did not arise. In the Full Court, it seems, that question was not addressed. But what was addressed was the scope of the power conferred by s.37A(10) to review a consent order made by a Registrar. Assuming for the moment that the power to make a consent order in a s.79(1) matter may validly be delegated to a Registrar, the power to review the order seems to me to be conferred in the widest terms. The Court's jurisdiction is "to review an exercise of power", being the particular exercise of power which has resulted in the making of the order: see the phrase "that exercise of power" in s.37A(9). The Court may then make such order or orders "as it considers appropriate with respect to the matter with respect to which the power was exercised": s.37A(10). The Court may receive fresh evidence as well as the evidence given in the proceedings before the Registrar: O.36A, r.7(4). Most significantly, the reviewing Court is directed to "proceed by way of a hearing de novo": O.36A, r.7(4)(a). The Act intends the view of a Judge on review to prevail over any inconsistent view by a Registrar or Deputy Registrar with respect to the matter dealt with by the order. Although the Registrar exercises (or purports to exercise) judicial power in making a consent order in a s.79(1) matter, the jurisdiction to review conferred on the Court is, in my opinion, original jurisdiction to be exercised on the evidence laid before the Court and on the law as it stands at the time of the review: see Re Coldham; Ex parte Brideson (No.2) [1990] HCA 36; (1990) 170 CLR 267, at p 273; Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 CLR 616, at pp 621-622. If the order of the Deputy Registrar was validly made, in my opinion the jurisdiction of the Court on review is not confined in the manner in which either Maxwell J. or the Full Court would confine it. It is a jurisdiction to consider afresh not the propriety of making a consent order but the making of a proper order on the original s.79(1) application. The consent order, though final in effect so long as it stood, was liable to be set aside if an application for review was made within the prescribed period. In the present case, on a review the Court would be entitled to consider afresh - de novo - the order which ought to be made altering interests in the parties' property. That is, of course, if the consent order was validly made. If the purported delegation of power to make a consent order be invalid, there is no order susceptible of review and the wife's s.79 application remains undetermined.
15. In the Family Court, where it was conceded that the making of that order
involved an exercise of the judicial power of the Commonwealth,
this was seen
to be the essential question.
5. The constitutional question: validity of the power to delegate.
16. Section 71 of the Constitution provides for the judicial power of the Commonwealth to be vested in the courts therein mentioned: a federal Supreme Court (called the High Court of Australia), federal courts created by the Parliament and other courts. Section 77(iii) creates the legislative authority to make laws investing "any court of a State" with federal jurisdiction with respect to any of the matters mentioned in ss.75 and 76 of the Constitution. "(A)ny court of a State" falls within the third class of courts mentioned in s.71, namely, "such other courts as (the Parliament) invests with federal jurisdiction." In the HCF Case it was held by a majority of this Court that the "court of a State" in s.77(iii) of the Constitution means the court as an institution and not the judges who comprise its membership. A State court invested with federal jurisdiction is that court as it happens to be organized from time to time, so that a federal judicial power invested in that court by a law enacted pursuant to s.77(iii) may be exercised by any person to whom the organization of that court entrusts the exercise of analogous powers, whether or not that person is a judge of that court. That view being taken by the majority, there was no occasion to determine whether a State court invested with federal jurisdiction could be empowered, or possessed inherent power, to delegate the federal judicial power with which it was invested to another institution or to a person standing outside the organization of that court. However, when the Parliament invests part of the judicial power of the Commonwealth not in a court of a State but in the High Court or in a federal court created by the Parliament, s.77(iii) has no relevance: see Le Mesurier v. Connor (1929) 42 CLR 481, at pp 495-497. The decision in the HCF Case does not determine whether any and what part of the judicial power of the Commonwealth, when invested in the High Court or in a federal court created by the Parliament (hereafter collectively referred to as "federal courts"), must be exercised by Justices appointed in accordance with s.72 of the Constitution (hereafter "Chapter III judges").
17. The judicial power of the Commonwealth has not been exhaustively defined,
though reference is frequently made to what Griffith
C.J. said in Huddart,
Parker and Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 357:
" ... I am of the opinion that the words 'judicial power'The power to decide controversies is at the heart of judicial power, but judicial power includes power to direct the preparation of the issues in controversy for decision and the execution of decisions so as to make them effective. The execution of judgments or orders of courts exercising federal jurisdiction involves the exercise of the judicial power of the Commonwealth. The Constitution does not expressly require that the judicial power of the Commonwealth should be exercised by Chapter III judges. But what is the purpose and what is the effect of the provisions of ss.71 and 72 relating to the appointment, remuneration and tenure of judges? The High Court consists of Chapter III judges - s.71 expressly so provides - and the identity of the language employed by s.72 with respect to the appointment, remuneration and tenure of Justices of the High Court and Justices of other federal courts implies that courts created by the Parliament, like the High Court, consist of Chapter III judges.
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."
18. If federal courts consist of Chapter III judges, can any of the "jurisdiction" vested in those respective courts be exercised by persons who, though part of the staff or organization of the court, are not Chapter III judges? Sections 73, 75, 76, 77 and 79 relate to "jurisdiction", while ss.71 and 78 relate to "judicial power". Section 73 speaks of the appellate jurisdiction of the High Court as a jurisdiction "to hear and determine" and ss.75, 76 and 77, speaking of jurisdiction in "matters", use that term to connote a power to decide controversies: Fencott v. Muller (1983) 152 CLR 570. I understand "jurisdiction" in these sections to mean the power to hear and determine legal controversies; that is, the power at the heart of the judicial power of the Commonwealth. The Constitution assumes that that power will be exercised by judges, for s.79 authorizes the Parliament to prescribe the number of judges by whom federal jurisdiction may be exercised. Although, since the HCF Case, that assumption cannot be applied to the exercise of federal jurisdiction by a State court, it is the dispensation which the provisions of ss.71 and 72 imply in the Constitution. If either the Parliament or Chapter III judges constituting the respective federal courts or a federal court were authorized to delegate the jurisdiction vested in that court to a person who is not a Chapter III judge, the constitutional provisions governing appointment, remuneration and tenure of Chapter III judges could be circumvented. The primary and manifest purpose of those provisions is to guarantee impartiality and independence in the hearing and determination of legal controversies and that purpose would be frustrated if court officers, lacking the protection which those provisions are intended to secure, were empowered to hear and determine legal controversies.
19. In my opinion, the Constitution requires that the power of federal courts
to hear and determine matters in the exercise of federal jurisdiction must be
exercised
by Chapter III judges. I am bound to accept, notwithstanding my
dissent in the HCF Case, that, in the case of State courts invested
with
federal jurisdiction, that jurisdiction may be exercised in conformity with
the organization of those courts under State law.
The constitutional
requirements as to the exercise of federal jurisdiction were stated by Evatt
J. in Victorian Stevedoring and
General Contracting Co. Pty.Ltd. and Meakes v.
Dignan [1931] HCA 34; [1931] HCA 34; (1931) 46 CLR 73, at p 116:
" ... a catena of cases decided by this Court has enforcedI respectfully agree. There are some inconclusive dicta in other cases which leave open the extent of the power of Chapter III judges to delegate the exercise of parts of the judicial power of the Commonwealth vested in their respective courts: see Le Mesurier v. Connor, at pp 511,522-525; Bond v. George A Bond and Co. Ltd. and Bond's Industries Ltd. [1930] HCA 24; [1930] HCA 24; (1930) 44 CLR 11, at p 21; Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, at pp 108-109; and the HCF Case, at pp 63- 64,66,77. In my opinion, the necessity to reserve to Chapter III judges the sole authority to hear and determine matters dictates the limits of delegation of jurisdiction vested in a federal court either by the Constitution or by a federal law. Before the HCF Case, when it was understood that there were limits on the powers which could be delegated to non-judicial officers by State courts, the limits of delegation were stated in reference to reserving to judges the sole authority to hear and determine matters. Thus Windeyer J. in Kotsis said (at pp 92-93):
the principle that the judicial power of the Commonwealth
cannot lawfully be conferred upon organs other than the High
Court, the Judges of the Federal Courts created by
Parliament, and the Courts of a State. This principle has
prevented the attempts of the Federal Parliament either
(a) to vest what is strictly judicial power upon
Commonwealth authorities without creating those authorities
as a Federal Court consisting of Judges appointed pursuant
to sec. 72 of the Constitution, or (b) to compel the High
Court to exercise jurisdiction beyond the limits of secs. 75
and 76 of the Constitution." (Emphasis added.)
" I do not mean to suggest that when a Supreme Court is
exercising the judicial power of the Commonwealth its
officers may not be charged with duties to be performed in a
judicial manner. But those duties must I think be only such
as are truly ancillary to an adjudication by the court.
That is to say it is not enough that they be in what in the
Matrimonial Causes Rules are called 'proceedings for
ancillary relief'. They must be truly subservient to
adjudication. They must be undertaken pursuant to a
direction by the court for the purpose of either quantifying
and giving effect to an adjudication already made by the
court, or of providing material upon the basis of which an
adjudication by the court is to be made. The taxation of
costs by a taxing master is an example of a matter of the
first kind. The taking of accounts or an inquiry as to
damages for the purpose of reporting the result to the court
to enable a judgment to be given are of the latter kind. So
too are proceedings before a registrar for a certificate of
means pursuant to the Matrimonial Causes Rules 211-213.
Reports and certificates rendered to a court resemble in
substance the verdicts of juries impanelled to try facts
according to the tradition of the common law. Jurymen must
arrive at their verdict after considering the evidence in a
judicial manner; but they are not part of the court. Their
verdict only becomes binding upon the parties when it is
accepted by the court, and provided it is not set aside on a
motion non obstante veredicto. Indeed at one time the judge
sitting at nisi prius did not give judgment when the jury
returned its verdict - Why? Because he was not the court:
see Wilson v. Hood ((1864) 3 H and C 148 [1864] EngR 410; (159 ER 484)).
In short, I can see no reason why, assuming that the
process of giving judgment is not taken from the court,
matters arising before the hearing of the principal cause,
or afterwards for working out the effect of a judgment,
should not be inquired into and reported on by officers of
the court. The court would not then confirm the decision of
an officer. It would itself pronounce judgment on material
he provided, which judgment might I suppose be in most cases
in accordance with any recommendation emerging from the
report, but would not necessarily be so. In my view what is
not legitimate is for a Supreme Court invested with federal
jurisdiction under the Constitution to entrust the
determination of the rights of parties, in regard to any
matter great or small, to persons who are not the court.
The ascertainment of facts by the direction of the court is
an essentially different thing from determining rights."
20. That statement is, in my opinion, definitive of the limits of the power which a federal court may possess to delegate "to persons who are not the court" part of the judicial power of the Commonwealth, subject to two qualifications (if qualifications they be): first, that non-judicial officers of the court may be entrusted with power to make orders in matters of practice and procedure; and, second, that the judicial power of executing the orders of the court may be delegated to non-judicial persons. These qualifications may inhere, indeed, in what Windeyer J. said. Courts have an inherent power to define their own practice (see the HCF Case, at p 77) and to direct the execution of their judgments. Traditionally, the exercise of those powers in matters of practice and the function of executing judgments have been delegated to non-judicial persons.
21. These limits may be more restrictive than those contemplated by Mason J. or by Murphy J. in the HCF Case. Mason J. (at p 64) thought it may be legitimate for some of the jurisdiction and powers of the High Court or a court created by the Parliament to be exercised by a master or registrar of the court, "whether as a delegate or otherwise, provided that the exercise is subject to review or appeal". Murphy J. (at p 66) contemplated that Parliament might authorize an exercise of the jurisdiction of the High Court or of a court created by the Parliament "by officers or others who are not justices but act under the supervision of the justices (in the sense that their decisions are subject to review or appeal)." If the only restraint on the exercise of any judicial power by a non-judicial person is the availability of review by or appeal to a court constituted by a Chapter III judge, it would be possible to vest all original jurisdiction in a non-judicial person and restrict the jurisdiction to be exercised by Chapter III judges to appellate jurisdiction. In my respectful opinion, the powers which can properly be exercised by persons who are not judges do not include the power of adjudication of a legal controversy pending in the court except for the exercise of powers "truly ancillary to an adjudication by the court."
22. If it be said that this view imposes undue restrictions on the court's power of delegation and an undue burden on the Justices who compose the court to deal with matters of small import, it can be said in reply that there are some remedies for alleviating the burden. Windeyer J. in Kotsis, at p 93, mentioned the adoption of procedures of reference and report. Another is the conferring and exercise of a power to remit matters to courts of limited jurisdiction. But whether or not the available remedies are adequate to relieve the burden, the existence of the burden is no justification for denying the implication of the constitutional text. To the contrary, the Constitution stands as a brake upon expediency in the interests of litigants who bring their cases to court for adjudication. This is not a matter of merely theoretical concern. The pressure on the Family Court to adopt measures for relieving Chapter III judges of the burden of adjudication is enormous. Fogarty J. furnished some statistics showing the volume of applications to the Family Court; he cited the Minister's reasons for introducing amendments to enhance the Registrars' powers as including the experience of State courts in minimizing the number of judges and his Honour suggested that, by a vigorous exercise of the power of delegation "in a substantial number, if not the majority, of cases under s.79 the parties may be compelled to have that matter determined by a non-judicial officer." Noting that there is a changed perception as to the effect of divorce on the status of the parties, his Honour suggests that the determination of the 40,000 applications for divorce each year - mostly undefended and "dealt with routinely in the matter of a few minutes each" - might be dealt with by non-judicial officers. It seems that the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s.43 of the Act. That is the section which speaks of the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (par.(a)) and the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children (par.(b)).
23. It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly important problems of familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.
24. In the present case, the question is whether the making of a consent order by a Registrar under O.36A, r.2(1)(n) involves an adjudication of issues arising on an application for s.79 relief. The fact that a Registrar's order is deemed to be an order of the Court or a Judge (s.37A(3)) does not answer that question, though the consequences of that provision are that the making of the order is to be characterized as an exercise of judicial power and the Registrar's order may be executed as an order of the Court. What is critical in deciding whether the Registrar's making of such an order is an exercise of non-delegable jurisdiction is whether there is some fact to be found, some principle of law to be applied or some discretion to be exercised on which the rights of the parties that are in issue on a s.79 application are determined.
25. For reasons earlier stated, the making of a consent order involves not only a satisfaction that consent has been given and the propriety of the form of order proposed, but the exercise of a discretion, conferred in the public interest, as to whether the provisions of the order are proper. Were it not for this last factor, the making of the consent order might properly be regarded as not amounting to an exercise of a jurisdiction to hear and determine, even though it amounts to an exercise of judicial power. But as the Registrar would be required to take into account the factors mentioned in s.79(4) in considering whether to make a consent order, and as the Registrar must then decide whether the provisions of the proposed order are proper, I would hold that the attempt to delegate that power to a Registrar is invalid. Whether s.37A or O.36A, r.2(1) has any valid operation in matters other than s.79 matters it is unnecessary now to determine.
26. The order made by the Deputy Registrar is invalid; there is no order susceptible of review. The appropriate order for this Court to make is to allow the appeal, to vary the order of the Full Court by deleting the order remitting the matter of review for rehearing and in lieu thereof declare that the Court has no jurisdiction to review the purported order of Deputy Registrar Lee. The result is that the wife's original application under s.79 is undetermined and awaits determination by a Judge of the Family Court.
DAWSON J. This is an appeal from the Full Court of the Family Court of Australia. The husband and wife, who are the respondent and appellant respectively, each made application under s.79 of the Family Law Act 1975 (Cth) for an order for the settlement of property. The matters came before a Deputy Registrar of the Court, who made an order by consent. The wife then sought a review of the order made by the Deputy Registrar pursuant to the rules of the Court. She purported to withdraw her consent. Order 36A, r.7(4) provided that an application for a review of an exercise of power by a Registrar should proceed by way of a hearing de novo. The matter came before Maxwell J., who held that the order made by the Deputy Registrar did not constitute the exercise of judicial power by him as it merely embodied the terms of a contract between the parties. As a consequence she held that no review of the order was available under O.36A, r.7. At the most, in her view, the parties could make a fresh application under s.79A of the Act for an order varying or setting aside the order already made.
2. The wife appealed to the Full Court of the Family Court and challenged the conclusion reached by Maxwell J. She also challenged the validity of the section of the Family Law Act - s.37A - under which the powers of the Deputy Registrar were delegated to him. The Full Court held that the power to make the order by consent under s.79 was validly delegated to the Deputy Registrar under s.37A and that Maxwell J. was mistaken in her view that she had no power to review the order made. The Full Court held, however, that the application for review did not set aside the consent; it merely required a reconsideration of whether, on the material before the Deputy Registrar, together with such other evidence as might be admitted by leave, he ought to have made the order which he did. An order was made by the Full Court remitting the application for review to a single judge for rehearing. The wife appeals to this Court. The Commonwealth, which appeared as an intervener before the Full Court of the Family Court in response to a notice under s.78B of the Judiciary Act 1903 (Cth), appeared in the same capacity before us.
3. Section 79 of the Family Law Act provides that the Court may make such order as it considers appropriate altering the interests of the parties in their property, including an order for the settlement of the property in substitution for any interest in the property. Section 37A(1) provides that the Judges of the Family Court, or a majority of them, may, subject to sub-s.(2), make rules of court delegating to the Registrars all or any of the powers of the Court including certain specified powers, the only immediately relevant one being contained in par.(g): "the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings". For the purposes of s.37A "Registrar" includes a Deputy Registrar: s.37A(15). Sub-section (2) of s.37A provides that the powers which might be delegated do not include the power to make a decree of dissolution of marriage in proceedings that are defended; a decree of nullity of marriage; a declaration as to the validity of a marriage or the dissolution or annulment of a marriage; or an order for or in relation to the custody, guardianship or welfare of, or access to, a child, other than an order made in undefended proceedings or with the consent of all the parties to the proceedings. A power delegated under sub-s.(1) when exercised by a Registrar, shall, under sub-s.(3), be deemed to have been exercised by the Court or a Judge as the case requires. Under O.36A, r.2 various powers are delegated to each Registrar, including those specified in s.37A(1).
4. A party to proceedings in which a Registrar has exercised a power
delegated to him, may, under s.37A(9), apply to the Court to
review that
exercise of power. The Court may upon such application, or of its own motion,
review an exercise
of power by a Registrar
and may make such order or orders
as it considers appropriate. Where a Registrar considers that it is not
appropriate that an application
to him should be heard by a Registrar, he may
under s.37A(11) make appropriate arrangements for the application to be heard
by the
Court. A Judge, upon application, may, under s.37A(12), order
proceedings proposed to be heard by a Registrar to be brought before
and heard
by a Judge. Under s.21(3) of the Family Law Act, the Court consists of:
"(a) a Chief Judge, who shall be called the ChiefSection 37, the section under which Registrars are appointed, refers to them as officers of the Court, but they are not members of the Court.
Justice of the Court;
(b) a Deputy Chief Judge, who shall be called the
Deputy Chief Justice of the Court; and
(c) Judge Administrators, Senior Judges and other
Judges, not exceeding, in total, such number as is
prescribed".
5. The argument of the appellant wife proceeded upon the basis that the power which the Deputy Registrar purported to exercise in this case was judicial power. That was not contested and, in any event, it is plain that the Act purports to authorize the Court to delegate judicial power to Registrars, including Deputy Registrars. The submission was that the judicial power of the Commonwealth must be exercised by judges, in this case the Judges constituting the Family Court, and not by those exercising functions delegated to them by the Court.
6. Chapter III of the Constitution deals with the judicial power of the Commonwealth. Under s.71 of the Constitution, the judicial power of the Commonwealth is vested in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". Section 72(ii) provides that the Justices of the High Court and of the other courts created by the Parliament shall not be removed "except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity". This paragraph was held in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434 to mean that the justices of federal courts must be appointed for life. By a constitutional amendment approved in 1977 the appointment of a Justice of the High Court is for a period expiring upon his attaining 70 years of age and the appointment of a justice of a court created by Parliament is for a term expiring upon his attaining a maximum age fixed by Parliament. The maximum age fixed for Judges of the Family Court is 65 years: s.23A.
7. By a combination of ss.71, 75, 76 and 77(i) of the Constitution the Parliament may create a federal court and define its jurisdiction with respect to any matter within the original jurisdiction of the High Court or within the original jurisdiction which might be conferred upon it. The jurisdiction which might be conferred upon the High Court includes any matter arising under any laws made by the Parliament: s.76(ii). The Family Court was created by the Family Law Act and its jurisdiction was defined with respect to matters arising under that Act.
8. It was contended by the appellant that a federal court consists only of
those justices appointed to it and that they alone can
perform the functions
which constitute the exercise of judicial power. However, the second of those
propositions does not necessarily
follow from the provisions of Ch III of the
Constitution. True it is that s.71 provides that the High Court shall consist
of a Chief Justice, and so many other Justices, not less than two, as the
Parliament prescribes.
There is no similar prescription in relation to
federal courts created by Parliament, although it can be said that s.72 of the
Constitution clearly contemplates that they will consist of justices and
requires that those justices be given the tenure which the section prescribes.
Nevertheless, the question remains whether a court consisting of justices, or
judges, may perform functions which involve the exercise
of judicial power by,
or through, persons who are not judges. That problem was adverted to by Dixon
C.J. and McTiernan J. in Reg.
v. Davison [1954] HCA 46; (1954) 90 CLR 353, at p 365, when
they said:
"If the Parliament creates a court the justices must be
appointed upon the tenure prescribed by s.72. A court
is composed of the judges which form it, but courts are
provided with officers and, under a unitary system of
government, it is not uncommon to find that certain duties
falling upon a court are executed, subject to judicial
confirmation or review, by an officer of the court, such as
a master. There is no distinct decision of this Court that
under Chapter III no authority can be given by statute for
the discharge in this way of the duties of a Federal court,
although there are dicta to that effect: cf. per Isaacs J.
and Starke J. in Le Mesurier v. Connor ((1929) 42 CLR
481, at pp 511, 512, 522-525). The decision of Long
Innes J. in Re Malcolm Fraser Grant; Ex parte Edgley ((1928)
29 SR(NSW) 31), perhaps necessarily implies it."
9. In Le Mesurier v. Connor the problem was a different one, namely, whether in investing a State Supreme Court with federal jurisdiction in bankruptcy, the Commonwealth Parliament could appoint as an officer of that court a Registrar of Bankruptcy who held office in the public service of the Commonwealth. Under s.77(iii) any court of a State may be invested with federal jurisdiction with respect to any matter within the original jurisdiction of the High Court or within the original jurisdiction which might be conferred on it. Bankruptcy is such a matter. It was held by a majority (Knox C.J., Rich and Dixon JJ.; Isaacs and Starke JJ. dissenting) that it was not within the competence of the Commonwealth Parliament to appoint such an officer because to do so would be to "affect or alter the constitution" of a court which it invests with federal jurisdiction or "the organization through which its jurisdiction and powers are exercised": p 496. As has been subsequently observed, "the Parliament of the Commonwealth can do no more than invest a State court, as it is or as it may become, with federal jurisdiction": Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, per Menzies J. at p 88.
10. However, it was the maintenance in a somewhat rigid and artificial way of the distinction between "the constitution of a court" on the one hand and "the organization through which its jurisdiction and powers are exercised" on the other, which led this Court in Kotsis v. Kotsis and Knight v. Knight [1971] HCA 21; (1971) 122 CLR 114 to hold that a Registrar of the Supreme Court of New South Wales and a master of the Supreme Court of South Australia respectively, each invested with jurisdiction under the relevant State provisions to exercise jurisdiction otherwise exercisable by the Supreme Court, could not be invested with federal jurisdiction under the Commonwealth Matrimonial Causes Act 1959 because they were not part of the composition of that Court in the respective States. Section 77(iii) of the Constitution in allowing federal jurisdiction to be vested in a State court speaks, so it was held, of a court confined to those who comprise the court - in those cases, the judges.
11. In Victoria and Western Australia it is provided that the Supreme Court
shall consist not only of the judges but also of the
masters: see Constitution
Act 1975 (Vict.), s.75(2); Supreme Court Act 1935 (W.A.), s.7(1)(c). And in
South Australia the Supreme Court Act 1935 (S.A) was amended in an effort to
overcome the decision in Knight v. Knight by providing that the court should
be constituted of
a Chief Justice, the puisne judges and masters, the masters
being part of the court. But as Gibbs C.J. observed in The Commonwealth
v.
Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49, at p 55, the question remained:
"... whether in those States a Supreme Court whoseThe reference in that question to s.39(2) is a reference to s.39(2) of the Judiciary Act which, with certain exceptions, invests the several courts of the States within the limits of their several jurisdictions, with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it.
membership is expanded to include masters would be a court
within ss.77(iii) and 39(2). Some of the reasoning in
Kotsis v. Kotsis and Knight v. Knight would require a
negative answer to that question."
12. In The Commonwealth v. Hospital Contribution Fund leave was given to re-argue the decisions in Kotsis v. Kotsis and Knight v. Knight. As a result, the reasoning of Gibbs J. in his dissenting judgment in Kotsis v. Kotsis was adopted by a majority and the two cases were overruled. In The Commonwealth v. Hospital Contribution Fund the question was whether a master of the Supreme Court of New South Wales might, in a case which was assumed to come before the court in its federal jurisdiction under s.39(2) of the Judiciary Act, exercise the jurisdiction otherwise conferred upon him of determining an objection to the production of documents upon the ground that their production would be injurious to the public interest. Masters were appointed under s.111 of the Supreme Court Act 1970 (N.S.W.) and under s.118 they were empowered to exercise such powers of the court as were conferred upon them. An order made by a master might be set aside or varied by the court but, subject to this, was to have effect as an order of the court. The master was to constitute the court for the purpose of the exercise of the powers conferred upon him, but, under s.25, the court was "composed of a Chief Justice, a President of the Court of Appeal and such other Judges of Appeal and Judges as the Governor may from time to time appoint".
13. Gibbs C.J. concluded from these provisions that the master was not a
component part of the court in the sense that a judge was,
but that he
constituted the court for the purpose of the exercise of the powers conferred
upon him - that is, not for all purposes.
As a result he held that the master
was invested with federal jurisdiction to decide the matter which was before
him. The reasoning
of Gibbs C.J., which was accepted by a majority of the
Court, may be seen from the following passage, at p 59:
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an
officer of the court, under the rules of the court. In the
present case the jurisdiction and powers which Master Allen
was called on to exercise were undoubtedly the jurisdiction
and powers of the Supreme Court. He was the officer of the
court by whom the jurisdiction and powers of the court in
the matter in question were normally exercised, and an order
made by him, if not set aside or varied by the court, would
take effect as an order of the court. Although he was not
a member of the court he was, in my respectful opinion,
part of the organization through which the powers and
jurisdiction of the court were exercised in matters of State
jurisdiction, and through which they were to be exercised in
matters of federal jurisdiction also, once the court was
invested with federal jurisdiction."
14. Mason J., at p 64, suggested an answer to the question left open in Reg.
v. Davison. He said:
"Section 71 vests the judicial power in the High Court,A similar view was expressed by Murphy J., at p 66.
the federal courts and such courts as may be invested with
federal jurisdiction. It also provides that the High Court
shall consist of a Chief Justice and so many other judges,
not less than two, as Parliament prescribes. However, as
I see it, the vesting of judicial power in a High Court
consisting of a Chief Justice and justices should not
necessarily exclude the exercise of some jurisdiction and
powers by a master or registrar of the Court, whether as a
delegate or otherwise, provided that the exercise is subject
to review or appeal, more particularly now that the Court is
autonomous by virtue of the High Court of Australia Act 1979
(Cth). In the case of other courts created by Parliament,
whose membership is not confined by s.72 to judges, there is
perhaps even less reason for denying that part of their
jurisdiction and powers may be exercised by officers who are
not judges, whether as delegates or otherwise, provided of
course that they are officers who truly form part of the
court's organization."
15. In Le Mesurier v. Connor, Isaacs and Starke JJ., who were in dissent,
thought that the fact that a court consists of judges,
and judges only,
precludes the exercise of judicial functions by anyone other than a judge.
Isaacs J., in particular, thought that
any other view would create insuperable
difficulties in the exercise of federal jurisdiction. He said, at p 511:
"It needs but little reflection to see how utterly
impossible it is to regard the State Court for the purposes
of sec.77(iii.) as including all the official staff, from
the Clerk of the Court to the bailiff and doorkeeper. If
that were the case, the 'Federal jurisdiction' invested
would fall upon the whole indivisible body, from Chief
Justice to doorkeeper alike, for sec.77(iii.) makes no
distinction. And once that is done, then, as will be
presently seen, sec.71 would vest in the whole staff,
considered as one body, the judicial power of the
Commonwealth with undiscriminating completeness. There
would certainly remain one crowning difficulty. While
sec.79 enables the Parliament to prescribe the number of
Judges to exercise the jurisdiction, nothing is said about
bailiffs and ushers and doorkeepers. Apparently they would
all have to form part of the tribunal. But, in truth, the
official staff of Courts are no more part of the Court than
the parliamentary official staff are part of Parliament."
16. However, the notion that a court consists of judges, and judges only, is not inconsistent with the fact that a court so composed may exercise judicial power through an organization which extends beyond the judges. Indeed, as Gibbs J. pointed out in Kotsis v. Kotsis, at pp 109-110, traditionally courts have exercised part of their functions through masters and registrars, subject to the supervision and control of the courts. If it had not been so, judges would have been troubled by many matters of a relatively minor and routine character not calling for the attention of the judiciary. An undesirable and unnecessary increase in the numbers of the judiciary would have been needed.
17. And in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and
Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at
p 116, Evatt J.
said:
"a catena of cases decided by this Court has enforced theBut I do not think that in that passage Evatt J. was suggesting that the judicial power of the Commonwealth can be vested only in the judges of the federal courts created by the Parliament in contradistinction to the courts composed of those judges. If he was suggesting that, then with respect I would observe that the suggestion was made in disregard of the wording of s.71 of the Constitution which speaks of the judicial power of the Commonwealth being vested in courts, not judges. And, as I have already said, the organization of a court may extend beyond the judges which compose it.
principle that the judicial power of the Commonwealth cannot
lawfully be conferred upon organs other than the High Court,
the Judges of the Federal Courts created by Parliament, and
the Courts of a State. This principle has prevented the
attempts of the Federal Parliament either (a) to vest what
is strictly judicial power upon Commonwealth authorities
without creating those authorities as a Federal Court
consisting of Judges appointed pursuant to sec. 72 of the
Constitution, or (b) to compel the High Court to exercise
jurisdiction beyond the limits of secs. 75 and 76 of the
Constitution."
18. The High Court is a court which consists only of Justices. That is made explicit in s.71 of the Constitution. As I have said, it seems to me to be clear that s.71 assumes that federal courts created by the Parliament are also to consist only of judges. If it were not so, some distinction would have been drawn in s.71 between the High Court and other federal courts in this respect. Section 72 in providing for the tenure and remuneration of justices without distinguishing between the High Court and other federal courts supports this view. Moreover, the intention, which is clear in s.72, that the independence of the judiciary is to be safeguarded by protecting them against removal, except on the ground of proved misbehaviour or incapacity, and by providing that their remuneration shall not be diminished during their continuance in office, would obviously be undermined if courts created by the Parliament might consist of persons who do not enjoy those protections.
19. Section 79 of the Constitution, in saying that the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes, does not itself dictate the manner in which federal jurisdiction is to be exercised but enables Parliament, if it wishes to do so, to restrict the exercise of federal jurisdiction to a prescribed number of judges, possibly in the case of State courts within the limits imposed by the constitution of those courts. Section 79 ought not be read as requiring of itself that federal jurisdiction be exercisable only by judges. Indeed, to read it in that way would be inconsistent with the decision in The Commonwealth v. Hospital Contribution Fund.
20. As appears from that case, the fact that a court must consist only of judges, as a federal court must, does not mean that it cannot exercise its functions through an appropriate organization which is made available to it. Nor does that conclusion result, as Isaacs J. appears to have thought it did, in judicial power being vested in every officer of the court. It merely means that the court may, subject to any restrictions imposed upon it by Parliament, delegate to such of its officers as are suitable such of its functions as it thinks fit. It may do so pursuant to express powers given to it, pursuant to its rule-making power or pursuant to an inherent power to order its own affairs. No doubt it is beyond the power of Parliament to compel a federal court to exercise any of its judicial functions through an officer of the court. The exercise of those functions by that officer would not then be as a delegate of the court and that would be inconsistent with the requirement that the court consist only of judges. For the same reason a federal court must retain effective supervision and control over the exercise of its functions by its officers. If it does not do so, those functions may be seen to be exercised by an officer of the court, not as a delegate, but as a person of independent authority. A federal court must be able to exercise a real choice for itself over those matters, if any, which are to be delegated. Effective supervision and control will not be maintained if there are insufficient judges for the purpose or if for any other reason the court lacks the necessary capacity. Where the judicial power of the Commonwealth is vested in a federal court, the exercise of that power must be by or on behalf of the court itself, that is, the court consisting of judges, notwithstanding that the court may employ for that purpose an organization extending beyond the judges themselves. Whether or not the exercise of judicial power is by or through the court itself will be a matter of practical as much as of theoretical judgment.
21. I have spoken of judicial functions or judicial power, but there are also functions performed by a court which are merely ancillary to its judicial functions. The difficulty encountered in any attempt to define judicial power with precision is notorious: see Reg. v. Davison, at pp 366-370. The difficulty is the greater in attempting to distinguish between those functions which involve the exercise of judicial power and those which do not. Indeed, whether a function involves the exercise of judicial power may depend upon whether it may be performed by a court or not. In a very real sense judicial power is the power exercised by courts. But once it is accepted that a court composed of judges may perform its functions, whether in the exercise of judicial power or not, through an organization extending beyond the judges themselves, there is no point for present purposes in making the distinction between judicial functions and ancillary functions. Nor is there any purpose to be served in attempting to identify those functions which may appropriately be delegated and those which are better performed by the judges themselves. That is a matter to be determined by the court itself, provided that it does not abdicate any of its judicial functions in such a way that they are no longer performed by it or on its behalf. Obviously a court in making a determination will have regard to the relevant factors, including the importance and complexity of the decision involved, whether the matter is contested, and the finality of any order to be made.
22. From those sections of the Family Law Act to which I have already referred, it may be seen that the delegation of powers to the Registrars is a matter entirely for the Judges of the Family Court and that provision is made for the review of an exercise of power by a Registrar and for the removal of an application before a Registrar to a Judge. Order 36A, r.7(4) provides that a court reviewing an exercise of power by a Registrar shall proceed by way of a hearing de novo. It cannot be doubted that those provisions collectively provide an effective measure of supervision and control over the delegation of powers to a Registrar and of the exercise of such powers as are delegated so that those powers continue to be exercised by the Court, notwithstanding that they may be exercised in the first instance through a Registrar.
23. Nevertheless, there appears to be some difference of opinion about the nature of a hearing de novo in the review of a Registrar's decision. In the present case difficulty has been experienced in determining the effect to be given in such a hearing to the consent of the parties given below.
24. Maxwell J. took the view that the consent embodied the terms of a contract which was given effect by the order made by the Deputy Registrar pursuant to s.37A(1)(g) and O.36A, r.2(1)(n) - the power to make an order the terms of which have been agreed upon by all the parties to the proceedings. It followed in her view that the consent order was impeachable only upon those grounds in s.79A - a section which allows the variation or setting aside of orders altering property interests - which reflect the grounds upon which a simple contract may be held void or voidable, for example, fraud or duress. The Full Court on appeal from Maxwell J. held that the review of the Deputy Registrar's decision was confined to an inquiry whether the parties did in fact consent to the terms of the order and whether the terms agreed upon were in a form appropriate to the type of order sought and were enforceable. But the order made by the Deputy Registrar must have been made pursuant to s.79 - the section which confers power upon the Court to order a settlement of or an alteration in the property interests of the parties. The Court could not make an order which otherwise fell outside its jurisdiction merely because the parties consented to it and it follows, a fortiori, that a Registrar, exercising a delegated power, could not do so. Thus, for instance, under s.80(1)(j) of the Act the Court may make an order by consent, but only in exercising its powers under Pt VIII. Section 37A(1)(g) allows the delegation to the Registrar of the power to make an order by consent, but only where it is a power of the Court. And O.36A, r.2(1)(n) delegates to the Registrar the power referred to in s.37A(1)(g).
25. In considering what order, if any, should be made under s.79, a court is required under sub-s.(4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage. And sub-s.(2) provides that a court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v. Livesey [1984] UKHL 3; (1985) AC 424, at pp 437, 444.
26. Even if the consent pursuant to which an order is made under s.79 amounts
to a contract between the parties, it is the order
itself which is of legal
significance. As Lord Diplock observed in de Lasala v. de Lasala (1980) AC
546, at p 560, in related circumstances:
"Financial arrangements that are agreed upon between theAnd in the case of an application under s.79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied.
parties for the purpose of receiving the approval and being
made the subject of a consent order by the court, once they
have been made the subject of the court order no longer
depend upon the agreement of the parties as the source from
which their legal effect is derived. Their legal effect is
derived from the court order".
27. An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and "the informant or complainant starts again and has to make out his case and call his witnesses": Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 CLR 616, at p 620; see also Reg. v. Pilgrim (1870) LR 6 QB 89, at p 95; Campbell, "Judicial Review and Appeals as Alternative Remedies", [1982] MonashULawRw 8; (1982) 9 Monash University Law Review 14, n.3.
28. A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again. See Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd., at pp 619-620; Quilter v. Mapleson (1882) 9 QBD 672, at p 676; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan, at pp 107-111.
29. It follows that in this case, upon the review of the Deputy Registrar's order by way of a hearing de novo, evidence was admissible (subject to any restrictions imposed by the rules) of the previous consent of the parties and of any subsequent withdrawal of consent as evidence of the satisfaction or otherwise of the requirements of s.79, just as evidence of consent was admissible for the same purpose before the Registrar.
30. That I think is the consequence of the specific provision that the review
be by way of hearing de novo. But even if there had
been no such provision
the result would, in the absence of any provision to the contrary, have been
much the same. For where the
function of exercising a discretion is delegated
by a court, as it may be delegated to a Registrar, the exercise of the
delegated
discretion cannot confine the exercise of the same discretion by the
person in whom it is primarily reposed: Evans v. Bartlam (1937)
AC 473, at p
478; Blundell v. Rimmer (1971) 1 WLR 123, at p 128; (1971) 1 All ER 1072, at p
1076; and C.M. Van Stillevoldt B.V. v.
EL Carriers (1983) 1 WLR 207, at p 210;
(1983) 1 All ER 699, at p 702. Upon a hearing by way of review of the
decision of a Registrar
the court is exercising its own discretion. There are
not the same restrictions which exist when there is an appeal from a judge
to
whom a discretion is confided, rather than delegated, at first instance. In
that event the appeal court must, before interfering,
be persuaded that the
judge was in error in the exercise of the discretion, either by acting upon
wrong principles, mistaking the
facts, or by taking into account irrelevant
considerations or failing to take into account relevant considerations: House
v. The
King [1936] HCA 40; (1936) 55 CLR 499, at pp 504-505; Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR
513, at pp 517-518. The underlying
considerations giving rise
to this
distinction are well expressed by Herring C.J.
in Tidswell v. Tidswell (No.2)
[1958] VicRp 95; (1958) VR 601, at
p 605, where he was considering
the nature of the review of
a master's discretion
in dealing with a matter delegated to him:
"What was delegated by the Rules to the Master was
authority to hear and determine all applications and
exercise any of the powers conferred on the Court or a judge
under the various rules stated. And so it is that where the
Master has to exercise a discretion under this delegation,
he is exercising a discretion that in the first place was
conferred upon the Court or a judge. ...
the orders made by a Master under the delegation are orders
which are efficacious to bind the parties to the proceedings
in which they are made, without any confirmation by a judge.
And so it is proper to describe them as appealable, and it
is as such that an appeal is given to the judge in chambers.
The question is what is the nature of that appeal and how
far the incidents of an appeal from a primary judge to a
court of appeal apply to it. It has to be borne in mind in
this connexion that the position of the Master in hearing
applications is very different from that of a primary judge,
who exercises a power entrusted to the discretion of the
Court or a judge. The Master is given jurisdiction to
exercise that power by the rules referred to, but when his
order is appealed against, the appeal is heard by the judge
to whose discretion the power was originally entrusted. And
what more reasonable than that when this occurs, the judge
should be free to exercise that discretion for himself? To
treat him as unable to go behind the exercise of discretion
by the Master except when it is shown that the Master has
acted upon a wrong principle for example, would deprive
litigants of the benefit of having that discretion exercised
by the judge, to whom it was originally entrusted, a benefit
which it seems reasonable to suppose it was intended they
should have. The question is whether an intention to
deprive litigants of such benefit should be imputed to the
framers of the ... rules."
31. The provision in the Rules that the review of a Registrar's decision is by way of a hearing de novo serves to emphasize that he is subject to the supervision and control of the court and that he exercises his powers as a delegate and not pursuant to any independent authority.
32. I agree with Mason C.J. and Deane J., Brennan and Gaudron JJ. that the order made by the Registrar continues in force unless and until the Court, after undertaking a review, makes an order that it be set aside: Kinch v. Walcott (1929) AC 482; In re South American and Mexican Company; Ex parte Bank of England (1895) 1 Ch 37. Indeed, O.36A, r.7(3) provides that an application for a review of an exercise of power by a Registrar shall not operate as a stay of the order under review.
33. It follows from the foregoing that, in my view, the Full Court erred in holding that upon the review of the Deputy Registrar's decision the Court could not take account of the withdrawal of consent by the wife and was precluded from treating the matter before it as a contested application under s.79 upon which it was required to form its own conclusion. I would allow the appeal.
TOOHEY J. This appeal involves a challenge to an exercise of power by a
Deputy Registrar of the Family Court of Australia. To understand
how the
challenge comes about, some reference must be made to the proceedings in which
the appellant ("the wife") and the respondent
("the husband") were involved
and then to the structure of the Family Court within which Registrars and
Deputy Registrars operate.
The proceedings
2. The wife and husband filed, respectively, an application and cross-application for property settlement pursuant to s.79 of the Family Law Act 1975 (Cth) ("the Act"). On 19 October 1988 Deputy Registrar Lee made orders "by consent", giving effect to "Short Minutes" bearing the same date and signed by the parties. The power to make such an order purportedly derives from O.36A of the Family Law Rules (Cth) ("the Rules"), read with s.37A of the Act.
3. On 25 October 1988, that is, within the seven days prescribed by O.36A, r.5(2), the wife filed an application to the Court to review the exercise of power by Deputy Registrar Lee. That application came on for hearing on 2 March 1989. The wife claimed that she was entitled, pursuant to O.36A, r.7(4), to a hearing de novo of the original property proceedings. The husband contended that the only possible basis for interfering with an order made by consent was in accordance with s.79A(1) of the Act. Section 79A(1) confers power on the Family Court to set aside an order made under s.79 where the Court is satisfied that there has been a miscarriage of justice "by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance". By judgment dated 11 July 1989, Maxwell J. upheld the husband's submission and accordingly dismissed the wife's application for review. In the course of the judgment her Honour held that the making of a consent order was not an exercise of judicial power by the Deputy Registrar.
4. The wife appealed to the Full Court of the Family Court from the dismissal
of her application. One of the grounds of appeal
was that "her Honour erred
in ruling that there was no exercise of judicial power in the making of
consent orders". Both the appeal
to the Full Court and the appeal to this
Court were conducted on the common footing that the making of the consent
order involved
an exercise of judicial power. Nevertheless, the assumption
will require consideration in the course of these reasons.
Issues raised by this appeal
5. Essentially there are two issues raised by the appeal to this Court. One goes to the nature of a review by a Judge of the Family Court of a consent order made by a Registrar or Deputy Registrar, in particular, whether the review is in truth a rehearing on the merits of the application (and cross-application) for property settlement or whether the only questions on such a review are - was there in fact a consent and were the terms agreed by the parties appropriate to the type of order sought? In other words, what is the meaning of the expression "hearing de novo" in O.36A, r.7(4) of the Rules. The other issue is whether the power to make a consent order delegated to Registrars and Deputy Registrars under s.37A(1) of the Act and O.36A, r.2(1)(n) of the Rules is validly conferred. (It is enough to speak hereafter of "Registrars" as including Deputy Registrars.) The second of these issues goes to the very heart of the order that was made by consent. If the power to make the order was not validly conferred, the first issue strictly does not arise. Nevertheless, having regard to the arguments addressed to the Court, both issues should be dealt with.
6. To set the scene, I shall say something of the structure and the machinery
of the Family Court. The next step is to point to
those provisions of the
Constitution that bear on the exercise of judicial power and consider their
relevance to the present challenge.
Structure and machinery of the Family Court
7. The Family Court consists of the Chief Justice, the Deputy Chief Justice, Judge Administrators, Senior Judges and other Judges: s.21(3). At the relevant time, s.37(1) of the Act empowered the Attorney-General to appoint "such officers of the Court as are referred to in this section and such other officers of the Court as are necessary". Section 37(1) is now in somewhat different terms. At the relevant time, officers had such duties, powers and functions as were provided by the Act, the regulations, the Rules and "such other duties and functions" as the Chief Justice directed: s.37(2). Section 37(3) provided that there "shall be a Principal Registrar of the Court and such Registrars and Deputy Registrars of the Court as are necessary". Section 37(3) has since been repealed. The position of Registrars and Deputy Registrars is now dealt with largely in the Rules. Fogarty J. commented, in the judgment appealed from, that s.21(3) "retains the concept that the Court is constituted by the Judges (only) and no attempt has been made, as has occurred in legislation relating to the Supreme Courts of some of the States, to include designated officers within the definition of the Court. No doubt this is because Chapter III (of the Constitution) appears not to permit that course."
8. The source of the power to delegate lying at the heart of the appeal is to
be found in s.37A. That section, which was inserted
in the Act by Act No.72
of 1983 but which at the relevant time (as now) was enacted by Act No.193 of
1985, provides for the delegation
of powers to the Registrars. In s.37A,
"Registrar" means "the Principal Registrar, a Registrar or a Deputy Registrar
of the Court":
s.37A(15). It is advisable to set out certain other
sub-sections in their entirety:
" (1) The Judges, or a majority of them, may, subject
to sub-section (2), make Rules of Court delegating to
the Registrars all or any of the powers of the Court,
including, without limiting the generality of the
foregoing, all or any of the following powers of the Court:
(a) the power to dispense with the service of any
process under this Act;
(b) the power to make orders in relation to substituted
service;
(c) the power, in proceedings under this Act, to make
orders in relation to discovery, inspection and
production of documents in the possession, power or
custody of a party to the proceedings or of any
other person;
(d) the power, in proceedings under this Act, to direct
a party to the proceedings to answer particular
questions;
(e) the power to direct the parties to proceedings under
this Act to attend conferences conducted by court
counsellors or welfare officers;
(f) the power, in proceedings under this Act, to make -
(i) an order under section 66K, 66ZA or 77; or
(ii) an order for the payment of maintenance pending
the disposal of the proceedings;
(g) the power to make, in proceedings under this Act, an
order the terms of which have been agreed upon by
all the parties to the proceedings;
(h) the power, in proceedings under this Act, to make an
order adjourning the hearing of the proceedings;
(j) the power under section 117 to make an order as to
costs;
(k) the power to make orders (including an order for
garnishment, seizure of property or sequestration)
for the enforcement of maintenance orders;
(m) the power to make an order exempting a party to
proceedings under this Act from compliance with a
provision of the regulations or Rules of Court.
(2) The powers of the Court that may be delegated
under subsection (1) do not include the power to make:
(a) a decree of dissolution of marriage in proceedings
that are defended;
(b) a decree of nullity of marriage;
(c) a declaration as to the validity of a marriage or
the dissolution or annulment of a marriage; or
(d) an order in relation to the custody, guardianship or
welfare of, or access to, a child, other than an
order made in undefended proceedings or with the
consent of all the parties to the proceedings.
(3) A power delegated by Rules of Court under
sub-section (1), when exercised by a Registrar, shall, for
all purposes, be deemed to have been exercised by the Court
or a Judge, as the case requires.
(4) The delegation of a power by Rules of Court under
sub-section (1) does not prevent the exercise of the power
by the Court or a Judge.
...
(7) The provisions of this Act, the regulations, the
Rules of Court, and other laws of the Commonwealth, that
relate to the exercise by the Court of a power that is, by
virtue of a delegation under sub-section (1), exercisable
by a Registrar apply in relation to an exercise of the
power by a Registrar under the delegation as if references
in those provisions to the Court or to a court exercising
jurisdiction under this Act were references to a Registrar.
(8) Notwithstanding any other provision of this Act
and any provision of the Public Service Act 1922 or of any
other law, a Registrar is not subject to the direction or
control of any person or body in relation to the manner in
which he or she exercises powers pursuant to a delegation
under sub-section (1).
(9) A party to proceedings in which a Registrar has
exercised any of the powers of the Court pursuant to a
delegation under sub-section (1) may, within the time
prescribed by, or within such further time as is allowed in
accordance with, Rules of Court made by the Judges or a
majority of them for the purposes of this sub-section,
apply to the Court to review that exercise of power.
(10) The Court may, on application under
sub-section (9) or of its own motion, review an exercise of
power by a Registrar pursuant to a delegation under this
section and may make such order or orders as it considers
appropriate with respect to the matter with respect to
which the power was exercised.
..."
9. It can be seen that delegation in accordance with s.37A(1) operates pursuant to Rules of Court authorized by the sub-section, not directly by force of the sub-section. This is in contrast with s.37A, in its original form, which conferred much the same range of powers directly on Registrars. Order 36A - Delegation of Powers to Registrars and Judicial Registrars - contains the delegation of powers to which s.37A refers. "Registrar" has the same meaning in O.36A as it has in s.37A of the Act. I shall say something later about Judicial Registrars.
10. Order 36A was inserted by Statutory Rule 1988 No.166, r.23. It commenced on 1 July 1988, that is, after the introduction of s.37A in its present form. Rule 2 of the order delegates to Registrars a number of powers which, to a large extent, mirror the powers mentioned in s.37A. It is unnecessary to make a precise comparison of the two sets of provisions; but it may be noted that par.(g) of s.37A(1) and par.(n) of O.36A, r.2(1) each speak of a power to make an order, "the terms of which have been agreed upon by all the parties". Section 37A(1) is cast in the widest terms; it empowers the making of Rules of Court "delegating to the Registrars all or any of the powers of the Court". However, sub-s.(1) is expressed to be subject to sub-s.(2), with the consequence that defended divorces; nullity applications; declarations as to the validity of a marriage or the dissolution or annulment of a marriage; and contested custody, guardianship, or welfare of, or access to, children proceedings may not be delegated by the Rules. The view expressed by Fogarty J. of the excluded categories was that sub-s.(2) "seems rather to be drawn with an eye to policy considerations rather than ambits of power".
11. Order 36A, r.3 delegates to Judicial Registrars all the powers delegated
to Registrars under r.2, followed by the enumeration
of a much wider range of
powers. Judicial Registrars are not directly relevant to this appeal since it
was a Deputy Registrar who
made the order sought to be impugned. But some
mention of them is desirable for a better appreciation of the scope of
delegation
under the Act. Section 26A, inserted by Act No.8 of 1988, provides
that the Governor-General may appoint one or more Judicial Registrars.
Section
26B(1), inserted at the same time, reads:
" The Judges, or a majority of them, may make Rules ofThus, in the case of Judicial Registrars, the limitation on delegation is to be found in the sub-section which provides for delegation rather than in a succeeding sub-section, as in the case of Registrars and Deputy Registrars.
Court delegating to the Judicial Registrars all or any of
the powers of the Court except the power to make an order
in relation to the custody, guardianship or welfare of, or
access to, a child, other than an order until further order
or an order made in undefended proceedings or with the
consent of all the parties to the proceedings."
12. Before proceeding further, it is of some interest to note the way in
which the Federal Court of Australia Act 1976 (Cth) approaches the matter of
delegation. Section 35A(1) of that Act provides that, with a qualification
that it is not necessary to mention, "the following powers of the Court may,
if the
Court or a Judge so directs, be exercised by a Registrar". There
follows a list of powers, but the list is more limited than that
in s.37A of
the Family Law Act. Of this approach to delegation, Fogarty J. said:
"It is difficult to see why this formulation was notThe power to make a consent order
employed ... for the Family Court. If it had, it would
have avoided the difficulty which I have with the validity
of s.37A in its current form."
13. The power of the Family Court to make a consent order with respect to
interests in property is not in question in this appeal.
The definition of
"matrimonial cause" in s.4(1) of the Act includes par.(ca) - "proceedings
between the parties to a marriage with
respect to the property of the parties
to the marriage ...". Part VIII of the Act, within which ss.79 and 79A fall,
contains specific
provisions with respect to property proceedings and s.80(1)
provides that, in exercising its powers under Pt VIII, the Court may
"make an
order by consent": par.(j).
Consent orders and the judicial function
14. The courts have long spoken of consent orders as raising an estoppel
between the parties in the same way as an estoppel is raised
by a judgment
resulting from a contested hearing before a court: see, for instance, In re
South American and Mexican Company; Ex
parte Bank of England (1895) 1 Ch 37;
Huddersfield Banking Company Limited v. Henry Lister and Son Limited (1895) 2
Ch 273, at p
280; Wilding v. Sanderson (1897) 2 Ch 534, at pp 543-544. And in
The Queen v. Davison [1954] HCA 46; (1954) 90 CLR 353, at p 377,
Fullagar J. said:
"An order which would otherwise be a judicial order does not
lose that character through being made without opposition
or even by consent."
15. Thus a consent order is a determination of the rights of the parties inter se. Until set aside by a competent court in proceedings instituted for that purpose, a consent order is enforceable in the same way as any other court order: Ainsworth v. Wilding (1896) 1 Ch 673, at p 676; Kinch v. Walcott (1929) AC 482. For that reason the parties to litigation cannot by consent confer power upon a court to make an order which the court lacks power to make: Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, at p 163.
16. Section 79(2) precludes the Family Court from making an order under the section "unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". There is no reason why the requirement of the sub-section does not extend to the making of an order by consent pursuant to s.80(1)(j). The requirement that the order be "just and equitable" is inconsistent with an arbitrary exercise of discretion. It creates a standard which is consistent with the exercise of judicial power: see Cominos v. Cominos [1972] HCA 54; (1972) 127 CLR 588, at pp 599, 603, 608. Likewise, there is no reason why the matters referred to in s.79(4), which the Family Court is required to take into account in considering what order (if any) should be made under sub-s.(1) of that section, are not relevant to the making of an order by consent, even though it is not incumbent on the Court, in that circumstance, to make its own inquiry into those matters. The existence of sub-ss.(2) and (4) of s.79, therefore, leaves no doubt that the making of an order under s.79(1), by consent, is a judicial function.
17. The power to make a consent order, delegated to Registrars by O.36A,
r.2(1)(n), is, in the case of proceedings under Pt VIII,
the same power as is
conferred on the Court by s.80(1)(j). And s.37A(3) of the Act provides that a
delegated power, when exercised,
"shall, for all purposes, be deemed to have
been exercised by the Court or a Judge, as the case requires". It follows
that the making
of a consent order by a Registrar, in exercise of delegated
power, is a judicial function.
Reviewing the consent order
18. I have read what Brennan J. has written in regard to impugning the
consent order made in the present case and the scope of a
review of such an
order. I agree with what his Honour has written as to the relationship
between s.79A(1) and s.37A of the Act,
in particular his conclusion that, on a
review under s.37A, the considerations in s.79A(1) are relevant. As well, I
agree with his
Honour's conclusion that, on a review under s.37A, the Family
Court would be entitled to consider afresh whether an order should
be made
altering the proprietary interests of the parties. I do not wish to add
anything to what Brennan J. has said on these matters.
That disposes of the
first issue raised by the appeal but, because of the view I have taken of the
delegation of power, my ultimate
conclusion as to the fate of this appeal does
not turn on the scope of review under the Act.
Validity of the delegation of judicial power
19. The validity of the delegation of judicial power to Registrars turns on
constitutional issues. While it is tempting to draw
analogies and to seek
guidance from the practice of Supreme Courts of the States and, historically,
from the English courts, it is
the Constitution with which we are concerned.
The Constitution maintains a separation of powers so that the vesting by the
legislature of the judicial power of the Commonwealth in a non-judicial
body
or person is incompetent. In the words of Dixon C.J., McTiernan, Fullagar and
Kitto JJ. in The Queen v. Kirby; Ex parte Boilermakers'
Society of Australia
[1956] HCA 10; (1956) 94 CLR 254, at p 270:
"(I)t is beyond the competence of the Parliament to investSee also Attorney-General of the Commonwealth of Australia v. The Queen [1957] HCA 12; (1957) 95 CLR 529, at p 538; Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, at p 580.
with any part of the judicial power any body or person
except a court created pursuant to s.71 and constituted in
accordance with s.72 or a court brought into existence by a
State."
20. Speaking of the doctrine of the separation of powers, M.J. Detmold has
commented:
"Textual support in the Constitution for the doctrine is not
conclusive. But the difference in the powers is of such
fundamental importance that the separation is implied,
lest that difference become blurred": The Australian
Commonwealth, (1985), p 237.
21. Now, the judgment of Marshall C.J. in Marbury v. Madison [1803] USSC 16; (1803) 5 US 137
may not be immune from criticism. See, for instance,
Robert Bork, The
Tempting of America, (1990), pp 22-24. Nevertheless,
as Fullagar J. observed
in Australian Communist Party v. The
Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at p 262:
"But in our system the principle of Marbury v. Madison isChapter III of the Constitution, which reflects an aspect of the doctrine of separation of powers, serves "both to protect 'the role of the independent judiciary within the constitutional scheme of tripartite government' ... and to safeguard litigants' 'right to have claims decided before judges who are free from potential domination by other branches of government'": Commodity Futures Trading Commission v. Schor [1986] USSC 182; (1986) 478 US 833, at p 848. In the end it is personal interests rather than structural interests that demand protection; but the two are interdependent and to weaken the latter is inevitably to damage the former.
accepted as axiomatic".
22. It is not with the doctrine of separation of powers in all its
ramifications that this appeal is concerned. What we are concerned
with here
is the exercise of the judicial power of the Commonwealth, and then only with
the extent to which that power must be exercised
by judges appointed in
accordance with Ch III of the Constitution. So the primary question must be -
does Ch III permit the exercise of the judicial power of the Commonwealth by a
Registrar of the
Family Court?
The primary question - exercise of judicial power by Registrars
23. A convenient starting point is the dictum of Griffith C.J. in Huddart,
Parker and Co. Proprietary Ltd. v. Moorehead [1909] HCA
36; (1909) 8
CLR 330, at p 357,
that:
"the words 'judicial power' as used in sec.71 of theSee also Griffith C.J. in Ah Yick v. Lehmert [1905] HCA 22; (1905) 2 CLR 593, at p 603; The King v. Kidman [1915] HCA 58; (1915) 20 CLR 425, at p 437. Section 71 vests the "judicial power of the Commonwealth" in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction".
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".
24. Section 72 of the Constitution deals with the appointment, tenure and remuneration of Justices of the High Court and "of the other courts created by the Parliament". The section requires that Justices be appointed by the Governor-General in Council; that they shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, "praying for such removal on the ground of proved misbehaviour or incapacity"; and that they shall "receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office". Following the constitutional amendments of 1977, the appointment of a Justice of the High Court is for a term expiring at the age of seventy. For a Justice of a court created by the Parliament, the retirement age is the age fixed for that court at the time of appointment. Section 23A of the Act fixes the maximum age for Judges of the Family Court at sixty-five.
25. At this point it is appropriate to consider the relationship between
"judicial power" and "jurisdiction". The question is of
some importance for
in The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 ("the HCF
Case"), at p 64,
Mason J. said,
after referring to the position of the High
Court within ChIII of the
Constitution:
"In the case of other courts created by Parliament, whose
membership is not confined by s.72 to judges, there is
perhaps even less reason for denying that part of their
jurisdiction and powers may be exercised by officers who
are not judges, whether as delegates or otherwise, provided
of course that they are officers who truly form part of the
court's organization."
26. The distinction between jurisdiction and power is often blurred, particularly in the context of "inherent jurisdiction". But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred": Parsons v. Martin [1984] FCA 408; (1984) 5 FC.R. 235, at p 241; see also Jackson v. Sterling Industries Ltd. [1987] HCA 23; (1987) 162 CLR 612, at pp 630-631.
27. The Constitution itself distinguishes between "jurisdiction" and
"judicial power". As Professor Lane points out:
" Jurisdiction and the judicial power of the Commonwealth
are two distinct notions, calling on different
constitutional provisions and different decisional law":
The Australian Federal System, 2nd ed. (1979), p 446.
28. Jurisdiction is conferred on the High Court by ss.73 and 75 of the Constitution and may be conferred by the Parliament pursuant to s.76. Jurisdiction may be conferred on other federal courts and on State courts pursuant to s.77, read with ss.75 and 76. Sections 76 and 77 require the intervention of the Parliament before the jurisdiction mentioned in those sections may be exercised. The Parliament has so acted, in the case of the High Court, through the Judiciary Act 1903 (Cth) and, in the case of other courts, through a variety of statutes including the Judiciary Act. Section 79 provides that the "federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes". That section has been held to extend to the jurisdiction invested in State courts as well as that conferred on federal courts: Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087, at p 1145; Lorenzo v. Carey [1921] HCA 58; (1921) 29 CLR 243, at p 253; The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69, at p 105. Although s.79 speaks of the exercise of jurisdiction by "judges", it is facultative and plays no great part in the overall scheme of Ch III.
29. The term "judicial power" appears in ss.71 and 78. The earlier section identifies the courts in which the judicial power of the Commonwealth is vested. It is the source of that judicial power. Section 71 "confers no jurisdiction whatever. It merely declares the separation of judicial authority from all other ...": Isaacs J. in The Tramways Case (No.1) [1914] HCA 15; (1914) 18 CLR 54, at p 75. Section 78 empowers the Parliament to make laws conferring rights to proceed against the Commonwealth or a State "in respect of matters within the limits of the judicial power". The distinction between jurisdiction and power to which I have referred cannot be applied neatly to the notion of judicial power in Ch III. "Judicial power" has the meaning attributed to it by Griffith C.J. in Huddart Parker, in the passage already mentioned. The judicial power of the Commonwealth is that power exercised in relation to the Commonwealth of Australia established under the Commonwealth of Australia Constitution Act 1900 (Imp.): see s.6 of that Act. Or, as was said by Barwick C.J. in Capital T.V. and Appliances Pty. Ltd. v. Falconer [1971] HCA 10; (1971) 125 CLR 591, at p 599: "the judicial power to which s.71 refers is that part of the totality of judicial power which the Commonwealth may exert which can be called 'federal judicial power'". It is an over-arching concept; it is not concerned with the jurisdiction of particular courts and is broader than the particular powers that courts have in the exercise of their jurisdiction. It is not especially helpful to look to the sections which deal with jurisdiction to understand what the concept involves.
30. The HCF Case held that "court of a State" in s.77(iii) of the Constitution (and in s.39(2) of the Judiciary Act) refers to the court as an institution and not the persons of which it is composed. A court as an institution means "an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions" - the language of Windeyer J. in Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, at p 91, referred to with approval in the HCF Case, at pp 58, 60.
31. While it is a salutary principle of construction that a word appearing
more than once in a statute bears a consistent meaning
throughout, that is not
always the case. And in the case of Ch III, the term "court" is not used
consistently; more accurately,
Ch III does not speak in the same way to all
the courts which it encompasses. Section 71 looks at the "High Court", at
"other federal
courts" and at "such other courts" in which jurisdiction may be
vested. Section 77(iii) is concerned with "any court of a State".
In The King
v. Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; [1916] HCA 58; (1916) 22 CLR 437, at p 452,
Isaacs J. referred to the
distinction in
these terms:
" The Constitution, by Chapter III., draws the clearestThat passage was adopted by Knox C.J., Rich and Dixon JJ. in Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481, at p 495, who then went on to say, at pp 495-496:
distinction between federal Courts and State Courts, and
while enabling the Commonwealth Parliament to utilize the
judicial services of State Courts recognizes in the most
pronounced and unequivocal way that they remain 'State
Courts'."
"The Parliament may create Federal Courts, and over them and
their organization it has ample power. But the Courts of a
State are the judicial organs of another Government. They
are created by State law; their existence depends upon
State law; that law, primarily at least, determines the
constitution of the Court itself, and the organization
through which its powers and jurisdictions are exercised."
32. In other words, for the purpose of investing a "court of a State" with federal jurisdiction, Ch III of the Constitution requires that the Parliament take the court as it finds it, with its own structure and organization, subject only to the operation of s.79. That is not what Ch III says in relation to the High Court or such other federal courts as the Parliament may create. It is those courts in which the judicial power of the Commonwealth primarily resides and that power must be exercised in conformity with the Constitution. That in turn means that the judicial power of the Commonwealth, when exercised by a federal court, must be exercised by judges whose appointment and terms satisfy the requirements of s.72. See Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 116. That is why s.72 singles out the High Court and other courts created by the Parliament and prescribes certain terms of appointment to them. There is nothing in Ch III which, in the case of a federal court, allows the judicial power of the Commonwealth to be exercised by anyone other than a judge so appointed. Chapter III does not dictate generally the structure and organization of a federal court but it does dictate that, in the case of a federal court, the judicial power of the Commonwealth be exercised by judges. If the judicial power of the Commonwealth could be exercised by someone not appointed in accordance with s.72, the scheme of Ch III would be set at nought. And it would be no answer to say that the exercise of that power was subject to review by a judge appointed in accordance with s.72. The power has already been exercised; the existence of a review procedure cannot alter that fact.
33. The clear intendment of Ch III of the Constitution is the maintenance of
the independence of the judiciary as reflected in the Justices of the High
Court and in such other federal
courts as the Parliament may create. It is
achieved by insisting that, in the case of federal courts, the power to decide
controversies
between the Crown and its subjects and between the subjects
themselves is exercised by judges appointed in accordance with s.72. The
analogy of Art.III of the American Constitution is close. What Brennan J.
said in Northern Pipeline Co. v. Marathon Pipe Line Co. [1982] USSC 187; (1982) 458 US 50, at
pp 58-59 (a judgment in which
Marshall, Blackmun and Stevens JJ. joined), is
equally applicable to the Australian Constitution:
" As an inseparable element of the constitutional systemIn referring to this passage from the judgment of Brennan J., I do so only for the expression of principle it contains. The actual decision has to be read in the light of later authority, in particular Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc. [1983] USCA9 1648; (1983) 712 F 2d 1305 (later overruled), Wharton-Thomas v. United States [1983] USCA3 943; (1983) 721 F 2d 922 and Commodity Futures Trading Commission v. Schor. Wharton-Thomas supports the proposition that the appointment of magistrates to try civil cases, they not being Art.III judges, does not violate the Constitution. But the basis upon which that decision was reached does not assist in the present case and, in so far as the decision rests in part upon the fact that reference to a magistrate is consensual, it must be read in the light of Commodity Futures in which it was said, at pp 850-851, with reference to the structural interests protected by Art.III, 1: "the parties cannot by consent cure the constitutional difficulty".
of checks and balances, and as a guarantee of judicial
impartiality, Art. III both defines the power and protects
the independence of the Judicial Branch. It provides that
'The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.'
Art. III, 1. The inexorable command of this provision is
clear and definite: The judicial power of the United
States must be exercised by courts having the attributes
prescribed in Art. III. Those attributes are also clearly
set forth:
'The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during
their Continuance in Office.' Art. III, 1."
34. It is argued that a Registrar of the Family Court is truly an officer of the Court and that the independence of the judiciary is not impugned by allowing the Registrar to exercise the power of making a consent order with respect to property, "provided that the exercise is subject to review or appeal": Mason J. in the HCF Case, at p 64. And there is some force in the proposition that s.37A(4), (9) and (10) of the Act, read with O.36A, r.7(4), provides safeguards since the independence of the judiciary is in the hands of the judges themselves. While s.38N(1)(b) of the Act asserts that the Registrar is an officer of the Family Court, s.38Q implies that officers of the Family Court are members of the Australian Public Service, although s.37A(8) provides that a Registrar "is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under sub-section (1)".
35. But the issue is more deep seated. An exercise of judicial power by a Registrar is an exercise of judicial power by a person who is not a Justice within the meaning of s.72 of the Constitution. If the Registrar was exercising a power incidental to the judicial power of the Commonwealth, the incidental power in s.51(xxxix) of the Constitution might be sufficient authority for that exercise of power. But, as already noted, the making of an order, even by consent, altering the property interests of parties to a marriage is an exercise of judicial power; it is not merely the exercise of a power incidental thereto. Such an order falls squarely within the Huddart Parker formula. It decides the issue between parties, that is, the disposition of their property interests. It does so authoritatively, notwithstanding the entitlement to review of the order by a Judge of the Family Court. It declares the rights of the parties and is enforceable at the suit of either party. The existence of a power to review a decision of a Registrar no more affects the character of the power exercised in making the decision than does the existence of a right of appeal.
36. The efficient working of any court is of course a matter of the utmost importance. And it may be accepted that the exercise of powers by Registrars of the Family Court is conducive to the efficient working of that Court. But, in the case of any federal court, that end must be achieved in conformity with Ch III of the Constitution. The vesting of judicial power in a Registrar, whether directly or by delegation, is not in conformity with Ch III. That is not to say that Registrars (and other officers) may not exercise an extensive range of powers in connection with the hearing and determination of matrimonial cases: see, for instance, Windeyer J. in Kotsis v. Kotsis, at pp 92-93. Thus the act of the Registrar in Bankruptcy in fixing the time for compliance with a bankruptcy notice has been held not to be an exercise of judicial power: Re Moss; Ex parte Tour Finance Ltd. (1968) 13 FLR 101. In the context of matrimonial legislation, an obligation to pay maintenance imposed directly by statute as a result of actions by a master may not involve an exercise of judicial power: The Queen v. Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231. And in the case of the Act itself, there are powers conferred on a Registrar that may not involve an exercise of judicial power: see, for instance, O.4, r.2 (directions), read with O.36A, r.2(2) and O.24, r.1 (conferences). A decision in any particular case may be assisted by an understanding of the way in which the court has operated and the manner in which its functions have been performed. But the question of whether an exercise of judicial power is involved in the actions of an officer of a court must be answered by reference to the nature of the power itself. Any exercise of judicial power will fall foul of Ch III unless exercised by a judge appointed in accordance with s.72.
37. No doubt the administrative problems facing the Family Court are
considerable. But they can be met only in accordance with
constitutional
principle. It would be turning Ch III of the Constitution on its head to seek
for it a construction to accommodate the administrative aims of the Family
Court or any other federal court.
I have already quoted from the judgment of
Brennan J. in Northern Pipeline Co. v. Marathon Pipe Line Co. Another passage
from that
judgment, at p 60, is equally apposite:
"In sum, our Constitution unambiguously enunciates a
fundamental principle - that the 'judicial Power of the
United States' must be reposed in an independent Judiciary.
It commands that the independence of the Judiciary be
jealously guarded, and it provides clear institutional
protections for that independence."
38. It follows that the order made by the Deputy Registrar is invalid. The appeal should be allowed. As there was no power in the Deputy Registrar to make the order, there should be a declaration to this effect. The application under s.79 of the Act remains to be determined by a Judge of the Family Court.
GAUDRON J. The facts and the relevant legislative provisions and Rules of Court are set out in other judgments. The first question that arises by reference to those facts and provisions is whether the power conferred on the Family Court of Australia by s.79 of the Family Law Act 1975 (Cth) ("the Act") to make "such order as it considers appropriate altering the interests of the parties (to a marriage) in (their) property" has, in the case of an order the terms of which have been agreed by the parties, been validly delegated to a registrar or deputy registrar of that Court. An order which purports to answer that description was made by a deputy registrar in the present case and, if the power has been delegated, it is necessary to consider the nature of the task to be undertaken by the Family Court when an application is made under s.37A(9) of the Act to review the exercise of a power delegated in accordance with that section.
2. The argument of the appellant on the question of delegation is that the
power to make a consent order under s.79 of the Act is
a judicial power which
can be exercised only by those who constitute the Family Court. That argument
is based on s.71 of the Constitution, although, during the course of argument,
some reliance was also placed on s.79 of the Constitution. Section 71
provides:
"The judicial power of the Commonwealth shall be vestedSection 79 provides:
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 federal jurisdiction of any court may be exercisedIt is put on behalf of the appellant that, by or pursuant to ss.73, 75, 76 and 77 of the Constitution, jurisdiction is conferred on or invested in courts as named or indicated in s.71, that s.71 stipulates that this Court consists of the Chief Justice and Justices, and that it is clear from s.72 that federal courts created by the Parliament must consist of judges appointed in accordance therewith. Then it is put that, within that context, s.71, either standing alone or in combination with s.79, imposes an absolute requirement that the jurisdiction conferred on this and other federal courts be exercised only by those who constitute the relevant court. Thus, it is said, the delegation of any judicial power or function associated with the exercise of jurisdiction by this or other federal courts is completely precluded. If that argument is not successful it is necessary to consider whether Ch III imposes limits with respect to delegation and whether those limits are exceeded by s.37A(1) of the Act or, alternatively, by O.36A, r.2(1)(n) of the Family Law Rules (Cth) ("the Rules").
by such number of judges as the Parliament prescribes."
3. Sections 71 and 79 of the Constitution apply equally to federal courts and to State courts invested with federal jurisdiction. It is clear from The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 that federal jurisdiction invested in a State court may be exercised by a court officer who does not constitute the court - in that case, a master - in accordance with arrangements effected by or under State law. The argument made on behalf of the appellant accepted the correctness of that decision, but proceeded on the basis that a requirement that invested federal jurisdiction be exercised only by those who constitute the relevant State court is excluded by an overriding requirement that the Commonwealth take State courts as it finds them. As to this latter requirement, see Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481. See also Kotsis v. Kotsis [1970] HCA 61; [1970] HCA 61; (1970) 122 CLR 69, per Menzies J. at p 88, per Gibbs J. at p 109; and Hospital Contribution Fund, per Mason J. at p 64, and per Murphy J. at p 66.
4. There is no decision of this Court holding that powers conferred on this or other federal courts can be exercised only by those who constitute the relevant court, although it was decided in Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353 that a registrar of the Bankruptcy Court, not being an officer of that Court but a person standing outside its organizational structure, could not validly be invested with the power to make a sequestration order on a debtor's petition. See per Dixon C.J. and McTiernan J. at pp 363 and 370, per Fullagar J. at p 378, per Kitto J. at pp 380 and 384-385, and per Taylor J. at p 390. As the decision in that case rested on the want of appropriate relationship between the registrar and the Bankruptcy Court, it does not advance, and was not relied upon in, the argument of the appellant. Rather, in so far as the argument was made by reference to case law, it proceeded on the basis of statements by Isaacs J. and Starke J. in Le Mesurier, at pp 511 and 523 respectively. Those statements have been taken to suggest that powers conferred on the courts named or indicated in s.71 can be exercised only by those who constitute the relevant court. It is clear that in Le Mesurier Starke J. was not concerned with all powers that are conferred on a court, but only with that power that is essentially and exclusively judicial in that it is "the power which can only be exerted by the tribunals named or indicated in the Constitution (see sec.71)". The distinction between powers that may be conferred on a court named or indicated in s.71 of the Constitution and the power that can only be conferred on such a court may not be capable of precise formulation, but it is a distinction which has some bearing on the present case and to which it will be necessary to return in due course.
5. Whatever be the precise import of the statements in Le Mesurier, that case was concerned with State courts exercising invested federal jurisdiction and, because the statements were directed (although not confined) to that situation, they are necessarily brought into doubt by the later decision in Hospital Contribution Fund. And, in Hospital Contribution Fund the notion that powers conferred on this and other federal courts could be exercised only by those who constitute the relevant court was seemingly rejected by Mason J. and Murphy J., their Honours stating (at pp 64 and 65 respectively) that "the vesting of judicial power in (this) Court consisting of a Chief Justice and justices should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court" and that "(t)he Constitution ... should not be taken as allowing the exercise of the jurisdiction only by those who, in the strictest sense, constitute the court".
6. There is also a statement by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 116, that "the judicial power of the Commonwealth cannot lawfully be conferred upon organs other the the High Court, the Judges of the Federal Courts created by Parliament, and the Courts of a State" (emphasis added). It is clear from its context that that statement is not directed to the discharge or performance of particular powers or functions in the course of the exercise of federal jurisdiction but, like the statement of Starke J. in Le Mesurier, to the conferral of that power which, because it is essentially judicial, must be vested in accordance with s.71.
7. There is nothing incongruous in the notion that particular powers, although conferred on a court, might be exercised by some person or persons not constituting the court, provided, of course, that they are exercised in a manner consonant with the exercise of judicial power. Rather, there is something incongruous in the notion that this and other federal courts created by the Parliament should stand in an entirely different position from State courts exercising invested federal jurisdiction. That incongruity is heightened by the familiar examples of particular powers that have been exercised over a very long time by court officers, notably by masters, in the courts of the United Kingdom (upon which our own court structures and arrangements are largely based) and in the courts of a number of Australian States. Such is the incongruity (and the potential for inconvenience and inefficiency) that, in my view, a very clear indication would be necessary before ss.71 and 79 of the Constitution could be interpreted as requiring that each and every power or function associated with the exercise of the jurisdiction of this and other federal courts be exercised by those who constitute the relevant court.
8. It is convenient to turn first to s.79 of the Constitution which, it has been noted, applies both to federal courts and to State courts invested with federal jurisdiction. In Hospital Contribution Fund s.79 was not seen as an impediment to the exercise of invested federal jurisdiction by persons who, although officers of a State court, did not constitute the court. Indeed, in the earlier case of Le Mesurier, s.79 was seen as having a quite different effect in demonstrating the absence of a general legislative power to regulate the constitution of State courts. It was that consideration which, at least in part, was seen in Hospital Contribution Fund as denying the existence of a constitutional requirement that federal jurisdiction invested in a State court be exercised only by those who constitute the court. See per Gibbs C.J. at p 56, per Mason J. at p 61, per Aickin J. at p 67, and per Wilson J. at p 71.
9. In Le Mesurier it was said (at p 498) that "express and particular powers" are conferred by ss.77 and 79 of the Constitution "with respect to State Courts because general legislative powers did not extend to authorize legislation regulating their jurisdiction or their constitution". The same general purpose is to be discerned in so far as s.79 operates with respect to this Court and federal courts created by the Parliament. Chapter III of the Constitution - particularly in ss.71 and 72, but not exclusively so - guarantees the independence and the constitutional integrity of the courts and of the judiciary. Particular and limited powers are given to the Parliament by ss.73, 76, 77, 78 and 79 to regulate federal jurisdiction and to prescribe conditions attaching to its exercise. And, of course, these powers are supplemented by s.51(xxxix) of the Constitution. Leaving aside substantive laws, it is only within the parameters of these powers that Parliament may regulate the exercise of federal jurisdiction. Thus, s.79 was necessary to enable the Parliament to legislate generally as to the number of judges who are to exercise federal jurisdiction or some particular part thereof. But neither its wording nor its context requires that particular powers associated with the exercise of jurisdiction by this and other federal courts be exercised only by those who constitute the relevant court. Rather, unless s.71 imports the requirement for which the appellant contends, a reading of s.79 in the context of the other limited and specific legislative powers conferred by Ch III suggests that it is predicated on an assumption that, but for that section, Parliament would not have a general power to override a right otherwise attaching to an independent court to determine for itself, within the limits imposed by Ch III, by whom and in what capacity particular powers and functions should be exercised.
10. There are two matters which might provide the basis for an argument that s.71 requires that the particular powers and functions associated with the exercise of the jurisdiction of this and other federal courts be exercised only by those who constitute the relevant court. The first is the nature of judicial power. The second is the requirement in s.71 that that power be vested in courts.
11. It is often said that the judicial power of the Commonwealth is dealt with completely and exhaustively in s.71 of the Constitution. See, for example, Huddart, Parker and Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 355; Dignan, at pp 96, 98 and 116; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") [1956] HCA 10; (1956) 94 CLR 254, at p 289; and Attorney-General of the Commonwealth of Australia v. The Queen ("the Boilermakers' Case - PC") [1957] HCA 12; (1957) 95 CLR 529, at pp 537-538. The complete and exhaustive nature of s.71 imports two distinct limitations. First, only courts named or indicated in s.71 may exercise the judicial power of the Commonwealth. See Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. ("Alexander's Case") [1918] HCA 56; (1918) 25 CLR 434. Secondly, only judicial power and powers ancillary or incidental thereto may be conferred on a court as named or indicated in s.71. See the Boilermakers' Case, noting, however, the criticism of its principal conclusion by Barwick C.J. and Mason J. in Reg. v. Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation [1974] HCA 8; (1974) 130 CLR 87, at pp 90 and 102 respectively.
12. Although the limitations imported by the complete and exhaustive nature of s.71 of the Constitution are each expressed in terms of judicial power, each limitation is directed to a different concept. The first is directed to that power which, by reason that it is essentially judicial, must be vested in courts. In general terms, that is the power that is brought to bear in determining the guilt of, or punishment for, breach of the law and in making final and binding determinations in controversies as to the existence of a legal right, power or obligation or as to legal status. See Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, per Deane J. at p 580. See also Huddart, Parker, per Griffith C.J. at p 357, and per Isaacs J. at p 383; Alexander's Case, per Griffith C.J. at p 442, and per Isaacs and Rich JJ. at pp 463 and 465; Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per Kitto J. at p 374. The second limitation is directed to those powers which, although not essentially judicial, may be vested in courts named or indicated in s.71. In general terms, they are powers which are appropriately vested in courts. The latter powers were described by Dixon C.J. and McTiernan J. in Davison (at pp 368-369) as bearing a "double aspect" in that "(t)he legislature may commit (them) to courts falling within Chapter III although much the same function(s) might be performed administratively." Powers which bear this "double aspect", if vested in a court as named or indicated in s.71, form part of the judicial power of the Commonwealth with all the consequences dictated by Ch III of the Constitution. See Federal Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153, per Isaacs J. at pp 175-176; Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at p 151. See also the Boilermakers' Case - PC, at p 544. Conversely, if vested in some other person or body, such powers stand outside the reach of ChIII. See Reg. v. Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617, per Mason J. at p 628, and per Murphy J. at pp 631-632; Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, at p 666.
13. If a power is one which can, at the will of Parliament, be vested either in a court as named or indicated in s.71 or in some other body or tribunal, then it is not one that, of its nature, must be exercised by a court or, in practical terms, by a person constituting the court.
14. Section 71 does not, in terms, distinguish between a power which is essentially judicial and one which falls within the concept of judicial power simply because it is appropriate to be and is conferred on a court. As has been seen, the latter is not one that, of its nature, is required to be exercised only by those who constitute the court upon which it is conferred. And, for a very long time, many powers and functions that are necessarily to be discharged or performed in or in connection with the exercise of a power that is essentially judicial have been performed and discharged in the courts of the United Kingdom and of a number of Australian States by persons not constituting those courts. Given these considerations and given the decision in Hospital Contribution Fund with respect to State courts invested with federal jurisdiction, it is impossible, in my view, to conclude that the nature of the subject matter of s.71, namely, judicial power, requires that the particular powers and functions associated with the exercise of jurisdiction by this and other federal courts be exercised only by those who constitute the relevant court.
15. The considerations which direct the conclusion that the nature of judicial power is not such as to require particular powers and functions associated with the exercise of federal jurisdiction to be exercised or discharged only by those who constitute the relevant court also point to the essential nature of s.71. Within Ch III only ss.71 and 78 speak in terms of "judicial power". On the other hand, ss.73, 75, 76, 77 and 79 speak of "jurisdiction". The word "jurisdiction" is apt to signify particular powers, or at least an aggregation of them. On the other hand, the term "judicial power" serves to signify a concept or an abstraction. See and cf., with respect to this distinction, Quick and Groom, The Judicial Power of the Commonwealth, (1904), at p 17. It is upon and with respect to "judicial power" as a concept or abstraction that s.71 has its primary and substantive operation. Section 71 operates with respect to particular powers and functions only in the sense that, if they fall within the concept or abstraction of "judicial power", they are and are to be allocated in accordance with, and only in accordance with, the constitutional arrangement thereby effected. Because s.71 does not otherwise operate with respect to particular powers and functions, the requirement that judicial power be vested in courts as therein named or indicated carries no absolute requirement that particular powers or functions be exercised only by those who constitute the relevant court.
16. Given that neither s.71 nor s.79 imports an absolute requirement that particular powers and functions associated with federal jurisdiction be exercised only by those who constitute the relevant court, it is necessary to consider whether s.37A(1) of the Act, or alternatively O.36A, r.2(1)(n) of the Rules, is invalid by reason of any other limits imported by Ch III of the Constitution.
17. It must be accepted that Ch III imposes limits on the delegation of powers and functions conferred on a court. If all such powers were, as a result of delegation, to be regularly exercised by persons not constituting the court, the powers (other than those which are essentially and, thus, exclusively judicial) would cease to fall within the concept of judicial power and the body on whom they were conferred would no longer properly be described as a court. However, in my view, the question is not whether the Act purports to authorize delegation beyond such limits but whether there has been an attempt in O.36A, r.2(1)(n) by the Family Court to delegate beyond those limits. The specific legislative powers conferred by ss.73, 76, 77, 78 and 79, even when aided by s.51(xxxix), touch the question of delegation only indirectly. Pursuant to the power conferred by s.79, the Parliament may prescribe the number of judges necessary to exercise federal jurisdiction or some particular part thereof and, by a law of that nature, the Parliament can preclude the delegation of the power or powers associated with the exercise of that jurisdiction. Again, pursuant to s.51(xxxix), the Parliament might prescribe rules of practice or procedure which would have the effect of precluding the delegation of some particular power. But to say that Parliament may preclude delegation is not to say that its authorization is necessary before a particular power or function may be delegated. Rather, the specific and limited legislative powers in ss.73, 76, 77, 78 and 79 point to the conclusion that, unless the contrary is required by a law made pursuant to s.79 or s.51(xxxix), a federal court may, within the limits imposed by Ch III and within the limits of what is practicable, determine for itself whether, and, if so, to whom and on what terms, particular powers and functions should be delegated. A law, such as s.37A of the Act, which purports to authorize the delegation of particular powers and functions and specifies to whom and on what terms they may be delegated is thus to be seen as a law requiring that the powers and functions be performed by the court constituted by one or more of its judges as required by its constituting Act unless delegated in accordance with its provisions. As such, s.37A(1) is a law validly enacted pursuant to s.79 of the Constitution.
18. Leaving aside practical considerations relating to court personnel and the like, the limits on the delegation by a court of its powers and functions derive from the nature of judicial power and the nature of courts. Judicial power is usually defined in terms of its subject matter, but it is a power that, for complete definition, requires description of its dominant and essential characteristic, namely, that it is exercised in accordance with that process which is referred to as "the judicial process". Thus, in general terms, it is a power which cannot be exercised until the "tribunal which has power ... is called upon to take action" (Huddart, Parker, at p 357), which (subject to limited exceptions) proceeds by way of open and public enquiry, which involves the application of the rules of natural justice and which is directed to ascertaining "the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined": Tasmanian Breweries, per Kitto J. at p 374. This characteristic imports a requirement that a court delegate its powers and functions only to persons and on terms designed to ensure that the judicial process will be observed. Thus, for example, a particular power or function cannot be delegated to a person having an interest in the matter or on terms permitting of its being exercised secretly or arbitrarily.
19. The constitutional requirement that judicial power be vested in courts also necessarily carries an implication that delegation can be effected only in a manner that is consistent with the structure and organization of a court and with the power having been vested in a court. It was on the former of these implications that the decision in Davison was rested. It is convenient to note that it does not follow from Davison that a power or function can be delegated only to a person who is part of the organizational structure of the court. Indeed, the taking of evidence on commission outside the jurisdiction is a familar example of a function that is delegated to a person who is not a part of the organization of a court. Whether a power or function may be delegated to a person outside the court structure is a matter to be determined by a number of considerations, the most important of which are the subject matter and the nature of the power or function. Other relevant considerations include the status of the delegate and the relationship between the delegate and the court. Questions of status and relationship are relevant even if the delegate is an officer of the court. Thus, for example, it would not be consistent with the structure and organization of a court for there to be delegated to a registrar or master the power to hear appeals from judges of the court.
20. The requirement that delegation be consistent with the power being vested in a court directs considerations of both substance and degree. As a matter of substance it is necessary that appropriate procedures exist for supervision by the court, both as to observance of the limits attached to delegated powers and as to the exercise of those powers. This aspect was adverted to by Mason J. and Murphy J. in Hospital Contribution Fund, at pp 64 and 66 respectively, their Honours there expressing the view that such supervision could be effected by means of review or appeal. And, as earlier pointed out, it is necessary to enquire whether powers and functions have been delegated to the extent that their judicial character is lost or to the extent that the body on whom they are conferred is no longer properly described as a court.
21. There is only one matter which, in my view, is capable of bringing the validity of O.36A, r.2(1)(n) into doubt, namely, the question whether proper procedures exist whereby the Family Court can ensure observance of the limits attaching to the power therein dealt with. Putting that issue to one side, the rules contained in O.36A, so far as they deal with or operate by reference to the delegation of those powers referred to in s.37A(1) of the Act, conform to the requirements of that section. And, having regard to the limited range and the subject matter of the powers dealt with in O.36A, r.2(1) and the persons by whom and the terms on which those powers may be exercised (including review on a hearing de novo), it is impossible to say that O.36A, r.2(1)(n) transgresses the limits imposed by Ch III of the Constitution. In particular, but leaving aside the limited question of supervision earlier referred to, the delegation thus effected is consistent with the judicial process, with the structure and organization of the Family Court as a court and with the vesting of the particular powers and functions involved in a court.
22. The question of supervision by the Family Court to ensure observance of the limits of delegated powers was not advanced on behalf of the appellant as a matter going to the validity of O.36A, r.2(1)(n), but as a matter incidentally bearing upon the nature of the review required by s.37A(9) of the Act. The argument of the appellant was that, in the circumstance of this case, the application for review automatically brought about a situation such that the order made by the Deputy Registrar became ineffective for any purpose and, thereupon and without more, the court was required to determine, as a contested matter, what order should be made pursuant to s.79 of the Act. Otherwise, it was said, the evidentiary provisions of O.24, r.1(8) and (9) would effectively preclude the appellant from raising the question whether the order made was one the terms of which had been agreed by the parties. That issue was expressed in argument as being whether "consent of the appellant was vitiated or voidable". The question whether consent is "voidable" may raise a different issue from that involved in the question whether an order was one the terms of which had been agreed by the parties. However, it has not at any stage been suggested that the present case involves a consent that is merely "voidable" and that issue may be excluded from consideration.
23. Section 37A(9) is predicated on an assumption that there has been an exercise of delegated power. So too is O.36A, r.7 which prescribes the procedures to be followed on an application for review as required by the sub-section. The review required by the sub-section is one directed to the exercise of power. Neither s.37A(9) nor O.36A, r.7 is directed to the question whether the delegate in fact possessed the power purportedly exercised, which is the issue raised by the question whether the order made was one the terms of which were agreed by the parties or, as was put in argument, whether the consent was vitiated. No question was raised in the Full Court or in this Court as to the nature of proceedings involved when the question is raised whether the delegate in fact possessed the power purportedly exercised. However, that matter must be addressed for, as earlier indicated, it bears upon the question of the validity of the delegation of power by O.36A, r.2(1)(n).
24. The Rules make no provision directly dealing with the nature of the proceedings to be instituted when a question arises whether a registrar or deputy registrar has exceeded the limits of delegated power. That being so, there is no reason why the issue should not be determined in the review process contemplated by s.37A(9) or in proceedings otherwise instituted under the Act. It would seem clear enough that proceedings directed to the question whether a registrar or deputy registrar in fact possessed a power as specified in O.36A, r.2(1)(n), no matter how instituted, constitute a "matrimonial cause" as defined in s.4(1) of the Act. If such proceedings do not fall within any other paragraph of the definition of "matrimonial cause", they fall within the terms of par.(f), in that they are proceedings in relation to pending or completed proceedings of a kind referred to in par.(ca), namely, proceedings with respect to the property of the parties, being proceedings arising out of the marital relationship. Subject to the question raised by reference to O.24, r.1 (8) and (9), a proceeding of either nature is an effective means for ensuring the observance of the limits of delegated power.
25. It was not suggested that the appellant was precluded from litigating the question whether the terms of the order were agreed by the parties. Rather, it was said that a document which the parties signed came into existence in the course of or as a result of something said during a registrar's conference convened under O.24, r.1 and that, by O.24, r.1(8) and (9), evidence could not be given of what was said at that conference. No argument was put as to the proper construction or validity of O.24, r.1(8) and (9). It was merely asserted that the effect of O.24, r.1(8) and (9) was to preclude a consideration of the question whether the terms of the order were agreed by the parties. That is not so. At most, the provisions limit the evidence admissible on that issue. That being so and whatever the effect of O.24, r.1(8) and (9), the question raised is not one touching the validity of O.36A, r.2. Rather, it is a question of the power of the Family Court to make a Rule of Court purporting to render inadmissible what would otherwise be admissible evidence in a proceeding properly instituted under the Act. That question was not raised in the Family Court nor in the Notice of Appeal. It is not appropriate for that question to be further explored, particularly as the respondent did not appear on the hearing of this appeal.
26. It is necessary to turn to the nature of the review process required by s.37A(9) of the Act. In so far as that sub-section provides for the "review" of the "exercise of (a) power" delegated to a registrar or deputy registrar in accordance with that section, it was clearly intended that there should be a process enabling complete consideration of the matter as dealt with and not merely a process, such as is involved in the appeal process under s.94 of the Act, directed to remedying errors of law. Such a review entails a consideration of whether, quite apart from legal or other error, a different result should be arrived at. But, as is clear from the word "review" and from the expression "exercise of power", it was also intended that a decision made in exercise of delegated power should have force and effect unless and until set aside in or in consequence of the review process. Thus, a decision is not one that is provisional or, as argued on behalf of the appellant, one that is set at nought by the filing of an application for review, with the consequence that in the present case the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79 of the Act. Rather, the review process is one in which the Family Court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result. Although the Full Court treated the review process as being of a more limited nature than that indicated, it was correct in rejecting the only argument put to it on behalf of the appellant concerning the nature of that process, namely, that merely by the filing of an application for review it was obliged to treat the question arising under s.79 as one to be determined as a contested matter.
27. The only questions raised by the appellant for the decision of the Full Court, namely, whether the power to make an order under s.79 of the Act when its terms have been agreed was validly delegated to a deputy registrar and whether, an application for review having been made, the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79, must be answered against the appellant. Other issues were raised in the Notice of Appeal and were the subject of argument in this Court. It now appears that the appellant is correct in one such matter. The remarks of the Full Court as to the nature of the review required by s.37A(9) do not reflect the true extent of that review. On that limited issue the appeal should be allowed.
McHUGH J. The principal question in this appeal is whether, consistently with Ch III of the Constitution, the exercise of any part of the judicial power of the Commonwealth conferred on the Family Court of Australia can be delegated to the registrars of that Court.
2. The facts and relevant constitutional and statutory provisions are set out
in other judgments. Except to the extent necessary
to explain my reasons, I
will not repeat them.
The contentions of the appellant and the Commonwealth
1. The contention of the appellant
3. The appellant submitted that the only inference that can be drawn from the terms of ss.71, 72 and 79 of the Constitution is that the judicial power of a federal court, created by the Parliament pursuant to the provisions of s.71, can be exercised only by judges appointed in accordance with s.72 of the Constitution. Consequently, the Family Law Act 1975 (Cth) and the Rules made thereunder are invalid to the extent that they purport to authorise the delegation of any part of the judicial power of the Family Court to the registrars of that Court.
4. In Waterside Workers' Federation of Australia v. J.W. Alexander Ltd.
[1918] HCA 56; (1918) 25 CLR 434, this Court held that
the Parliament could
not create a
federal court under s.71 of the Constitution unless the judges of that court
were appointed in accordance with s.72 of the Constitution and that, on its
proper construction, the then form of s.72 required that the Justices of the
High Court and the judges of other federal courts be appointed for life: see
also Reg. v. Davison
[1954] HCA 46; (1954) 90 CLR 353, at p 365. Section 72 was amended in
1977 so that the term of appointment of a Justice of this Court or a judge of
a federal court, appointed after the
commencement of the Constitution
Alteration (Retirement of Judges) 1977, is no longer for life. But that
amendment has not altered the principle that the Justices
of the High Court
and the judges of other federal courts can be appointed to their offices only
in accordance with the provisions
of s.72.
2. The contention of the Commonwealth
5. The respondent did not appear on the hearing of the appeal. But the Commonwealth, which intervened, did not contend that the registrars of the Family Court were appointed in accordance with the provisions of s.72 of the Constitution. Moreover, the Commonwealth stated that its submissions did not "involve any challenge to the orthodox view that membership of a federal court is constitutionally confined to Justices holding tenure in accordance with s.72". Nevertheless, the Commonwealth submitted that s.37A of the Family Law Act is valid even though it authorises the exercise of judicial power by registrars of the Court. Section 37A is valid, the Commonwealth submitted, because the judicial powers exercised by the registrars are limited to those delegated to them by the Court and the exercise of those powers is subject to review by the Court.
6. The Commonwealth's submissions relied principally on the decision of this
Court in The Commonwealth v. Hospital Contribution
Fund [1982] HCA 13; (1982) 150 CLR 49
("the HCF Case"), which held that, consistently with ChIII of the
Constitution, a State court, invested with federal jurisdiction under
s.77(iii), may exercise that jurisdiction through an officer of the court who
is not a member of the court. Gibbs C.J., with whose judgment
Stephen and
Aickin JJ. agreed, said (at p 59):
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an
officer of the court, under the rules of the court. In the
present case the jurisdiction and powers which Master Allen
was called on to exercise were undoubtedly the jurisdiction
and powers of the Supreme Court. He was the officer of the
court by whom the jurisdiction and powers of the court in
the matter in question were normally exercised, and an order
made by him, if not set aside or varied by the court, would
take effect as an order of the court. Although he was not
a member of the court he was, in my respectful opinion,
part of the organization through which the powers and
jurisdiction of the court were exercised in matters of State
jurisdiction, and through which they were to be exercised in
matters of federal jurisdiction also, once the court was
invested with federal jurisdiction."
7. The Commonwealth submitted that this reasoning is equally applicable to a
federal court created under the provisions of s.71, and whose jurisdiction is
defined in accordance with s.77(i) of the Constitution, because the word
"court" had the same meaning throughout s.77. To support that submission, the
Commonwealth also relied on what Mason and Murphy JJ. said in the HCF Case.
Mason J. said (at p
64):
"However, as I see it, the vesting of judicial power in aMurphy J. said (at p 66):
High Court consisting of a Chief Justice and justices should
not necessarily exclude the exercise of some jurisdiction
and powers by a master or registrar of the Court, whether as
a delegate or otherwise, provided that the exercise is
subject to review or appeal, more particularly now that the
Court is autonomous by virtue of the High Court of Australia
Act 1979 (Cth). In the case of other courts created by
Parliament, whose membership is not confined by s.72 to
judges, there is perhaps even less reason for denying that
part of their jurisdiction and powers may be exercised
by officers who are not judges, whether as delegates or
otherwise, provided of course that they are officers who
truly form part of the court's organization."
"There is no provision express or implied in the
Constitution which would prevent exercise of the
jurisdiction of the High Court (or other court created by
the Parliament) by officers or others who are not justices
but act under the supervision of the justices (in the sense
that their decisions are subject to review or appeal)."
8. Accordingly, the Commonwealth submitted that federal courts, like State
courts invested with federal jurisdiction, can delegate
the judicial power of
the Commonwealth to officers of those courts. Indeed, the Commonwealth
contended that to hold otherwise would
lead in the long run to the erosion of
the function and status of federal courts.
The applicable principle
9. At first sight, there is considerable attraction in the submission that the word "court" has the same meaning throughout s.77 of the Constitution and, therefore, if, as was held in the HCF Case, the powers and jurisdiction of a State "court" invested with federal jurisdiction can be exercised by officers of the court who are not members of the court, it should follow that the jurisdiction of a federal "court" can also be exercised by officers of that court who are not members of it. But the submission, when pushed to its logical conclusion, leads to the result that the judicial power of a federal court can be exercised by persons who neither were appointed pursuant to s.72 of the Constitution nor are subject to the supervision of the judges of that court. Nothing in the reasoning in the HCF Case suggests that the masters and other officers of State courts can exercise invested federal jurisdiction only if the exercise of the jurisdiction is subject to review by the judges of those courts. If the holding in the HCF Case is applied to the High Court and federal courts, there is no escape from the conclusion that the original jurisdiction of those courts can be exercised by persons who are not subject to review by the Justices or judges of those courts and who were not appointed in accordance with s.72 of the Constitution. Such a conclusion can hardly stand with the decision in Alexander if, as the Commonwealth conceded, membership of a federal court is constitutionally confined to Justices and judges holding tenure under s.72. Moreover, there is a real difference between the exercise of jurisdiction by State courts invested with federal jurisdiction and the exercise of jurisdiction by the High Court and federal courts created under s.71 of the Constitution. To fail to perceive the difference is to overlook the unique role which the federal judiciary plays in a federal system of government and the need to ensure that the federal judiciary is independent of the federal Parliament and the Executive Government of the Commonwealth.
10. In Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94
CLR 254, Dixon C.J., McTiernan, Fullagar
and Kitto
JJ.
pointed out (at pp
275-276):
"It was open no doubt to the framers of the Commonwealth
Constitution to decide that a distribution of powers between
the executive and legislature could safely be dispensed
with, once they rejected the system of the independence of
the executive. But it is only too evident from the text of
the Constitution that that was not their decision. In any
case the separation of the judicial powers from other powers
is affected by different considerations. The position and
constitution of the judicature could not be considered
accidental to the institution of federalism: for upon the
judicature rested the ultimate responsibility for the
maintenance and enforcement of the boundaries within which
governmental power might be exercised and upon that the
whole system was constructed. This would be enough in
itself, were there no other reasons, to account for the fact
that the Australian Constitution was framed so as closely to
correspond with its American model in the classical division
of powers between the three organs of government, the
legislature, the executive and the judicature. But, whether
it was necessary or not, it could hardly be clearer on the
face of the Constitution that it was done. The fundamental
principle upon which federalism proceeds is the allocation
of the powers of government."
11. In a federal system, the States and the people of the States must rely on
the judiciary to protect them from unconstitutional
encroachments by the
federal Parliament or executive government. But there is a difference between
the State judiciary and the federal
judiciary in relation to this role. The
Executive Government of the Commonwealth does not appoint the judges or
officers of State
courts; nor does the Parliament or the Executive Government
of the Commonwealth have any powers with respect to the creation or
constitution
of State courts. If the Parliament wishes to invest State courts
with federal jurisdiction, it must, subject to s.79 of the Constitution, take
those courts as it finds them: Le Mesurier v. Connor (1929) 42 CLR 481.
Moreover, it is in the highest degree
unlikely that
the officers of a State
court, appointed by the executive
government of that State, would not protect
the State and
its people from
unconstitutional encroachments by the federal
Parliament
or the Executive Government of the Commonwealth. But a
State and
its citizens
do not appoint, remove or remunerate the members of
the federal
judiciary. The Justices of the High Court
and judges of other federal
courts
created by the Parliament are appointed
by the Executive Government of the
Commonwealth. Those
who framed the Constitution were aware of the need to
insulate the federal judiciary from the pressures of the Executive Government
of the Commonwealth and the
Parliament of the Commonwealth so that litigants
in federal courts could have their cases decided by judges who were free from
potential
domination by the legislative and executive branches of government:
cf. Commodity Futures Trading Commission v. Schor [1986] USSC 180; (1986) 478
US 833, at p 848.
At the Adelaide Convention in 1897, in discussing what became s.72 of the
Constitution, Mr Symon said (Official Report of the National Australasian
Convention Debates, vol.III, (1897), at p 950):
"Now, the position of the High Court which is beingAt the same Convention, Mr Kingston said (at p 946):
established under Federation is entirely different in many
respects from that which prevails in connection with the
Supreme Court of the colony or the High Court in England.
The Federal High Court is placed in a position to safeguard
the liberties of the subject and the rights of the
individual States against the encroachment of the
Legislature. It is placed in a position in which its
independence must be absolutely assured."
"I think we should be at great pains to secure the absoluteIt was to ensure the independence and impartiality of the Justices of the High Court and the judges of the federal courts that the framers of our Constitution enacted s.72 so as to give security of tenure and remuneration to the federal judges who were to exercise the judicial power of the Commonwealth. It is plain that the framers intended that the judicial power of the Commonwealth should be exercised only by courts composed of Justices and judges appointed in accordance with s.72 or State courts invested with federal jurisdiction under s.77(iii) of the Constitution. Though the Parliament might confer federal jurisdiction on a State court whose members did not have the security of tenure and remuneration afforded by s.72, this result would ensue only because the State concerned did not want its judicial officers to have the same security of tenure as given by s.72. But the exercise of the judicial power of the Commonwealth by federal courts was another matter.
independence of the Judges of the Federal Court,
particularly of the Judges of the High Court of Australia,
who are intended to adjudicate on matters which may affect
the Federal Executive and the Federal Parliament. To my
mind we shall be committing a glaring mistake if we do not
protect these judges from ill-considered action either by
the Federal Executive or by the Federal Parliament."
12. In my opinion, the question whether the Justices of this Court or the judges of the federal courts can delegate the exercise of their judicial powers to officers of their courts is not to be determined by comparing the organisation or position of those courts with the organisation or position of the State courts, or by considering the meaning of the term "court" in s.77 or the term "courts" in s.71 of the Constitution. Nor is it to be determined by mechanically applying the decision in the HCF Case to the High Court and the federal courts. To do so would be to miss the purpose and significance of s.72 in our Constitution.
13. As appears below, Chs I, II and III of the Constitution give effect to
the political doctrine of the separation of powers. Chapter III seeks to do
this by ensuring that judicial power is
exercised by the judiciary and not by
the legislature or the executive government. Nothing in Ch III or any other
part of the Constitution, however, expressly prohibits the exercise of the
judicial power of the High Court or a federal court by its officers subject to
review by its Justices or judges. Prima facie, the terms of s.71 together
with s.51(xxxix) are wide enough to authorise a law conferring on the Justices
of this Court and the judges of the federal courts power to delegate
the
exercise of their judicial functions to officers of their courts, subject to
review by the Justices or judges of those courts.
If a prohibition against
that delegation exists, it is because the mandatory propositions embodied in
ss.71 and 72 of the Constitution are to be read as negatively implying that
prohibition. But in a Constitution, an implied prohibition or limitation on
the exercise of a power conferred by that Constitution can arise only from
necessity and must be confined to the extent of its need. In Kirby, the
mandatory terms of s.71 were read as negatively implying that the judicial
power of the Commonwealth could be exercised only by courts constituted in
accordance
with Ch III of the Constitution. This negative implication was
seen to be the necessary result of the separation of the functions of
government between the legislature,
the executive and the judiciary.
Likewise, the question whether the Justices of this Court or the judges of a
federal court are entitled
to delegate the exercise of the powers of the court
to an officer of the court must depend upon whether such a delegation would
necessarily
be contrary to the substance and spirit of the doctrine of the
separation of powers.
The separation of powers
14. In strict theory, the doctrine of the separation of powers, as formulated by Montesquieu, requires that the legislative, executive and judicial powers of a political state should be exercised by separate and independent branches of government whose personnel "must not at any one time compose, or exercise the functions of, more than one (branch) of government": Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per Windeyer J. at p 389. Montesquieu's theory was based on his perceptions of English constitutional practice in the eighteenth century. The chief weakness of the theory was that "it exaggerated the sharpness of the separation": Holdsworth, A History of English Law, vol.X, (1938), p 721. But it exerted an enormous influence on the framers of the Constitution of the United States who sought to give effect to it by vesting the legislative power in Congress (Art.I), the executive power in a President (Art.II) and the "judicial Power of the United States ... in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (Art.III). Time proved that the strict application of the theory was as unworkable as it was inefficient in a modern body politic. Consequently, the courts of the United States have given Congress a discretion in many cases to determine which of the three branches of government is the most appropriate repository for the exercise of a particular power. In referring to the United States position, the joint judgment of the majority of this Court in Kirby, at p 276, pointed out "that the practical expedients by which the difficulties have been met have left the constitutional theorists somewhat at a loss in reconciling them with a priori principle".
15. The United States Constitution was the model for the Commonwealth Constitution. But from the commencement of the Australian federal system it was plain that neither the strict theory of the doctrine of the separation of powers nor even the modified version of that theory which was current in the United States in 1900 could apply to the Commonwealth Constitution. The requirement that "no Minister ... shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives" (s.64), together with the theory of responsible government, made it an impossibility: see Kirby, at p 275.
16. Nevertheless, as Viscount Simonds said in Attorney-General for Australia
v. The Queen (1957) AC 288, at p 311:
"That the Constitution is based upon a separation ofThe vesting of the legislative power in a Federal Parliament (s.1), the vesting of the executive power in the Queen (s.61) and the vesting of the judicial power of the Commonwealth in the courts (s.71) make it clear that the Constitution "has broadly and, to a certain extent, imperatively separated the three great branches of government, and has assigned to each, by its own authority, the appropriate organ": Federal Commissioner of Taxation v. Munro [1926] HCA 58; [1926] HCA 58; (1926) 38 CLR 153, per Isaacs J. at p 178.
the functions of government is clearly to be seen in its
structure, which closely follows the model of the American
Constitution."
17. Moreover, not only have this Court and the Judicial Committee of the
Privy Council recognised that the Commonwealth Constitution is based to a
certain extent on a separation of functions or powers, but they have taken a
strict view of the separation of the judicial
power from the legislative and
executive power of the Commonwealth. In Victorian Stevedoring and General
Contracting Co. Pty. Ltd.
and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, Evatt J. said
(at p 117):
"Questions of judicial power occupy a place apart under theIn Attorney-General for Australia v. The Queen, after referring to various provisions of the Commonwealth Constitution, Viscount Simonds said (at pp 312-313):
Constitution, not only because of the special nature of
judicial power but because of the elaborate provisions of
Chapter III. As Sir W. Harrison Moore has pointed out in
his well known work on the Australian Constitution 'between
legislative and executive power on the one hand and judicial
power on the other, there is a great cleavage' (Commonwealth
of Australia, 2nd ed., p 101)."
"But enough has been said to suggest that in the absence of
any contrary provision the principle of the separation of
powers is embodied in the Constitution. Section 1, which
vests legislative power in a Federal Parliament, at the same
time negatives such power being vested in any other body.
In the same way section 71 and the succeeding sections,
while affirmatively prescribing in what courts the judicial
power of the Commonwealth may be vested and the limits of
their jurisdiction, negatives the possibility of vesting
such power in other courts or extending their jurisdiction
beyond those limits. It is to Chapter III alone that the
Parliament must have recourse if it wishes to legislate in
regard to the judicial power. That chapter is in its terms
detailed and exhaustive, and their Lordships dissent from
the contention sometimes explicitly, sometimes implicitly,
advanced that, inasmuch as there is no express prohibition
of other legislation in this field, it is open to the
Parliament to turn from Chapter III to some other source of
power."
18. But does it follow that the judicial power of the Commonwealth cannot be
exercised by an officer of this Court or a federal
court even if the exercise
of that power is subject to review by the Justices or judges of that court?
As long ago as 1867, the judges
of the superior courts in England were
authorised to empower the masters of those courts to transact the "Business"
exercised by
a judge of the courts sitting in chambers "except in respect of
Matters relating to the Liberty of the Subject": Judges Chambers
(Despatch of
Business) Act 1867 (U.K.) (30 and 31 Vict. c.68). Thus, it would be surprising
if the provisions of Ch III were intended
to preclude the Justices of this
Court or the judges of the federal courts from delegating at least some
judicial powers to the masters
and registrars of those courts, particularly if
the exercise of the power was subject to review by the Justices or judges. In
Davison,
at p 365, Dixon C.J. and McTiernan J. pointed out:
"A court is composed of the judges which form it, but courts
are provided with officers and, under a unitary system of
government, it is not uncommon to find that certain duties
falling upon a court are executed, subject to judicial
confirmation or review, by an officer of the court, such as
a master. There is no distinct decision of this Court that
under Chapter III no authority can be given by statute for
the discharge in this way of the duties of a Federal court,
although there are dicta to that effect: cf. per Isaacs J.
and Starke J. in Le Mesurier v. Connor (at p 511, 512, 522-
525). The decision of Long Innes J. in Re Malcolm Fraser
Grant; Ex parte Edgley ((1928) 29 SR(NSW) 31), perhaps
necessarily implies it."
19. No doubt the decisions in Alexander, Kirby and many other cases establish that the judicial power of the Commonwealth can be exercised only by the High Court or by federal courts whose members have been appointed in accordance with s.72 and by State courts invested with federal jurisdiction in accordance with s.77(iii) of the Constitution. But this does not mean that the doctrine of the separation of powers or ss.71 and 72 is or are contravened by a delegation of judicial power to an officer of this Court or a federal court when that delegation is subject to review by a Justice or judge of the court who has been appointed in accordance with s.72.
20. The delegation of power to an officer of this Court or a federal court, subject to review by a Justice or judge of that court, does not take away from the Justices or judges of the court the power to give the binding and authoritative decision in the action. It does not undermine the theory of checks and balances embodied in the doctrine of the separation of powers and in ss.1, 61 and 71 of the Constitution. It does not threaten the values which Ch III of the Constitution seeks to protect - the independence and impartiality of the federal judiciary and the separation of the exercise of judicial power from legislative and executive power. It follows that such a delegation is not contrary to the spirit or the substance of the doctrine of the separation of powers. The mandatory propositions in ss.71 and 72 of the Constitution should not be read, therefore, as impliedly prohibiting such a delegation. In my opinion, the dicta of Isaacs and Starke JJ. in Le Mesurier and the decision in Re Malcolm Fraser Grant are erroneous in so far as they suggest the contrary.
21. It follows, in my opinion, that this Court or a federal court created
under s.71 of the Constitution may be authorised to delegate the exercise of
its judicial powers to an officer of that court provided that the exercise of
the power
is subject to review by way of a de novo hearing by a Justice or
judge of that court who has been appointed in accordance with s.72 of the
Constitution. It goes without saying that the Parliament cannot require the
court to delegate any of its powers. Nor, in my opinion, will anything
less
than a hearing de novo to review the exercise of the power by the officer be
sufficient. That is to say, appellate review is
an insufficient condition of
the delegation of the exercise of the power; there must be a complete
rehearing of the facts and the
law as they exist when the Justice or judge
reviews the order made by the officer. Otherwise, the officer and not the
Justices or
judges of the court would be exercising the original jurisdiction
of the court.
Section 37A and O.36A are valid
22. Section 37A of the Family Law Act is, in my opinion, a valid enactment of the Parliament. It confers on the judges of the Family Court, or a majority of them, the power to make rules delegating to the registrars the powers of the court except those referred to in sub-s.(2): s.37A(1). Any exercise of a delegated power by a registrar is "deemed to have been exercised by the Court or a Judge, as the case requires": s.37A(3). The delegation of a power does not prevent the exercise of that power by the Court or a judge: s.37A(4). Where the registrar has exercised a delegated power, a party to the proceeding may apply to the Court "to review that exercise of power": s.37A(9). Moreover, the Court of its own motion may review an exercise of power by a registrar: s.37A(10). In sub-ss.(9) and (10), the term "review" must be read as "review de novo". When it is so read, s.37A is validly made as an incident of the power to create the Family Court under s.71 of the Constitution.
23. Order 36A of the Family Law Rules (Cth) appears to have been made in reliance on the power conferred on the judges of the Family Court by s.37A. At the relevant time, O.36A, r.7(4) provided that the review of "an exercise of power by a Judicial Registrar or a Registrar shall proceed by way of a hearing de novo". Neither that sub-rule nor any other provision of O.36A purported to give any conclusory or presumptive effect to any finding of a judicial registrar or registrar. Any order of the judicial registrar or registrar could not take effect if a litigant wished his or her case to be retried by a judge of that Court since a litigant, dissatisfied with such order, was entitled to have his or her case heard de novo by a judge of the Court: O.36A, r.7(4). If the litigant was content to accept the order, the making of that order did not contravene any of the values which Ch III of the Constitution protects. Accordingly, O.36A was validly made and does not contravene the Constitution.
24. The attack on the constitutional validity of s.37A and O.36A must fail.
25. However, in the present case the judges of the Family Court have taken too narrow a view of their function when hearing de novo a review of the exercise of the power delegated under O.36A, r.2(1)(n). For the reasons given by Dawson J., Maxwell J. was bound to consider the matters referred to in s.79(4) of the Family Law Act and evidence was admissible of any subsequent withdrawal of consent by the wife.
26. The appeal should be allowed.
ORDER
Appeal allowed.Set aside the orders of the Full Court of the Family Court.
Remit the application of the appellant for review of the exercise of power by Deputy Registrar Lee to a single judge of the Family Court for determination in accordance with the judgment of this Court.
No order as to the costs of this appeal.
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