Handsley, Elizabeth --- "Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power" [1998] SydLawRw 9; (1998) 20 (2) Sydney Law Review 183
[*] Senior Lecturer in Law, Flinders University, South Australia.
[1] [1995] HCA 10; (1995) 183 CLR 245.
[2] [1995] HCA 26; (1995) 184 CLR 348.
[3] [1996] HCA 24; (1996) 138 ALR 577.
[4] [1996] HCA 18; (1996) 138 ALR 220.
[5] For example, most State Constitutions require a referendum to abolish or change the composition of the upper house of parliament (if there is one): eg, Constitution Act 1902 (NSW) s7A; Constitution Act 1934 (SA) s10A; Constitution Act 1889 (WA) s73.
[6] There is, of course, the possibility of judicial review of State legislation under the Commonwealth Constitution, eg, s90.
[7] Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372.
[8] The situation has changed slightly here since the adoption in 1995 of Part 9 of the Constitution Act 1902.
[9] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254. See generally Campbell, E, “Constitutional Protection of State Courts and Judges” [1997] MonashULawRw 24; (1997) 23 Monash LR 397 at 397.
[10] See French, R, “Parliament, the Executive, the Courts and the People” [1996] DeakinLawRw 1; (1996) 3 Deakin LR 1 at 8.
[11] Clearly this aspect of separation of powers exists only to a limited extent under a Westminsterbased system like Australia’s, where ministers of state exercise both executive and legislative functions. Consider, on the other hand, the inability of public servants to stand for election to the legislature: Commonwealth Constitution s44(iv); Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77.
[12] For example, R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556.
[13] See Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57.
[14] Above n2 at 357.
[15] Either under the common law or under ss70 and 79 of the Crimes Act 1914 (Cth): see above n2 at 366, fnn 72–73.
[16] Above n2 at 365.
[17] Above n2 at 367; see quotation below accompanying note 67. See also Tehan, M, “Dorothy Ann Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Case Note)” [1996] MelbULawRw 26; (1996) 20 MULR 1212 at 1223 (“The majority ... in fact relied on the secret and unreviewable nature of the power as the very reason why the power should be exercised by” a judge – emphasis in original).
[18] Above n2 at 366.
[19] Id at 378.
[20] Id at 379–380.
[21] Id at 378–379.
[22] Id at 380–82 (“Public confidence in the judiciary cannot be enhanced and must inevitably be shaken by the spectacle of judges of the Federal Court suddenly and without reasons discharging themselves from hearing a case after the hearing has commenced” – at 382).
[23] Id at 382 (“Slowly but surely, persons who hold office as judges of the Federal Court are becoming an important part of the criminal investigative process.”)
[24] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s10(1)(c).
[25] Above n4 at 222.
[26] See Sherman, T, “Should Judges Conduct Royal Commissions?” (1997) 8 Pub LR 5 at 8 (“It is difficult to discern the consistent application of principle in the different treatment of the Mathews inquiry and Royal Commissions. ... The distinctions drawn by the High Court are not convincing and seem destined for much further litigation”).
[27] Above n4 at 231.
[28] Id at 232 (footnote omitted).
[29] Ibid.
[30] Ibid.
[31] Id at 237.
[32] Id at 238.
[33] Ibid.
[34] Id at 244.
[35] Id at 250.
[36] Id at 255.
[37] Id at 255–56.
[38] Section 5(1), together with s3.
[39] Above n3 at 607 per Toohey J.
[40] See Zdenkowski, G, “Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice” (1997) 3(2) Aust J Human Rights 8 at 14. Zdenkowski points out that the possibility of keeping Mr Kable in custody on the basis of the federal charges was “studiously ignored” in the political process: Id at 32. In any event, Mr Kable was granted bail on the federal charges at the time of the non-renewal of the preventive detention order in August 1995: Fairall, P A, “Before the High Court: Imprisonment Without Conviction in New South Wales: Kable v Director of Public Prosecution [sic]” [1995] SydLawRw 36; (1995) 17 Syd LR 573 at 574.
[41] See Zdenkowski, above n40 at 26 fn 74. But cf 138 ALR at 628 per McHugh J, quoting and adopting Wood, D, “A One Man Dangerous Offenders Statute – The Community Protection Act 1990 (Vic)” [1990] MelbULawRw 7; (1990) 17 MULR 497 at 502 (“After all, it is not envisaged that an application for an order to detain ... would be refused”); McPherson, B H, “Current Issues: Constitutional implications” (1996) 70 ALJ 945 at 946); Orr, “Kable v DPP: Taking Judicial Protection Too Far?” [1996] AIAdminLawF 18; (1996) 11 AIAL Forum 11 at 14–15 (“Kable’s case ... involved the imposition on the Supreme Court of a duty of issuing what was little more than a pronouncement or proclamation confirming a prediction already embodied in the form of a law at the instance of the Executive and Parliament of the State.”) In The Queen v Moffatt (unreported, Victorian Court of Appeal, Hayne JA, 14 March 1997) Hayne JA (as he then was ) distinguished the Victorian indefinite sentencing provisions from the Community Protection Act on the ground that “nothing ... would lead reasonable members of the public to conclude that the [State courts were] being called on to act as no more than an instrument of the executive government”: see Campbell, E, above n9 at 413.
[42] Above n3 at 608.
[43] Id at 615.
[44] Ibid.
[45] Id at 627.
[46] Id at 628–29.
[47] Id at 636.
[48] Id at 594 per Brennan CJ; at 592 per Dawson J.
[49] Id at 590.
[50] Id at 582 (that the State legislatures could not abolish themselves because of the provisions of ss106 and 107 of the Commonwealth Constitution).
[51] Id at 582–83 (“When a submission is made that a particular measure is ultra vires because a restraint on legislative power is implied by an entrenching provision, the implication must clearly appear. If the connection between the text and the propounded implication is tenuous or obscure, it would be wrong for a court by declaration to withdraw from public debate the matters to which the submitted restraint applies. If the constitutional text does not clearly support an implication of restraint, the court declaring the restraint is plunged into political controversy in which it is ill-fitted to engage and from which it is hard put to withdraw” (footnote omitted)).
[52] Id at 600.
[53] Orr impliedly agrees with this reasoning where he says, “I think it is interesting that in a constitutional context we have a test which is based on the opinion of ordinary reasonable members of the public. ... [W]e have sophisticated electoral and parliamentary systems which are meant to reflect what the people of New South Wales and Australia think”: above n41 at 15.
[54] (1997) 141 ALR 129. See French, above n10 at 17–18.
[55] Williams, G, “The High Court and the People” in Selby, H (ed), Tomorrow’s Law (1995) 271 at 288.
[56] Fairall, above n40 at 580.
[57] As T R S Allan, comments, “the minimum requirements of the rule of law cannot convincingly be reduced to public confidence”: “Ad Hominem Legislation in Australia” [1997] 56 Camb LJ 4 at 6.
[58] It is worth noting that the High Court did not offer any evidence in any of the cases under discussion as to what public reaction to the legislation in question had in fact been. See Campbell, above n9 at 422; in particular reference to Kable, see Handsley, E, “Do Hard Laws Make Bad Cases? – The High Court’s Decision in Kable v Director of Public Prosecutions (NSW)” (1997) 25 Fed LR 171 at 176; Orr, above n41 at 15.
[59] Orr, above n41 at 15. For myself, I might even doubt the exemption of her Honour from this charge.
[60] Zdenkowski, above n40 at 35, 41, 49. See also Allan, above n57 at 6 (“if [consistency and generality] is the feature ‘which serves to distinguish between palm tree justice and equal justice’, it is surely the citizen’s right to equal justice ... which is constitutionally fundamental.”)
[61] Above n3 at 626–27.
[62] Zdenkowski, above n40 at 22; see also id at 49–50 (“the majority decision has left the door open to State governments to enact preventive detention legislation as long as the precise objections to the CPA can be avoided”).
[63] Allan, above n57 at 5. Allan’s statement is slightly misleading, however, for as we have seen Mr Kable was freed as the result of a decision under the Community Protection Act, 1994 (NSW) not as a result of the High Court decision.
[64] See Handsley, above n58 at 177–78.
[65] Id at 178–79.
[66] Sherman, above n26 at 9.
[67] Grollo v Palmer above n2 at 367 per Brennan CJ, Deane, Dawson and Toohey JJ.
[68] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs above n4 at 225 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
[69] See Tehan, above n17 at 1225 (“The approach of the majority in Wilson appears to be more consistent with that of McHugh J in his minority judgment in Grollo.”)
[70] Above n4 at 232.
[71] Mistretta v United States [1989] USSC 9; (1989) 488 US 361 at 407.
[72] See Grollo v Palmer above n2 at 366 per Brennan CJ, Deane, Dawson and Toohey JJ, at 377 per McHugh J and at 392 per Gummow J; Kable v DPP (NSW) above n3 at 636 per Gummow J; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) above n4 at 225 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
[73] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[74] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.
[75] Although it is arguable that the effect of Theophanous has been rolled back more recently in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96, the effect of freedom of political communication on defamation law remains.
[76] The fact that the freedom was seen as absolutely essential is put in relief by the outcome of McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140: there, the Court refused to strike down the malapportionment in the state’s electoral laws on the ground that equality of voting power is not essential to representative democracy.
[77] See Dignan v Australian Steamships Pty Ltd [1931] HCA 19; (1931) 45 CLR 188. The concept of good government was also relied on by Kirby J in his dissent in Wilson above n4 at 250 and in his judgment in Gould v Brown (1998) 151 ALR 395 at 484–8. For a plea for a continued search for “workable government” in constitutional interpretation, see Orr, above note 41 at 17.
[78] In light of the observation, it is somewhat ironic to note the way that the High Court left the Mr Kables of this world to the “lynch mob” of Parliament: see above text accompanying n60–64.
[79] French, above n10 at 21.
[80] See also French, above n10 at 21 (praising judicial reliance on “community values” as a “concept ... that ... can be enunciated by the judges and assessed by those who read their reasons,” thus “render[ing] the judging process more transparent, and, to that extent, more capable of securing and retaining a community consensus than reliance upon undisclosed philosophies.”)
[81] It is interesting in this connection to recall the majority’s distinction between Justice Mathews’ position as a reporter and that of a Royal Commissioner who must “deliver a report according to [his or her] own conscience”: above n4 at 231. This may be code for the view that Royal Commission reports are (ipso facto?) not political. If so, this would clearly be stretching the category of non-political almost to breaking point, considering the matters which have been considered by such Commissions: see above n4 at 242–44 per Kirby J.
[82] Above n2 at 367.
[83] See above text accompanying notes 7–9.
[84] See Handsley, above n58 at 173; Zdenkowski, above n40 at 28.
[85] See Zdenkowski, above n40 at 10–11.
[86] And has continued to be, considering that since the decision in Wilson the proposed bridge has spawned a constitutional case on the races power (Kartinyeri v The Commonwealth [1998] HCA 22) and a major debate over the recusal of a member of the Court (Callinan J) from that case.
[87] Handsley, above n58 at 177.
[88] Here it needs to be borne in mind that the second application for Mr Kable’s detention was unsuccessful, and he had been released by the time the matter reached the High Court. See Zdenkowski, above n40 at 26 fn 74 and 39.
[89] The fact that the political branches in NSW “studiously ignored” (see above n40) the option of keeping Mr Kable in custody pending the hearing of the federal charges shows that they had in mind electoral mileage, and not just community protection, when bringing the Act into being. Consider also the importance of “law and order” as a State election issue in recent years: see Zdenkowski, above n40 at 10–11. For an account of legislative activity following the High Court’s decision, including the “swift” introduction of a private member’s Bill: see id at 50–51.
[90] At least under the Community Protection Act “the detaining authority and the arbitral authority are separate and independent”: see id at 43.
[91] This term can probably be used interchangeably with Wheeler’s “curial due process”: Wheeler, F, “The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia” [1997] MonashULawRw 18; (1997) 23 Monash LR 248.
[92] For example, one of the justifications often put forward for judicial law-making is that it is always reactive: judicial procedure prevents judges from going out looking for laws to change.
[93] Wheeler, above n91 at 250. See also id at 260 (“if Parliament cannot undermine judicial impartiality by conferring a particular type of non-judicial function upon a federal judge persona designata, then it can hardly do so directly by asking the court to exercise judicial power in a partial, or apparently partial, manner.”)
[94] See id at 261–62 and sources there cited.
[95] These elements are probably best understood as aspects of the “hearing rule” in natural justice; Wheeler states that “there can be no doubt that under the due process requirement the hearing rule ... operates as a constitutionally entrenched limitation upon the manner of exercise of federal judicial power”: above n91 at 261.
[96] Sometimes referred to as the principle that “those who assert must prove”: Platt v Nutt (1988) 12 NSWLR 231 at 238 per Kirby J.
[97] As Wheeler states, “each of the ... ‘natural justice’ limitations upon the manner of exercise of federal judicial power serves to promote the rule of law considerations implicit in s71 of the Constitution”: above n91 at 262.
[98] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s10(3)(a).
[99] Section 10(3)(b) requires a reporter to attach representations received to the report.
[100] Tehan comments that the “procedural aspects of the appointment and the proximity of the reporter and the Minister ... appear to be balanced by the requirement for the reporter to act with procedural fairness”: above n17 at 1226.
[101] It has been suggested, however, that the High Court’s decision may pave the way for full constitutional recognition of the right to a fair trial: Miller, J, “Criminal Cases in the High Court: Kable v The Director of Public Prosecutions for New South Wales” (1997) 21 Crim LJ 92 at 103.
[102] Above n3 at 614.
[103] Id at 614–615 (footnote omitted).
[104] See also R v Moffatt (unreported, Victorian Court of Appeal, Hayne JA, 14 March 1997), as discussed in Campbell, above n9 at 413.
[105] See also above n3 at 634 per Gummow J (“There is ... no determination of guilt solely by application of the law to past events being facts found. The consequence is that the legislation employs the Supreme Court to execute ... the legislature’s determination that the appellant be dealt with in a particular fashion”). Fairall refers to the NSW government’s “sudden discovery that the criminal law is primarily concerned with punishment for past wrongs rather than social protection”: above n40 at 578.
[106] Director of Public Prosecutions v Gregory Wayne Kable (unreported, Supreme Court of NSW, Grove J, 21 August 1995); DPP v Gregory Wayne Kable (unreported, Supreme Court of NSW, Levine J, 23 February 1995); Director of Public Prosecutions v Gregory Wayne Kable (unreported, Supreme Court of NSW, Hunter J, 30 December 1994); Director of Public Prosecutions v Gregory Wayne Kable (unreported, Supreme Court of NSW, Spender JA, 19 December 1994). McHugh J praised Levine J’s reasons as a “lengthy and anxious judgment”: above n3 at 628.
[107] Above n3 at 614. Section 17(3) provided: “Despite any Act or law to the contrary, the Court must receive in evidence any document or report of a kind referred to in subsection (1), or any copy of any such document or report, that is tendered to it in proceedings under this Act.” Subsection (1) referred to “medical records and reports ...records and reports of any psychiatric inpatient service or prison ... reports made to, or by, the Offenders Review Board ... reports, records or other documents prepared or kept by any police officer ... the transcript of any proceedings before, and evidence tendered to, the Mental Health Review Tribunal ... and ... reports as to the defendant’s condition and progress by such persons as [the court] considers appropriate”.
[108] There is some doubt about the inherent reliability of the evidence too, as some of the reports were prepared by experts “with little first-hand knowledge” of Mr Kable himself: Fairall, above n40 at 580. However, it is submitted that this is not necessarily a major problem in terms of comparing procedure under the Act with “normal” judicial procedure. It is undesirable, but not unusual, for medical experts to prepare their reports “on the paper-work”.
[109] French, above n10 at 2.
[110] See esp Winterton, G, “The Separation of Judicial Power as an Implied Bill of Rights” in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994).