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Published online by Cambridge University Press: 24 January 2025
This article will attempt to identify and define those constitutional principles, derived from the doctrine of the separation of powers, which govern the relationship between Parliament and the Chapter III courts in the precise situation where Parliament purports to amend the law which is applicable in pending legal proceedings (whether they are awaiting first instance hearing, or are on appeal). Arguably, these principles are also applicable in circumstances where proceedings are being contemplated, but have yet to be commenced. The fundamental enquiry is whether the separation of judicial power in Chapter III of the Commonwealth Constitution places limitations on the legislative competence of Parliament to affect the resolution of legal issues in the pending case. This issue has been the subject of greater judicial and academic scrutiny in the United States, providing considerable assistance in defining relevant constitutional limitations applicable in Australia. It is the aim of this article to undertake a detailed examination of the United States position to assist in the appreciation and development of principle in Australia.
The writer wishes to thank Sir Anthony Mason in particular for taking the time to read an earlier draft of this article, for his comments and his invaluable insights. Particular thanks are also due to Dr Fiona Wheeler of the Faculty of Law, Australian National University, and Professor George Winterton of Sydney Law School, together with the anonymous referees, for their very helpful comments and suggestions. The inadequacies in the article remain, of course, the writer's own.
1 Article III, s 1 of the Constitution of the United States provides: ‘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.’ Unlike Chapter III of the Australian Constitution, however, no provision is made for the vesting of federal jurisdiction in State courts. This difference is not presently relevant It will be a relevant consideration when determining whether any defined constitutional limitations will extend to State Parliaments as a possible extension of the principles arising from the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
2 For ease of reference, ‘separation doctrine’ will be used to refer to ‘the doctrine of the separation of powers’. See Gordon, Wood, The Creation of the American Republic 1776–1787 (1996) 154–155Google Scholar; Mary, P Clarke, Parliamentary Privilege in the American Colonies (1943) 49–51Google Scholar; Edward, S Corwin, The Doctrine of Judicial Review (1914) 37Google Scholar; ‘Judicial Action by the Provincial Legislature of Massachusetts’ (1908) 15 Harvard Law Review 208Google Scholar. For contemporary accounts of such interferences and their influence on leading figures in the drafting of the Constitution, see, eg, The Federalist No 48 in Jacob, E Cooke (ed), The Federalist (1961) 336–7Google Scholar in which is also cited, at 336, Thomas Jefferson, ‘Notes on the State of Virginia’ (1787) 196. See also Edward, S Corwin, ‘The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadeplphia Convention’ (1925) 30 American Historical Review 511Google Scholar, 514–517. For a collection of examples, see Peter, A Gerangelos, ‘The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases’ (2002) 30 Federal Law Review 1, 3Google Scholar.
3 Held now to be unconstitutional as a usurpation of judicial power in Polyukhovich v Commonwealth (1991) 172 CLR 501.
4 Wilson v Minister for Aboriginal and Torres Islander Affairs [1996] 189 CLR 1,17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
5 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 (‘Lim’) (Brennan, Deane and Dawson JJ).
6 [1967] 1 AC 259 (‘Liyanage’).
7 Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372; Builders Labourers Federation v Commonwealth (1986) 161 CLR 88 (‘BLF Cases’).
8 (1992) 176 CLR 1.
9 (1998) 193 CLR 173 (‘Nicholas’).
10 Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452; Ruddock v Vadarlis (2001) 110 FCR 491. For detailed coverage of the various constitutional and legal issues to which this incident gave rise, see the special edition of the Public Law Review ‘The Tampa Issue’ (2002) 13 Public Law Review.
11 See Gerangelos, above n 2.
12 Fiona, Wheeler, ‘The rise and rise of Judicial Power under Chapter III of the Constitution: a decade in overview’ (2001) 20 Australian Bar Review 283Google Scholar, 285, n 18.
13 George, Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey, J Lindell (ed), Future Directions in Australian Constitutional Law (1994) 189, 197–203Google Scholar.
14 Although not expressly mentioned in the Constitution, this entrenchment was inferred by the High Court from its structure, and its structural resemblance to the United States Constitution in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 275–6 (‘Boilermakers’); affirmed sub nom Attorney-General for Australia v The Queen [1957] AC 88, 311–12.
15 Ibid.
16 G, Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 178Google Scholar.
17 Polyukhovich v Commonwealth (1991) 172 CLR 501.
18 (1973) 129 CLR 231, 250.
19 The term was originally used by Gordon, C Young, ‘Congressional Regulation of Federal Courts Jurisdiction and Processes: United States v Klein Revisited’ (1981) 6 Wisconsin Law Review 1189, 1240Google Scholar.
20 These are the elements contained in the oft-quoted classic definition of judicial power in the judgment of Griffith CJ in Huddart Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357.
21 In the words of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394, ‘The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis.’
22 In the joint judgment in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188, reference was made to the ‘difficulty, if not impossibility of framing a definition of judicial power that is at once exclusive and exhaustive.’
23 See above n 20 and accompanying text. See also Fencott v Muller (1983) 152 CLR 570, 608: ‘The unique and essential function of the judicial power is the quelling of such [legal] controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion’ (Mason, Brennan, Murphy and Deane JJ); and R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374: ‘the process to be followed must generally be inquiry concerning 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; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of the law to facts has shown to exist’ ( Kitto J).
24 Martin, H Redish, ‘Federal Judicial Independence: Constitutional and Political Perspectives’ (1995) 46 Mercer Law Review 697Google Scholar, 699 (emphasis added).
25 Ibid (emphasis added).
26 Contained in s 72.
27 [1977] 138 CLR 1, 11.
28 Ibid.
29 [1967] 1AC 259.
30 (1986) 7 NSWLR 372, (1986) 161 CLR 88.
31 (1992) 176 CLR 1.
32 (1998) 195 CLR 547.
33 Above n 9.
34 Migration Act 1958 (Cth) s 54R.
35 Lim (1992) 1716 CLR 1, 35 (Brennan, Deane and Dawson JJ, with whom Gaudron J agreed).
36 Ibid 36–7 (emphasis added). Gaudron J agreed in a separate judgment.
37 Parliament may legislate to limit the jurisdiction of the federal courts in relation to all matters, excepting of course the original jurisdiction of the High Court in s 75 of the Constitution.
38 [1967] 1 AC 259.
39 As a preliminary step, the Privy Council held that the separation principle was incorporated in the Constitution of Ceylon. Ibid 283 ff.
40 Ibid, 289–90.
41 Ibid 290.
42 Ibid (emphasis added).
43 Ibid.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid (emphasis added).
49 (1986) 7 NSWLR 372.
50 This was decided prior to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 88 and accordingly there was no issue arising as to whether Chapter III imposed limitations on State Parliaments.
51 (1986) 161 CLR 88.
52 (1998) 193 CLR 173. See also Gerangelos, above n 2, 22.
53 (1995) 184 CLR 19.
54 The case has been subjected to more detailed analysis in Gerangelos, above n 2, 22.
55 Cases often cited as classic examples of a formalist approach to separation of powers jurisprudence are Bowsher v Synar 478 US 714 (1986) and INS v Chadha 462 US 919 (1983). Cases often cited as examples of a functionalist approach are Morrison v Olson 487 US 654 (1988) and Mistretta v United States 488 US 361 (1989). See also below n 57 and accompanying text.
56 For a more detailed discussion of the concept of a ‘purposive formalism’ in separation of powers jurisprudence see Peter A Gerangelos, ‘The Separation of Powers and Legislative Interference with Judicial Functions: A Comparative Analysis’ (PhD Thesis, University of New South Wales, 2004) 21–7, 43–53. Whilst the term might appear prima facie oxymoronic, the term attempts to indicate that there is purpose to the strict maintenance of the boundaries of branch power beyond mere conceptual categorisation.
57 514 US 211, 239–40 (1995) (‘Plaut’).
58 Redish, above n 24, 699.
59 Ibid 711. For a detailed examination and definition of the formalism/functionalist debate in the United States, and for an excellent exposition of the varieties of each, see Redish, above n 24; Martin, Redish and Elizabeth, Cisar, ‘“If Angels were to Govern”, the Need for Pragmatic Formalism in Separation of Powers Theory’ (1991) 41 Duke Law Journal 449Google Scholar; and Martin, Redish, The Constitution as Political Structure (1995) 99–134Google Scholar.
60 Anthony, Mason, ‘A New Perspective on Separation of Powers’ (1996) Canberra Bulletin of Public Administration, No 82, 1, 2Google Scholar.
61 See, for example, Victorian Stevedoring & General Contracting Co Pty Ltd (1931) 46 CLR 73; Leslie, Zines, The High Court and the Constitution (4th ed, 1997), 154–61Google Scholar and George, Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey, J Lindell (ed), Future Directions in Constitutional Law (1994) 189Google Scholar, 197–203.
62 See above n 14.
63 Re Wakim; Ex parte McNally (1999) 198 CLR 511.
64 George, Winterton, ‘The Relationship Between Commonwealth and Legislative and Executive Power’, (2004) 25 Adelaide Law Review 21, 39Google Scholar.
65 See above n 20 and accompanying text.
66 For a more detailed discussion of the position of Australian scholars on these matters see Gerangelos, above n 56, 21–7. Professor Winterton also tends to favour this approach although it would be quite inaccurate to place Zines and Winterton clearly within any ‘school’ on this matter. See George, Winterton, Parliament, the Executive and the Governor-General (1983) 60Google Scholar.
67 Zines, above n 61, 171.
68 Ibid (emphasis added).
69 Sawer, above n 16, 180.
70 Ibid (emphasis added).
71 Zines, above n 61, 172 (emphasis added).
72 J, Doigt, ‘Is Purely Retroactive Legislation Limited by the Separation of Powers? Rethinking United States v Klein’ (1994) 79 Cornell Law Review 911Google Scholar, 942.
73 Ibid 941.
74 Amy, D Ronner, ‘Judicial Self-Demise: The Test of When Congress Impermissibly Intrudes on Judicial Power After Robertson v Seattle Audubon Society’ (1993) 35 Arizona Law Review 1037, 1070Google Scholar.
75 Robertson v Seattle Audubon Society 503 US 429 (1992), Plaut v Spendthrift Farm Inc 514 US 211 (1995) and Miller v French 530 US 327 (2000). All these cases will be examined in detail below.
76 80 US (13 Wall) 128 (1871).
77 Ibid 146.
78 Ibid 147.
79 Originally published in 1868 and influential in Australia also.
80 Thomas, M Cooley, Constitutional Limitations (7th ed 1903) 137Google Scholar.
81 Ibid (emphasis added).
82 See above n 2. See also Lynn, S Branham, ‘Keeping the “Wolf out of the Fold“: Separation of Powers and Congressional Termination of Equitable Relief’ (2000) 26 Journal of Legislation 185Google Scholar.
83 5 US (1 Cranch) 103 (1801). The term to give expression to this principle was originally used by Young, above n 19. See also Doigt, above n 72, 918.
84 Richard, H Fallon, Daniel, J Meltzer, and David, L Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System (4th ed, 1996) 368Google Scholar. For other examples of the application of the rule see Carpenter v Wabash Railway Co 309 US 23 (1940), Vandenbark v Owens-Illinois Glass Co 311 US 538 (1941), Cort v Ash 422 US 66 (1975).
85 5 US (1 Cranch) 103, 110 (1801) (emphasis added).
86 Ibid.
87 Ibid.
88 For subsequent applications of the Changed Law Rule, see United States v Preston 28 US (3 Peters) 57, 66–7 (1830) and Fairfax’s Devisee v Hunter’s Lessee, 11 US (7 Cranch) 603, 612 (1813).
89 Abandoned Property Collection Act 12 Stat. 1820 1863, Ch 120 par 3. See Klein 80 US (13 Wall) 128, 131 (1871).
90 Proclamation No. 11 of Dec 8, 1863 13 Stat 737, 737–8. See Klein 80 US (13 Wall) 128, 131 (1871).
91 For a very detailed account of the facts of the case set in the political context, see Young, above n 19.
92 76 US (9 Wall) 531 (1870).
93 Ibid 543.
94 Act of July 12 1870, ch 251 12 Stat 230, 235. For a comprehensive account of congressional efforts to have Padelford overruled, and Congress’ purpose in defeating its consequences in pending litigation, see Young, above n 19, 1201–13.
95 Klein, 80 US (13 Wall) 128, 129 (1871).
96 Ibid 146.
97 Ibid 147.
98 Ibid 145.
99 Ibid (emphasis added).
100 Ibid, 146.
101 Ibid 146 (emphasis added).
102 Ibid.
103 Young, above n 19, 1195. ‘Hardly a model of clarity’ opine the authors of Hart and Wechsler’s The Federal Courts and the Federal System, above n 84, 368.
104 ‘Whether Klein can be understood as establishing an independent [from the jurisdictional question] separation-of-powers restraint which limits Congress’ power, is uncertain,’ noted Martin H Redish in Federal Jurisdiction: Tensions in the Allocation of Judicial Power (1980) 31.
105 Henry, M Hart, ‘The Power of Congress to Limit the Jurisdiction of the Federal Courts: an Exercise in Dialectic’ (1953) 66 Harvard Law Review 1362Google Scholar, especially 1373. In the writer’s view, the most comprehensive and detailed examination of Klein following Hart is the article by Young, above n 19. For an excellent review of the various interpretations of Klein, see L, Anderson, ‘Congressional Control over the Jurisdiction of the Federal Courts: A New Threat to James Madison’s Compromise’ (2000) 39 Brandeis Law Journal 417Google Scholar. For a comprehensive pre-1981 review of the literature see Young, above n 19, 1194. For a review of the more recent literature on Klein see Ronner, above n 74.
106 Hart, above n 105, 1373.
107 The precise scope of the decision in Klein in relation to purely jurisdictional issues has been the subject of some uncertainty, and quite some degree of both judicial and academic scrutiny. For an excellent review thereof see Anderson, above n 105.
108 Article III s 2 confers appellate jurisdiction on the Supreme Court with such exceptions as Congress shall make.
109 Hart, above n 105, 1364–5.
110 Ibid 1370–73.
111 Ibid 1373.
112 Young, above n 19, 1196.
113 Fallon, Meltzer and Shapiro, above n 84, 368.
114 This is apparent in the three significant Supreme Court cases which will be examined in detail below: Robertson v Seattle Audubon Society, Miller v French and Plaut v Spendthrift Farm (above n 75). As for the academic commentary, see also, for example, Young, above n 19, 1233-44; Ronner, above n 74, 1046; Akhil, Reed Amar, ‘Of Sovereignty and Federalism’ (1987) 96 Yale Law Journal 1425, 1474Google Scholar; Stephen, L Carter, ‘The Morgan “Power” and the Forced Reconsideration of Constitutional Decision’ (1986) 53 University of Chicago Law Review 819, 857Google Scholar; Theodore, Eisenberg, ‘Congressional Authority to Restrict Lower Federal Court Jurisdiction’ (1974) 83 Yale Law Journal 498, 526–7Google Scholar; Archie, Parnell, ‘Congressional Interference in Agency Enforcement: The IRS Experience’ (1980) 89 Yale Law Journal 1360Google Scholar, 1379 n 116; Leonard, G Ratner, ‘Congressional Power Over the Appellate Jurisdiction of the Supreme Court, (1960) 109 University of Pennsylvania Law Review 157, 158Google Scholar.
115 59 US (18 How) 421 (1855).
116 This case was decided on the issue of whether the legislation unconstitutionally amended a previous court order as between the parties.
117 80 US (13 Wall) 128 (1871) 146–7 (emphasis added).
118 Ibid 147.
119 Gerangelos, above n 2, 12.
120 Fallon, Meltzer and Shapiro, above n 84, 368 n 21, referring to the relevant passages above from Klein, note: ‘Given the context, such language should surely not be read as casting general doubt on the principle, clear since [Schooner Peggy] that the courts are obligated to apply law (otherwise valid) as they find it at the time of their decision, including, when a case is on review, the time of the appellate judgement.’
121 80 US (13 Wall) 128, 145 (1871).
122 Ibid 129 (emphasis added).
123 Ibid 145–6.
124 Ibid 147.
125 There was no decision which directly referred to Klein in the pending case scenario prior to this. Pope v United States 100 Ct Cl 375, 375–6 (1944), reversed by the Supreme Court, 323 US 1 (1944)) alone made mention of the case but only in dicta referring to the interference with final judgments.
126 Anderson, above n 105, 425–6.
127 Hart, above n 105, 1372 (emphasis added).
128 Ibid.
129 Anderson, above n 105, 438. See also Linda, Mullenix et al, Understanding Federal Courts and Jurisdiction (1998) 30Google Scholar; Erwin, Chemerinsky, Federal Jurisdiction (3rd ed, 1999) 1813–85Google Scholar.
130 These broader interpretations of Klein have been identified and examined in the important article of Young, above n 19.
131 Anderson, above n 105, 438.
132 Young, above n 19.
133 Ibid 1217 (emphasis in original).
134 Ibid 1219.
135 Ibid 1223.
136 Ibid 1219 (emphasis added).
137 Ibid 1240.
138 914 F2d 1311 (9th Cir 1990).
139 Ibid 1315 (emphasis in original).
140 Robertson v Seattle Audubon Society 503 US 429 (1992).
141 The Interior and Related Agencies Appropriation Act 1990.
142 See 914 F 2d 1311, 1312 (9th Cir 1990) for detailed background to the enactment.
143 Ibid, 1315.
144 Ibid. In this regard see also the Supreme Court decision of United States v Sioux Nation of Indians 448 US 371, 405 (1980).
145 914 F 2d 1311, 1316 (9th Cir 1990).
146 Ibid.
147 Ibid.
148 Ibid 1316–17 (emphasis added).
149 Ibid 1315, citing Klein 80 US (13 Wall) 128, 146–7.
150 Ibid.
151 Robertson v Seattle Audubon Society 503 US 429 (1992).
152 The opinion was delivered by Thomas J.
153 503 US 429, 436 (1992).
154 Ibid 437.
155 Ibid 438.
156 Ibid 437–8.
157 Ibid 437–8.
158 Ibid 438.
159 Ibid 440.
160 An analogy can be drawn here with the legislation considered in the Nicholas case (above n 9). That case maintained the illegality of the importation of heroin but directed the courts to disregard that illegality when conducted by law enforcement agencies in exercising its discretion whether to admit evidence of importation of the illegal substance. See Gerangelos, above n 2, 22.
161 503 US 429, 438–9 (1992).
162 Ibid 440.
163 Above, n 6.
164 503 US 429, 439–40 (1992).
165 Ibid 439.
166 Ronner, above n 74, 1054.
167 Ibid 1054-5.
168 See particular Ronner, above n 74, and Anderson above n 105.
169 503 US 429, 439–40, 441 (1992) (emphasis added).
170 Ronner, above n 74, 1054.
171 989 F 2d 1564 (9th Cir. 1990).
172 Ibid 1569–70 (emphasis added).
173 Ibid 1569.
174 Ibid 1570 (emphasis added).
175 Ronner, above n 74, 1041.
176 514 US 211 (1995).
177 530 US 327 (2000).
178 See above n 57.
179 Now codified at 15 USC s 78aa–1. It came into force on 19 December 1991.
180 501 US 350 (1991).
181 501 US 529 (1991).
182 See Doigt, above n 72, 914–915. See also Charles, H Sturdy, ‘Section 27A Confronts Lampf and the Constitution’ (1994) 74 Boston University Law Review 645Google Scholar. At n 7, 646 of the Sturdy article, the many federal court decisions which examined s 27A are catalogued.
183 The pressures on Congress to intervene and the Congressional debates are amply set out in the Sturdy article, ibid, n 188.
184 Rehnquist CJ, O’Connor, Kennedy, Souter and Thomas JJ; Breyer J concurring in the result with Stevens and Ginsburg JJ dissenting.
185 514 US 211, 217 (1995). This view was shared by the minority judgment of Stevens J, in which Ginsburg J joined (at 247).
186 Ibid.
187 Ibid 218.
188 Ibid 218.
189 Ibid 226.
190 997 F.2d 39 (5th Cir. 1993).
191 Ibid 53.
192 971 F.2d 1567, 1572 (11th Cir 1992).
193 Ibid 1572–3. Other significant Court of Appeals decisions which found that s 27A changed the law were: Anixter v Home-Stake Production Co. 977 F.2d 1533, 1544–6 (10th Cir. 1992); Gray v First Winthrop Corp 989 F.2d 1564, 1568–79 (9th Cir. 1993); Berning v A.G. Edwards & Sons 990 F.2d 272, 278–9 (7th Cir. 1993); and Cooke v Manufactured Homes, Inc. 998 F.2d 1256, 1264–65 (4th Cir. 1993).
194 Gray v First Winthrop Corp., 989 F.2d 1564, 1569–70 (9th Cir. 1993). See Sturdy, above n 182 for academic comment to the same effect.
195 See Rabin v Fivzar Associates 801 F. Supp 1045, 1054 (SDNY 1992).
196 Anixter v Home-Stake Productions Co 977 F 2d 1533, 1546 (10th Cir. 1992).
197 993 F. 2d 269, 273 (1st Cir. 1992).
198 971 F. 2d 1567 (11th Cir. 1962).
199 1 F.3d 1487 (6th Cir. 1993).
200 All these district court cases have been catalogued in J O, Himstreet, ‘Section 27A and the Statute of Limitations in 10b-5 Claims’, (1994) 30 Williametter Law Review 151Google Scholar, 177 nn 172-3.
201 See In re Brichard 788 F. Supp. 1098, 1104 (N.D. Cal 1992).
202 Ibid.
203 Seattle Audubon Society v Robertson 914 F. 2d 1311 (9th Cir. 1990).
204 Anixter v Home-Stake Productions Co 977 F 2d 1533, 1545 (10th Cir. 1992).
205 789 F. Supp. 1092, 1097 (D. Colo. 1992).
206 Above n 200, 185-6.
207 Ibid.
208 J D, McNally, ‘Constitutional Law: Did Congress Overreach in its Reaction to Lampf?’ (1994) 16 Western New England Law Review 397Google Scholar, 420.
209 Ibid 421 (emphasis added).
210 P J, McCarthy, ‘The Constitutionality of Section 27A of the Securities and Exchange Act of 1934: Congressional Response to the Upheaval of the Lampf Decision’ (1994) 20 Journal of Legislation 236, 247Google Scholar.
211 530 US 327 (2000).
212 110 Stat. 1321-66 to 1321–77 which is codified at 18 USC § 3626. References to the relevant sections hereafter shall be from the United States Code.
213 Ibid § 3626 (b)(2).
214 Ibid § 3626(e)(2).
215 French v Duckworth 178 F.3d 437. (7th Cir. 1999).
216 Ibid 443 (emphasis added).
217 Ibid.
218 Ibid 446.
219 Ibid.
220 144 F.3d 925 (6th Cir. 1998).
221 Ibid 937.
222 United States v Michigan, 989 F.Supp 853 (W.D. Mich 1996); Glover v Johnson, 957 F. Supp. 110 (E.D. Mich (1997); Hadix v Johnson 933 F. Supp 1362 (W.D.Mich 1996); Hadix v Johnson 933 F.Supp 1360 (E.D.Mich 1996).
223 French v Duckworth 178 F.3d 437, 443 (7th Cir. 1999).
224 Ibid 444 (emphasis added).
225 Ibid 446 (emphasis added).
226 530 US 327, 336 (2000). The Supreme Court majority opinion was delivered by O’Connor J. The majority consisted of Rehnquist CJ, Scalia, Kennedy and Thomas JJ. Souter J filed an opinion concurring in part, and dissenting in part, in which Ginsburg J joined. It is significant that they dissented on whether the Klein Direction Rule had been breached, finding that it had been. The points of concurrence and dissent will be discussed in the text which follows. Breyer J filed a dissenting opinion in which Stevens J joined.
227 Ibid 349.
228 Ibid.
229 Ibid 348.
230 Ibid.
231 Ibid 349.
232 Anderson, above n 105, 442–3.
233 Ibid 443–4 (emphasis added). Anderson noted, ibid 443 n 136, that the complex and protracted nature of prison conditions litigation made it very likely that judges would, in particular cases, have inadequate time in which to allow discovery, conduct evidentiary hearings and make the findings of fact and conclusions of law required by Fed. R. Civ. P. 52. (See, eg, Madrid v Gomez 889 F. Supp. 1146, 1156 (N.D. Cal. 1995) — a case tried over a two and a half month period — and Canterino v Wilson, 546 F. Supp. 174, 179 (W.D. Ky. 1982) in which the pre-trial proceedings lasted for eighteen months and the trial four months).
234 Ibid 443.
235 Pennsylvania v The Wheeling and Belmont Bridge Co 59 US (18 How.) 421 (1855). In the earlier Wheeling Bridge case, the Court had held that a bridge was an unlawful obstruction to navigation and must be raised or removed (Pennsylvania v The Wheeling and Belmont Bridge Co 54 US (13 How.) 518 (1851)). Congress then passed legislation declaring the bridge a lawful structure. In the second Wheeling Bridge Case, the Court held that the decree from the earlier case could no longer be enforced because the bridge was no longer an unlawful structure (at 431–2). In the hypothetical situation mentioned and in Miller itself by contrast, it had not yet been determined that the new prerequisites for injunctive relief did not exist.
236 Anderson, above n 105, 447.
237 Miller v French 530 US 327, 351–2 (2000) (emphasis added).
238 The dissent of Breyer J, in which Stevens J concurred, is not relevant for present purposes in that that they construed the stay provision not to be mandatory, thus avoiding the issue of whether Congress was directing the courts.
239 Above n 6.
240 Above n 9.
241 See Gerangelos, above n 2, 5, where detailed reference is made to the writings of the early Australian constitutional scholars on this point.
242 Sawer, above n 16.
243 This point is examined in detail in Gerangelos, above n 2.
244 Above, n 7.
245 Even in the minority judgments of Nicholas, above n 6.
246 The decision of the United States Supreme Court, Robertson v Seattle Audubon Society 503 US 429 (1992), is also illustrative of this.
247 [1967] 1 AC 259, 289–90.
248 (1998) 193 CLR 173, 256.
249 Ibid.
250 Ronner, above n 74.
251 Ibid 1071.
252 Ibid.
253 Burmah Oil Company (Burma Trading) Ltd, et al v Lord Advocate [1965] AC 75.
254 Above n 5.
255 See above n 10.
256 See above p 12.
257 80 US (13 Wall) 128, 146 (1871).
258 Young, above n 19, 1244.
259 Robertson v Seattle Audobon 503 US 429, 441 (1992). See Ronner, above n 74, 1055.
260 503 US 429, 441 (1992).
261 Hayburn’s Case 2 US 408 (2 Dall. 409) (1792).
262 For a more complete discussion in the American context see Young, above n 19, 1247; and for the Australian position see Zines, above n 61, 165 and 168.
263 Young, above n 19, 1247.
264 Ibid.
265 Ibid.
266 Ibid 1248.
267 Ibid 1248–49.
268 Ibid 1249.
269 Ibid.
270 Ibid 1241.
271 Ibid.
272 Ibid 1244.