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Published online by Cambridge University Press: 01 January 2025
The Australian federation is built upon an enduring respect for the independence of the judicial arm of government. This is reflected in the principle that the judiciary should be kept separate from the legislature and executive. A practice seemingly at odds with these values is the appointment of senior judges to vice-regal offices. Despite this, the practice has attracted scant academic attention, and has never been challenged in the courts. In this article we examine the conferral of vice-regal roles on serving federal, state and territory judges. We ask, first, whether such appointments ought to continue to be made and, secondly, whether they are constitutionally permissible.
The judge, by the way, was the King; and, as he was wearing his crown over the wig … he did not look at all comfortable, and it was certainly not becoming.
– Lewis Carroll, ‘Alice's Adventures in Wonderland’.The authors are indebted to Chief Justice Trevor Riley of the Northern Territory Supreme Court and Professor Anne Twomey for their invaluable feedback on earlier drafts. The authors are also grateful for the assistance of the Department of Infrastructure and Regional Development and to Daniel Reynolds for his research assistance. This article is based on a report written by the authors for the Judicial Conference of Australia.
1 Carroll, Lewis, Alice's Adventures in Wonderland (Lee and Shepard, 1920) 163.Google Scholar
2 Commonwealth, The Opening of Parliament (Senate Brief No 2, Department of the Senate, Parliament of Australia, 2013) 7.
3 Department of the Senate, Opening of the 44th Parliament (12 November 2013) Parliament of Australia <http://www.aph.gov.au/About_Parliament/Senate/Opening_of_44th_Parliament>; Laing, Rosemary (ed), Annotated Standing Orders of the Australian Senate (Department of the Senate, 2009) 3952.Google Scholar
4 Commonwealth, above n 2, 67.
5 Ibid 6.
6 Ibid 67. Between 1910 and 1943 the first sitting of each Federal Parliament was opened by two Justices of the High Court both acting as deputies to the Governor-General on all but one occasion (when Sir Isaac Isaacs opened parliament in 1917). On occasions when two deputies were appointed it seems that one swore in Members of the House of Representatives, and the other swore in Senators. See, eg, the description of the opening of Federal Parliament by Sir Frank Gavan Duffy and Sir George Rich in 1932: Federal Parliament Opened by Vice-Royalty', Townsville Daily Bulletin (Townsville), 18 February 1932.
7 Twomey, Anne, The Chameleon Crown: The Queen and Her Australian Governors (Federation Press, 2006) 29.Google Scholar
8 Australian Bar Association, The Independence of the Judiciary [1991] (Winter) Victorian Bar News 1 18 [2.2].
9 Wheeler, Fiona, Original Intent and the Separation of Powers in Australia (1996) 7 Public Law Review 96, 100Google Scholar, quoting Official Record of the Debates of the Australasian Federal Convention, Adelaide, 20 April 1897, 952 (Sir Edmund Barton). See also Judicial Integrity Group, Commentary on the Bangalore Principles of Judicial Conduct, UN Office on Drugs and Crime, Commission on Crime Prevention and Criminal Justice, (September 2007) 5.Google Scholar
10 Stubbs, Matthew, The Constitutional Validity of State Chief Justices Acting as Governor (2014) 25 Public Law Review 197Google Scholar; Cremean, Damien, State Chief Justices as Lieutenant Governors: Federal Jurisdiction (2010) 18 Australian Journal of Administrative Law 3Google Scholar; Twomey, The Chameleon Crown, above n 7; Wheeler, Fiona, Anomalous Occurrences in Unusual Circumstances? Extra-Judicial Activity by High Court Justices: 1903 to 1945 (2013) 24 Public Law Review 125Google Scholar; Chief Justice Robert French, Executive Toys: Judges and Non-Judicial Functions (2009) 19 Journal of Judicial Administration 5.Google Scholar
11 Grollo v Palmer (1995) 184 CLR 348, 377 (Grollo); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (Wilson).
12 Wainohu v New South Wales (2011) 243 CLR 181 (Wainohu).
13 Constitution s 61.
14 See, eg, Australia Act 1986 (Cth) s 7; Constitution Act 1902 (NSW) s 9A; Constitution Act 1975 (Vic) s 6; Constitution of Queensland 2001 (Qld) s 29; Constitution Act 1889 (WA) s 50.
15 This position is intended to be the constitutional equivalent of a state Governor: Clark, David, Principles of Australian Public Law, (LexisNexis Butterworths, 2nd ed, 2007) 197 [8.5].Google Scholar See, eg, Norfolk Island Act 1979 (Cth) s 5; Northern Territory (Self-Government) Act 1978 (NT) s 32. For a brief history of the Northern Territory role, see National Archives of Australia, Administrator of the Northern Territory <http://guides.naa.gov.au/records-about-northern-territory/part1/chapter2/2.6.aspx>; Legislative Assembly of the Northern Territory, History of the Northern Territory Parliament <http://www.nt.gov.au/lant/about-parliament/history-of-nt-parliament.shtmladministrator>. For Administrators in the Australian Indian Ocean Territories, see Joint Standing Committee on the National Capital and External Territories, Governance in the Indian Ocean Territories, Parliament of Australia, 910, [2.3][2.4] <http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=ncet/annualreports/report/chap2.pdf>.
16 See, eg, Legislative Assembly for the Australian Capital Territory, Standing Orders and Continuing Resolutions of the Assembly (April 2014), 196: Where the Governor-General recommends amendments to an enactment, the amendments shall be printed, unless the Assembly otherwise orders, and a time fixed for taking them into consideration.
17 Australian Capital Territory (Self-Government) Act 1988 (ACT) s 9(2).
18 Constitution s 126.
19 Professor David De Kretser, Governor of Victoria, was made the Deputy to the Governor-General in July 2006: Clark, above n 15, 201 [8.9] citing Commonwealth, Gazette, No S137, 17 July 2006.
20 Her Majesty The Queen, Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia in Commonwealth, Gazette: Special, No S 179, 9 September 2008, clause III.
21 Boyce, Peter John, The Queen's Other Realms: The Crown and its Legacy in Australia, Canada and New Zealand (The Federation Press, 2008) 119.Google Scholar
22 Clark, above n 15, 202 [8.10].
23 Ibid 202 [8.9]. See, eg, Administration Ordinance 1968 (Territory of Christmas Island) ss 78.
24 Constitution Act 1867 (Qld) s 11A. The provision is one of six from the old Constitution that was referendum entrenched'. For this reason, when the Queensland legislature was drafting its new consolidated Constitution in 2002, it opted to leave those six provisions intact while repealing the rest of the 1867 Constitution to make way for the Constitution of Queensland 2001 (Qld). See Explanatory Memorandum, Constitution of Queensland 2001 (Qld) 4.
25 Twomey, Anne, The Effect of the Australia Acts on the Western Australian Constitution (2013) 36 University of Western Australia Law Review 273, 2846.Google Scholar For examples of deputy appointments made in Queensland in recent years, see: Office of the Governor, Annual Report 201112 (30 September 2012), 2 <http://www.govhouse.qld.gov.au/_CMSImages/govhouse/pdf/2011-12%20Office%20of%20the%20Governor%20Annual%20Report.pdf>.
26 For a description of the relevant law and practice in Western Australia, see: Donaldson, Grant, Aspects of State Executive Powers (20122013) 36 University of Western Australia Law Review 145, 1603.Google Scholar
27 Australia Act 1986 (Cth) s 7; Clark, above n 15, 209 [8.21], citing Cameron v Kyte (1835) 3 Knapp 332, 346; Hill v Bigge (1841) 2 Moore 465, 476; Musgrove v Pulido (1879) 5 App Cas 102, 111.
28 Quick, John, The Legislative Powers of the Commonwealth and the States of Australia with Proposed Amendments (Harston, Partridge & Co. Printers, 1901) 226Google Scholar, citing Musgrave v Pulido (1879) 5 App Cas 102, 111; R v Sutton (1908) 5 CLR 789, 805 (O'Connor J). See also, Hearn, William Edward, The Government of England: Its Structure and Its Development (George Robertson & Co, 2nd ed, 1886) 133.Google Scholar
29 See, eg, NSW Department of Premier and Cabinet, Vice Regal Guidelines (14 May 2013) The Governor of New South Wales <http://www.governor.nsw.gov.au/her-excellency-professor-the-honourable-marie-bashir-ac-cvo/vice-regal-guidelines/>; Office of the Governor, Vice-Regal Notes (4 June 2014) Governor of Victoria <http://www.governor.vic.gov.au/victorias-governor/vice-regal-notes>; For references to vice-regal functions and activities in Annual Reports of the various Governors see, eg, Office of the Governor Tasmania, Annual Report 1 July 2012 30 June 2013 (25 October 2013), 6 <http://www.govhouse.tas.gov.au/sites/default/files/annual-reports/annual_report_2012-2013.pdf> .
30 Constitution s 61.
31 Ibid s 62.
32 Ibid s 64.
33 Ibid s 56.
34 Ibid s 68.
35 Ibid s 5, including to dissolve both Houses of Parliament simultaneously and to convene a joint sitting of Parliament: s 57.
36 Ibid s 32.
37 Ibid s 58.
38 Ibid s 60.
39 Ibid s 128.
40 An example of a statutory power vested in the Governor-General is the power to make regulations under the Taxation Administration Act 1953 (Cth) s 18.
41 Evatt, H V, The Royal Prerogative (Law Book, 1987) 118.Google Scholar
42 For instance, the power to fill casual vacancies in the Senate when the Parliament of the State represented is not in session: Constitution s 15.
43 See, eg, Constitution Act 1902 (NSW) s 10A (power to prorogue Parliament); Northern Territory (Self Government) Act 1978 (Cth) s 15 (power to issue writs for elections).
44 See, eg, Australia Act 1986 (Cth) s 7; Corrections Act 1986 (Vic) s 51 (power to hear charges relating to prison offences).
45 For instance, the common law prerogative powers, including the royal prerogative of pardon or remission of sentences. See, Evatt, above n 41.
46 See, eg, Her Majesty The Queen, Letters Patent Relating to the Office of Governor of the State of Western Australia (14 February 1986) cl VII (power to preside at meetings over Executive Council).
47 Such as the convention that Governors are required to act on the advice of the State Premiers and Cabinets, or the convention that a Governor must not take sides in an open political conflict: see Sir Walter Campbell, The Role of a State Governor (Speech delivered at the Royal Australian Institute of Public Administration Queensland Division, 22 March 1988).
48 Christmas Island Act 1958 pt III; Cocos (Keeling) Islands Act 1955 pt III.
49 Twomey, Anne, The Constitution of New South Wales (Federation Press, 2004) 622.Google Scholar
50 Ibid 6256; Susan Kiefel, Judicial Independence (Speech delivered at the North Queensland Law Association Conference, Mackay, 30 May 2008) 2; Constitution Act (NSW) s 53; Constitution Act 1975 (Vic) s 77(4)(aaa); The Constitution of Queensland 2001 (Qld) ss 60(1), 61; Constitution Act 1934 (SA) ss 74, 75; Constitution Act 1889 (WA) ss 54, 55; Supreme Court (Judge's Independence) Act 1857 (Tas) s 1; Judicial Commissions Act 1994 (ACT) s 5; Mack, Kathy and Anleu, Sharon Roach, The Security of Tenure of Australian Magistrates (2006) 30(2) Melbourne University Law Review 370, 3924.Google Scholar
51 Twomey, The Constitution of New South Wales, above n 49, 622.
52 This works the same way in the territories. See Northern Territory (Self-Government) Act 1978 (NT) s 33; Norfolk Island Act 1979 (Cth) s 11. The Australian Indian Ocean territories are not self-governed (though Christmas Island and the Cocos Islands do have local governments that operate in tandem with Commonwealth executive power there).
53 The most infamous being the dismissal of the Whitlam government: see Winterton, George, 1975: The Dismissal of the Whitlam Government in Lee, H P and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 23448.Google Scholar A prime example of a state Governor acting beyond the advice of his or her Executive Council was given in 1932 when Sir Philip Game, the Governor of New South Wales, dismissed the Government of Premier Jack Lang, having taken the view that Lang's attempt to thwart a federal Act was illegal.
54 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 355.
55 Ibid 356 (Sir John Forrest), 368 (Sir Edmund Barton).
56 See, eg, Ibid 360 (Sir Isaac Isaacs), though for a number of delegates the primary reason to support the appointment of federal judges to a vice-regal office was that it was a far preferable option to drawing on state governors to fill these roles: See, eg, 35960 (Sir George Reid).
57 Clark, above n 15, 201 [8.9].
58 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 365 (Charles Kingston), 360 (Sir Isaac Isaacs).
59 Ibid 365 (Charles Kingston).
60 Ibid.
61 For details of some of the first Chief Justices to serve as Lieutenant-Governors, see: Stubbs, above n 10, 199200. See also Clark, above n 15, 200 [8.7]; Eldershaw, P R, The Governor's Office (1968) 15(3) Papers and Proceedings of the Tasmanian Historical Research Association 86, 109Google Scholar; Keith, Arthur Berriedale, Responsible Government in the Dominions (Clarendon Press, 1912) vol 1, 945.Google Scholar For a discussion of some of the practical effects of the vice-regal workload of colonial judges, see Clark, David, The Struggle for Judicial Independence in Nineteenth Century Australia (2013) 12 Macquarie Law Journal 21, 578.Google Scholar
62 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 360 (Sir Isaac Isaacs), 369 (Sir George Reid), 373 (Sir Josiah Symon). Cf, discussion in Stubbs, above n 10, 2002.
63 Ibid 357 (Henry Higgins).
64 Though not without breaks or variation, e.g. Clark, above n 15, 2001 [8.8].
65 Government House Western Australia, The Hon Wayne Martin, Chief Justice of Western Australia <http://www.govhouse.wa.gov.au/governors-role-link/lieutenantgovernor.html>.
66 Office of the Governor, Role of the Lieutenant-Governor (4 June 2014) Governor of Victoria <http://www.governor.vic.gov.au/victorias-governor/role-of-the-lieutenant-governor>.
67 NSW Department of Premier and Cabinet, Lieutenant Governor (5 July 2013) Governor of New South Wales <http://www.governor.nsw.gov.au/her-excellency-professor-the-honourable-marie-bashir-ac-cvo/lieutenant-governor/>.
68 Office of the Governor Tasmania, above n 29, 11.
69 The Executive Council Handbook notes that if a Lieutenant-Governor was appointed, this would only mean that the Lieutenant-Governor would act as Governor in preference to a member of the judiciary': Queensland Government, Absence of Governor (27 August 2014) <http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/exec-council-handbook/meetings/absence.aspx>.
70 Amy Remeikis, Former Chief Justice Paul de Jersey Appointed Queensland Governor', Brisbane Times (online), 26 February 2014 <http://www.brisbanetimes.com.au/queensland/former-chief-justice-paul-de-jersey-appointed-queensland-governor-20140226-33hf5.html>; Robyn Ironside, Queensland Governor-Designate Chief Justice Paul de Jersey to Take 85,000 Pay Cut', Courier Mail (online), 27 February 2014 <http://www.couriermail.com.au/news/queensland/queensland-governordesignate-chief-justice-paul-de-jersey-to-take-85000-pay-cut/story-fnihsrf2-1226838678310>.
71 See, eg, Office of the Governor, Annual Report 201213 (30 September 2013), 2 <http://www.govhouse.qld.gov.au/media/10047/GH-Annual-Report-2012-2013.pdf> ; Office of the Governor, Annual Report 201112 (30 September 2012), 2 <http://www.govhouse.qld.gov.au/media/10035/2011-12-Office-of-the-Governor-Annual-Report.pdf>.
72 Office of the Governor Tasmania, above n 29, 10.
73 Governor's Establishment, Annual Report 201011 (26 September 2011) Government House Western Australia, 4 <http://www.govhouse.wa.gov.au/images/download/10-11_full_annual_report.pdf>. For a useful table showing the total number of days that each state and the Commonwealth have been administered by a Lieutenant Governor or Administrator, see Stubbs, above n 10, 208.
74 Clark, above n 15, 200 [8.7].
75 Ibid 199 [8.6]. Twomey flags that this is the most common justification for these spaces between Governors, but that a number of other factors (notably, economic factors such as the Depression, wars during this period, and the relatively high expense of Governors as compared with Lieutenant-Governors) contributed to this situation: Twomey, The Chameleon Crown, above n 7, 30. Twomey goes on to note that the main controversies concerning the appointment of Governors during the first three decades of federation arose in Queensland, Tasmania and Western Australia: 31.
76 See, eg, Constitution Act 1975 (Vic) s 6A(2) and Constitution of Queensland 2001 (Qld) s 40, neither of which impose any restrictions on who may hold the office of Lieutenant-Governor.
77 There is no indication that this practice changed because of issues or problems arising from the judge's service as Lieutenant-Governor. Napier retired at age 85 and was succeeded by Sir Walter Russell Crocker: Office of the Clerk of the Parliaments and the Clerk of the Legislative Council, Statistical Record of the Legislature 18362007 (24 April 2007) Parliament of South Australia, 2, Table A <http://www.parliament.sa.gov.au/AboutParliament/From1836/Documents/StatisticalRecordoftheLegislature1836to20093.pdf>.
78 Government House South Australia, Mr Hieu Van Le AO <http://www.governor.sa.gov.au/node/27>. The fascinating pairing of Scarce a veteran from the Vietnam War as Governor, and Le a refugee from that same war who arrived on Australia by boat in 1977 as Lieutenant-Governor was observed by national media: Australian Broadcasting Corporation, SA Governor and Lieutenant-Governor Fascinating Pairing', The 7:30 Report, 8 August 2007 (Mike Sexton) <http://www.abc.net.au/7.30/content/2007/s2000194.htm>.
79 For example, in 2002 Justice John Perry performed this role, see Office of the Clerk of the Parliaments and the Clerk of the Legislative Council, above n 77, 2, Table A.
80 For example, Catherine Wildermuth, a public servant, stood in from time to time for the then Administrator Brian Lacy during his absences. See, eg, Office of the Administrator Indian Ocean Territories, Community Bulletin, No A96/2011, 12 December 2011.
81 Australian Capital Territory (Self-Government) Act 1988 (ACT) s 9(2).
82 The current Deputy, Patricia Miller, is an Arrente woman who was born in Alice Springs. Miller was appointed an Officer of the Order of Australia in 2004 for her service to the community as a significant contributor to debate on issues relating to native title, social justice, education, legal services, health and welfare, and the media. In that same year Miller was also announced as the Northern Territory's Australian of the Year.
83 We note that this may be contrasted to the practice of the Chief Justice swearing Governors-General into office, which is not a vice-regal power as it could not be exercised by any viceroy. See Her Majesty The Queen, Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia in Commonwealth, Gazette: Special, No S 179, 9 September 2008, clause III(d).
84 On the importance of consent in the state context, see Stubbs, above n 10, 2056.
85 Clark, above n 15, 199 [8.6].
86 Twomey, The Constitution of New South Wales, above n 49, 61314.
87 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 357 (Henry Higgins). Cf, Stubbs, above n 10, 2002.
88 Clark, above n 15, 199 [8.6]. Matthew Stubbs emphasises that It should not be assumed that the speed and ease of travel by air has removed the need for persons to serve as acting Governor'. Stubbs argues that the present frequency with which judges act in the position of Governor in the states is sufficiently disruptive to create practical conflict: Stubbs, above n 10, 2078.
89 Office of the Governor Tasmania, above n 29. Similarly, The Hon Thomas Bathurst was sworn in as Administrator of the State of New South Wales on 1 June 2011 and as Lieutenant-Governor on 1 February 2012: NSW Department of Premier and Cabinet, above n 67.
90 Constitution Act 1902 (NSW) ss 9C, 9D.
91 Victoria, Parliamentary Debates, Legislative Assembly, 4 December 1919, 2922 (Sir Harry Lawson).
92 Clark, above n 15, [8.8].
93 See, Lennan, Jo and Williams, George, The Death Penalty in Australian Law (2012) 34 Sydney Law Review 659.Google Scholar
94 For discussion, see Clark, above n 15, 200 [8.8]; see also Victoria, Parliamentary Debates, Legislative Assembly, 4 December 1919, 29224 (Sir Harry Lawson).
95 Twomey, The Constitution of New South Wales, above n 49, 6701.
96 Lindell, Geoffrey, Judicial Review and the Dismissal of an Elected Government in 1975: Then and Now? (2014) 38 Australian Bar Review 118.Google Scholar
97 (1905) 22 WN (NSW) 152 (SC).
98 Ibid.
99 See also Collins v Black [1995] 1 VR 409 concerning the a challenge to vice-regal powers exercised by Chief Justice Sir John Young on the basis that he was not validly serving as acting Governor when he gave Royal assent to the Road Safety (Miscellaneous Amendments) Act 1989 (Vic). Also, Stewart v Ronalds (2009) ALR 86, where a minister challenged his dismissal by Lieutenant-Governor Chief Justice James Spigelman (on the advice of the Premier). The Court held that it is not a function of the Court to question the fairness of the advice tendered by the Premier to the Lieutenant-Governor in respect of the composition of the Ministry, as to do so would assert an entitlement to scrutinise the substance of that advice, which is a quintessentially political question: [45]. For discussion of these cases and argument as to their impact on public confidence in the independence of courts from the executive, see: Stubbs, above n 10, 21112.
100 See, eg, Judicial Commission of New South Wales, Code of Conduct, [3], [10] <http://www.judcom.nsw.gov.au/access-to-information/code-of-conduct>. See also, discussion in Lee, HP and Campbell, Enid, The Australian Judiciary (Cambridge University Press, 2nd ed, 2013) 172-179Google Scholar; Twomey, The Constitution of New South Wales, above n 49, 670 1.
101 See, Spigelman CJ's discussion of this issue in Bruce v Cole (1998) 45 NSWLR 163.
102 Cf, argument by Stubbs, above n 10, 21112.
103 Judicial Integrity Group, Bangalore Principles of Judicial Conduct, ESC Res 2006/23, UN ESCOR, 41st plen mtg, Agenda Item 14(c), E/RES/2006/23 (27 July 2006) cl 3.2. See also Parker, Stephen, The Independence of the Judiciary in Wheeler, Fiona and Opeskin, Brian (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 62Google Scholar; Judicial Integrity Group, Commentary on the Bangalore Principles of Judicial Conduct, above n 9, 77; Lee and Campbell, above n 100, 6, 30815; Brennan, Gerard, The State of the Judicature (1998) 72 Australian Law Journal 33, 34Google Scholar; Mason, Anthony, The Courts and Public Opinion in Lindell, Geoffrey (ed), The Mason Papers (The Federation Press, 2007) 94.Google Scholar
104 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 359 (William McMillan).
105 For discussion of this practice, see The Hon Lord Justice Brooke, Judicial Independence - Its History in England and Wales in Cunningham, Helen (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond (Judicial Commission of New South Wales, 1997) 89.Google Scholar
106 An example of apparent absurdity arising from the vesture of multiple roles on a single person (Chief Justice, Lieutenant-Governor, then Chief Electoral Commissioner) is recounted in: Johnston, Peter, Tonkin v Brand: Triumph for the Rule of Law in Winterton, George (ed), State Constitutional Landmarks (Federation Press, 2006) 211, 228.Google Scholar
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109 Anne Twomey, Cutting the Gordian Knot: Limiting Rather than Codifying the Powers of a Republican Head of State (Papers on Parliament No. 51, Parliamentary Library, Commonwealth of Australia, 2009).
110 Tasmanian Parliament: Dissolution Refused. Ministry Resigns', The Argus (Melbourne), 7 July 1904, 6; Dissolution Refused: Labour Ministry Resigns. Mr Watt Sent For. The New Cabinet Discussed', The Argus (Melbourne), 20 December 1913, 21.
111 McGarvie, Richard E, Democracy: Choosing Australia's Republic (Melbourne University Press, 1999) 238239.Google Scholar
112 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 367 (William Trenwith).
113 FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 401 (Wilson J).
114 Todd, Alpheus, Parliamentary Government in the British Colonies (Longmans, Green & Co, 2nd ed, 1893) 6345Google Scholar, quoted in Anne Twomey, The Unrecognised Reserve Powers (Speech delivered at the High Court Lecture Series, Canberra, 14 November 2012) 9.
115 See, discussion in Twomey, The Unrecognised Reserve Powers', above n 114, 911 and, by way of example, the approach to resolving the issues raised in A-G (WA) v Marquet (2003) 217 CLR 545.
116 Twomey, The Constitution of New South Wales, above n 49.
117 Commonwealth, above n 2, 6.
118 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 February 1898, 360 (Sir Isaac Isaacs).
119 Ibid 357 (Henry Higgins).
120 Winterton, George, Judges as Royal Commissioners (1987) 10 University of New South Wales Law Journal 108, 11216Google Scholar; Wheeler, Anomalous Occurrences in Unusual Circumstances? above n 10, 136; Brown, A J, The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge (1992) 21 Federal Law Review 48, 54.CrossRefGoogle Scholar
121 This argument was canvassed in Winterton, Judges as Royal Commissioners', above n 120, 113.
122 Richard E McGarvie, above n 111, 238239.
123 (1995) 184 CLR 348.
124 Ibid 376 (McHugh J), 365 (Brennan CJ, Deane, Dawson and Toohey JJ).
125 (2011) 243 CLR 181.
126 Wainohu (2011) 85 ALJR 746, [94] (Gummow, Hayne, Crennan and Bell JJ), [21][43], and in particular, [39] (French CJ and Kiefel J).
127 See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146.
128 Wainohu (2011) 85 ALJR 746, [43] (French CJ and Kiefel J). See, Welsh, Rebecca, Incompatibility Rising? Some Potential Consequences of Wainohu v New South Wales (2011) 22 Public Law Review 259, 263.Google Scholar
129 Grollo (1995) 184 CLR 348, 3645 (Brennan CJ, Deane, Dawson and Toohey JJ).
130 Ibid 366.
131 In some jurisdictions this option may only be open if the judge is absent or incapacitated. See, eg, Constitution Act 1902 (NSW) ss 9C, 9D.
132 Cf the argument put by Stubbs that the appointment of state judges as Lieutenant-Governors has the capacity to infringe the first basis of incompatibility identified in Grollo: Stubbs, above n 10, 2068.
133 Grollo (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ). The risk of public confidence incompatibility appears to arise despite varying judicial acceptance of public confidence being an enforceable consideration. See Nicholas v The Queen (1998) 193 CLR 173, 197 (Brennan CJ), 275 (Hayne J). Contrast this with the opinions of the Gaudron, McHugh and Kirby JJ (two of whom were in dissent), who opined that the court's power to protect its own processes and maintain public confidence in the administration of justice was central to the constitutional conception of judicial power: 209 (Gaudron J), 224, 226 (McHugh J), 258 (Kirby J). See also, Lacey, Wendy, Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution (2003) 31 Federal Law Review 57, 76CrossRefGoogle Scholar; Wainohu (2011) 243 CLR 181, 208 (French CJ and Kiefel J); Steytler, Chris and Field, Iain, The Institutional Integrity Principle: Where Are We Now, and Where Are We Headed? (2011) 35 University of Western Australia Law Review 227, 2312.Google Scholar
134 Wainohu (2011) 243 CLR 181.
135 Ibid 192, 215, 21820 (French CJ and Kiefel J). It was on this basis that the Court concluded the provision removing the obligation on the judge to provide reasons effectively rendered the entire Crimes (Criminal Organisations Control) Act 2009 (NSW) invalid: 220 (French CJ and Kiefel J), 231 (Gummow, Hayne, Crennan and Bell JJ).
136 (1996) 189 CLR 1.
137 Ibid 26 (Gaudron J).
138 Ibid 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
139 Ibid.
140 Mistretta v United States 488 US 361, 404 (1989), quoted in Grollo (1995) 184 CLR 348, 3645 (Brennan CJ, Deane, Dawson, Toohey JJ).
141 Steytler and Field, above n 133, 2545.
142 (1996) 189 CLR 51, 11718 (Kable). This dictum was later quoted by Kirby J in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [225].
143 Wainohu (2011) 243 CLR 181, 197 (French CJ and Kiefel J). The text a durable example is the appointment from time to time of Chief Justices of the States as Lieutenant-Governors appears in footnote 78.
144 Ibid 212 (French CJ and Kiefel J).
145 See, eg, Johnston, Peter and Hardcastle, Rohan, State Courts: The Limits of Kable (1998) 20 Sydney Law Review 216, 230.Google Scholar
146 Cf Chief Justices John Bray and Len King who each refused appointments to the position of Lieutenant-Governor of South Australia on separation of powers grounds: Stubbs, above n 10, 206.
147 Wheeler, Anomalous Occurrences in Unusual Circumstances?', above n 10, 133.
148 Stubbs, above n 10, 206.
149 Zines, Leslie, The High Court and the Constitution (Federation Press, 5th ed, 2008) 256Google Scholar; R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J). Though care must be taken in drawing such conclusions: see Lane, Patrick, Lane's Commentary on the Australian Constitution (Lawbook, 2nd ed, 1997) 467Google Scholar; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, 11 (Jacobs J); Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ); R v Davison (1954) 90 CLR 353, 368 (Dixon CJ and McTiernan J).
150 See Re Tracey; Ex parte Ryan (1989) 166 CLR 518; White v Director of Military Prosecutions (2007) 231 CLR 570. See also the High Court accepting parliamentary privilege as a further historical exception to the separation of powers: R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157. Matthew Stubbs has argued that if this historical exception requires a foothold in the text of the Constitution, one may be found in s 106: Stubbs, above n 10, 21617.
151 Wilson (1996) 189 CLR 1, 20.
152 (2009) 239 CLR 230.
153 See Lane v Morrison (2009) 239 CLR 230; Haskins v Commonwealth (2011) 244 CLR 22.
154 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254. For discussion see Welsh, Rebecca, A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality (2013) 39(1) Monash University Law Review 66, 7173.Google Scholar
155 For alternative conclusions as to the constitutional validity of state judges being appointed as Lieutenant-Governors, see Stubbs, above n 10; Cremean, above n 10.