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The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases

Published online by Cambridge University Press:  24 January 2025

Peter Gerangelos
Peter Gerangelos*
Affiliation:
Faculty of Law, University of Sydney
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Extract

This article shall examine a discrete, though somewhat overlooked, aspect of the relationship between the Commonwealth Parliament and the federal, or ‘Chapter III’, courts which emerges in the scenario where Parliament purports to amend the law that the courts are required to apply in pending cases. This is of particular significance where the Commonwealth is a party to the proceedings, given the obvious advantage to the Commonwealth, as litigant, provided by its power to legislate, and potentially to do so strategically to effect a desirable outcome. This raises the spectre of a significant separation of powers issue. This article will explore the extent to which this principle entrenched as law in the Australian Constitution has been able to limit Parliament's power to protect the independence of the federal courts to interpret and apply the law in an individual adjudication; that is, to protect their ‘decisional independence.’ Its success or otherwise is one measure of the extent to which the separation of powers, as a legal rule, is capable of protecting the independent adjudication of legal disputes by the courts from the vicissitudes of political power and influence.

Type
Research Article
Information
Federal Law Review , Volume 30 , Issue 1 , March 2002 , pp. 1 - 37
Copyright
Copyright © 2002 The Australian National University

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Footnotes

The author acknowledges the valuable comments of Professor George Winterton on reading this article in draft.

References

1 Or where any Commonwealth agency, or any entity in which the Commonwealth has an interest, is a party.

2 Hereinafter referred to as 'the separation principle'. See R v Kirby; Ex Parte Boilermakers Society of Australia (1956) 94 CLR 254 ('Boilermakers'); aff'd sub nom Attorney-General for Australia v The Queen [1957] AC 288. The legal entrenchment in the Australian Constitution was inferred from the separate vesting of the executive, legislative and judicial powers pursuant to ss 1, 61 and 71. See Leslie, Zines, The High Court and the Constitution (4th ed, 1997), Chapter 10Google Scholar.

3 The phrase was coined by Martin, Redish in 'Federal Judicial Independence: Constitutional and Political Perspectives' (1995) 46 Mercer Law Review 697Google Scholar. He defined it as 'the ability of the federal courts to interpret and apply... substantive legal principles in the specific context of an individual adjudication, free from control or interference by the purely political branches of the federal government.' Ibid 699.

4 (1973) 129 CLR 231.

5 Ibid 250.

6 The term derives from American commentary on similar legal principles developed by the United States Supreme Court. The principle has been long established in United States jurisprudence, originally stated in United States v Schooner Peggy, 5 US (1 Cranch) 103 (1801). The term was originally used by Gordon, C Young, 'Congressional Regulation of Federal Courts Jurisdiction and Processes: United States v Klein Revisited' [1981] Wisconsin Law Review 1189, 1240Google Scholar. See also J, Richard Doigt, 'Is Purely Retroactive Legislation Limited by the Separation of Powers? Rethinking United States v Klein' (1994) 79 Cornell Law Review 911, 918Google Scholar.

7 Polyukhovich v Commonwealth (1991) 172 CLR 501.

8 See , for example, ibid 606-607, 608, 613, 704; Leeth v The Commonwealth (1992) 174 CLR 455; Lim v The Minister for Immigration (1992) 176 CLR 1, 26-27, 36-37, 68; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Nicholas v The Queen (1998) 193 CLR 173.

9 Sir Anthony, Mason, 'A New Perspective on Separation of Powers' (1996) 82 Canberra Bulletin of Public Administration 1, 2-3 (citations omitted)Google Scholar.

10 Although not expressly mentioned, the legal entrenchment of the separation of powers is implied from the exclusive and separate vesting of the executive, legislative and judicial power in the President, the Congress and the Supreme Court respectively: Article I, Sec 1; Article II, Sec 1; Article III, Sec I of the Constitution of the United States.

11 Published 1748.

12 Madison in particular wrote extensively on this issue. Jacob, E Cooke (ed), The Federalist (1961)Google Scholar. See for example Number 51.

13 In The Federalist (48) Madison referred to the 'most difficult task ... to provide some practical security for each [of the three main arms of government] or each against the invasion of the others. What this security ought to be, is the great problem to be solved.' Ibid 332.

14 Ibid 334.

15 Gordon, Wood, The Creation of the American Republic 1776-1787 (1996) 154-55Google Scholar.

16 Mary P, Clarke, Parliamentary Privilege in the American Colonies (1943) 49-51CrossRefGoogle Scholar.

17 'Judicial Action by the Provincial Legislature of Massachusetts' (1908) 15 Harvard Law Review 208.

18 Edward S, Corwin, The Doctrine of Judicial Review (1914) 37CrossRefGoogle Scholar.

19 Cited in The Federalist No 48 above n 12 336-7.

20 Thomas, Jefferson, 'Notes on the State of Virginia' (1787) 196Google Scholar, cited in ibid 336. See also Edward S, Corwin, 'The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention' (1925) 30 American Historical Review 511, 514-517Google Scholar.

21 The Federalist No 48, above n 12 333.

22 The FederalistNo 78, ibid 523, 525 (Alexander Hamilton).

23 Ibid 522-3.

24 462 US 919 (1982) 962.

25 Corwin, above n 20.

26 Article III, s 1 of the United States Constitution.

27 See above n 2.

28 This has been carefully explored in Fiona, Wheeler, 'Original Intent and the Doctrine of the Separation of Powers in Australia' (1996) 7 Public Law Review 96Google Scholar. See also Geoffrey, Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177Google Scholar.

29 W Harrison, Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 322Google Scholar.

30 Ibid (emphasis added). Note, however, that he did not elaborate as to whether retrospective laws were unconstitutional in Australia.

31 Andrew, Inglis Clark, Studies in Australian Constitutional Law (1901, reprinted 1997) 38Google Scholar.

32 Ibid (emphasis added).

33 Ibid 39 (emphasis added).

34 Sir John, Quick and Sir Robert, Garran, The Annotated Constitution of the Australian Commonwealth (1901, 3rd ed, 1995) 721Google Scholar. And elsewhere:

The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given … That is to say, the legislature may overrule a decision, though it may not reverse it; it may declare the rule of law to be different from what the courts have adjudged it to be, and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned … In other words, the sound rule of legislation, that the fruits of victory ought not to be snatched from a successful litigant, is elevated into a constitutional requirement.

Ibid 722.

35 80 US (13 Wall) 128 (1871).

36 Ibid 146.

37 Moore, above n 24, 323. However, the same can be said of the American commentators who did not draw out the full implications of Klein until one hundred years later. See Henry, Hart, 'The Power of Congress to Limit the Jurisdiction of Federal Courts: an Exercise in Dialectic' (1953) 66 Harvard Law Review 1362Google Scholar; Young, above n 6. Despite its seminal status in the United States, Klein has not achieved any degree of prominence in Australian decisions.

38 (1948) 75 CLR 495.

39 (1986) 7 NSWLR 372. Although in that case it was held that the legislation could not be invalidated as the separation principle was not legally entrenched in the NSW Constitution. Cf Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth (1986) 161 CLR 88. See now also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 in relation to the implications of Chapter III of the Constitution for State courts.

40 (1948) 75 CLR 495, 503-504.

41 Ibid 503.

42 Ibid 579.

43 (1973) 129 CLR 231.

44 Ibid 250.

45 [1967] 1 AC 259.

46 As a preliminary step, the Privy Council dealt at some length with the issue of whether the separation principle was legally incorporated in the Ceylonese Constitution and held that it was. This it regarded as a prerequisite to its jurisdiction to invalidate the legislation on separation of powers grounds: Ibid 283ff. See T R S Allan, Law, Liberty, and Justice; The Legal Foundations of British Constitutionalism (1993) who argued (at 69ff) that the decision could stand without the need to establish as a prerequisite the legal incorporation of the doctrine in the constitution. He stated this in support of his broader thesis that the United Kingdom Parliament is bound by the separation principle to limit judicial interference even though it has an unwritten constitution. Such alternate basis for the doctrine's legal force is discussed in Liyange, ibid, 283 ff.

47 [1967] 1 AC 259, 289-90.

48 Ibid 290.

49 Ibid.

50 Ibid 289.

51 Ibid.

52 Ibid.

53 Ibid.

54 '[S]uch a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power.' Ibid.

55 Ibid 290 (emphasis added).

56 Ibid (emphasis added).

57 (1983) 152 CLR 507, 608.

58 [1967] 1 AC 259, 289.

59 Matrimonial Causes Act 1971 (Cth).

60 Ibid s 5.

61 Pursuant to s 23 of the Matrimonial Causes Act 1959 (Cth).

62 Knight v Knight (1971) 122 CLR 114.

63 His submissions in the High Court in this regard were rather curious, indeed confused, as they appeared to be based on an assumption that the section was valid. As Mason J noted, '[w]hat the [constitutional] infringement is in the instant case, the argument did not condescend to make clear': (1973) 129 CLR 231, 250.

64 Ibid.

65 Above n 38.

66 Ibid.

67 Ibid 243.

68 (1986) 161 CLR 88.

69 BLF v Minister for Industrial Relations (1986) 7 NSWLR 372.

70 See now Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 in relation to the possible consequences for the exercise of judicial power by State courts flowing from Chapter III of the Constitution.

71 The declaration was made on an application by the relevant minister pursuant to s 4(1) of the Building Industry Act 1985 (Cth) that it was satisfied that the BLF had engaged in conduct that constituted a contravention of certain undertakings it had made and agreements to which it was a party.

72 The BLF had previously sought relief by way of prohibition in relation to this ministerial application, which relief was refused: R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636

73 (1986) 161 CLR 88, 93.

74 Ibid 94.

75 Gibbs CJ, Mason, Brennan, Deane, Dawson JJ.

76 (1986) 161 CLR 88, 96.

77 Ibid.

78 Ibid 96 -7: 'It matters not that the motive or purpose of the Minister, the Government and the Parliament in enacting the statute was to circumvent the proceedings and forestall and decision which might be given in those proceedings.'

79 (1986) 7 NSWLR 372.

80 Following Clyne v East (1967) 68 SR (NSW) 385; see also in other states: Gilbertson v South Australia (1976) 15 SASR 66, 101 (Zelling J) and Nicholas v Western Australia [1972] WAR 168,175. The Court considered extensively the possibility of establishing in the court a power to invalidate legislation based on fundamental common law principles, which was ultimately rejected. See Allan, above n 46, 71ff.

81 Emphasis added.

82 Emphasis added.

83 (1986) 7 NSWLR 372, 375 and 387 respectively.

84 Ibid 375-6. See also Allan, T R S, 'Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism' (1985) 44 Cambridge Law Journal 1CrossRefGoogle Scholar.

85 BLF NSW 376.

86 Ibid 378. (1986) 7 NSWLR 372.

87 Ibid (emphasis added).

88 Ibid.

89 Ibid.

90 Ibid 392.

91 Ibid.

92 Ibid.

93 Ibid 394

94 Ibid: 'The 1986 State Act ...deal[t] specifically with matters which were then within the judicial domain.'

95 Ibid.

96 Ibid 395

97 See R v Humby; Ex Parte Rooney (1973) 129 CLR 231, 243.

98 (1986) 7 NSWLR 372, 395.

99 Ibid.

100 Ibid 379.

101 It should be noted that Kirby P also dismissed as irrelevant a whole host of legislation cited by the Minister which interfered with the judicial process, but remained on the statute books , saying that '[t]he fact that error has been oft repeated does not make it less an error. The failure of other litigants, perhaps with less at stake, to challenge the intrusion of the Parliament into matters before the courts does not relieve the Court of evaluating the challenge once made': ibid 392. Having made the above observations, concluding that there was indeed an interference with judicial process, he was unable to invalidate the legislation because there was no legal separation of powers in the New South Wales Constitution: ibid 394.

102 102(1986) 161 CLR 88, 97.

103 (1986) 7 NSWLR 372, 377.

104 Ibid.

105 Ibid 395.

106 Ibid 387.

107 (1992) 176 CLR 1.

108 Ibid 4.

109 Ibid 5.

110 Ibid.

111 Ibid 5-6 (emphasis added).

112 The majority in relation to the s 54R issue consisted of Brennan, Deane, Dawson JJ (in a joint judgment) and Gaudron J in a separate judgment. It should be noted that the majority first examined the impugned provisions from the point of view of classic Boilermaker's principles, stating (ibid 26-7) that the judicial power of the Commonwealth could not be conferred upon any organ of the Executive, nor was the legislature permitted to enact a law which 'requires or authorises the courts in which the judicial power of Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power'. As a consequence, the separation principle created a constitutional immunity from being imprisoned except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth, subject to some very important exceptions such as detention pending trial, or in the case of infectious diseases or mental illness (ibid 129, although see Gaudron J's reservations at 55). This aspect of the judgments, although of great significance, is not presently relevant and the article shall only discuss the Court's treatment of legislative interference with judicial functions.

113 Ibid 34.

114 Ibid.

115 See ibid 35.

116 Ibid 35.

117 Ibid 36.

118 Ibid 36-7.

119 Parliament may legislate to limit the jurisdiction of the federal courts in relation to all matters, excepting the original jurisdiction of the High Court in s 75 of the Constitution and the appellate jurisdiction conferred by s 73.

120 (1992) 176 CLR 1 34.

121 Ibid 53.

122 (1992) 176 CLR 1, 11-14 (Mason CJ), 50-51 (Toohey J), and 68 (McHugh J).

123 Ibid 13.

124 Ibid 50.

125 Ibid 68.

126 Ibid 49.

127 Ibid 73.

128 This passage is at (1986) 161 CLR 88, 96.

129 Subsequent to Lim, the High Court in Leeth v Commonwealth (1992) 174 CLR 455 also confirmed in obiter that the developments in relation to the issue of legislative interference had been recognised by the court. It was regarded as a particular type of usurpation of judicial power by Mason CJ, Dawson and McHugh JJ:

[L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v The Queen). It is upon this principle that bills of attainder may offend against the separation of judicial power (see Polyukhovich v Commonwealth). But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.' (at 469-70).

130 (1998) 193 CLR 173.

131 By a majority of five (Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ), to two (McHugh and Kirby JJ). Although McHugh J in his minority judgment did not apply the rule as formulated.

132 (1995) 184 CLR 19.

133 (1978) 141 CLR 54. That discretion had hitherto been limited to excluding on discretionary grounds evidence obtained unlawfully.

134 (1995) 184 CLR 19, 31-2 (Mason CJ, Deane and Dawson JJ, with whom Gaudron J agreed).

135 See the Explanatory Memorandum, Crimes Amendment (Controlled Operations) Bill 1996 (Cth), Second Reading Speech to this Bill Commonwealth, Parliamentary Debates, House of Representatives, 20 June 1996, 2510ff (Daryl Williams QC Attorney-General).

136 See s 15G.

137 The Crown subsequently applied to vacate the orders permanently staying the Nicholasprosecution.

138 Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ; Kirby and McHugh JJ dissenting.

139 (1998) 193 CLR 173, 254 (Kirby J); although see also 219 (McHugh J).

140 Ibid 254 (Kirby J) (emphasis added).

141 Ibid.

142 See above nn 10-26 and accompanying text in relation to the early United States experience where such practices were common.

143 (1998) 193 CLR 254.

144 Ibid 256. See also ibid 221-222 (McHugh J).

145 Ibid 256 (Kirby J).

146 Ibid. That is, the pending case may be affected without breaching the separation principle if that law is in substance an amendment to the law.

147 Ibid.

148 Ibid.

149 Ibid 254.

150 Ibid 219 (McHugh J) and 256 (Kirby J). See also R v Davidson (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J).

151 They nevertheless confirmed that the central attributes relevant to the present enquiry were that the judicial power consisted of the exercise of that power required for the resolution of controversies between citizens or between citizens and the Crown, which resolution was a binding and authoritative decision based on the determination of existing rights and duties according to law. See the oft-quoted standard definitions in Huddart Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ), Fencott v Muller (1983) 152 CLR 570, 608.

152 Kirby J, in particular, queried whether any valuable assistance could be derived from a precise definition, in the present enquiry: '[S]uch generalities give scant guidance when, as here, a particular statutory provision is challenged and is said to be an impermissible legislative intrusion upon, or derogation from, the judicial power.' (1998) 193 CLR 173, 256.

153 Ibid 257 (Kirby J)

154 Ibid 221 (McHugh J) and 256 (Kirby J.)

155 See Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 26- 9.

156 See Robertson v Seattle Audubon Society, 503 US 429 (1992) and Seattle Audubon Society v Robertson, 914 F 2d 1311, (9th Cir, 1990).

157 (1998) 193 CLR 173, 257; See also Liyanage v The Queen [1967] 1 AC 259, 267; Leeth v Commonwealth, (1992) 174 CLR 455, 460-70; Polyukhovich v The Commonwealth (1991) 172 CLR 501, 650; cf Plaut v Spendthrift Farm 514 US 211 (1995)

158 (1998) 193 CLR 173, 257. See also Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 and Liyanage v The Queen [1967] 1 AC 259, 280-290.

159 (1998) 193 CLR 257, 259.

160 See Polyukhovich v Commonwealth (1991) 172 CLR 501, 533; Nelungaloo Pty Ltd. v Commonwealth (1948) 75 CLR 495, 503; R v Humby; Ex p Rooney (1973) 129 CLR 231, 250.

161 (1998) 193 CLR 173, 260 ff.

162 Ibid, 260; see Williamson v Ah On (1926) 39 CLR 95, 108-9; Milicevic v Campbell (1975) 132 CLR 307, 316; Sorby v Commonwealth (1983) 152 CLR 281, 298-9

163 (1998) 193 CLR 173, 244. He examined the parliamentary debates, statements of the relevant minister, the explanatory memorandum to the bill, and other background materials relating to it.

164 Ibid 249.

165 Ibid 251. Relevant materials being Explanatory Memorandum, Crimes Amendment (Controlled Operations) Bill 1996 (Cth).

166 (1998) 193 CLR 173, 264.

167 Ibid 263.

168 Ibid 263. He also stated that: The number of persons who would be affected by s 15X can be no mystery. It is not as if 'controlled operations' pursuant to the Ministerial Agreement were a daily affair. By this time, the number of would be conclusively ascertained. Almost certainly, only five individuals are involved. The fact must therefore be faced that this is very special legislation addressed to the courts directly affecting five or so particular persons already charged and awaiting trial in those courts. In their cases, and theirs alone, the law governing their pending trials has been changed in a way that seriously affects them.

169 Ibid 263.

170 Ibid.

171 Ibid.

172 Ibid 261.

173 Ibid.

174 Ibid 263.

175 Ibid, citing R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394.

176 (1998) 193 CLR 173, 263-4.

177 Ibid 264ff.

178 Ibid 259.

179 Ibid 215.

180 Ibid 216ff.

181 Ibid 216.

182 Ibid 217-218.

183 Boilermakers (1956) 94 CLR 254; aff'd sub nom Attorney-General for Australia v The Queen [1957] AC 288.

184 (1998) 193 CLR 173, 219-220.

185 Ibid 220.

186 (1992) 172 CLR 1, 37.

187 (1998) 193 CLR 173, 221.

188 Ibid 221: 'Professor Lane has said that judicial power is usurped according to Liyanage when there is “(a) legislative interference 'in specific proceedings”; (b) the interference “affect[s]...pending litigation”...(c)the interference affects the judicial process itself, that is, “the discretion or judgment of the judiciary” or “the rights, authority or jurisdiction of [the] court.” '

189 Ibid.

190 Ibid 185.

191 Ibid 188-191.

192 Ibid 193.

193 Ibid.

194 Ibid.

195 (1991) 172 CLR 501, 689.

196 (1998) 193 CLR 173, 202.

197 Ibid.

198 Ibid 200.

199 Ibid 274.

200 Ibid 207.

201 Ibid 208.

202 Ibid.

203 Ibid 209.

204 Ibid 210-211.

205 Ibid 232.

206 See 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; Fiona, Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia' (1997) 23 Monash University Law Review 248Google Scholar; George, Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey, Lindell (ed), Future Directions in Australian Constitutional Law (1994)Google Scholar; Leslie, Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney Law Review 166Google Scholar; Christine, Parker 'Protection of Judicial Process as an Implied Constitutional Principle' (1994) 16 Adelaide Law Review 341Google Scholar.

207 (1998) 195 CLR 547. It should be noted that this case involved State legislation and proceedings of a State court. The reason Chapter III of the Constitution arose at all was as a result of Kable's case (above n 70) which held that State Parliaments are constrained in legislating in relation to their courts because they are part of an integrated system of State and federal courts invested, under s 77(iii) of the Constitution, with federal, as well as State jurisdiction. Hence, State Parliaments may not vest functions incompatible with the operation of State courts as repositories of federal judicial power.

208 Ibid 560.

209 Ibid 561.

210 Ibid 564.

211 Ibid.

212 See above nn 10-26 and accompanying text.

213 [1967] 1 AC 259, 289-90.

214 The decision of the United States Supreme Court, Robertson v Seattle Audubon Society, 503 US 429 (1992), was also illustrative of this.

215 80 US (13 Wall) 128 (1871).

216 See Young, above n 6, 1240. See also Doigt, above n 6, 918.

217 Also, it may be authority for the more precise principle that the Congress may not mandate findings of fact or conclusions of law in pending cases.

218 503 US 429 (1992).

219 Seattle Audubon Society v Robertson914 F 2d 1311 (9th Cir, 1990).

220 The status of Klein is analogous to that of Liyanage in Australia.

221 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, 1041Google Scholar.

222 See for example, ibid.

223 Ibid 1071

224 See the discussion at above nn 10-26 and accompanying text.