The 'Institutional Integrity' Principle: Where Are We Now ... · The 'Institutional Integrity' Principle: Where Are We Now, and Where ... and teachers of constitutional law alike

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The 'Institutional Integrity' Principle: Where Are We Now, and Where

Are We Headed?

CHRIS STEYTLER* AND lAIN FIELD**

This article examines the 'institutional integrity' principle, first enunciated in Kable,l in the wake of three recent High Court decisions: International Finance Trust, Totani and Wainohu.2 This article is primarily intended to provide the profession, lmvmakers and others with an interest in Chapter 111 jurisprudence, with a detailed gUide as to the basis, object and scope of the institutional integrity principle. A number of questions are also identified, which have been left unanswered by the existing case law, and some comment is provided as to the likely development of the principle infuture cases.

IN the last two years the High Court has on three occasions invalidated State legislation on the ground that it compromises the 'institutional integrity' of a State court, in contravention of Chapter III of the Commonwealth Constitution. 3

In International Finance Trust Company Limited v New South Wales Crime Commission (,International Finance Trust'), a majority of the High Court held that a State legislative provision undermined institutional integrity on the basis that it required a State court (the Supreme Court of New South Wales) to hear and determine, without notice to the persons affected, applications for restraining orders made ex parte by the New South Wales Crime Commission.4 In South

* **

1. 2.

3.

4.

Wmthrop Professor of Law, University of West em Australia Senior Teachmg Fellow, Bond University. The authors are grateful to Patrick Keyzcr for hiS comments on an earlier draft of thIS article, and to Jessie Chella for her editonal assistance. The authors are also grateful for the helpful comments made by the anonymous reviewer of the article. Kable v Director of Publzc Prosecutions (NSTf] (1996) 189 CLR 51. International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Totan! v South Australia (2010) 242 CLR 1; Wamohu v New South Wales (2011) 278 ALR 1. In a fourth case, judgment III which was delivered after the preparatIOn of this article, three of the seven judges would have invalidated proVisions of the Charter of Human Rights and Responsibilities Act 2006 (VIC): Momcllovlc \' The Queen (2011) 280 ALR 221. International Fmance Trust. above n 2,355 (French Cl), 366--7 (Gummow & Bell JJ), 385--6 (Heydon J), Hayne, Crennan & Kiefel JJ dissenting.

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Australia v Totani ('Totani '), a majority of the High Court held that a State legislative provision undermined institutional integrity as it required the South Australian Magistrates Court to issue control orders in a process contrary to procedural fairness, and in which the outcome was to a large extent determined by the Attorney General. 5 In Wainohu v New South Wales ( 'Wainohu ,), a majority of the High Court similarly held that State legislation was invalid because it impaired the essential and defining characteristics of a State court by providing that the court's jurisdiction to make control orders would be enlivened by a decision of a judge, after an adversarial proceeding on complex and important matters of fact for which the legislation provided that no reasons need be given.6 The legislation also created an impression of a connection between the performance of a nonjudicial function and the following exercise of judicial power in such a way that performance ofthe function might affect perceptions of the judge, and ofthe court, to the detriment ofthat court.7

These cases are the first since the judgment in Kable v Director of Public Prosecutions (NSW) ('Kable')8 in which the institutional integrity principle has been applied by the High Court, and they provide a timely opportunity to consolidate and review the theory underpinning that principle (otherwise known as the' Kable principle' or 'Kable doctrine').9 It is a principle that 'internlediate appellate courts have found difficult to understand', 10 and that practitioners, lawmakers, students and teachers of constitutional law alike have struggled to make sense of. To this end, the first part of this article assays existing theory and provides an overview of the constitutional propositions upon which the institutional integrity principle has been constructed.

The judgments in these (and other) cases also raise a number of important issues, and leave a number of important questions unanswered, as regards the scope of the institutional integrity principle. One such question is whether a form of 'due process' requirement is now applicable in State and federal courts, and, if so, the scope of that requirement. In addition, the judgments in International Finance Trust, Totani and Wainohu leave open questions as regards the broader application of the institutional integrity principle. For example, what are the minimum structural and other characteristics of a 'court' capable of exercising federal jurisdiction, and might the institutional integrity principle limit the extent to which judicial authority may be given by State parliaments to non-judicial bodies? Finally,

5. Totani, above n 2,52 (French CJ), 67 (Gurnrnow 1). 88-92 (Hayne J) 160, (Crennan & Bell JJ), 172-3 (Kiefel J), Heydon J dissenting.

6. Wainohu. above n 2,5-6,28 (French CJ & Kiefel J); 37 (Gurnrnow, Hayne, Crennan & Bell JJ) 7. Ibid 5-6 (French CJ & Kiefel J). 8. Above n I. 9. Will Baternan has suggested, and for the reasons set out 111 this paper the authors broadly agree,

that it [s 'inappropriate, post-Forge, to continue to refer to the Kable principle by that htle': W Baternan, 'Procedural Due Process under the Australian Constitution' (2009) 31 Sydney Lall'

Review 411,436. 10. Totani, above n 2,95-6 (Heydon J).

THE 'INSTITUTIONAL INTEGRITY' PRINCIPLE 229

whereas the institutional integrity principle has usually been regarded as resting upon an implication derived from Chapter III of the Constitution (and in particular the meaning of the word 'court' in section 77), there are suggestions in Totani that the twin requirements upon which compatibility with institutional integrity primarily depend, independence and impartiality, may derive from historically based assumptions as to the nature of State courts, or concerning the rule oflaw. 11

which were extant at the time of federation. These questions are addressed in the second half of this article. We begin, however, by traversing the relevant (albeit well-known) background to the institutional integrity principle, beginning with the High Court's decision in Kable itself.

THE DECISION IN KABLE

In Kable, a majority of the High Court held that section 5(1) of the Community Protection Act 1994 (NSW), which purported to vest in the Supreme Court of New South Wales the power to order the continued detention of a specified prisoner, was invalid. 12 By a majority of four to two,13 their Honours found that the function in question was 'incompatible' with the institutional integrity of the Australian jUdiciary.14 This novel approach drew upon the incompatibility test (,overtaken by the broader rule articulated ... in the Boilermakers' case' ,15 and rejuvenated under the auspices of the persona designata exception)16 as a means of controlling the functions that may be vested in State courts by State Parliaments. However, because the incompatibility doctrine had, hitherto, been confined to the appointment of federal judges in their private capacity, its application to State courts did not emerge from Kable with any clarityY Unlike the limitation established in Grollo v Palmer and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, the limitation identified in Kable involved an assessment based upon the effect of the impugned legislation on the capacity of the institution to be a fit repository for Commonwealth jurisdiction. 18 As Fiona Wheeler has pointed out, this proposition

11. Wainohu, above n 2, 37-8, 42 (French CJ), 62-3 (Gummow J, referring to Thomas v Mowbray (2007) 233 CLR 307,342),91 (Hayne J).

12. Kable, above n I, 89-99 (Toohey J), 99-108 (Gaudron J), 108-24 (McHugh J), 124-45 (Gummow J).

13. Brennan CJ and Dawson J applied the tradlhonal approach that the Commonwealth ParlIament must take State court as it finds them: ibid 67 (Brennan CJ), 83 (Dawson J).

14. Kable, above n 1, 89-99 (Toohey J), 99-108 (Gaudron J), 108-24 (McHugh J), 124-45 (Gummow J).

15. F Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process III Australia' (1997) 23 Monash University Law Review 248,259.

16. Drake v Minister for Immigration and Ethmc Affazrs (1979) 24 ALR 577; Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 184 CLR 348; Wzlson v Minister for Abongmal and Ton'es Strait Islander Affairs (1996) 189 CLR 1.

17. Gypsy Jokers Motorcycle Club [nc v Commissioner of Police (2007) 33 WAR 245, 268 (Steytler P).

18. Ibld 268--9 (Steytler P).

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was 'flexible enough, at least in theory, to support a wide range of limitations on state legislative power over state courts' .19

Although the logic in Kable has been criticised,20 it is clear that, with the advent of that case in 1996, there was an acceptance by the High Court of a fundamentally important proposition. This was that, because Chapter III of the Constitution postulates an integrated Australian court system (encompassing State and federal courts) for the exercise of the judicial power of the Commonwealth,"1 State courts, especially the Supreme Courts, must retain their character as 'courts', and neither the Commonwealth nor a State may legislate in such a way as to alter or undermine the constitutional scheme set up by Chapter IJ[ and hence the role of State courts as repositories of federal judicial power.22

The decision in Kable was surprising, given that it had generally been accepted, until then, that the absence of a separation of judicial powers in a State context left few restrictions on the lawmaking power of State legislatures in respect of State courtS. 23 However, it is fundamental to an understanding of Kable (and thus the broader institutional integrity principle originating in that case) that it does not imply into the constitutions of the States the separation of judicial powers impliedly mandated for the Commonwealth by Chapter nU-I Wholly non-judicial functions can be conferred on courts by State parliaments so long as they are not repugnant to, or incompatible with, the exercise by those courts of the judicial power of the Commonwealth.25 Moreover, the principle enunciated in Kable does not prevent State parliaments from investing State judicial functions in nonjudicial bodies. 26

19. F Wheeler. 'The Kable Doctrine and State Legislative Power over State Courts' (2005) 20 Australasian Parhamentary Review 15, 22.

20. Ibid. See also the critIcisms of the reasonmg in that case by T BlackshIeld & G Wilhams, Australian Constitutional Law and Theory (Sydney: Federation Press, 3rd edn, 2002) 1296; A Twomey, 'The Limitation of State Legislative Power' (2002) 4 ConstlllltlOnal Law and Policy ReView 13, 19; D Meagher, 'The Status of the Kable PnncipJe in Australian Constitutional Law' (2005) 16 Public Law Review 182; G Winterton, 'Justice Kirby's Coda m Durham' (2002) 13 Publzc Law ReView 165, 167-8.

21. Kable. above n 1, 101-2 (Gaudron J), 110-15 (McHugh 1), 138--43 (Gummow 1). 22. Ibid 101-3 (Gaudron J), 110-15 (McHugh J), 115-17 (McHugh J), 139--40 (GunllTIOW J). 23. See, eg, S (a child) (1995) 12 WAR 392 (in whIch, as the reVIewer of this article has pointed

out, it was unsuccessfully argued that there IS a more confined limitation under some state constItutions protecting the integrity of state Snpreme Courts); Budding Construction Employees and Buzlders' Labourers Federation of New South Wales V Minister for Industrzal Relations (1986) 7 NSWLR 372.

24. Wainohu. above n2, 19 (French CJ & Kiefel J). 25. See, ego Kab/e, above ni, 106 (Gaudron J); Fardon v Attorney-General (Qld) (2004) 223 CLR

575,627-38 (Kirby J), 655--{j (Callman & Heydon 11); Wamohu, above n 2,5-6 (French CJ & Kiefel J); Forge v Australian Securities and Investment Commission (2006) 228 CLR 45,65-7 (Gleeson Cl).

26. Kable, lbid 103--4 (Gaudron J), 121 (McHugh J); and see also Fardon, ibid 600 (McHugh J).


Despite these limitations, McHugh J suggested, in Kable (in a passage quoted by French CJ in International Finance Trust), that:

[l]n some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. 27

As discussed in more detail below, the institutional integrity principle as it now stands does in fact support limitations on legislative power in circumstances that do not involve the vesting of functions in courts at all (reproducing, in certain respects at least, the first limb of the separation doctrine).28

OBJECT OF THE INSTITUTIONAL INTEGRITY PRINCIPLE

Before considering how the institutional integrity principle has evolved since Kable, it is worth pausing to consider why a majority ofthe High Court considered it necessary to accept this "'radical" addition to the body of Australian constitutional law' .29 Put differently, what was (and is) the object of Kable? The answer to this question is important, because the ends to which the High Court applies the institutional integrity principle in future cases may affect the manner in which the criteria of the principle develop, especially in relation to overlapping concepts such as 'judicial process', 'due process', 'procedural fairness' and 'methods and standards' .

At the time Kable was decided, references to the "'repute" or reputation of the court loomed large in a number of cases'.lO In Kable itself, the majority reasoning suggested that 'the underlying concern was to maintain public confidence in the independence of State courts' Y The use of public confidence as a criterion of legislative validity was always controversial,32 and in subsequent cases the High

27. InternatIOnal Finance Trust, above n 2, 354. 28. The first limb holds that judicial power cannot be conferred on bodJes other than courts wlthtn the

meantng of s 71. See, in particular, WaterSIde Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 461 (Barton 1), 469-70 (Isaacs & RICh JJ), 488 (Powers J); R v Klrby, Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 269-70 (Dixon CJ, McTleman, Fullager & Kitto JJ).

29. Wheeler, above n 19,21; citing M McHugh, 'The Constitutional JUrIsprudence ofthe HIgh Court. 1989-2004 (Paper presented at the Inaugural Sir Anthony Mason Lecture ID ConstitutIOnal Law, Sydney, 26 Nov 2004) 7.

30. L Zines, 'The High Court and the Constttution' (Sydney: FederatIOn Press, 5th edn, 2008) 274. 31. P Johnston & R Hardcastle, 'State Courts: The Limits of Kable' (1998) 20 Sydney Law Review

216,220; Kable, above ni, 98 (Toohey J), 107-8 (Gaudron J), 116-19, 122-4 (McHugh.l), 132-4 (Gummow J).

32. See, eg, ROrr, 'Kablev DPP: Taking JudIcial ProtectIon Too Far?' (1996) II AustralIan Institule of Admll11stratlve Law Forum I, 14-15; E Handsley, 'PublIc Confidence ID the JudICiary: A Red Herring for the Separation of Judicial Power' (1998) 20 Sydney Law Review 183, 197.

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Court reframed the institutional integrity principle in terms of 'the defining characteristics of a "court"'?3 In Wainohu, the majority judges appear to have reembraced public confidence as a test of constitutional compatibility, a surprising hIm of events that we consider in more detail below. 34 Whatever view is taken as to the suitability of this approach, however, it is doubtful that the maintenance of public confidence is now, or was ever, the ultimate object of the instihltional integrity principle.35 Nor do the majority judgments in Kable suggest that the High Court was concerned, primarily at least, with individual rights and liberties. The more likely explanation is that instihltional integrity was (and is) about securing to the judiciary (and ultimately the High Court) the ability to defend the judicial function against legislative and executive interference.36 This explanation would be consistent with the High Court's approach to Chapter IJI generally.37 As George Winterton has observed:

Courts have always shown exceptional sensitivity to infringement on their domain; many of the dicta suggesting limits on parliamentary supremacy based on 'implied freedoms' or 'fundamental law', for example, have arisen in this context. The Communist Party case also fits squarely within this tradition of judicial selfpreservation. As Brian Galligan has aptly remarked, 'The Communist Party Case was not primarily about civil liberties, but about the limits of legislative and executive power and the supremacy ofthe judiciary in deciding such questions'.38

The conclusion that the institutional integrity principle is really about 'judicial self-preservation' is strengthened by the fact that, as noted, repugnancy or incompatibility is to be measured by reference to the defining feahlres of 'courts'. It is also supported by the High Court's extension of the principle to all Australian courts (State and territory) 'capable of exercising' the judicial power of the Commonwealth,l9 a point to which we return below.

33. Fardon, aboven 25,593 (Gleeson CJ), 617 (McHughJ), 617-18 (Gummow J), 629--30 (Klrby J), 652-3 (Callinan & Heydon JJ); Baker v The Queen (2004) 223 CLR 513,519 (Gleeson CJ), 542 (Kirby J); Forge v A SIC above n 25, 76 (Gummow, Hayne & Crennan JJ); Totam. above n 2, 95 (Hayne J).

34. See below nn 246-55. 35. E Handsley, 'Do Hard Laws Make Bad Cases? The High Court's Decision in Kable v Director

o/Pubhc Prosecutions (NSW)' (1997) 25 Federal Law ReVIew 171, 179. 36. Ibid 183. 37. W Lacey, for example, has argued that Ch III entrenches 'the 'inherentjunsdiction' of the Court

to protect its own processes': W Lacey, 'Inherent Jurisdiction, Judicial Power, and Implied Guarantees under Chapter III of the ConstitutIOn' (2003) Federal Law ReVIew 31, 71.

38. G Winterton, 'The Commulllst Party Case' in HP Lee & G Winterton (eds), Austrahan ConstItutional Landmarks (Oxford: Cambridge Ulllversity Press, 2003) 108, 133, citing B Galligan, Politics a/the High Court (Brisbane: Ulllversity of Queenslalld Press, 1987) 203.

39. North Australian Aborigl11al Legal Aut Service V Bradley (2004) 218 CLR 146, 163 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callmall & Heydon JJ).


THE EVOLUTION OF THE INSTITUTIONAL INTEGRITY PRINCIPLE

In cases subsequent to Kable, at least initially, it seemed that the limitation enunciated in Kable might have been less flexible than at first sight appeared. The High Court showed reluctance to apply it, describing it as a principle that would only rarely be applicable.4°Any lingering doubts arising from what was said in Kable,41 that institutional integrity and public confidence might be distinct and separately sufficient bases for legislative invalidity appeared to have been disposed of.42 But this clarification aside (although, as mentioned, the majority judgments in Wainohu appear to have reopened the issue),43 no clearer definition of the critical notions of repugnancy and incompatibility emerged, the High Court regarding these notions as being 'insusceptible of further definition in terms which necessarily dictate future outcomes' .44

However, with the decision of tile High Court in Forge v Australian Securities and Investments Commission (,Forge'),45 a change of emphasis, if not of approach, was revealed. In that case, the Court suggested that institutional integrity depended upon the use of the words 'court ofa State' in section 77. Gleeson CJ said in this respect that State supreme courts 'must continue to answer the description of "courts'" and, for a court to be so described, it 'must satisfy minimum requirements of independence and impartiality' .46 He said that this was 'a stable principle, founded on the text of the Constitution.' Similarly, Gummow, Hayne and Crennan JJ said that:

Because Ch III requires that there be a body fitting the description "the Supreme Court of a State", it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable.

40. See, eg, Fardoll. above n 25,575, (McHugh n. Klrby J, m Baker. above n 33, 561, went so far as to descnbe the Kable prinCiple as 'a dead letter', at least 'until a future lIme perceives its importance for the protection of fundamental rights in this country'. AcademiC commentary was also pessimIstic about the future of Kable. As Lee observed, 'the rising expectatIOns followmg Kable were dampened when the High Court rejected the applicabilIty of the Kable principle in all the cases considered by it': HP Lee, 'The Kable Case: A Guard-Dog that Barked But Once?' in G Winterton (ed), State Conslltutional Landmarks (Sydney: Federation Press, 2006) 390, 404.

41. Kable, above nI, 107-8 (Gaudron J), 116-19, 122-4 (McHugh 1), 132-4 (Gummow 1). 42. Si/bert v Director of Public ProsecuflOns (WA) (2004) 217 CLR 181, 19! (Klrby J); Bakel;

above n 33,519-20 (Gleeson CJ), 542 (Kirby J); Fardol1, above n 25,593 (Gleeson CJ), 617-18 (Gummow J; Hayne J agreeing), 629-30 (Kirby J); Forge v ASIC, above n 25, 122 (Kirby J).

43. See below nn 246-55. 44. Fardon, above n 25, 618 (Gummow J; Hayne J agreemg); Baker, above n 33,543 (Klrby J);

Forge, above n 25, 76, (Gummow, Hayne & Crennan JJ). See also, Bradley, above n 39, 163 (McHugh, Gummow, Kirby, Hayne, Callinan & Heydon JJ); K-GeneratlOn Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501,535 (Gummow, Hayne, Heydon, Crennan & Klefel JJ); Nzcholas v The Queen (1998) 193 CLR 173, 256; Wainohu, above n 2, 13-14 (French CJ & Kiefel J).

45. Above n 25. 46. Ibid 67-8.


[But] the relevant principle is one which hinges upon maintenance of the defining characteristics of a "court" .... It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodiesY

Some commentators have questioned whether a new test that assigns 'core constitutional meaning to the word "court'" is an appropriate or useful measure of constitutional validity.48 It has also been suggested that the scope of Kable was properly confined to functions vested in courts, and that 'conflating' functions with character' confuses' the principle.49 Certainly, in the absence of any comprehensive statement as to the minimum characteristics of an independent and impartial tribunal (and, as noted below, the possibility seems to be open that these minimum characteristics may differ as between different tiers of State and territory courts), this test leaves State and territory legislatures in a state of uncertainty concerning the ambit of their legislative powers affecting their courts, in these, and other, respects. On the other hand, as Brendan Gogarty and Benedict Bartl point out, it is at least 'clear that independence and impartiality are basic requirements of all aspects of a court's structure and competencies'. 50 These requirements have since been emphasised in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police ('Gypsy Jokers ,),51 and again in K-Generation Pty Ltd v Liquor Licensing Court (X-Generation '}.52

As is apparent from the dicta in Nicholas v The Queen (,Nicholas'),53 Bradley,54 Baker v The Queen (,Baker '},55 Fm'doll v Attorne}' General (Qld) ('Fardon'),56 Forge,57 K-Generation58 and Wainohu,59 no all-embracing statement or definition as to the minimum attributes of an independent and impartial tribunal is likely to be forthcoming. 60 Rather, the courts are likely to approach the issue of incompatibility

47. Ibid 76. 48. A DZledzlc, 'Forge v Australian Secuntzes and Investments CommIssion: The Kable Pnnciple

and the Constitutional ValidIty of Actmg Judges' (2007) 35 Federal Law Review 129, 141. But see Bateman, above n 9, 433-41.

49. G Winterton, 'Austrahan States: Cinderellas No Longer?' in G Wmterton, above n 401, 15. 50. B Gogarty & Bartl, 'Tying Kable Down: the Uncertainty About the Independence and Impartiality

of State Courts Following Kable v DPP (NSW) and Why it Matters' (2009) 32 UniverSIty ojNf:W South Wales Law Journal 75. 95.

51. (2008) 234 CLR 532, 552-3 (CIting Bradley, above n 39, J 63). 52. K-GeneratlOn. above n 44, 531 (French CJ), 535 (G\Ullmow, Hayne, Heydon, Crennan &

Kiefel JJ). 53. Above n 44, 256 (Gummow, Hayne, Heydon, Crennan & Kiefe1 JJ). 54. Above n 39, 163 (McHugh, Gummow, Klrby, Hayne, Callinan & Heydoll JJ). 55. Above 11 33, 543 (Kirby J). 56. Above n 25, 618 (Gummow J; Hayne J agreemg). 57, Above n 25, 76 (Gummow, Hayne & Crennan JJ). 58. Above n 44, 535 (Gummow, Hayne, Heydoll, Crenllan & Kiefe1 JJ). 59. Above n 2, 13-14 (French CJ & Klefel J). 60. See also, Gypsy Jokers. above n 51, 552-3 (Gummow, Hayne, Heydon & Keifel JJ).


with institutional integrity by an evaluative process requiring consideration of a number of factors.6! Indeed, Gummow J has described this as 'a strength rather than a weakness', when regard is had to 'the range of human affairs, the scope of executive and legislative activity, and the necessity for close analysis of complex and varied statutory schemes' .62

There is, with respect, much to be said for this approach (a view not shared by everyone).63 As the High Court has repeatedly said, it is not easy, and is perhaps impossible, to attempt any exhaustive definition of the notions of repugnancy and incompatibility.64 Even if it is possible to produce a workable definition, a cautious and casuistic approach seems preferable, at least in the shorter term, given the extensive range of circumstances in which the principle might become applicable. Moreover, the institutional integrity principle has already acted as a brake on legislative interference.65 The critically important protections afforded by the requirement of the continued existence of State Supreme Courts, the minimum requirements of independence and impartiality of all State courts and the legislature'S inability, ordinarily at least, to interfere with fundamental aspects of the judicial process are plain enough, even though there is room for debate concerning the limits of these protections. Too prescriptive a definition may result in legislation designed to circumvent them.

THE JURISDICTIONAL SCOPE OF THE INSTITUTIONAL INTEGRITY PRINCIPLE

For a while, following the High Court's decision in Kable, it remained unclear whether the institutional integrity principle would protect any courts other than the Supreme Courts of the States.66 In North Australian Aboriginal Legal Aid Service v Bradley (,Bradle.v'), McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ clarified the position substantially, accepting in a joint judgment that:

61. K-Generation, above n 44,530 (French CJ). 62. Fardon, above n 25,618--19 (Gurnrnow J). 63. Gogarty & Bartl, for example, 'question whether the grounds provided by the High COUlt are

sufficient justIfication for its refusal to set down deCisive indicia - in ratio or obiter - especially as Kable has been taken to demarcate the absolute boundary of State court integrity': above n 50, 103.

64 See Baker, above n 33, 543; Nlcholas, above n 44, 256; Forge, above n 25, 76; Bradley, above n 39,163; Fardol1, above n 25, 618-19; K-GeneratlO/l, above n 44, 530.

65. International FInance Trust, above n 2, 379 (Heydon J). An important illustration is proVIded by KIrk v Industnal RelatIons CommiSSIOn of New South Wales (2010) 239 CLR 531, in which the HIgh Court held that legislation removmg from a state Supreme Court power to grant rehef on accOlmt of jurisdictional error is beyond state legislatIve power because it would remove from the relevant state Supreme Court one of Its definmg characteristics.

66. Wheeler, above n 19,21-2; Johnson & Hardcastle, above n 31, 224-9; G Wilhams, Human Rights under the Australian Constlfution (Oxford: OUP, 1999) 213.


[1]t is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunalY

The Full Bench's acceptance of this proposition confirmed that the institutional integrity principle extended to all Australian courts vested with federal judicial power, whether State or territory,68 and whether actually exercising federal judicial power or 1101. 69 However, whether the teml 'capable of exercising' also extended the jurisdictional reach of the principle to all Australian courts that might in the future exercise federal judicial power remained unclear.70 At least one commentator had suggested that it would not.71 But, shortly after Bradley, in Baker, McHugh, Gummow, Hayne and Heydon JJ reached the opposite conclusion, stating that the 'doctrine in Kable is expressed to be protective of the institutional integrity of the State courts as recipients and potential recipients of federal jurisdiction'. 72

An expansive view of the institutional integrity principle'S jurisdictional scope was subsequently endorsed by the Full Bench of the High Court in K-Generation. 73 In that case, Gummow, Hayne, Heydon, Crennan and Kiefel JJ (in obiter) rejected a submission by Queensland and WestemAustralia that, while Supreme Courts must always be within the phrase a 'court of a State' as it appears in section 77(iii), the States were not obliged by the Constitution to maintain other courts upon which federal jurisdiction might be conferred.74 In their Honour's view (French CJ and Kirby J agreeing):

[C)onsistently with Ch 1Il, the States may not establish a "court of a State" within the constitutional description and deprive it, whether when established or subsequently, of those minimum charactenstics of the institutional independence and impartiality identified in the decisions of this Court.75

It is unclear whether, in rejecting the submission made by Queensland and Western Australia, the joint judges meant that the States may never abolish any court, once created (they plainly cannot abolish a Supreme Court), or whether (as seems more likely) the States must simply maintain a minimum number of courts for the exercise of federal judicial power. Nor did the joint judges elucidate upon their (arguably paradoxical) proposition that a court could lack the minimum characteristics of institutional independence and impartiality 'when established',

67. Bradley, above n 39, 163 (Gleeson CJ, McHllgh, Gllmmow, Klrby, Hayne, Callinan & Heydon JJ).

68. Wheeler, above n 19,21. 69. G Carney, The Constitutional Svstems o/the Australran States and Territories (Cambridge: CUP,

2006) 357. 70. Ibid. 71. Ibid. 72. Bakel: above n 33,534 (emphaSIS added), citing Bradley, above n 39, 163. 73. K-GeneratlOn, above n 44. 74. Ibld 543. 75. Ibid 544. See also 529 (French Cl), 564, 567-9 (Kirby J).


and yet fall within the constitutional description of a 'court'. These questions must remain unanswered until such time as the High Court has an opportunity to address them more fully. Whatever answers (if any) are provided, though, similar reasoning is likely to be applied in respect of territory courtS.76

Kirby J also expressly rejected a submission that, because State Supreme Courts were the only courts that existed at the time of federation, no constitutional implication could be derived that particular courts, as later created by legislation, must confonn to a defined national standard.77 In his Honour's opinion, the constituent parts of the integrated Judicature were extended to include other courts, indeed 'any' court ofa State. 78 Presumably, given his Honour's subsequent comments in Wurricijal v Commonwealth,79 he would have applied the same reasoning in respect of territory courts.

In light of these cases, and notwithstanding the questions left open by the joint judgment in K-Generation, it seems relatively certain that the institutional integrity principle will provide an element of protection to all Australian 'courts' created within the constitutional meaning ofthat tenn. However, and as the High Court has consistently emphasised, the jurisdictional ubiquity of the institutional integrity principle is tempered by the fact that the Commonwealth must take State courts as it finds them.80 Thus, institutional integrity does not require or sanction the rationalisation of State courts in accordance with federal standards. This principle recognises an integrated, not a unitary, court system.81 State and territory courts are not subject to the same constraints as federal courts established under Chapter m,8" and may still exercise non-judicial functions, so long as those functions are compatible with institutional integrity. There is, moreover, no single ideal model of judicial independence, personal or institutional83 (although, as institutions forming part of Australia's integrated court system, State and territory courts must have the 'capacity to administer the common law system ofadversarial trial').84 It

76. In Northern Territory v GPAO (1999) 196 CLR 553, 604--5, Gaudrou J stated that: 'GIven the tenus of s 71 and the purpose of s 77(ili) of the Constitution, there is, in my View, no reason to read "such other courts as it invests WIth federal junsdlctlOn" III s 71 as if it read "such other State courts as It invests with federal jurisdictIOn". And once those words are gIVen their natural and ordinary Illeamng, they are clearly capable of including non-federal courts created under s 122 ofthe Constitution. To read s 71 in thIS way IS Simply to put courts created WIder s 122 on a constitutional footing comparable with State courts.'

77. K-Generation, above n 44,560. 78. Ibid. 79. (2009) 237 CLR 309,387-8. 80. Heydon J took a relatively restricted view in this respect in Forge. He regarded the word 'court',

in Ch III, as having the meaning it bore at the time of enactluent of the ConstitutIOn: Forge, above n 25, 141-3.

81. Ibld 65-7 (G1eeson CJ). 82. Fardon, above n 25, 655-U6 (Calhnan & Heydon 11). 83. Forge, above n 25, 65-6 (Gleeson CJ) 84. Ibid 76 (Gum mow, Hayne & Crennan JJ); citcd with approval by Crennan J, with whom Gleeson

CJ agreed, in Gypsy Jokers, above II 51. 591.


follows that State and territory parliaments enjoy more institutional and procedural flexibility in respect of their courts than does the Commonwealth Parliament in respect of federal courts. S5

Because institutional integrity does not require the maintenance of uniform standards throughout Australia's integrated judicial system, care must be taken when considering whether, or to what extent, a given function or characteristic will be incompatible with the institutional integrity of a particular court. Kable may have established a conduit for the transfer of certain Chapter III limitations to the States and territories, but there remains a possibility that those limitations might become decreasingly onerous as they pass down the ranks of Australia's integrated judiciary.86

THE JUDGMENTS IN INTERNATIONAL FINANCE TRUST, TOTANI AND WAINOHU

How if at all, then, do the jUdgments in International Finance Trust, Totani and Wainohu add to our understanding ofthe institutional integrity principle? In terms of judicial policy, these cases might be seen as indicating a renewed willingness on the part of the High Court to apply the institutional integrity principle in a way that is protective of the traditional judicial process and, albeit only indirectly, individual rights and freedoms. Also, as mentioned previously, the cases raise a number of important questions as regards the nature and scope of that principle. These questions are examined in more detail in the second half of this article. In terms of the legal reasoning applied to the issues in dispute, however, none of these cases would appear to add greatly to (although they may reinforce) our understanding of the institutional integrity principle.

In essence, and although subtly different approaches were adopted, the majority judgments in International Finance Trust and Tofani turned upon the relatively uncontroversial proposition (examined in more detail below) that legislation purporting to direct a court as to the manner and outcome of the exercise of its jurisdiction is apt impermissibly to impair the character of the court as an independent and impartial tribunat.S7 In both cases, it appears to have been material to the conclusions reached by the majority that the resultant processes were also (perhaps by necessary inference) repugnant to the judicial process. The majority judgments in Wainohu turned primarily upon the fact that, by exempting a judge from the duty of giving reasons, a hallmark of the judicial office was denied, affecting perceptions of the role of the judge to the detriment of the Court.

85. K-GeneratlOn, above n 44, 529 (French Cl). Kirby J, too, pointed out that it would be contrary to basic principle to read s 77(lii) narrowly or to apply Its provisions to particular tribunals With undue strictness: at 564.

86. Wheeler, above n 19,27. 87. See below nn 145-52.


1. International Finance Trust

International Finance Trust involved a provision of the Criminal Assets Recovery Act 1990 (NSW) (,CAR Act') which, on the construction afforded it by the majority, required the Supreme Court of New South Wales to hear and detennine, without notice to the persons affected, applications for restraining orders made ex parte by the New South Wales Crime Commission in circumstances in which, as Gummow and Bell JJ put it:

The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.s8

The restraining orders related to property of persons suspected of having committed a serious criminal offence. Their purpose was to aid the Commission's power to apply to the court for forfeiture of the property. The negative proposition to which Gummow and Bell n referred was that (pursuant to section 25(2) of the CAR Act) release from sequestration could not be granted by the Court (by way of an 'exclusion order') unless, on an application for an exclusion order, it could be proved to be more probable than not that the property affected by the order was not fraudulently or illegally acquired.

French Cl categorised the power conferred on the Commission, on his construction of the CAR Act, as being one 'to choose, in effect, whether to require the Supreme Court of New South Wales to hear and detennine an application for a restraining order without notice to the party affected'. He held that this was incompatible with the judicial function because it deprived the court of the power to detennine whether procedural fairness required that notice be given to the party affected before an order was made, being, he said, 'an essential incident of the judicial function' .89 He went on to say:

In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction.90

Gummow and Bell n, having construed the CAR Act in the manner mentioned earlier, similarly found that section 10 of the Act engaged 'the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia'. 91 Their Honours concluded that

88. International Finance Trust, above n 2, 366--7 89. Ib1d 355. 90. Ibid. 91. Ibld 367.


the effect of the impugned provisions was to substantially impede the Supreme Court's power to ensure that 'the parties be given an opportunity to present their evidence and to challenge the evidence led against them'.91 Heydon J, the other member of the majority, found that, because there was no procedure by which the persons subject to a restraining order made ex parte might approach the Court to have it set aside once that person learned of the order, the effect of section 10 was to 'compel the Supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree'.Q3 Like Gummow and Bell n, Heydon J based his conclusions upon the 'centrality' of the fair hearing rule to the Australian judicial process.94

The minority (Hayne, Crennan and Kiefel J) construed the CAR Act differently. They found that nothing in the Act expressly or impliedly modified or qualified the 'elementary rule of justice' that the party affected by a judicial order obtained ex parte might apply for its discharge.95 They accordingly found that the legislation was not 'repugnant to the judicial process as understood and conducted in Australia' and that it did not deny 'either the reality or the appearance of the impartiality of the Supreme Court of New South Wales'.96

2. Totani

In Totani, a majority of the High Court applied similarreasoning to find section 14( 1 ) ofthe Serious and Organised Crime (Control) Act 2008 (SA) (,Control Act') invalid. The Control Act sought to establish a scheme for 'disrupting and restricting the activities of criminal organisations' (primarily outlaw motorcycle gangs). 97 Insofar as was relevant to the appeal, this scheme comprised two distinct stages. The first stage (section 10) involved the making of a 'declaration' by the Attorney General, on application by the Commissioner of Police, in respect of an organisation deemed to be engaged in 'for the purpose of 'organising, planning, facilitating, supporting or engaging in serious criminal activity', and representing 'a risk to public safety'. The second stage (section 14(1)) stated that the Magistrates Court of South Australia 'must', again on application by the Commissioner of Police, 'make a control order against a person (the 'defendant') if the Court is satisfied that the defendant is a member of a declared organisation'. A 'control order' had the effect of prohibiting a member of the organisation from associating with other

92. [bid 364. 93. Ibid 385 94. Ibid 378-82. 95. Ibid 320, 376. 96. Ibid 378. 97. South Australia, Parliamentarv Debates, House of Assembly (Hansard), 21 Nov 2007, 1805

Wamohu, above n 2, discussed below pp 242-6, also involved a challenge to legislatJOn purporting to restrict the activities of outlaw motorcycle gangs. That legislatIon of this type might be susceptible to the limitatIOns Imposed by the institutIOnal integnty principle was antiCipated, in a Westem Australian context: see P 10hnston & R Hardcastle, 'State Court Judges and Kable Limitations: Validity of the Criminal InvestigatIOn (Exceptional Powers) and Fortification Removal Bill 2001 (WA)' (2002) 4 ConstztutlOnal Law and Policy Revzew 1.


members and from possessing a dangerous article or prohibited weapon. Breach of a control order constituted a criminal offence punishable by up to five years' imprisonment,

With the exception of Hey don J, their Honours agreed that the effect of section 14(1) was to distort institutional integrity. In French Cl's view:

Section 14( 1) requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that Court and which is based on executive determinations of criminal conduct committed by persons who may not be before the court. The [Control Act 2008 (SA)] thereby requires the Magistrates Court to carry out a function which is inconsistent with fundamental assumptions, upon which Ch HI of the Constitution is based, about the rule oflaw and the independence of courts and judges. In that sense it distorts that institutional integrity which is guaranteed for all State courts by Ch III ofthe Constitution so that they may take their place in the integrated national judicial system of which they are part.98

Gummow J similarly found that the declaration by the Attorney General provided 'the vital circumstance and essential foundation for the making by the Magistrates Court of the control order'.99 As such, in His Honour's view, section 14(1) effectively called upon the Magistrates Court 'to act at the behest of the AttomeyGeneral to an impermissible degree, and thereby to act in a fashion incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity' .100 In reaching this conclusion, Gummow J noted, inter alia, that section 14(1) was distinguishable in effect from the control order scheme upheld in Thomas v Mowbray (requiring the court to issue a control order against suspected terrorists if satisfied as to the existence of certain circumstances) as the exercise of that power was not premised upon any 'anterior determination by the executive branch which was an essential element in the curial decision' .lDl

Crennan and Bell JJ, and Keifel J in a separate judgment, adopted broadly similar reasoning to Gummow 1. 102

Hayne J, the other member of the majority, adopted slightly different reasoning, finding that the function vested in the Magistrate's Court by section 14(1) was invalid on the basis that it did not require the determination of existing rights (an essential element of judicial power):

The task is repugnant to, or incompatible with, the institutional integnty of the Court because the Court is enlisted, by the Executive, to make it a crime, for

98. Totani, above n 2, 21. 99. Ibid 66 (Gummow J). 100. Ibld 67. 101. Ibid 65, 87 (Gummow J). 102. Ibld 153,159-60 (Cremlan & Bell J1), 169, 171-2 (Kiefel J)


particular persons upon whom the Executive fixes, to associate together when, but for the Court's order, the act of association ... would not be a crime.103

Another way of interpreting the judgments of the majority is that each essentially regarded the invalidity as flowing, in effect, from an interference with the constitutional balance provided by Chapter III. 104

Heydon J, in dissent, interpreted the Control Act more narrowly. His Honour found that none of the relevant sections of the Control Act, either individually or collectively,I05 required 'the Magistrates Court to depart from the methods which have characterised judicial activities in the past. '106 As such, the Control Act did not distort institutional integrity. In his Honour's view, legislation may require, not only that the court must make an order if certain conditions are met, but also that it should detain a person for the purpose of preventing the commission of a possible crime. IO?

3. Wainohu

In Wainohu,108 the Court was concerned with the Crimes (Criminal Organisations Control) Act 2009 (NSW). The appellant was a member of the Hells Angels Motorcycle Club. Because that club was a declared organisation under section 9(1) of the Act, the appellant was liable to be made the subject of a control order under Part 3 of the Act. That would have had the consequence, amongst others things, of preventing him from associating with other members of the club and barring him from applying for, or holding, authorisation to conduct certain kinds of businesses or activities. He challenged the validity of the Act, inter alia, upon the ground that it conferred functions on judges of the Supreme Court of New South Wales as designated persons and on the Supreme Court itself, which undermined the institutional integrity of that court in a way that was inconsistent with the national integrated judicial system provided by Chapter III of the Constitution.

A declaration under section 9(1) of the Act could be made, on application by the Commissioner of Police, by an 'eligible judge', being one so designated by the Attorney-General after giving written consent. It was not disputed that a declaration of this kind was an administrative act and that the making of a control order was a judicial act. A determination to make a declaration under section 9(1) might be partly based upon information not disclosed to the organisation or its members 109 and might be made without regard to rules of evidencello and with no obligation to provide reasons. III

103. Totani, above n 2, 88-9. 104. Ibid 62-3 (Gummow J), 83-4, 86 (Hayne 1), 155-7 (Crennan & Bell JJ), 162-3, 172 (Kiefel J). 105. Ibid 123. 106. Ibld 103. 107. Ibid 142-7. 108. Wamohu, above n 2. 109. Crimes (Crm1Tnal Organisations Control Act) 2009 (NSW) ss 8, 28, 29. 11 O. Ibid s 13(1). 111. Iblds 13(2).


French CJ and Kiefel J found that, although a State legislature can confer administrative functions on a State court or on judges of that court, it can only do so if those functions are compatible with 'the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system' provided by Chapter III.ll2 As such, their Honours held that the Act was invalid for two (overlapping) reasons. The first was that it substantially impaired the essential and defining characteristics of the Supreme Court of NSW as a court because it enlivened the jurisdiction of the court to make control orders by a decision of a judge of the court, after an adversarial proceeding on complex and important factual matters, without the need to give reasons.1I3 The second (related) reason was that the Act created an impression of a connection between the performance of a non-judicial function (making a declaration) and the following exercise of judicial power (making a control order), 'such that the performance of this function may affect perceptions of the judge, and of the court of which he or she is a member. to the detriment of that court'. 114

Their Honours went on to say, in respect of this second reason, that although the non-judicial function might be conferred upon the judge as an individual, the statute might create a close connection and therefore an association with the person's role as a judge. In that event, they said, the question whether the performance of that function would impair the defining characteristics of the court is brought more sharply into focus. 115 When considering that question, the fact that the function was conferred on the judge (by virtue of his or her status as the holder of that office) as persona designata would generally not be determinative. 1I6 They gave as an example the possibility that the exercise of the function might impair 'the reality or appearance' of the court's independence from the executive.1I7

In the course of finding invalidity on the first of the two overlapping bases mentioned above, French CJ and Kiefel J enunciated the proposition that the duty to give reasons, being an incident of the judicial function, has a constitutional character deriving from the jurisdiction of the High Court under section 73 of the Constitution to hear appeals from all judgments, decrees, orders and sentences of the State Supreme CourtS. ll8 They also said that the provision of reasons for decision is an expression of the open court principle, itself an essential incident of the judicial function.1l9 On the facts, their Honours concluded that, although the judge was acting as persona designata, the connection between the non-judicial function of making a declaration and the exercise of jurisdiction by the Supreme Court when making a control order created the appearance of a judge making

112. Wainohu. above n 2. 5-6. 113. Ibid. 114. Ibid. 115. Ibid. 116. Ibid 22. 117. Ibid. 118. Ibid 25. 119. Ibid.


a declaration (of major adverse significance to the affected organisation and its members) whilst a hallmark of that office, the giving of reasons, was denied. These features were said to inevitably affect perceptions of the role of a judge of the court to the detriment of the courtYo

Gummow, Hayne, Crennan and Bell JJ (who joined in a single judgment) agreed with three statements of principle expressed by Gaudron J in Wi/son, which they regarded as determinative of the appeal: 121

1. [The confidence reposed in judicial officers 1 depends on their acting openly, impartiaily and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are .... And, just as importantly. it depends on the reputation of the courts for acting in accordance with that process.

2. In general terms, a function which is carried out in public, save to the extent that general considerations of justice otherwise require, [and which is] manifestly free of outside influence and which results in a report or other outcome which can be assessed according to Its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and other branches of government. 122

3. [T]here may be functions (for example, the issuing of warrants such as those considered in Hilton v Wells 123 and in Grollo124) which do not satisfy these criteria but which, historically. have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence. However, history cannot justifY the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the jUdiciary generally.

Gummow, Hayne, Crennan and Bell JJ accepted that Wilson and Kable 'share a common foundation in constitutional principle',125 which 'has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State' .126 They said that this principle 'applies throughout the Australian integrated court system because it has been appreciated since federation that the Constitution does not pemlit of different grades or qualities of justice'. 127 It followed that either State or federal legislation conferring functions on a judicial officer persona designata might manifest repugnancy to or incompatibility with institutional integrity. us

120. Ibid 28. 121. Wilson. above n 16. 122. EmphaSIS added by Gummow. Hayne, Crennan & Bell 11. 123. Above n 16. 124. Above n 16. 125. Wamohu, above n 2,36. 126. Ibid. 127. Ibid. 128. Ibid.


Their Honours went on to approve an observation by Mason and Deane JJ in Hi/ton v Wells that it would come as 'a surprise' to an intelligent lay observer that 'a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual'. 129 They found that the effect of the relevant provisions was 'to utilise confidence in impartial, reasoned and public decision-making by eligible Judges in the daily performance of their offices as members of the Supreme Court to support inscrutable [because of the lack of a requirement to give reasons] decision-making' .130

Heydon J dissented. He did so primarily upon the basis that there was 'incomplete contact' between the grounds on which the appellant was to succeed, the arguments which he advanced and the arguments advanced by the respondents. However, he also addressed the issues upon which the judgments of the majority turned.

First, Heydon J found that the relevant section of the Act (section 13(2)) did not prohibit judges from giving reasons. His Honour thought that judges would very probably do so when the interests of justice required them to, and that the risk that there would be isolated instances of secrecy was insufficient to justifY invalidation. l3l Secondly, and in any event, his Honour found no general rule of the common law or principle of natural justice that requires reasons to be given for administrative decisions. 132

Thirdly, and significantly, Heydon J was of the view that, in Wilson, Gaudron J had not advanced secrecy as a criterion of validity. He agreed with the proposition that the legislative provisions under consideration in that case gave rise to a perception that the designated person lacked independence from the Executive,133 and that it was this, rather than secrecy in itself, which was the criterion of validity. 134 In Heydon J's view, nothing in Wilson led to a declaration of invalidity in the present case. J35 Rather, the crucial issue was the independence and impartiality of the judges who acted as designated persons and the question was whether the absence of a duty to give reasons impaired it. He said, citing Grollo,136 that a failure to give reasons is not determinative, and that a failure to give reasons for making a declaration that does not affect rights is not a ground for invalidity.137

Fourthly, Heydon J disagreed with the majority's conclusion that the Kable doctrine 'applies to State judges when they are not acting as members of State

129. IbId. 130. lhid 37. 131. Ibid46-7.See also 54-5. 132. Ibld 47. 133. These imposed a duty to report in secret and gave the designated person no control over whether

the report would be earned mto effect. 134. Waznohu, above n 2, 47. 135. Ibld 48-9. 136. Above n 16. 137. Waznohu, above n 2, 49.


courts, but as designated persons' .13 8 This conclusion was illogical, his Honour explained, as the limitation on State legislative power arising from Kable 'does not flow from any separation of judicial function under the State constitutions preventing individual judges acting as members of the Executive - only from the establishment by Chapter III of an integrated court system' .139 Observing that none of the cases that successfully invoked Kable in respect of State judges had been designated persons cases, His Honour opined that:

To decide for the plaintiff would involve a new step ~ a merger between the Grollo v Palm er principle limiting the activities of federal judges as designated persons, and the Kable doctrine limiting the functIOn of State courts, and an extension of it to State judges as designated persons. 140

Finally, Heydon J expressed concern regarding the majority's reliance on notions of 'public confidence'. After commenting on the uncertainties inherent in that concept, he suggested that, if invalidation followed from the absence of an obligation on the eligible judges to give reasons, this might be compared with legislation replacing those judges with persons who were less impartial and independent of the enforcement agencies of the Executive, a model more damaging to public confidence. 141 The public confidence concept is examined in more detail below.

WHERE ARE WE NOW?

Some propositions might be drawn, either expressly or impliedly, from the cases to which we have referred. These propositions are in a sense hierarchical, in that proposition 3 will be of relevance to the determination of proposition 2, which is in turn constructed upon proposition 1. However, each proposition might provide a fresh foundation for, as yet, unanticipated implications.

Proposition 1

The base or fundamental proposition is that Chapter III ofthe Constitution requires that there will always be a court in each State, which answers the constitutional description, 'the Supreme Court of [a] State' .142 This principle has two overlapping limbs:

(i) Ch III puts it beyond the legislative power of the State to alter the constitution or character of a Supreme Court in such a way as to cause it to cease to meet the constitutional description. 143

138 Ibid 5 L para (g). 139. Ibld, para (f). 140. Ibid, paras (h), (i). 141. Ibid53. 142. Forge, above n 25, 67~8 (Gleeson Cl), 73-4, 76 (Gummow, Hayne and Crennan JJ), 121 (Kirby

J); K-GeneratlOn, above n 44, 530 (French Cl). 143. K-GeneraflOn, ibid, 560, 564 (Kirby J). The U11portance, and potential reach, of this limb is

demonstrated by KIrk, above n 65 in which the High Court held that legIslation removing from


(ii) State legislatures are prevented from transferring all judicial authority to nonjudicial bodies.144

Proposition 2

The second proposition, which is constructed upon the first, is that there will be incompatibility with the exercise of the judicial power of the Commonwealth if the 'institutional integrity' of a Supreme Court is compromised. 145 The concept of institutional integrity hinges upon the 'maintenance of the defining characteristics of a "court'" .146 The High Court has indicated that institutional integrity may be undermined in, at least, the following ways:

(A) If a 'court' is, or is perceived to be, not institutionally independent of the legislative and executive government. 147 The High Court has said, in this respect, that:

(i) A court will not have the required degree of independence if it acts as 'a mere instrument of government policy'148 (although courts are, of

a State Supreme Court power to grant relief on account of jurisdIctional error is beyond State legislatIve power because It would remove from the relevant state Supreme Court one of Its defining characteristics.

144. Wheeler, above n 19,26; LZmes, 'The Common Law m Australia: Its Nature and Consututional Significance' (2004) 32 Federal Law Review 337,346; Johnston & Hardcastie, above n 31, 223; Trust Compall)' 0/ Australia Lld v Sklwing Pty Lld (2006) 66 NSWLR 77,87 (Spigelman CJ, Hodgson & Bryson JJA agreemg), in which It was held that a 'court of a State' must exclusively, or at least predominantly, be constituted by Judges.

145. Kable, aboven I, 98 (Toohey J), 107 (GaudronJ), 121 (McHughJ), 127-8 (Gummow J);Fardon, above n 25, 591 (Glee son Cl), 598 (McHugh J), 617-18 (Gummow J), 648 (Hayne J), 653 (Callman & Heydon JJ); Baker, above n 33. 519-20 (Gleeson Cl), 534-5 (McHugh, Gummow, Hayne & Heydon JJ); Forge v ASIC, above n 25, 67 (Gleeson Cl; Callinan J agreeing), 76 (Gummow, Hayne & Crennan JJ); Gyps)' fakers. above n 51, 591 (Crennan J; Gleeson CJ agreeing); K-Generation, above n 44, 545 (Kirby J); Wainohu, above n 2, 19 (French CJ & Klefel J), 36 (Gummo~, Hayne, Crennan & Bell JJ). See also MomczloVlc, above n 3, 283-4, in which Gummow, Hayne and Heydon JJ (forming a minonty on this Issue) would have ll1validated proVisions of the Charter of Human Rights and Responsibilities Act 2006 (Vie) on the ground that they attempted 'a significant change to the constitutional relationship between the anus of government' and because tiley conferred functIOns that were incompatible with institutional integrity; or because they amounted to an Impermissible delegation to the judiCiary of power to make legislation and because they took the Supreme Court of Victoria outside the constitutIOnal concept ofa 'court': 340-57 (Heydon 1).

146. Forge vAS/C, above n25, 76 (Gummow, Hayne & Crennan JJ) (who, in thiS way, lIe proposition 2 to proposition 1). See also Wainohu . above n 2, 19 (French CJ & Kiefel 1).

147. Kable, above n 1,98 (Toohey J), 116-19 (McHugh J); Bradle); above n 39, 163 (McHugh, Gummow, Kirby, Hayne, CallJIlan & Heydon ll); Fardon, above n 25,601-2 (McHugh J), 619, 621 (Gummow J; Hayne J agreeing), 655-6 (Callinan & Heydon JJ); Sdbert v Dzrector o/Public Prosecullons (WA) (2004) 217 CLR 181, 190 (Klrby I); Baker, above n 33, 543-4 (Kirby J); Forge v AS/C, above n 25, 67-68 (Gleeson CJ; Callinan I agreeing), 76, 77, 80-1 (Gummow, Hayne & Crennan JJ), 118, 122-3 (Klrby J); G)psy Jokers. above n 51, 552-3 (Gummow, Hayne, Heydon & Kiefe1 JJ), 591, 597-8 (Crennan J, Gleeson CJ agreeing); K-Generation, above n 44, 531 (French J), 545, 575 (Kirby J).

148. Fardon, above n 25,592 (Gleeson Cl), 601-2 (McHugh J); Forge. above n 25, 76 (GUlJ1mow, Hayne & Crennan JJ); Thomas v Mowbray, above n 11, 335, (Glee son Cl).


course, ordinarily bound to apply legislation embodying government policy).

(ii) Conditions which must exist for courts in Australia to administer justice according to law are inconsistent with some forms of external control of those courts appropriate to the exercise of authority by public officials and administrators. 149

(iii) The fact that the legislature requires a court exercising federal jurisdiction to make specified orders only if certain conditions are met will not necessarily result in invalidity even if the satisfaction of a condition enlivening the court's statutory duty depends upon a decision made by a member of the executive. 150 However, as a general proposition, legislation purporting to direct a court as to the manner and outcome of the exercise of its jurisdiction would be apt impermissibly to impair the character of the court as an independent and impartial tribunal. 151

(B) If institutional impartiality, or the appearance of it, is compromised. 152

Although this aspect of institutional integrity has been recognised on a number of occasions, its scope remains uncertain, a point to which we return below.

Proposition 3

The third proposition is that it will be at least a material consideration, when considering invalidity, whether the power conferred by the legislature is antithetical to the judicial process. IS3 Some judges have gone further when expressing

149. Gypsy Jokers, above n 51, 552-3 (Gummow, Hayne Heydon and Ktefel JJ); K-G,meration, above n 44, 531 (French C.I).

J 50. InternatIOnal Fmance Trust, above n 1, 352 (French 0, citing Palling v Corjield (1970) 123 CLR 52).

151. Chu Kheng Lim v Minis/er for Immigration (1992) 176 CLR 1; Bodruddaza v Minister for immigratIOn and Mu/ticulfllral Affairs (2007) 228 CLR 651; Gypsy Jokers, above n 51, 560 (Gummow, Hayne, Heydon & Kiefel JJ); K-Generatlon. above n 44,526 (French J); International Finance Trust, above n 2,352-5 (French Cl).

152. Kable, above n 1, 121 (McHugh J), 133---4 (Gurnrnow J); Bradley, above n 39, 163 (McHugh, Gurnmow, Kirby, Hayne, Callinan & Heydon JJ); Fardoll. above n 25,598,602 (McHugh J), 628 (Klrby J); Sllbert v Director o.f Public Prosecutions (WA) (2004) 217 CLR 181, 190 (Kirby J); Bakel; above n 33, 543-4 (Klrby J); Forge, above n 25, 67-8 (Gleeson CJ, Callinan J agreeing), 76-7,80-1 (Gummow, Hayne & Crennan JJ), 118, 12:2-3 (Kirby J); Gypsy Jokers, above n 51, 552-3 (Gurnmow, Hayne, Heydon & Kiefel JJ), 591, 597-8 (Crennan J; Gleeson CJ agreeing); K-Generation, above n 44, 531 (French CJ).

153. Kable, above 11 I, 107-8 (Gaudron J), 122 (McHugh J); Fardon, above n 25, 592 (Gleeson CJ), 596--8 (McHugh J), 617, 620-1 (Gummow J; Hayne J agreeing), 628, 630-1 (Kirby J), 655--6 (Callinan & Heydon JJ); Gypsy Jokers, above n 51, 562-3 (Kirby J dIssenting); InternatIOnal FlI1ance Trust, above n 2, 353-4 (French CJ); citing Thomas v Mowbray, above n 11, 355, where, as we have mentioned, Gurnmow and Crennan, JJ with whom Heydon J agreed on this point, accepted that legislation which requires a court exercismg federal jurisdiction to depart to a significant degree from the methods and standards whIch have characterised judICIal activitIes


this proposition, saying that, where the statute in question is so antithetical as to be 'repugnant to the judicial process in a fundamental degree', it will not be constitutionally valid.154

While no comprehensive definition of the judicial process has been, or is likely to be, provided, a number of features can be distilled from the relevant case law. The judicial process will ordinarily include, to some degree, the following incidents at least: 155

(i) a public hearing;156

(ii) an independent and impartial tribunal;J57

(iii) application of the rules of evidence;15f

(iv) the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts;!59

(v) the existence of a discretion, where appropriate; 160

(vi) provisions with respect to the onus and standard ofproof;!6!

(vii) an obligation to afford naturaljustice;!62

(viii) an obligation to make proper disclosure;l63

(ix) an obligation (and ability) to give reasons;!6-1 and

(x) the existence of a right of appeal.!65

m the past may be repugnant to Ch Ill. See also Gypsy Jokers. abpve n 17,278 (Steytler P); Internatwllal Fznance Trust. above n 2, 378 (Hayne. Crennan & Kiefel JJ).

154. Kable. above n 1, 132; International Finance Trust, above n 2, 367 (Gummow & Bell JJ), 379 (Heydon J). cr McHugh 1, in Fardon, above n 25, 600-1; Burnett v Director of PuMc Prosecutions (2007) 153 NTR I, 66 (Mildren J).

155. The list is not exhaustive. Also, there has been some controversy concerning the questIOn whether there is any constitutional restrictIOn upon State leglslalive power to deny 'the equal protection of the law'. ThIs point is examined in more detail above nn 20 I-I 0 and accompanying text. In addition to the authonties cited see, as regards the concept of 'unfairness', Bakewell v The Queen (2008) 157 NTR 91, 107.

156. Re No/an; E'C parte Young (1991) 172 CLR 460,496 (Gaudron J); Fardon, above n 25, 592 (Gleeson CJ); K-Generat/On, above n 44,512 (French CJ).

157. See the cases cited m support of proposItIOn 2. 158. Fardon, above n 25,692 (Gleeson CJ), 596 (McHugh J), 656 (Callinan & Heydon JJ) 159. Re Nolan, above n 156. 496 (Gaudron J); Fardon, above n 25, 615 (Gummow J; Hayne J

agreeing). 160. Fardon. ibld 592 (Gleeson CJ), 596 (McHugh J), 656 (Callinan & Heydon JJ). 161. Ibid 596 (McHugh 1),615-16,620--1 (Gummow J; Hayne J agreeing). 162. Bass v Perm(lnent Trustee Co Lld (1999) 198 CLR 334,359 (Gleeson CJ, Gaudron, McHugh,

Gummow, Hayne & Callman JJ); Re Nolan, above n 156, 496 (Gaudron J); Fardon, above n 25, 615 (Gummow 1); Gypsy Jokers, above n 51, 577-8 (Kirby J dissenting), 594 (Crennan J; GleesoJ1 CJ agreeing); K-Generation, above n 44,512 (French CJ); International Finance Trust. above n 2,354 (French CJ), 363--4 (Gnmmow & Bell JJ), 379-80JHeydon J).

163. Fardon, above n 25, 615 (Gummow J), 657 (Callinan & Heydon JJ). 164. Ibld 602 (McHugh J), 617 (Gummow J), 658 (Call man & Heydon J); Wainohu, above n 2. 165. Ibid 617 (Gummow J), 658 (Callinan & Heydon JJ).


Whether these incidents might, in the future, be identified as aspects of a broader 'due process' implication, is a possibility considered in further detail below.

Proposition 4

Because it is implicit in the terms of Chapter III ofthe Commonwealth Constitution, and necessary for the preservation of the structure created by it, that all courts capable of exercising the judicial power of the Commonwealth should answer the constitutional description' court of a State' , proposition 2 (and hence proposition 3) will apply to all such courts and not only to State Supreme CourtS. 166

Proposition 5

A State legislature cannot confer on a judge of a State court a non-judicial function, which is substantially incompatible with the functions of the court of which the judge is a member.167 Where the non-judicial function is conferred upon the judge as a designated individual, but in such a way as to create an association with the person's role as a judge in circumstances in which the performance of the function would impair the defining characteristics of the court of which the judge is a member, the conferral will be invalid. 168

THE EFFECT OF THESE PROPOSITIONS

The acceptance of these propositions, and the willingness shown by the High Court, in International Finance Trust, Totani and Wainohu, to apply them, have a number of potentially far reaching consequences for Australian constitutional law.

Most importantly, proposition 1 provides a substantial degree of protection for State Supreme Courts. A State government cannot do away with a State Supreme Court. Nor can it do the same thing indirectly, by transferring all judicial authority to non-judicial bodies.

Additional protection for all State courts is provided by propositions 2, 3 and 4. A State government cannot lawfully deprive a State court of its independence of the legislative and executive arms of government or of its impartiality (at least if either step will result in it no longer satisfYing the minimum characteristics of a court as they have been understood since before federation). Nor can a State Government otherwise compromise the institutional integrity of a State Supreme Court or, seemingly, of any other State court (properly so called), at least if this would cause it to lose the defining characteristics of a court. These include, but are not limited to, independence and impartiality. Finally, in this respect, State legislation

166. Bradley, above n 39, 163 (Gleeson Cl, McHugh, Gummow, Kirby, Hayne, Callinan & Heydon JJ); Baker, above n 33, 534--5; Forge, above n 25, 67-8; K-Generation, above n 44,544.

167. Waznohu, above n 2,21 (French Cl & Klefel J). 168. Ibid.


that, on its proper construction, is repugnant to the judicial process (ordinarily comprehending at least the ten incidents identified above) to a fundamental degree will very probably be found to be invalid.

However, so long as propositions 1, 2 and 5, at least, are not infringed, a State court can exercise non-judicial functions and, so long as there remains a State Supreme Court as contemplated by Chapter HI, judicial powers can be exercised by State executive bodies such as non-judicial tribunals. 169

UNANSWERED QUESTIONS

Some questions have been left unanswered by the cases to which we have referred. The foIIowing section identifies five questions in particular, although there may weII be others. These questions may also overlap (because, for example, significant procedural alterations might affect the structure of a court).

(i) To what extent might the scope of the institutional integrity principle be influenced by assumptions extant at the time of federation?

Nothing that was said in International Finance Trust, Totani or Wainohu would appear to alter the fundamental proposition recognised inF orge, that the institutional integrity principle 'hinges upon maintaining the defining characteristics of a "court"'. However, French Cl's judgment in Totani may indicate a subtle change in the interpretative approach to be applied to that end. In that case, French Cl explained that:

One does not look first to overarching principles of constitutionalism as a source ofthe limitations on State legislative power which have been expounded under the general rubric ofthe "Kable doctrine". Rather, it is necessary to focus upon the text and structure of Ch III and the underlYll1g historically based assumptions about the courts, federal and State, upon which the judicial power of the Commonwealth can be conferred. It is in the need for consistency with those assumptions that the implied limitations find their source. 170

Emphasising the 'linkage between assumptions about courts at the time of Federation and the national character of the Australian judiciary',171 his Honour found three 'overlapping assumptions', which, he said, underlie the adoption of the mechanism reflected in section 77(iii) of the Constitution:

(1) the universal application throughout the Commonwealth of the rule oflaw;

(2) the courts of the States are competent to be entrusted with the exercise of federal jurisdiction; and

169. See Wheeler, above n 19. Examples are provided by the Victorian Civil and Administrative Tnbunal and the Western Australian State AdmilllstratIve Tnbunal.

170. Totam, above 11 2, 37-8 (emphasis added). 171. Ibid.


(3) 'the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle' (a formulation which, as we have said, he described as 'deliberately non-exhaustive'). 172

The first assumption is one of long standing. It was accepted by Dixon J in the Communist party case some 60 years ago,m and was acknowledged by the other majority judges in Totani. 174 It is reflected in the text and structure of the Constitution and the intention to continue to apply the rule of law can readily be inferred from that instrument. The second assumption, perhaps better described as an inference, necessarily follows from the fact that federal jurisdiction was entrusted to State courts.

The third assumption, however, presents difficulties. It might be implied from the fact that State courts were entrusted with federal jurisdiction that they were regarded as, and that it was intended that they should continue to be, competent to be so entrusted, given the accepted understanding of the minimum characteristics conveyed by the use of the word 'courts' (independence and impartiality), at least in the case of superior courts. However, it is difficult to draw anything from assumptions that might have been made by the framers of the Constitution concerning such a broad concept as 'fairness' or even concerning the open-court principle.

First, assumptions made by the framers concerning fairness might not have been uniform. People have (and presumably had, at the time of federation) differing views as regards the content of that term and, even more so, as regards how it might best be achieved. As Chief Justice Keane recently commented, 'it seems unduly optimistic to assume a level of unanimity among the Founders about matters on which some did not express a view outside the Constitutional text on a given subject.'l75 Similarly, while it may be accepted that the open court principle is, in general terms, an essential feature of the Australian judicial process, 176 and that this feahlre 'travelled to and settled in the Australian colonies long before the Federation movement began', 177 there is nothing to suggest that the framers themselves gave any thought whatsoever to this or to any other principle that might have been designed to ensure accountability. This makes it difficult to imply

172. {bid 60-1. 173. Austrahan Communist Party v Commonwealth (1951) 83 CLR 1, 193. See also Thomas v

Mowbray, above nil, 342 (Gummow & Crennan JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322,351-2 (Gleeson CJ & Heydon J). Hayne J added that the implication drawn from Ch III in Kable about the legislative power of the States IS also to be seen as giving practical effect to the same assumption Tolam. ibid 91.

174. Totani, ibid 62-3 (Gummow J), 91 (Hayne JJl. 175. P Keane, 'Onginahsm: Founders, Judges and Modesty' (Speech delivered at the Gilbert and

Tobm Centre of Public Law - ConstitutIOnal Law Conference, Sydney, 18 Feb 2011). 176. See, eg, Daubney v Cooper (1829) 109 ER 438. 440; Scat! v Scott [1913] AC 417, 473 (Lord

Shaw}. 177. Tolam, above n 2, 41.


into the text and structure of the Constitution anything more than that' courts' were to continue to have the minimum characteristics conveyed by that word so as to ensure that they would remain fit repositories of federal judicial power. But that does not depend, at all, on unexpressed assumptions. Rather, it depends on the meaning of that term, read in its context.

French Cl applied the limitation which he saw as being imposed by the third assumption to the Magistrates Court of South Australia, saying that, having been established as a court by the State, it could not be deprived by the State of the minimum characteristics of a court (institutional independence and impartiality), because 'the continuing existence of those characteristics is an assumption which underlies Chapter III of the Constitution'.l78 This approach mayor may not differ from that previously adopted. As we have indicated, it is one thing to give to the word 'court' a meaning that it must be taken to have had at the time offederation, in the sense that, in order to answer that description, a tribunal 'must satisfy minimum requirements of independence and impartiality',179 or to draw an implication to that effect from a broad reading of Chapter Ill, as was done in Kable. It is another thing entirely to focus on historically based assumptions about courts, which mayor may not have been held by the framers of the Constitution, and then to require consistency with those assumptions as a measure of constitutional validity. Adoption of the former approach might involve an assumption concerning what was, at the time of federation, understood to be the essential nature of a 'court', but only for the purpose of giving meaning to that word in the context in which it appears. If this is all that was meant by French Cl, there is no real change of approach to that adopted in Forge and subsequent cases. However, if something more than this was intended, it becomes problematic.

As Leslie Zines has pointed out, the framers of the Constitution may have had many assumptions that were not fulfilled and the Constitution itself has or had a number of provisions that point to assumptions which have not been converted into constitutional prescriptions. 180 He gives as examples section 15 (dealing with casual vacancies in the Senate), which, until its amendment in 1977, assumed that all State legislatures had two Houses and sections 58 and 59 (dealing with reservation and disallowance) which assume that the Queen's advisers are different from those of the Governor-General.

Also, while in the Communist Party case Dixon Cl accepted the proposition that the Constitution gives practical effect to the 'assumption of the rule of law' , 181 he rejected, in Australian National Airways Pty Ltd v The Commonwealth,182 an

178. IbId. 179. Forge, above n 25, 67-8 (Gleeson Cl). 180. L Zines, 'South Australza v Totani (2010) 242 CLR l' (Paper presented at the Australia

Association of Constitutional Law AGM, Melbourne, 26 No" 2010) 13. 181. Australian Communist Partv v Commonwealth, above n 173, 193. 182. (1946)71 CLR29.


argument concerning the limits of the federal trade and commerce power, which, he said, 'confuse[ dJ the unexpressed assumptions upon which the framers of the [Constitution] supposedly proceeded with the expressed meaning of the power' .183

Still further, the existence of an unexpressed assumption concerning the institutional independence of magistrates , courts seems very doubtful, given that, at the time of federation and for most of the twentieth century, magistrates were members of the public service ofthe States and 'subjected to the regulation and discipline inherent in that position' .184 French CJ addressed this difficulty in Totani,185 by referring to what had been said by Gummow, Hayne and Crennan JJ in Forge,186 to the effect that judicial independence and impartiality may be ensured by a number of different mechanisms and that, in the case of courts of summary jurisdiction, these attributes were 'for many years sought to be achieved and enforced chiefly by the availability and application ofthe Supreme Court's supervisory and appellate jurisdictions and the application of the apprehension of bias principle in particular cases'. As salutary as those mechanisms might be, however, it is difficult to believe that they were successful in achieving institutional independence, at least, given that magistrates were subject to regulation and discipline by the State. If the State could regulate their conditions, discipline them and promote them, this would seem to fly in the face of 'decisional independence from influences external to proceedings in the court, including ... the influence of the executive government and its authorities', said by French CJ to lie at 'the heart of judicial independence'.187 Such defects as these are not overcome by a right of appeal. A tribunal that is subject to executive influence does not cease to be so because there is a right of appeal to a court which is not subject to executive influence. As French CJ himself said in Totani,188 forms of external control of courts 'appropriate to the exercise of authority by public officials and administrators'189 are inconsistent with the requirement that courts exercising the judicial power of the Commonwealth 'be and appear to be, independent and impartial tribunals'.

French CJ did not pursue this line of thought in Wainohu. Nor did he depart from it. As has been seen, his reasoning (and that ofKiefel J) in that case relied upon the creation of an 'appearance' of a judge acting as such for the purpose of deciding matters of major significance without being obliged to give reasons, thereby creating a 'perception' that was to the detriment of the court of which he was a member. 190 However, this reasoning would be difficult to support by reference to any assumptions extant at the time offederation. For example, there would be few

183. Ibid 81. 184. Bradle.\", above n 39, 165. 185. TOlam. above n 2,39,42-3. 186. Forge. above n 25, 82-3. 187. Total1l, above n 2,43. 188. Ibid 49. 189. Quoting from the Judgment of Gummow, Hayne, Heydon & Kiefel JJ m Gypsy Jokers, above

n 51, 553. 190. Waznohu. above n 2,28-9.


things more likely to result in a perception of lack of independence than the sight of a Chief Justice presiding over Executive Council meetings in the capacity of Lieutenant-Governor. Yet that was the position, in some States at least, at the time of Federation (as it still is, in Western Australia and New South Wales today). It might be thought, therefore, that the framers of the Constitution were not unduly concerned by matters of perception.

It consequently seems to us that implications derived from the words used in the Constitution, read in their context (or, to use the words of French CJ in Totani, the 'text and structure' of that instrument) provide firmer ground for constitutional limitations in this respect than do 'historically based assumptions', at least to the extent that those assumptions are said to reflect the unexpressed views of the framers of the Constitution.

(ii) Is there to be a 'due process' requirement?

Another question that may arise is whether a form of general 'due process' requirement is to be implied from Chapter III and, if so, what are its bounds?191 In International Finance Trust French Cl pointed out that the term 'due process', being imported from another constitutional setting (the fifth amendment to the Constitution of the United States of America, which provides that no person shall be depri ved of' life, liberty or property, without due process oflaw'), should be treated with 'some caution' in relation to Chapter III.192 His Honour also acknowledged that previous cases had not gone so far as to imply something like a 'due process' requirement from the text and structure of Chapter III.193 Nevertheless, he went on to say that whether 'a more general implication may emerge from Chapter III than has hitherto been made, and how it should be designated, is a matter for another day' .1'14 In Totani, Hayne J similarly stated that the due process implication 'is apparently dormant, at least under that name, though perhaps only for a time. '195

The judges of the High Court have not spoken with one voice on this topic. As Fiona Wheeler points out,196 members of the High Court recognised an implied guarantee of procedural due process in the exercise of federal judicial power in the early 1990s in Polyukhovich v Commonwealth,197 Leeth v Commol1wealth,198 and Chu Kheng Lim v Minister for Immigration. 199 This guarantee encompassed at least the precursor to proposition 2 above, in that it imposed a limit on the

191. For an in depth analysis of this proposition. and an argument as regards the most appropnate doctrinal foundation for it, see Bateman, above n 9.

192. International Finance Trust, above n 2, 353--4 193. Citmg Thomas v Mowbray, above n 11. 194. Illternatzonal Finance Trust, above n 2, 353--4. 195. TiJtanz, above n 2,95. 196. Wheeler, above n 15,249-253. 197. (J 991) 172 CLR 50, 607 (Deane J), 685, 689 (Toohey J), 703--4 (Gaudron J). 198 (1992) \74 CLR 455, 470 (Mason CJ, Dawson & McHugh JJ), 486-7 (Deane & Toohey JJ), 502

(Gaudron J). 199. (1992) 176 CLR I, 27 (Brennan, Deane & Dawson 11).


power of the Commonwealth Parliament to require a Chapter III court 'to exercise judicial power in a manner which is inconsistent with the essential character of a court or the notion of judicial power' .200

However, while most judges accepted that federal judicial power must be exercised consistently with the rules of natural justice,20! opinions varied as to the broader content ofthe due process principle.202 Deane and Gaudron 11 thought that the due process implication might also guarantee certain substantive due process rights. In particular, their Honours' stated that Chapter III guaranteed the fair trial of a federal offence203 and, even more controversially,zo4 that it prohibited the application by federal courts of retroactive federal criminal laws205 and required 'equal justice' in the exercise of federal judicial power.206 In Nicholas v The Queen, Gaudron J said that:

In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorized to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent detem1ination of the matter in controversy by application of the law to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law.207

Deane and Gaudron JJ's vision of a broad due process implication was not supported by other members of the High Court. Mason CJ, Dawson and McHugh JJ found no basis for the proposition that substantive equality is constitutionally guaranteed.208 Nor, according to their Honours, is the exercise of substantively discriminatory laws inconsistent with the judicial process. In their Honours' view, the due process implication is premised upon the need to maintain 'the essential attributes of the curial process', and this process is principally governed by 'the rules of natural justice [which] are essentially functional or procedural' in nature.209

This position was supported by a majority in Kruger v Commonwealth, Dawson J, for example, stating that:

200. Ibid. 201. Hams l' Caladine(l991) 172 CLR 84, 150 (Gaudron J);ReNolan. above n 156. 496 (Gaudron J);

Leeth. above n 198,470 (Mason CJ, Dawson & McHugh JJ), 487 (Deane & Toohey JJ) referrmg to 'the oblIgatIOn to act judicially'; Kable. above n I, 116 (McHugh J).

202. F Wheeler, 'Due Process, Judicial Power and Chapter III III the new High Court' (2004) 32 Federal Law Review 205, 205.

203. Re Nolan. above n 156, 496 (Gaudron J); Dletrich v The Queen (1992) 177 CLR 292, 326 (Deane J). 362 (Gaudron J).

204. See Wheeler, above n 202, 206 and the cases there referred to. 205. Pozvukhol'ich v Commonwealth, above n 197,612-14 (Deane J), 704-8 (Gaudron J). 206. Leeth, above n 198, 487 (Deane & Toohey JJ), 502-3 (Gaudron J); Kab/e, above n I, 107

(Gaudron J). 207. Nichofas, above n 44,208-9. 208. Leeth, above n 198,469. 209. Ibid 470 (Mason CJ, Dawson & McHugh JJ).


A Ch HI court cannot be made to perform a function which is of a non-judicial nature or is required to be perfonned in a non-judicial manner. Chapter III may, perhaps, be regarded in this way as affording a measure of due process, but it is due process of a procedural rather than substantive nature." 1O

Of course, procedural and substantive rights are not always easy to distinguish, and there may be instances (some of which are noted below) where certain 'quasisubstantive' matters are protected from legislative interference.m Nevertheless, it may be accepted, in general terms, that Chapter III does not protect substantive due process rights. The High Court is unlikely to fundamentally alter this position. With the possible exception of certain statements made by French Cl,212 referred to above, there would not appear to be any indication of a return to the 'expansive approach to implied constitutional rights and freedoms' witnessed during the late 1980's and early 1990's.213 Indeed, by framing the institutional integrity principle in terms of the defining characteristics of 'courts', and by further developing that measure by reference to judicial 'methods and standards', it seems reasonable to conclude that the High Court is still concerned, first and foremost, with the preservation of essential court procedures and processes. In its current form, therefore, the institutional integrity principle is unlikely to provide a platform for the development of substantive due process rights.

While the High Court has since confined the scope of some of its earlier findings, however, it has not done so as regards the requirement to afford procedural fairness. 214

This requirement remains fundamental regardless of jurisdiction. 215 What remains uncertain, therefore, is which if any of the procedural rules that subsist beyond the procedural fairness 'heartland' will be protected by Chapter I1I,216 The incidents of the judicial process identified above, in proposition 3, might be seen as falling within this category. There are other features of the judicial process, however, which might also fall within this category. Justice McHugh, writing extra-curiaIly, has asked:

What of such procedural matters as discovery and interrogatories, the obtaining of particulars and the issuing of subpoenas? What of matters that straddle the borders of substance and procedure such are the right to a fair trial, the presumption of innocence, the right of an accused to refuse to give evidence, the onus and standard of proof in civil and criminal cases and the use of deeming provisions and presumptions of fact? 217

210. Kruger v Commonwealth (1997) 190 CLR 1, 63 (Dawson J). 211. M McHugh, 'Does Chapter III of the Constitution Protect Substantive as well as Procedural

RIghts?' (2001) 21 Australian Bar Review 235, 239. 212. Internatlonal Fmance Trust, above n 2, 353-4. 213. Wheeler, above n 202, 206. 214. Ibid 206-7. 215. See K-GeneratlOn, above n 44,512 (French Cl); InternatIOnal Finance Trust, above n 2, 354-7

tFrench CJ), 363--4 (Gummow and Bell JJ), 379-80 (Heydon J) 216. Wheeler, above n 202, 212. 217. McHugh, above n 211, 239.


While a test that draws upon the term 'court' may be ill-suited to the development of substantive due process rights, it may actually be better suited to the recognition ofthese broader procedural requirements than a test that draws still further on the term 'judicial power' (the approach adopted in Polyukhovich, Leeth and Lim).218 The term 'judicial power' has been interpreted, primarily, to support the 'allocation' of certain 'subject-matter' powers as required by the Boilermakers' case.219 The term 'court', in contrast, has received little attention in a constitutional context, and lends itself more naturally to the implication of procedural requirements.22o

Again, though, it is unclear from the judgments of the High Court how far it is willing to go in this regard.

In Baker,22I Kirby J approved of Gaudron J's statement in Kable that it is the duty of the High Court to protect the 'integrity of the judicial process' and the 'integrity of the courts', and that this duty arises out of the need to maintain public confidence in the courts. In Gaudron J's view, this confidence would be lost if courts did not 'act consistently ... [with] proceedings ... conducted according to rules of general application'.222 In Fardon, Kirby J said (in a passage subsequently quoted by Gummow, Hayne, l-Ieydon and Kiefel JJ in Gypsy Jokers )223 that Kable forbids attempts by State parliaments to impose on courts nmctions that would oblige them to act in relation to a person in a manner that is inconsistent with traditional judicial process; or to impose on courts proceedings not otherwise known to the law, being those not partaking' of the nature oflegal proceedings'; or to confer upon State courts functions that are 'repugnant to the judicial process'.224 In Gypsy Jokers, Kirby J also said, referring to Bass v Permanent Trustee Co Lld, 225 that there are 'limits upon permissible departures from the basic character and methodologies ofa court'.226 These propositions are broad enough, at least in theory, to support a range of procedural due process requirements that transcend the rule against bias, the fair hearing rule, and the additional incidents of the judicial process identified in Proposition 3.

The narrowest view might be that expressed by McHugh J. In Kable,227 he held that a State law, which would compromise the institutional impartiality of a Supreme Court and which 'undermined the ordinary safeguards of the judicial process', was incompatible with the exercise by such a court of the federal judicial

218. Bateman, above n 9; Wheeler, above n 202, 210. 219. C Parker, 'Protection of JudiCial Process as an Implied Constitutional Pnnciple' (1994) 16

Adelaide Law Review 341; Bateman, above n 9, 416, 418-19, 441. 220. Ibid 433,441-2. 221. Baker, above n 33, 541-42. 222. Kable, above ni, 104. 223. GJPsyJokers, above n 51, 562-3. 224. Fardon, above n 25, 628. 225. (1999) 198 CLR 334,359. 226. Gypsy Jokers, above n 51, 577-8. 227. Kable, above n 1, 121.


power. m However, in Fardon,229 he said that the 'pejorative' phrase, 'repugnant to the judicial process', was not the constitutional criterion and that a conclusion of invalidity is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government.

The best that can presently be said, therefore, is that the decisions of the High Court have not gone so far as to find a 'due process' requirement from the text and structure of Chapter Ill, but that (as we have stressed) it may be accepted that:

[L legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities m the past may be repugnant to Ch IlI.230

Whether the High Court will go further remains to be seen. We have said that, in International Finance Trust, French CJ pointed out that the tenn 'due process', being imported from another constitutional setting (the fifth amendment to the Constitution of the United States of America, which provides that no person shall be deprived of 'life, liberty or property, without due process of law'), should be treated with 'some caution' in relation to Chapter III.231 However, as noted above, his Honour also observed that the question whether a more general implication might emerge from Chapter III than had previously been made, and how it should be designated, was a matter for 'another day'.232

It is unlikely that the High Court will go much further than it has done, at least in the short term, given its obvious preference for a cautious approach. Moreover, given that the focus of Kable is now clearly on the defining characteristics of 'courts', the term 'due process' (with a focus on individual 'rights') may be an inappropriate label for whatever range of implications are ultimately identified.

(Hi) What are the minimum structural requirements of State or territory courts (for example as regards tenure)?

In addition to limiting the manner of functions that may be vested in courts (which will ordinarily affect the procedure to be applied), the institutional integrity principle also limits the capacity of State and territory parliaments to interfere

228. See also, Baker, above n 33, 542. 229. Fardon, above n 25, 601. 230. Thomas v Mowbray, above nil, 355 (Gummow & Crennan JJ) (with 'certain' of whose reasons

Hayne J was m agreement); InternatIOnal Fmance ]}-ust, above n 2,353-4 (French CJ). See also Fardoll, above n 25, 592 (Gleeson CJ), 656 (Callinan & Heydon JJ); G)ps)' Jokers. above n 51, 591 (Crennan J; Gleesol1 CJ agreemg).

231. International Fmance Trust, above 112,353-4. 232. Ibid.


with the structural characteristics of 'courts' so called.233 However, it is far from certain which 'minimum characteristics', in this sense, are essential to the courts envisaged by Chapter HI, and which might be altered.

One example of the kind of issue that might arise in this area (as foreshadowed in Forge) is whether there must be some, and if so what, provision for tenure. In Nichols,234 Kenny 1 said that, in order to be a 'court of a state' under section 77 of the Commonwealth Constitution, there must be some legislative or constitutional provision 'precluding removal from office merely because the executive desires it'.235 But, if that is so, what form of tenure is required and from where does the constitutional implication arise?

It cannot be said that Chapter HI established 'a template that had to be followed to ensure the independence of state Supreme Courts, much less of all courts on which federal jurisdiction might be conferred' .236 As Gleeson Cl pointed out in Forge, for most of the 20th century, many of the judicial officers who exercised federal judicial power, being State magistrates, were part of the State public service.237 As his Honour went on to observe, if Chapter III was said to establish the Australian standard for judicial independence then two embarrassing considerations would arise: first, the standard altered in 1977 (when, by a constitutional amendment, Justices ofthe High Court and other federal courts created by Parliament were no longer required to be appointed for life and were required to retire upon attaining the age of 70); secondly, the State Supreme Courts and other State courts upon which federal jurisdiction has been conferred did not comply with the standard at the time of federation, and have never done so since.

There are other problems. For one thing, the rule that judges hold their offices during good behaviour and not at pleasure is not of general application and nor is it part of the common law.238 Moreover, as the joint judgment in Bradley pointed out, until comparatively recently Australian magistrates were members of the public services of the States, and were subjected to the regulation and discipline inherent in that position.2J9 On the other hand, as Gummow, Hayne and Crennan JJ said in Forge, the independence and impartiality of inferior courts was for many years sought to be achieved and enforced chiefly by the availability and application of the Supreme Court's supervisory and appellate jurisdiction and the application of the apprehension of bias principle in particular cases.240

233. Forge, above n 25, 67-8 (Gleeson Cl), 76 (Gummow, Hayne & Crennan 11). 234. (2008) 169 FCR 85, 141. 235. See also, Gogarty & Bartl, above n 50, 100. 236. Forge. above n 25, 65--6 ~Gleeson Cl). 237. Ibid. 238. Spratt v Hermes (1965) 114 CLR 226,271-2 (Windeyer J); Bradley, above n 39,165 (McHugh,

Gummow, Kirby, Hayne, Callinan & Heydon JJ). 239 Bradley, ibid. 240. Forge v ASle. above n 25, 82-3.


(iv) To what extent may judicial authority be transferred by State parliaments to State non-judicial bodies?

Another question that arises is how far a State government may go in transferring judicial authority to non-judicial bodies. We know that it cannot, by a stratagem of this kind, effectively do away with a State Supreme Court, but at what stage is this outcome reached?

State parliaments have power to make laws for 'the peace, welfare and good government' of the State.241 That power, which is as plenary as that of the Imperial Parliament,242 is preserved by section 107 of the Constitution. Un surprisingly, in K-Generation, Gummow, Hayne, Heydon, Crennan and Kiefel JJ accepted that there is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in sections 75 and 76 of the Commonwealth Constitution, the State legislatures may confer judicial powers on a body that is not a 'court ofa State' .243

However, there must be at least two constraints.

The first arises out of proposition 1, namely that there must always be a court in each State which answers the constitutional description, 'the Supreme Court of [a] State'. A State legislature may not transfer, or even confer, judicial powers to or on a non-judicial body to such an extent that the Supreme Court of a State no longer meets the description of that body as it must have been contemplated by the founders ofthe Constitution at the time offederation.244 Whether that situation has been arrived at will presumably be a question of fact and degree. While the scope and operation of this constraint remains unclear, it is conceivable that, in extreme cases at least, the implied or indirect removal of certain judicial powers from the Supreme Court of a State (by the positive vesting of those powers in non-judicial bodies) might result in legislation being invalid despite the fact that it does not purport to vest a function in a 'court' at all. To this extent, Kable may replicate (in effect) the first limb of Boilermakers', by preventing the vesting of judicial power in bodies other than 'courts'.

The second constraint arises out of the proposition (which, as noted above, was accepted by Gummow, Hayne, Heydon, Crennan and Kiefel JJ in K-Generatiol1 )245 that the States may not establish a 'court of a State' within the constitutional description and deprive it, whether when established or subsequently, of those

241. See, eg, Constitution Act 1867 (Qld) s 2, considered by McHugh J m Fardon, above n 25,600. 242. Umon Steamship Co of Australza Pty Ltd (1988) 166 CLR I, 10. 243. K-Generat/On, above n 44, 544. 244. Jolmson & HardcaRtle, above n 31, 223. The authors refer to a Canadian wnter who argues that,

by a similar constitutional implication, s 92 of the British North America Act 'contemplates the continuatIOn of provincial supenor courts with a guaranteed core of substantive jurisdiction': WR Ledennan, 'The Independence of the JUdiciary' (1956) 34 Canadian Bar Renew 1139, 1173.

245. K-GeneratlOn, above n 44,544.


m1l11mUm characteristics of the institutional independence and impartiality identified in the decisions of the High Court. This seemingly assumes that there comes a point at which the conferral of judicial power is sufficient to constitute the recipient a 'court of a State' within the constitutional description, with the consequence that it is required to have, and retain, the necessary minimum characteristics.

(v) Is loss of public confidence a sufficient criterion of invalidity?

As Heydon 1 has pointed out,246 'the Kable doctrine' (as he refers to it) does not import a separation of powers at a State leveF47 and the limitation on State legislative power imported by that doctrine flows 'from the establishment by Chapter HI of an integrated court system'. The majority judges in Wclinohu necessarily accept these propositions but seek to overcome the difficulty presented by them by saying that the discharge of a statutory function by a State judge as a persona designata might nonetheless impair the institutional integrity of the court of which the judge is a member.248

French Cl and Kiefel 1 suggest that this can be done by impairing, for example, the reality or the appearance of the State court's independence from the executive or, as they found, by creating an 'appearance' which affected 'perceptions' of the role of a judge of the court, to the' detriment' of the COurt. 249 The judgment ofthe other members ofthe majority necessarily turned upon their conclusion that there would be a loss of public confidence in the institutional integrity of the Supreme Court of NSW occasioned by a judge performing what looks like a judicial role in a manner that is inimical to that roleYo

If a function is conferred upon a judge, not in his or her formal capacity as a judge, but solely as a designated person who happens to be a judge (even if holding that office was the sole criterion for eligibility for appointment), it must follow that, absent something in the nature of the appointment which would hamper that person's ability to perform his or her function as a judge (for example, by leaving that person with insufficient time to perform his or her judicial function or

246. Wainohu, above n 2,50-1. 247. See Fardon, above n 25,599 (McHugh J), 614 (Gummow J). 248. Watnohu, above n 2, 22, 28-9 (French C.I & Klefel J), 33-4, 36-7 (Gummow, Hayne, Crennan

& Bell 11). 249. Watnohu, lbld 5-6. See also the comments of French CJ in K-Generation, above n 44, 529-

30, (citmg Gummow J in Fardon, above n 25, 617) to the effect that incompatibihty with institutIOnal integrity may exist where a power or function conferred upon a court IS 'apt or likely ... to undenmne public confidence in the courts exercising that power or function'. Similarly, in International Finance Trust, above n 2, 354, French CJ agreed with what had been saId by McHugh J, in Kable, above n 1, 118, to the effect that it is a necessary implicatlOn of the Constitution's plan of an Australian judicial system that no government can act m a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. See also Momcilol'lc, above n 3, 391-3 (Crennan & Kiefel JJ).

250. See above nn 121-30.


perhaps by undennining that person's independence from the executive so far as to disqualifY him or her from being able to perfonn that function), there would, in reality, be no interference with the functioning of the court or its processes. All that would be interfered with is the appearance of institutional integrity.

This raises difficulties. First, appearances in the sense described can only be significant because they result in a loss of public confidence. If that is so, it seems to follow that a loss of public confidence in the institutional integrity of a State court is, in and of itself, a sufficient criterion of invalidity. While Gummow, Hayne, Crennan and Bell JJ appear to have accepted this proposition with little difficulty,251 it is not one that sits well with with earlier judgments (noted above) to the effect that public confidence is not - and never was - the (or a) 'touchstone' of validity. 252

A second, related difficulty, as Heydon J pointed out in Wainohu, is that if a loss of public confidence is a sufficient ground for invalidity the question arises as to where this criterion begins and ends.253 The reality, of course, is that the factors that will be found to result in a loss of public confidence will be those that the judges of the High Court believe should have that result, rather than those that actually do have that result (assuming that this imponderable can be tested). For example, it seems to us to be very doubtful whether the general public would care whether or not a judge does or does not have to give reasons for designating a 'bikie gang' a declared organisation, no matter what the consequences might be for members ofthe organisation."54 That it should care is not to the point, ifloss of public confidence is the true criterion.

One way in which the High Court might clarifY the law in this area is by developing a narrower notion of public confidence than has previously been understood. For example, a distinction might be drawn from the judgment of French Cl and Kiefel J in Wainohu, between:

( a) public confidence in the broad sense, which might encompass questions such as whether ordinary people are likely to care, in a given situation, whether justice has been or will be done, or the perceived merits of the legislative response to a given mischief; and

(b) public confidence in the narrower sense that, if properly directed to the question, an ordinary or reasonable person might apprehend that a judge is not institutionally independent or impartial.

251. Ibid. 252. In Momc!lovlC, above n 3, 281, Gummow J said that, in considermg the app/tcation of Kable.

above n 1, 'attention to matters of perception and public confidence as distinct and separately sufficient consideratIOns is apt to mislead; the touchstone concerns the institutional mtegnty of the courts' .

253. Wainohu. above n 2, 52-3. 254. See, on thiS point, Johnston & Hardcastle, above n 97, 1.


The former types of question are not ones that courts are well placed to answer.255 The latter question, though, is not logically (although it may in practice be) dependent on the substantive context, and is the kind of question that courts have always dealt with in cases of apprehended bias (albeit one upon which opinions may vary). That rationale for excluding judges in cases of apprehended bias is firmly rooted in the common law, and might be thought to apply with equal (if not greater) force in a constitutional context. This approach would also be broadly consistent with existing authority, and would fit within the range of propositions (specifically 2B) outlined above.

WHERE ARE WE HEADED?

Whatever the force of the criticisms directed at Kable, the decision in that case has had 'extremely beneficial effects', a point made by Heydon J in International Finance Trust. His Honour went on to say:

In particular, it has influenced governments to ensure the inclusion within otherwise draconian legislation of certain objective and reasonable safeguards for the liberty and the property of persons affected by that legislation.256

This would have been tme, even before International Finance Trust, Totani and Wainohu, notwithstanding that the High Court, in Forge, Fardon and Gypsy Jokers, appeared to retreat from the flexibility of the principle as first enunciated. As we have demonstrated, the institutional integrity principle has the potential to limit legislative activity in a variety of areas, not merely in the conferral of functions on courts, and it is a fair bet that it will have an even greater influence following the High Court's decisions in these three cases.

255. Handsley, above n 35, 176. 256. InternatIOnal Finance Trust, above n 2,379.

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