Harris v Caladine

[1991] HCA 9

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

HARRIS v. CALADINE

(1991) 172 CLR 84

17 April 1991

Constitutional Law (Cth)—Family Law (Cth)

Constitutional Law (Cth)—Judicial power of the Commonwealth—Family Court—Delegation of powers to Registrar—Decisions of Registrar reviewable by Court—Hearing de novo—Validity of delegation—The Constitution (62 and 63 Vict. c. 12) ss. 71, 77, 79—Family Law Act 1975 (Cth), ss. 37A, 79, 79A—Family Law Rules, O. 36A. Family Law (Cth)—Family Court—Registrar—Delegation of powers of Court—Validity—Decisions of Registrar reviewable by Court—Hearing de novo—Nature of hearing—Family Law Act 1975 (Cth), s. 37A—Family Law Rules, O. 36A.

Decisions

MASON C.J. AND DEANE J. Over the years some Justices have expressed the view that functions which, when undertaken, are essentially and invariably exercises of judicial power cannot be undertaken in conformity with s.71 of the Constitution by officers of federal courts such as masters and registrars and must be undertaken by judges appointed to those courts in accordance with ChIII: Le Mesurier v. Connor (1929) 42 CLR 481, per Isaacs J. at p 511; Starke J. at p 523; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, per Evatt J. at p 116; Kotsis v. Kotsis (1970) 122 CLR 69, per Windeyer J. at pp 91-92. This view has never been confirmed by a decision of this Court. Nor has it ever won general or majority acceptance. In Reg. v. Davison (1954) 90 CLR 353 Dixon C.J. and McTiernan J. regarded the question whether certain duties falling upon a ChIII court could be executed, subject to judicial confirmation or review, by an officer of the court as being open: at p 365. Subsequently, in The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49 ("the HCF Case"), Mason J. said (at p 64) that the vesting of judicial power in a federal court "should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court ... provided that the exercise is subject to review or appeal". In the same case Murphy J. considered that, in respect of any federal court, "Parliament may authorize the exercise of its jurisdiction by officers or others who are not justices provided that these are under the real supervision and control of the justices of the court": at p 66.

2. Underlying the view that a function involving the exercise of federal judicial power could not be entrusted to an officer of a Ch III court was the proposition that a court is composed exclusively of its judges as distinct from any of its officers. The next step was to say that, when s.71 ordains that the judicial power is vested in the courts which it describes, the judicial power is exercisable by the judges, and not the officers of those courts. That is what Kotsis and Knight v. Knight (1971) 122 CLR 114 decided in the context of State courts exercising federal jurisdiction.

3. But the ways in which a court may be organized or structured for the purpose of exercising its jurisdiction, powers and functions admit of considerable variation. As Windeyer J. noted in Kotsis, "(a)ccording to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice": at p 91. However, as his Honour went on to point out:

"In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge. For the due administration of justice courts had officers who in some cases were, and are, empowered to perform specified functions on behalf of the courts to which they belonged."

Since then, steps have been taken in Victoria and Western Australia to enact legislation which provides that the Supreme Court shall consist not only of judges but also of masters: see s.75(2) of the Constitution Act 1975 (Vict.) and s.7(1) of the Supreme Court Act 1935 (W.A.). Just what effect these provisions have is not altogether clear. Perhaps they do no more than ensure that a master constitutes the court for certain purposes. In that respect the provisions may have an effect similar to s.118(5) of the Supreme Court Act 1970 (N.S.W.) which expressly provides that a master shall constitute the court for the purpose of the exercise of the powers conferred upon him. Be that as it may, the provisions to which we have referred mark a further stage in the process of evolutionary development in the constitution of courts for purposes connected with the exercise of their jurisdiction. Although they are developments which have taken place since 1900, they serve to confirm what we have already said, namely, that a court may be organized or structured in a wide variety of ways for the purpose of exercising its jurisdiction. A court may, for example, be authorized to refer a case or an issue to arbitration or to assessors for examination and report.

4. The recent decision of this Court in the HCF Case, which overruled the earlier decisions in Kotsis and Knight, is quite inconsistent with the notion that the exercise of jurisdiction by judges to the exclusion of masters and registrars is an essential characteristic of a Ch III court. In the HCF Case the Court held that "court" in s.77(iii) of the Constitution means a court as an institution being "an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions", to use the words of Windeyer J. in Kotsis, at p 91. Whatever connotation the adjective "ministerial" may have in other contexts, it was plainly intended in the HCF Case to refer to officers such as masters and registrars.

5. True it is that the HCF Case did not go on to decide that the word "court" had a similar meaning in the other sections in Ch III in which the word appears. But it would be somewhat surprising if the word were to bear a different meaning elsewhere in Ch III, particularly in ss.71 and 77(i) and (ii). There are, of course, special reasons for interpreting the word as referring to the institution rather than its members in the context of s.77(iii). Those reasons are identified in the judgments in the HCF Case and in the dissenting judgment of Gibbs J. in Kotsis and they are sufficiently encapsulated in the proposition that the Parliament cannot alter the organization or structure of a State court as it exists under State law. Parliament cannot alter that organization or structure, for to do so would interfere with the State's freedom to constitute and organize its courts as it sees fit. However, as Gibbs C.J. pointed out in the HCF Case (at p 58), one would expect jurisdiction to be vested in a court as an entity rather than in the persons who compose its membership, so that, in the context of s.77(i), as well as s.77(iii), the reference to "court" should also be understood as a reference to the court as an entity. Likewise with the vesting of judicial power in s.71. Indeed, it would be quite arbitrary to assign a different meaning to the word in that section.

6. One other aspect of the decision in the HCF Case is important for present purposes. The majority accepted that a State court may be so organized that its federal jurisdiction is exercised by an officer of the court. Thus Gibbs C.J. (with whom Stephen and Aickin JJ. agreed) said (at p 59):
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was, in my respectful opinion, part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction."

7. Now that it has been established by the HCF Case that some part of the federal jurisdiction of a State court may be exercised by a master or registrar in conformity with State legislation, it becomes difficult, if not impossible, to assert that s.71 vests the exercise of judicial power in the judges of the courts specified in the section. It makes little sense either as a matter of logic or policy to require that the power be exercised solely by federal judges to the exclusion of officers of a court when, in the case of invested federal jurisdiction, the power may be exercised by officers of State courts. More importantly, as a matter of construction, it is not permissible to read s.71 as speaking differently in its application to federal and State courts.

8. The difficulties which have invariably attended attempts to define judicial power in a comprehensive fashion and to identify those functions which constitute an exercise of the power and those that do not provide yet another reason for refusing to imply in s.71 a restriction limiting the exercise of all federal jurisdiction to judges. It was pointed out in Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144, at p 151, that "(m)any functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator." Subsequently, in Davison (at p 368), it came to be acknowledged that the exercise of judicial power included a range of functions which might be given to courts or administrators. If a particular function can be entrusted to an administrator, there is nothing inherent in the function itself which requires that it must be discharged by a judge when it is entrusted to a court.

9. It would not be correct to read into s.79 an implication that the entire federal jurisdiction of a Ch III court must be exercised by a judge. The HCF Case is inconsistent with such an implication. All that the section does is to enable the Parliament to prescribe the number of judges who shall exercise the federal jurisdiction of a court, whether generally or in the particular class of case: see Baxter v. Commissioners of Taxation (N.S.W.) (1907) 4 CLR 1087, per Isaacs J. at p 1145; Lorenzo v. Carey (1921) 29 CLR 243, at p 253. The section enables Parliament to preclude a delegation of federal jurisdiction to persons who are not judges. To that extent it is inconsistent with the notion that s.71 itself impliedly prohibits such a delegation. Whether s.79 confers power on the Parliament to prescribe a number of judges for the exercise of federal jurisdiction in excess of the number prescribed by State law and, in so doing, to impose an obligation on the State court is possibly open to question. But even if that question is to be answered in the affirmative, it does not follow that the section contemplates that the entirety of a court's federal jurisdiction must be exercised by judges.

10. The legislative power of Parliament to authorize the exercise by officers of the Family Court of part of its jurisdiction, powers and functions is subject to some limitation, as is the power of the Court to delegate some part of its jurisdiction, powers and functions, whether in the exercise of its rule-making power under s.123 of the Family Law Act 1975 (Cth) ("the Act") or in the exercise of its inherent jurisdiction. The limitation is that the legislative power and the power of delegation cannot be exercised in a manner that is inconsistent with the continued existence of the Family Court as a federal court constituted under Ch III. In other words, both the legislative power and the power of delegation must be exercised in conformity with the requirement that the Court's federal jurisdiction, powers and functions are to be exercised by a court whose members are judges appointed pursuant to s.72 of the Constitution. Because a federal court, in common with other courts, may be organized or structured in a variety of ways for the purpose of the exercise of its jurisdiction, it does not follow that all the jurisdiction, powers and functions of the Family Court must be exercised by a judge or judges of that Court. But the requirement does mean that the judges of the Court do effectively control and supervise the exercise of its jurisdiction, powers and functions by participating in the hearing and determination of cases and otherwise by having the capacity to review the decisions of officers of the Court and other persons to whom jurisdiction, powers and functions may be delegated. We must emphasize that the role of the officers of the Court such as Judicial Registrars and Registrars is secondary to that of the judges. The role of the officers is to assist the judges in the exercise of the jurisdiction, powers and functions of the Court. Although it is a commonplace characteristic of modern courts that officers such as masters and registrars exercise jurisdiction, powers and functions in a wide variety of matters, those matters are, generally speaking, subsidiary in importance to matters which are heard and determined by judges.

11. It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.

12. The power of delegation conferred by s.37A of the Act does not transgress the limits just discussed. Section 37A(2) expressly excepts from the power of delegation decrees of dissolution in defended proceedings, decrees of nullity, declarations of validity of a marriage or of a dissolution or annulment, as well as orders in relation to custody, guardianship or welfare of, or access to, a child, other than orders made in undefended proceedings or consent orders.

13. The judges of a superior court have power to delegate which they may exercise by rules of court, whether pursuant to a general rule-making power or in the exercise of an inherent jurisdiction. They stand in no need of a statutory power to delegate. However, the terms of a relevant statutory power may serve to restrict any inherent power to delegate. In the present case O.36A, r.2(1) of the Family Law Rules (Cth) delegated to each registrar certain powers, including "the power to make an order the terms of which have been agreed upon by all the parties to proceedings": par.(n). This power was exercisable by the Deputy Registrar and his order became reviewable pursuant to O.36A, r.7(4) which then provided:

"A court reviewing an exercise of power by a Judicial Registrar or a Registrar shall proceed by way of a hearing de novo but may have regard to the proceedings, including the evidence given and any affidavit filed, before the Judicial Registrar or Registrar, as the case requires."

14. The direction that the review is to be by way of hearing de novo plainly indicates that the jurisdiction of the Court on review is not relevantly confined and extends not only to any issue which might have arisen before the Deputy Registrar but also to any issue which might properly arise in the meantime. In the instant case Maxwell J. was required to hear and determine afresh an application under s.79(1) of the Act for such order as her Honour considered appropriate altering the property interests of the parties. The complication was that before Maxwell J. the making of the consent order was contested, whereas the making of that order was not in contest before the Deputy Registrar. Maxwell J. considered that the consent order could only be set aside in proceedings under s.79A, which specifically makes provision for cases in which there has been a miscarriage of justice by reason of fraud, duress or any other circumstance. With respect, we consider that this approach is too restricted. By its very nature, a review by way of hearing de novo enables the reviewing court to examine, inter alia, whether the consent order is vitiated by fraud, duress or mistake. Clearly the grounds mentioned in s.79A are open to be raised on a review under O.36A, r.7(4). What we have said about a review under O.36A, r.7(4) has equal application to a review under s.37A(9) and (10).

15. Moreover, in our opinion, the reviewing judge, as well as the Deputy Registrar, was required to have regard to the matters mentioned in s.79(4), though, in the case of the Deputy Registrar, as a consent order was sought, comparatively little was required to satisfy him on that score. We do not understand why the fact that a consent order was initially sought absolved the reviewing court from the need to comply with the obligation cast upon it by s.79(4).

16. In the result the delegation of powers to Judicial Registrars and Registrars (including Deputy Registrars) under O.36A, r.2 and s.37A was valid. The order made by the Deputy Registrar was valid and effective (and not conditional only) until set aside on review under O.36A, r.7(4) or s.37A(10).

17. However, in accordance with what we have said, the Full Court was in error in concluding that upon the review of the Deputy Registrar's decision the Court could not have regard to the withdrawal by the wife of her consent to the making of the order and that the Court could not treat the matter as a contested application under s.79 which it was required to determine for itself.

18. We would allow the appeal.

BRENNAN J. The wife (as I shall call the appellant who had been married to the respondent) applied to the Family Court of Australia for an order with respect to the property of the parties to the marriage. Section 79(1) of the Family Law Act 1975 (Cth) ("the Act") provides that "the court may make such order as it considers appropriate altering the interests of the parties in the property". The Court's discretionary jurisdiction under s.79(1) is not at large. The Act provided that "the court shall take into account" the several matters listed in pars (a) to (f) of s.79(4) in considering what order (if any) should be made "under this section". (Paragraph (g) of s.79(4) was added after the time relevant to these proceedings.) However, by s.80(1)(j), the powers which the Court may exercise under s.79 include the power to "make an order by consent" altering the interests of the parties in property. The Act is silent as to whether, in the making of such a consent order, the Court is required to take into account the matters listed in s.79(4).

2. It appears that the wife and the husband (the respondent) attended a conference before a Deputy Registrar of the Family Court and signed a document titled "Short Minutes" relating to the property interests of the parties. Thereafter an order was made "by consent" on 19 October 1988 by Deputy Registrar Lee in terms of pars 1-16 inclusive of the Short Minutes. Those paragraphs contained provisions for the sale of a house property and the distribution of the net proceeds between them and the division of certain chattels. It appears that a formal order was duly signed and sealed. The Deputy Registrar made such a consent order in exercise of powers purportedly delegated to him by O.36A, r.2(1) of the Family Law Rules (Cth), which delegates to each Registrar the powers of the Court mentioned in sub-r.(1), including "the power to make an order the terms of which have been agreed upon by all the parties to proceedings": par.(n). On 25 October 1988 - within the 7-day period limited by O.36A, r.5(2) for applications to review an exercise of powers by a Registrar - the wife applied for review of the order made by the Deputy Registrar, seeking a larger proportion of the proceeds of the house property and chattels than the proportion specified in the consent order made by the Deputy Registrar. Order 36A, r.7(4), in the form in which it then stood, provided:
" A court reviewing an exercise of power by a Judicial
Registrar or a Registrar shall proceed by a way of a hearing de novo but may have regard to the proceedings, including the evidence given and any affidavit filed, before the Judicial Registrar or Registrar, as the case requires." (The sub-rule was subsequently amended. The present sub-rule, like its predecessor, directs that a court reviewing an exercise of power by a Registrar "shall proceed by way of a hearing de novo".)

3. The application for review came on for hearing before Maxwell J. No evidence was tendered at that stage. Her Honour was asked to decide whether the review "should proceed simply by way of rehearing or whether ... the consent orders cannot now be reviewed in that way and the only possible bases for interference are to be found in Section 79A." Section 79A(1) provides:
" Where, on application by a person affected by an order
made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that -

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;

(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the welfare of a child of the marriage, the child or, where the applicant has the custody of the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order,

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside."

Maxwell J. held that the consent order, made under delegated power to make consent orders, could be reviewed only "within the framework of Section 79A". The wife's application was dismissed accordingly. She appealed. The appeal was allowed and the application was remitted to a single judge for rehearing.

4. Fogarty J. in the Full Court noted that the appeal had proceeded on the basis that the power to delegate powers to a Registrar was to be found in s.37A of the Act which provides, in its relevant parts, as follows:
" (1) The Judges, or a majority of them, may, subject to

sub-section (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court:

... (g) the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings;

... (2) The powers of the Court that may be delegated under subsection (1) do not include the power to make: (a) a decree of dissolution of marriage in proceedings that are defended;

(b) a decree of nullity of marriage; (c) a declaration as to the validity of a marriage or the dissolution or annulment of a marriage; or

(d) an order in relation to the custody, guardianship or welfare of, or access to, a child, other than an order made in undefended proceedings or with the consent of all the parties to the proceedings.

(3) A power delegated by Rules of Court under sub-section (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires."

His Honour held that the reference to "all or any" of the Court's powers in s.37A made the power of delegation too wide to be valid and that, if statutory authority were required for the power to delegate, the authority might be found in s.123 which enables the Judges to make rules in relation to practice and procedure. However, his Honour preferred the view "that the source of power of a superior Court to delegate is the existence of the Court itself and it does not in any strict sense require legislative support." Although Fogarty J. thought that the Judges could not delegate "the core or essential aspects of federal judicial power" to non-judicial officers, it appeared to his Honour "that the delegation of power to record in an order the agreement of the parties relating to a subject matter within the Court's jurisdiction is a proper matter for delegation." As some of the Justices of this Court in The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49 ("the HCF Case") had emphasized the importance of the availability of review by a judge of an exercise of delegated judicial power, his Honour held that the "existence of an efficacious procedure for the review of the Registrar's decision is an essential ingredient of the process of delegation."

5. The provision that the Court, on review of an exercise of power by a Registrar, should "proceed by way of a hearing de novo" (O.36A, r.7(4)(a)) was then construed by his Honour as requiring the Judge hearing an application for review to "examine afresh the facts and determine whether it is appropriate to make the consent orders". Strauss and Nygh JJ. agreed with the conclusion "that the exercise of the power delegated to the Deputy Registrar to make the orders the terms of which have been agreed upon by all the parties to the proceedings was valid." Observing that this Court in the HCF Case had rejected the view that the judicial power of the Commonwealth, when vested in the Supreme Court of a State, could be exercised only by judges, their Honours thought that "it would be illogical to draw a distinction in this regard between Federal and State Courts."

6. Their Honours did not find it necessary to determine the source of the power to delegate, but they agreed with Fogarty J. on the nature of the review to be undertaken by a Judge reviewing a consent order. Their Honours saw a review of that kind as involving two main issues:
"(a) whether the terms of the order were agreed upon by all

the parties;

(b) whether the terms agreed upon were in a form appropriate to the type of order sought.

As to the former, the signatures purporting to be those of the parties or their attorneys on the record would normally suffice. The latter may involve a consideration whether the terms of the order agreed upon are such as to constitute an order all the terms of which are enforceable."

The review was thus limited to a consideration of the propriety of the Deputy Registrar's making of an order by consent. The Full Court did not suggest that, on a review of the consent order, the Court or a Judge should simply consider de novo the wife's original application under s.79(1). Presumably, the wife's original application for an order under s.79(1) would not be revived for redetermination unless the Court or a Judge were to order that the consent order of the Deputy Registrar be set aside. It is inherent in the approach of the Full Court that the Deputy Registrar was not required to take account of the factors mentioned in s.79(4) of the Act although the consent order, once made, disposed of the wife's original application for an order under s.79(1).

7. The wife's appeal from the Full Court's order calls for an examination of the Act to ascertain the jurisdiction which the Act and Rules purport to confer on Registrars to make a consent order in a s.79(1) application, the effect of a consent order when made, and the means available to impugn a consent order. When these questions are addressed, the nature of a Deputy Registrar's power to make a consent order will be perceived and the constitutional issue - the validity of the delegation of power to make the consent order - can be explored.
1. The jurisdiction purportedly conferred by statute.

8. Assuming that a sufficient power is conferred by s.37A, by s.123 or by the common law on the Judges of the Family Court or a majority of them to delegate to Registrars a power to make consent orders, the Judges' power of delegation has been exercised by O.36A, r.2(1)(n). The power so delegated is a power to make a consent order, that is, a power expressly conferred on the Court by s.80(1)(j). This is one of the powers which is expressed by s.80(1) to be exercisable by the Court "in exercising its powers under this Part" (Pt VIII). In other words, a consent order is one of the ways in which the Court may exercise its jurisdiction under s.79(1) to alter the interests in property of parties to a marriage.

9. Is the making of a consent order by a Judge pursuant to s.80(1)(j) of the Act an exercise of the judicial power of the Commonwealth? Consent orders finally disposing of the issues between parties to proceedings in a court have always been regarded as a judicial determination of those issues and nonetheless so because they are made in accordance with a contract between the parties: Huddersfield Banking Company, Limited v. Henry Lister and Son, Limited (1895) 2 Ch 273; Ainsworth v. Wilding (1896) 1 Ch 673, at p 676; Kinch v. Walcott (1929) AC 482; Permanent Trustee Co. (Canberra) Ltd. v. Stocks and Holdings (Canberra) Pty.Ltd. (1976) 28 FLR 195, at p 199. Moreover, as a judicial order of a superior court affords protection to a person executing it (Howard v. Gosset (1845) 10 QB 359, at pp 453-454 (116 ER 139, at p 173); Williams v. Smith (1863) 14 CB(NS) 596, at pp 620-621,623,625 (143 ER 579, at pp 588,589,590); Williams v. Williams and Nathan (1937) 2 All ER 559, at pp 562-563), the very purpose of procuring the making of orders by consent is to ensure that the terms agreed are susceptible of enforcement as a curial order. The Act declares the Family Court to be a superior court of record (s.21(2)), and a consent order by the Court disposing of an application to alter property interests therefore has the character of a final judicial order by a superior court of record. If such a consent order did not have that character, its execution would be fraught with risk for the officer executing it. As a consent order in an application under s.79(1) determines the rights and obligations of the parties in controversy and as it gives protection to those charged with its execution according to its tenor, the making of such an order by a Judge is an exercise of judicial power. The power to make consent orders purportedly delegated to Registrars by O.36A, r.2(1)(n) is the same power as that conferred by s.80(1)(j). Further, s.37A(3) of the Act provides that -
" A power delegated by Rules of Court under
sub-section (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires." If it be right to regard the making of a consent order by a Judge under s.80(1)(j) as an exercise of the judicial power of the Commonwealth, the making of a consent order under O.36A, r.2(1)(n) is no less an exercise - or purported exercise - of that judicial power. So much was accepted in argument before the Full Court.

10. In making a consent order determining the matters in issue between the parties in an application under s.79(1), is the Court bound to take into account the matters prescribed by s.79(4)? If the Court is bound to do so, the making of a consent order is no mere formality. Prima facie, the parties to a marriage are at liberty to agree in whatever terms they choose upon the interests they should respectively hold in the property owned by them or either of them. It has been held that an agreement between the parties, on separation or divorce, affecting their respective interests in such property can be specifically enforced: Wilson v. Wilson (1848) 1 HLC 538 (9 ER 870). However, such an agreement in writing between the parties to a marriage falls literally within the definition of "maintenance agreement" in s.4(1) of the Act as "an agreement that makes provision with respect to financial matters". If an agreement provides that it should operate in relation to those financial matters in substitution for any rights of the parties under Pt VIII of the Act - the Part which includes s.79 - the agreement is unenforceable unless it has been approved by the Court: s.87(1) and (2). Section 87 does not have any direct application to the present case, however, for the Short Minutes were not in substitution for the rights of the parties under Pt VIII. The Short Minutes were evidently intended to be incorporated into, and to take effect as, an order of the Court under s.79 and thus to determine the rights of the parties under Pt VIII. The terms of the consent were in conformity with the requirements of s.81 that the Court should, as far as practicable, "finally determine the financial relationships between the parties ... and avoid further proceedings between them." Section 87 nevertheless manifests an intention that consensual arrangements as to financial matters between parties should, if those arrangements dispose of financial rights, be approved by the Court. If the contracting parties were entitled as of right to the making of a consent order in an application under s.79(1), the provisions of s.87 would be largely otiose. The parties could simply require the Court to make an order giving effect to their agreement rather than seek the Court's approval of their "maintenance agreement". Presumably, the reason why court approval of a "maintenance agreement" in any of its possible forms is required when the agreement is in substitution for rights under Pt VIII of the Act is that the community has an interest in ensuring that "provisions ... with respect to financial matters are proper", to use the words of s.87(3). The same reason equally calls for the exercise of a discretion in the making of a consent order with respect to financial matters when the parties have reached agreement on their respective interests in their property. To ascertain whether a provision is "proper" it is necessary to take account of the factors listed in s.79(4). The provisions of s.87 thus suggest that the direction given to the Court by s.79(4) to have regard to the factors therein mentioned applies to the making of consent orders as well as to the making of orders not by consent.

11. It does not follow that, when a consent order is sought in a s.79 application, it is necessary to conduct an inquiry into each of those factors. The Court may be satisfied that a provision is proper by reference not only to the material before the Court relating to the factors mentioned in s.79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions "with respect to financial matters" proposed for incorporation in the consent order will be seen to be "proper". The factor mentioned in par.(g) may require independent inquiry by the Court, but that question does not arise in this case. Nevertheless, when an application for a consent order in a s.79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s.79(1) matter is not automatic.
2. The effect of a consent order under s.80(1)(j).

12. A consent order under s.80(1)(j), though made in accordance with the parties' contract, takes effect as an order of the Court and is enforceable as such rather than as a contract to be sued on in a separate action: de Lasala v. de Lasala (1980) AC 546, at p 560. If a consent order made by a Registrar is treated as having been made by a Court or a Judge, as s.37A(3) requires, it too is enforceable as an order of the Court rather than as a contract.
3. Impugning a consent order.

13. When the parties to a contract choose to have the contract embodied in a consent order of the court, the court "will only interfere with such an order on the same grounds as it would with any other contract": per Lord Denning M.R. in Siebe Gorman Ltd. v. Pneupac Ltd. (1982) 1 WLR 185, at p 189; (1982) 1 All ER 377, at p 380. And see Harvey v. Phillips (1956) 95 CLR 235, at pp 243,244; Huddersfield Banking, at p 280. The general rule is that once a consent order is perfected, it can be set aside only in a fresh action brought for the purpose (Harvey v. Phillips, at p 242, Ainsworth v. Wilding, at p 676) unless, perhaps, the parties consent to the setting aside: Permanent Trustee Co., at pp 200-201. That is because a court in which a consent order is perfected usually has no jurisdiction subsequently to set the order aside. If the court does have jurisdiction to set aside a consent order in the same proceeding, then, of course, it may do so. The position is stated by Lord Diplock, speaking for the Privy Council in de Lasala v. de Lasala, at p 561: "Where a party to an action seeks to challenge, on the ground
that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside. The test whether a judgment or order finally disposes of the issues raised between the parties is not determined by inquiring whether for the purposes of rules of court relating to time or leave to appeal it attracts the label 'final' or 'interlocutory.' The test is: has the court that made the order a continuing power to vary its terms, as distinct from making orders in aid of enforcing those terms under a liberty to apply?" There is no reason why, on a review of a consent order made by a Registrar or on an application under s.79A, the Family Court should not exercise a jurisdiction to set aside a consent order obtained by fraud, duress or mistake. By neither procedure would the statutory objective of securing a final determination of financial relationships (s.81) be frustrated: cf. Dinch v. Dinch (1987) 1 WLR 252; (1987) 1 All ER 818.
4. The order in this case.

14. In the present case, though no evidence of circumstances warranting the setting aside of the consent order was placed before Maxwell J., we were informed that the wife claims to have been misled by advice given at the conference as to her right to resile from the consent which she was asked to give to the proposed order. That ground arguably falls within s.79A(1)(a) of the Act. The majority of the Full Court put aside the jurisdiction under s.79A as distinct from the jurisdiction to review the consent order pursuant to s.37A of the Act. Their Honours were of the view - incorrectly, in my respectful opinion - that the review of such a consent order was confined to the two issues earlier stated. It is not clear whether their Honours would have included in the first issue - "whether the terms of the order were agreed" - the question of fraud vitiating the wife's consent. However, in the way in which the proceedings were conducted before Maxwell J. the question whether the wife's consent to the order made by the Deputy Registrar had been procured by fraud did not arise. In the Full Court, it seems, that question was not addressed. But what was addressed was the scope of the power conferred by s.37A(10) to review a consent order made by a Registrar. Assuming for the moment that the power to make a consent order in a s.79(1) matter may validly be delegated to a Registrar, the power to review the order seems to me to be conferred in the widest terms. The Court's jurisdiction is "to review an exercise of power", being the particular exercise of power which has resulted in the making of the order: see the phrase "that exercise of power" in s.37A(9). The Court may then make such order or orders "as it considers appropriate with respect to the matter with respect to which the power was exercised": s.37A(10). The Court may receive fresh evidence as well as the evidence given in the proceedings before the Registrar: O.36A, r.7(4). Most significantly, the reviewing Court is directed to "proceed by way of a hearing de novo": O.36A, r.7(4)(a). The Act intends the view of a Judge on review to prevail over any inconsistent view by a Registrar or Deputy Registrar with respect to the matter dealt with by the order. Although the Registrar exercises (or purports to exercise) judicial power in making a consent order in a s.79(1) matter, the jurisdiction to review conferred on the Court is, in my opinion, original jurisdiction to be exercised on the evidence laid before the Court and on the law as it stands at the time of the review: see Re Coldham; Ex parte Brideson (No.2) (1990) 170 CLR 267, at p 273; Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR 616, at pp 621-622. If the order of the Deputy Registrar was validly made, in my opinion the jurisdiction of the Court on review is not confined in the manner in which either Maxwell J. or the Full Court would confine it. It is a jurisdiction to consider afresh not the propriety of making a consent order but the making of a proper order on the original s.79(1) application. The consent order, though final in effect so long as it stood, was liable to be set aside if an application for review was made within the prescribed period. In the present case, on a review the Court would be entitled to consider afresh - de novo - the order which ought to be made altering interests in the parties' property. That is, of course, if the consent order was validly made. If the purported delegation of power to make a consent order be invalid, there is no order susceptible of review and the wife's s.79 application remains undetermined.

15. In the Family Court, where it was conceded that the making of that order involved an exercise of the judicial power of the Commonwealth, this was seen to be the essential question. 5. The constitutional question: validity of the power to delegate.

16. Section 71 of the Constitution provides for the judicial power of the Commonwealth to be vested in the courts therein mentioned: a federal Supreme Court (called the High Court of Australia), federal courts created by the Parliament and other courts. Section 77(iii) creates the legislative authority to make laws investing "any court of a State" with federal jurisdiction with respect to any of the matters mentioned in ss.75 and 76 of the Constitution. "(A)ny court of a State" falls within the third class of courts mentioned in s.71, namely, "such other courts as (the Parliament) invests with federal jurisdiction." In the HCF Case it was held by a majority of this Court that the "court of a State" in s.77(iii) of the Constitution means the court as an institution and not the judges who comprise its membership. A State court invested with federal jurisdiction is that court as it happens to be organized from time to time, so that a federal judicial power invested in that court by a law enacted pursuant to s.77(iii) may be exercised by any person to whom the organization of that court entrusts the exercise of analogous powers, whether or not that person is a judge of that court. That view being taken by the majority, there was no occasion to determine whether a State court invested with federal jurisdiction could be empowered, or possessed inherent power, to delegate the federal judicial power with which it was invested to another institution or to a person standing outside the organization of that court. However, when the Parliament invests part of the judicial power of the Commonwealth not in a court of a State but in the High Court or in a federal court created by the Parliament, s.77(iii) has no relevance: see Le Mesurier v. Connor (1929) 42 CLR 481, at pp 495-497. The decision in the HCF Case does not determine whether any and what part of the judicial power of the Commonwealth, when invested in the High Court or in a federal court created by the Parliament (hereafter collectively referred to as "federal courts"), must be exercised by Justices appointed in accordance with s.72 of the Constitution (hereafter "Chapter III judges").

17. The judicial power of the Commonwealth has not been exhaustively defined, though reference is frequently made to what Griffith C.J. said in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (1909) 8 CLR 330, at p 357:
" ... I am of the opinion that the words 'judicial power'
as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." The power to decide controversies is at the heart of judicial power, but judicial power includes power to direct the preparation of the issues in controversy for decision and the execution of decisions so as to make them effective. The execution of judgments or orders of courts exercising federal jurisdiction involves the exercise of the judicial power of the Commonwealth. The Constitution does not expressly require that the judicial power of the Commonwealth should be exercised by Chapter III judges. But what is the purpose and what is the effect of the provisions of ss.71 and 72 relating to the appointment, remuneration and tenure of judges? The High Court consists of Chapter III judges - s.71 expressly so provides - and the identity of the language employed by s.72 with respect to the appointment, remuneration and tenure of Justices of the High Court and Justices of other federal courts implies that courts created by the Parliament, like the High Court, consist of Chapter III judges.

18. If federal courts consist of Chapter III judges, can any of the "jurisdiction" vested in those respective courts be exercised by persons who, though part of the staff or organization of the court, are not Chapter III judges? Sections 73, 75, 76, 77 and 79 relate to "jurisdiction", while ss.71 and 78 relate to "judicial power". Section 73 speaks of the appellate jurisdiction of the High Court as a jurisdiction "to hear and determine" and ss.75, 76 and 77, speaking of jurisdiction in "matters", use that term to connote a power to decide controversies: Fencott v. Muller (1983) 152 CLR 570. I understand "jurisdiction" in these sections to mean the power to hear and determine legal controversies; that is, the power at the heart of the judicial power of the Commonwealth. The Constitution assumes that that power will be exercised by judges, for s.79 authorizes the Parliament to prescribe the number of judges by whom federal jurisdiction may be exercised. Although, since the HCF Case, that assumption cannot be applied to the exercise of federal jurisdiction by a State court, it is the dispensation which the provisions of ss.71 and 72 imply in the Constitution. If either the Parliament or Chapter III judges constituting the respective federal courts or a federal court were authorized to delegate the jurisdiction vested in that court to a person who is not a Chapter III judge, the constitutional provisions governing appointment, remuneration and tenure of Chapter III judges could be circumvented. The primary and manifest purpose of those provisions is to guarantee impartiality and independence in the hearing and determination of legal controversies and that purpose would be frustrated if court officers, lacking the protection which those provisions are intended to secure, were empowered to hear and determine legal controversies.

19. In my opinion, the Constitution requires that the power of federal courts to hear and determine matters in the exercise of federal jurisdiction must be exercised by Chapter III judges. I am bound to accept, notwithstanding my dissent in the HCF Case, that, in the case of State courts invested with federal jurisdiction, that jurisdiction may be exercised in conformity with the organization of those courts under State law. The constitutional requirements as to the exercise of federal jurisdiction were stated by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty.Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at p 116:
" ... a catena of cases decided by this Court has enforced
the principle that the judicial power of the Commonwealth cannot lawfully be conferred upon organs other than the High Court, the Judges of the Federal Courts created by Parliament, and the Courts of a State. This principle has prevented the attempts of the Federal Parliament either (a) to vest what is strictly judicial power upon Commonwealth authorities without creating those authorities as a Federal Court consisting of Judges appointed pursuant to sec. 72 of the Constitution, or (b) to compel the High Court to exercise jurisdiction beyond the limits of secs. 75 and 76 of the Constitution." (Emphasis added.) I respectfully agree. There are some inconclusive dicta in other cases which leave open the extent of the power of Chapter III judges to delegate the exercise of parts of the judicial power of the Commonwealth vested in their respective courts: see Le Mesurier v. Connor, at pp 511,522-525; Bond v. George A Bond and Co. Ltd. and Bond's Industries Ltd. (1930) 44 CLR 11, at p 21; Kotsis v. Kotsis (1970) 122 CLR 69, at pp 108-109; and the HCF Case, at pp 63- 64,66,77. In my opinion, the necessity to reserve to Chapter III judges the sole authority to hear and determine matters dictates the limits of delegation of jurisdiction vested in a federal court either by the Constitution or by a federal law. Before the HCF Case, when it was understood that there were limits on the powers which could be delegated to non-judicial officers by State courts, the limits of delegation were stated in reference to reserving to judges the sole authority to hear and determine matters. Thus Windeyer J. in Kotsis said (at pp 92-93):

" I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to an adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called 'proceedings for ancillary relief'. They must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made. The taxation of costs by a taxing master is an example of a matter of the first kind. The taking of accounts or an inquiry as to damages for the purpose of reporting the result to the court to enable a judgment to be given are of the latter kind. So too are proceedings before a registrar for a certificate of means pursuant to the Matrimonial Causes Rules 211-213. Reports and certificates rendered to a court resemble in substance the verdicts of juries impanelled to try facts according to the tradition of the common law. Jurymen must arrive at their verdict after considering the evidence in a judicial manner; but they are not part of the court. Their verdict only becomes binding upon the parties when it is accepted by the court, and provided it is not set aside on a motion non obstante veredicto. Indeed at one time the judge sitting at nisi prius did not give judgment when the jury returned its verdict - Why? Because he was not the court: see Wilson v. Hood ((1864) 3 H and C 148 (159 ER 484)).

In short, I can see no reason why, assuming that the process of giving judgment is not taken from the court, matters arising before the hearing of the principal cause, or afterwards for working out the effect of a judgment, should not be inquired into and reported on by officers of the court. The court would not then confirm the decision of an officer. It would itself pronounce judgment on material he provided, which judgment might I suppose be in most cases in accordance with any recommendation emerging from the report, but would not necessarily be so. In my view what is not legitimate is for a Supreme Court invested with federal jurisdiction under the Constitution to entrust the determination of the rights of parties, in regard to any matter great or small, to persons who are not the court. The ascertainment of facts by the direction of the court is an essentially different thing from determining rights."

20. That statement is, in my opinion, definitive of the limits of the power which a federal court may possess to delegate "to persons who are not the court" part of the judicial power of the Commonwealth, subject to two qualifications (if qualifications they be): first, that non-judicial officers of the court may be entrusted with power to make orders in matters of practice and procedure; and, second, that the judicial power of executing the orders of the court may be delegated to non-judicial persons. These qualifications may inhere, indeed, in what Windeyer J. said. Courts have an inherent power to define their own practice (see the HCF Case, at p 77) and to direct the execution of their judgments. Traditionally, the exercise of those powers in matters of practice and the function of executing judgments have been delegated to non-judicial persons.

21. These limits may be more restrictive than those contemplated by Mason J. or by Murphy J. in the HCF Case. Mason J. (at p 64) thought it may be legitimate for some of the jurisdiction and powers of the High Court or a court created by the Parliament to be exercised by a master or registrar of the court, "whether as a delegate or otherwise, provided that the exercise is subject to review or appeal". Murphy J. (at p 66) contemplated that Parliament might authorize an exercise of the jurisdiction of the High Court or of a court created by the Parliament "by officers or others who are not justices but act under the supervision of the justices (in the sense that their decisions are subject to review or appeal)." If the only restraint on the exercise of any judicial power by a non-judicial person is the availability of review by or appeal to a court constituted by a Chapter III judge, it would be possible to vest all original jurisdiction in a non-judicial person and restrict the jurisdiction to be exercised by Chapter III judges to appellate jurisdiction. In my respectful opinion, the powers which can properly be exercised by persons who are not judges do not include the power of adjudication of a legal controversy pending in the court except for the exercise of powers "truly ancillary to an adjudication by the court."

22. If it be said that this view imposes undue restrictions on the court's power of delegation and an undue burden on the Justices who compose the court to deal with matters of small import, it can be said in reply that there are some remedies for alleviating the burden. Windeyer J. in Kotsis, at p 93, mentioned the adoption of procedures of reference and report. Another is the conferring and exercise of a power to remit matters to courts of limited jurisdiction. But whether or not the available remedies are adequate to relieve the burden, the existence of the burden is no justification for denying the implication of the constitutional text. To the contrary, the Constitution stands as a brake upon expediency in the interests of litigants who bring their cases to court for adjudication. This is not a matter of merely theoretical concern. The pressure on the Family Court to adopt measures for relieving Chapter III judges of the burden of adjudication is enormous. Fogarty J. furnished some statistics showing the volume of applications to the Family Court; he cited the Minister's reasons for introducing amendments to enhance the Registrars' powers as including the experience of State courts in minimizing the number of judges and his Honour suggested that, by a vigorous exercise of the power of delegation "in a substantial number, if not the majority, of cases under s.79 the parties may be compelled to have that matter determined by a non-judicial officer." Noting that there is a changed perception as to the effect of divorce on the status of the parties, his Honour suggests that the determination of the 40,000 applications for divorce each year - mostly undefended and "dealt with routinely in the matter of a few minutes each" - might be dealt with by non-judicial officers. It seems that the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s.43 of the Act. That is the section which speaks of the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (par.(a)) and the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children (par.(b)).

23. It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly important problems of familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.

24. In the present case, the question is whether the making of a consent order by a Registrar under O.36A, r.2(1)(n) involves an adjudication of issues arising on an application for s.79 relief. The fact that a Registrar's order is deemed to be an order of the Court or a Judge (s.37A(3)) does not answer that question, though the consequences of that provision are that the making of the order is to be characterized as an exercise of judicial power and the Registrar's order may be executed as an order of the Court. What is critical in deciding whether the Registrar's making of such an order is an exercise of non-delegable jurisdiction is whether there is some fact to be found, some principle of law to be applied or some discretion to be exercised on which the rights of the parties that are in issue on a s.79 application are determined.

25. For reasons earlier stated, the making of a consent order involves not only a satisfaction that consent has been given and the propriety of the form of order proposed, but the exercise of a discretion, conferred in the public interest, as to whether the provisions of the order are proper. Were it not for this last factor, the making of the consent order might properly be regarded as not amounting to an exercise of a jurisdiction to hear and determine, even though it amounts to an exercise of judicial power. But as the Registrar would be required to take into account the factors mentioned in s.79(4) in considering whether to make a consent order, and as the Registrar must then decide whether the provisions of the proposed order are proper, I would hold that the attempt to delegate that power to a Registrar is invalid. Whether s.37A or O.36A, r.2(1) has any valid operation in matters other than s.79 matters it is unnecessary now to determine.

26. The order made by the Deputy Registrar is invalid; there is no order susceptible of review. The appropriate order for this Court to make is to allow the appeal, to vary the order of the Full Court by deleting the order remitting the matter of review for rehearing and in lieu thereof declare that the Court has no jurisdiction to review the purported order of Deputy Registrar Lee. The result is that the wife's original application under s.79 is undetermined and awaits determination by a Judge of the Family Court.

DAWSON J. This is an appeal from the Full Court of the Family Court of Australia. The husband and wife, who are the respondent and appellant respectively, each made application under s.79 of the Family Law Act 1975 (Cth) for an order for the settlement of property. The matters came before a Deputy Registrar of the Court, who made an order by consent. The wife then sought a review of the order made by the Deputy Registrar pursuant to the rules of the Court. She purported to withdraw her consent. Order 36A, r.7(4) provided that an application for a review of an exercise of power by a Registrar should proceed by way of a hearing de novo. The matter came before Maxwell J., who held that the order made by the Deputy Registrar did not constitute the exercise of judicial power by him as it merely embodied the terms of a contract between the parties. As a consequence she held that no review of the order was available under O.36A, r.7. At the most, in her view, the parties could make a fresh application under s.79A of the Act for an order varying or setting aside the order already made.

2. The wife appealed to the Full Court of the Family Court and challenged the conclusion reached by Maxwell J. She also challenged the validity of the section of the Family Law Act - s.37A - under which the powers of the Deputy Registrar were delegated to him. The Full Court held that the power to make the order by consent under s.79 was validly delegated to the Deputy Registrar under s.37A and that Maxwell J. was mistaken in her view that she had no power to review the order made. The Full Court held, however, that the application for review did not set aside the consent; it merely required a reconsideration of whether, on the material before the Deputy Registrar, together with such other evidence as might be admitted by leave, he ought to have made the order which he did. An order was made by the Full Court remitting the application for review to a single judge for rehearing. The wife appeals to this Court. The Commonwealth, which appeared as an intervener before the Full Court of the Family Court in response to a notice under s.78B of the Judiciary Act 1903 (Cth), appeared in the same capacity before us.

3. Section 79 of the Family Law Act provides that the Court may make such order as it considers appropriate altering the interests of the parties in their property, including an order for the settlement of the property in substitution for any interest in the property. Section 37A(1) provides that the Judges of the Family Court, or a majority of them, may, subject to sub-s.(2), make rules of court delegating to the Registrars all or any of the powers of the Court including certain specified powers, the only immediately relevant one being contained in par.(g): "the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings". For the purposes of s.37A "Registrar" includes a Deputy Registrar: s.37A(15). Sub-section (2) of s.37A provides that the powers which might be delegated do not include the power to make a decree of dissolution of marriage in proceedings that are defended; a decree of nullity of marriage; a declaration as to the validity of a marriage or the dissolution or annulment of a marriage; or an order for or in relation to the custody, guardianship or welfare of, or access to, a child, other than an order made in undefended proceedings or with the consent of all the parties to the proceedings. A power delegated under sub-s.(1) when exercised by a Registrar, shall, under sub-s.(3), be deemed to have been exercised by the Court or a Judge as the case requires. Under O.36A, r.2 various powers are delegated to each Registrar, including those specified in s.37A(1).

4. A party to proceedings in which a Registrar has exercised a power delegated to him, may, under s.37A(9), apply to the Court to review that exercise of power. The Court may upon such application, or of its own motion, review an exercise of power by a Registrar and may make such order or orders as it considers appropriate. Where a Registrar considers that it is not appropriate that an application to him should be heard by a Registrar, he may under s.37A(11) make appropriate arrangements for the application to be heard by the Court. A Judge, upon application, may, under s.37A(12), order proceedings proposed to be heard by a Registrar to be brought before and heard by a Judge. Under s.21(3) of the Family Law Act, the Court consists of:

"(a) a Chief Judge, who shall be called the Chief Justice of the Court;

(b) a Deputy Chief Judge, who shall be called the Deputy Chief Justice of the Court; and

(c) Judge Administrators, Senior Judges and other Judges, not exceeding, in total, such number as is prescribed".

Section 37, the section under which Registrars are appointed, refers to them as officers of the Court, but they are not members of the Court.

5. The argument of the appellant wife proceeded upon the basis that the power which the Deputy Registrar purported to exercise in this case was judicial power. That was not contested and, in any event, it is plain that the Act purports to authorize the Court to delegate judicial power to Registrars, including Deputy Registrars. The submission was that the judicial power of the Commonwealth must be exercised by judges, in this case the Judges constituting the Family Court, and not by those exercising functions delegated to them by the Court.

6. Chapter III of the Constitution deals with the judicial power of the Commonwealth. Under s.71 of the Constitution, the judicial power of the Commonwealth is vested in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". Section 72(ii) provides that the Justices of the High Court and of the other courts created by the Parliament shall not be removed "except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity". This paragraph was held in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. (1918) 25 CLR 434 to mean that the justices of federal courts must be appointed for life. By a constitutional amendment approved in 1977 the appointment of a Justice of the High Court is for a period expiring upon his attaining 70 years of age and the appointment of a justice of a court created by Parliament is for a term expiring upon his attaining a maximum age fixed by Parliament. The maximum age fixed for Judges of the Family Court is 65 years: s.23A.

7. By a combination of ss.71, 75, 76 and 77(i) of the Constitution the Parliament may create a federal court and define its jurisdiction with respect to any matter within the original jurisdiction of the High Court or within the original jurisdiction which might be conferred upon it. The jurisdiction which might be conferred upon the High Court includes any matter arising under any laws made by the Parliament: s.76(ii). The Family Court was created by the Family Law Act and its jurisdiction was defined with respect to matters arising under that Act.

8. It was contended by the appellant that a federal court consists only of those justices appointed to it and that they alone can perform the functions which constitute the exercise of judicial power. However, the second of those propositions does not necessarily follow from the provisions of Ch III of the Constitution. True it is that s.71 provides that the High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. There is no similar prescription in relation to federal courts created by Parliament, although it can be said that s.72 of the Constitution clearly contemplates that they will consist of justices and requires that those justices be given the tenure which the section prescribes. Nevertheless, the question remains whether a court consisting of justices, or judges, may perform functions which involve the exercise of judicial power by, or through, persons who are not judges. That problem was adverted to by Dixon C.J. and McTiernan J. in Reg. v. Davison (1954) 90 CLR 353, at p 365, when they said:

"If the Parliament creates a court the justices must be appointed upon the tenure prescribed by s.72. A court is composed of the judges which form it, but courts are provided with officers and, under a unitary system of government, it is not uncommon to find that certain duties falling upon a court are executed, subject to judicial confirmation or review, by an officer of the court, such as a master. There is no distinct decision of this Court that under Chapter III no authority can be given by statute for the discharge in this way of the duties of a Federal court, although there are dicta to that effect: cf. per Isaacs J. and Starke J. in Le Mesurier v. Connor ((1929) 42 CLR 481, at pp 511, 512, 522-525). The decision of Long Innes J. in Re Malcolm Fraser Grant; Ex parte Edgley ((1928) 29 SR(NSW) 31), perhaps necessarily implies it."

9. In Le Mesurier v. Connor the problem was a different one, namely, whether in investing a State Supreme Court with federal jurisdiction in bankruptcy, the Commonwealth Parliament could appoint as an officer of that court a Registrar of Bankruptcy who held office in the public service of the Commonwealth. Under s.77(iii) any court of a State may be invested with federal jurisdiction with respect to any matter within the original jurisdiction of the High Court or within the original jurisdiction which might be conferred on it. Bankruptcy is such a matter. It was held by a majority (Knox C.J., Rich and Dixon JJ.; Isaacs and Starke JJ. dissenting) that it was not within the competence of the Commonwealth Parliament to appoint such an officer because to do so would be to "affect or alter the constitution" of a court which it invests with federal jurisdiction or "the organization through which its jurisdiction and powers are exercised": p 496. As has been subsequently observed, "the Parliament of the Commonwealth can do no more than invest a State court, as it is or as it may become, with federal jurisdiction": Kotsis v. Kotsis (1970) 122 CLR 69, per Menzies J. at p 88.

10. However, it was the maintenance in a somewhat rigid and artificial way of the distinction between "the constitution of a court" on the one hand and "the organization through which its jurisdiction and powers are exercised" on the other, which led this Court in Kotsis v. Kotsis and Knight v. Knight (1971) 122 CLR 114 to hold that a Registrar of the Supreme Court of New South Wales and a master of the Supreme Court of South Australia respectively, each invested with jurisdiction under the relevant State provisions to exercise jurisdiction otherwise exercisable by the Supreme Court, could not be invested with federal jurisdiction under the Commonwealth Matrimonial Causes Act 1959 because they were not part of the composition of that Court in the respective States. Section 77(iii) of the Constitution in allowing federal jurisdiction to be vested in a State court speaks, so it was held, of a court confined to those who comprise the court - in those cases, the judges.

11. In Victoria and Western Australia it is provided that the Supreme Court shall consist not only of the judges but also of the masters: see Constitution Act 1975 (Vict.), s.75(2); Supreme Court Act 1935 (W.A.), s.7(1)(c). And in South Australia the Supreme Court Act 1935 (S.A) was amended in an effort to overcome the decision in Knight v. Knight by providing that the court should be constituted of a Chief Justice, the puisne judges and masters, the masters being part of the court. But as Gibbs C.J. observed in The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49, at p 55, the question remained:

"... whether in those States a Supreme Court whose membership is expanded to include masters would be a court within ss.77(iii) and 39(2). Some of the reasoning in Kotsis v. Kotsis and Knight v. Knight would require a negative answer to that question."

The reference in that question to s.39(2) is a reference to s.39(2) of the Judiciary Act which, with certain exceptions, invests the several courts of the States within the limits of their several jurisdictions, with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it.

12. In The Commonwealth v. Hospital Contribution Fund leave was given to re-argue the decisions in Kotsis v. Kotsis and Knight v. Knight. As a result, the reasoning of Gibbs J. in his dissenting judgment in Kotsis v. Kotsis was adopted by a majority and the two cases were overruled. In The Commonwealth v. Hospital Contribution Fund the question was whether a master of the Supreme Court of New South Wales might, in a case which was assumed to come before the court in its federal jurisdiction under s.39(2) of the Judiciary Act, exercise the jurisdiction otherwise conferred upon him of determining an objection to the production of documents upon the ground that their production would be injurious to the public interest. Masters were appointed under s.111 of the Supreme Court Act 1970 (N.S.W.) and under s.118 they were empowered to exercise such powers of the court as were conferred upon them. An order made by a master might be set aside or varied by the court but, subject to this, was to have effect as an order of the court. The master was to constitute the court for the purpose of the exercise of the powers conferred upon him, but, under s.25, the court was "composed of a Chief Justice, a President of the Court of Appeal and such other Judges of Appeal and Judges as the Governor may from time to time appoint".

13. Gibbs C.J. concluded from these provisions that the master was not a component part of the court in the sense that a judge was, but that he constituted the court for the purpose of the exercise of the powers conferred upon him - that is, not for all purposes. As a result he held that the master was invested with federal jurisdiction to decide the matter which was before him. The reasoning of Gibbs C.J., which was accepted by a majority of the Court, may be seen from the following passage, at p 59:
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was, in my respectful opinion, part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction."

14. Mason J., at p 64, suggested an answer to the question left open in Reg. v. Davison. He said:

"Section 71 vests the judicial power in the High Court, the federal courts and such courts as may be invested with federal jurisdiction. It also provides that the High Court shall consist of a Chief Justice and so many other judges, not less than two, as Parliament prescribes. However, as I see it, the vesting of judicial power in a High Court consisting of a Chief Justice and justices should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court, whether as a delegate or otherwise, provided that the exercise is subject to review or appeal, more particularly now that the Court is autonomous by virtue of the High Court of Australia Act 1979 (Cth). In the case of other courts created by Parliament, whose membership is not confined by s.72 to judges, there is perhaps even less reason for denying that part of their jurisdiction and powers may be exercised by officers who are not judges, whether as delegates or otherwise, provided of course that they are officers who truly form part of the court's organization."

A similar view was expressed by Murphy J., at p 66.

15. In Le Mesurier v. Connor, Isaacs and Starke JJ., who were in dissent, thought that the fact that a court consists of judges, and judges only, precludes the exercise of judicial functions by anyone other than a judge. Isaacs J., in particular, thought that any other view would create insuperable difficulties in the exercise of federal jurisdiction. He said, at p 511:

"It needs but little reflection to see how utterly impossible it is to regard the State Court for the purposes of sec.77(iii.) as including all the official staff, from the Clerk of the Court to the bailiff and doorkeeper. If that were the case, the 'Federal jurisdiction' invested would fall upon the whole indivisible body, from Chief Justice to doorkeeper alike, for sec.77(iii.) makes no distinction. And once that is done, then, as will be presently seen, sec.71 would vest in the whole staff, considered as one body, the judicial power of the Commonwealth with undiscriminating completeness. There would certainly remain one crowning difficulty. While sec.79 enables the Parliament to prescribe the number of Judges to exercise the jurisdiction, nothing is said about bailiffs and ushers and doorkeepers. Apparently they would all have to form part of the tribunal. But, in truth, the official staff of Courts are no more part of the Court than the parliamentary official staff are part of Parliament."

16. However, the notion that a court consists of judges, and judges only, is not inconsistent with the fact that a court so composed may exercise judicial power through an organization which extends beyond the judges. Indeed, as Gibbs J. pointed out in Kotsis v. Kotsis, at pp 109-110, traditionally courts have exercised part of their functions through masters and registrars, subject to the supervision and control of the courts. If it had not been so, judges would have been troubled by many matters of a relatively minor and routine character not calling for the attention of the judiciary. An undesirable and unnecessary increase in the numbers of the judiciary would have been needed.

17. And in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at p 116, Evatt J. said:

"a catena of cases decided by this Court has enforced the principle that the judicial power of the Commonwealth cannot lawfully be conferred upon organs other than the High Court, the Judges of the Federal Courts created by Parliament, and the Courts of a State. This principle has prevented the attempts of the Federal Parliament either (a) to vest what is strictly judicial power upon Commonwealth authorities without creating those authorities as a Federal Court consisting of Judges appointed pursuant to sec. 72 of the Constitution, or (b) to compel the High Court to exercise jurisdiction beyond the limits of secs. 75 and 76 of the Constitution."

But I do not think that in that passage Evatt J. was suggesting that the judicial power of the Commonwealth can be vested only in the judges of the federal courts created by the Parliament in contradistinction to the courts composed of those judges. If he was suggesting that, then with respect I would observe that the suggestion was made in disregard of the wording of s.71 of the Constitution which speaks of the judicial power of the Commonwealth being vested in courts, not judges. And, as I have already said, the organization of a court may extend beyond the judges which compose it.

18. The High Court is a court which consists only of Justices. That is made explicit in s.71 of the Constitution. As I have said, it seems to me to be clear that s.71 assumes that federal courts created by the Parliament are also to consist only of judges. If it were not so, some distinction would have been drawn in s.71 between the High Court and other federal courts in this respect. Section 72 in providing for the tenure and remuneration of justices without distinguishing between the High Court and other federal courts supports this view. Moreover, the intention, which is clear in s.72, that the independence of the judiciary is to be safeguarded by protecting them against removal, except on the ground of proved misbehaviour or incapacity, and by providing that their remuneration shall not be diminished during their continuance in office, would obviously be undermined if courts created by the Parliament might consist of persons who do not enjoy those protections.

19. Section 79 of the Constitution, in saying that the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes, does not itself dictate the manner in which federal jurisdiction is to be exercised but enables Parliament, if it wishes to do so, to restrict the exercise of federal jurisdiction to a prescribed number of judges, possibly in the case of State courts within the limits imposed by the constitution of those courts. Section 79 ought not be read as requiring of itself that federal jurisdiction be exercisable only by judges. Indeed, to read it in that way would be inconsistent with the decision in The Commonwealth v. Hospital Contribution Fund.

20. As appears from that case, the fact that a court must consist only of judges, as a federal court must, does not mean that it cannot exercise its functions through an appropriate organization which is made available to it. Nor does that conclusion result, as Isaacs J. appears to have thought it did, in judicial power being vested in every officer of the court. It merely means that the court may, subject to any restrictions imposed upon it by Parliament, delegate to such of its officers as are suitable such of its functions as it thinks fit. It may do so pursuant to express powers given to it, pursuant to its rule-making power or pursuant to an inherent power to order its own affairs. No doubt it is beyond the power of Parliament to compel a federal court to exercise any of its judicial functions through an officer of the court. The exercise of those functions by that officer would not then be as a delegate of the court and that would be inconsistent with the requirement that the court consist only of judges. For the same reason a federal court must retain effective supervision and control over the exercise of its functions by its officers. If it does not do so, those functions may be seen to be exercised by an officer of the court, not as a delegate, but as a person of independent authority. A federal court must be able to exercise a real choice for itself over those matters, if any, which are to be delegated. Effective supervision and control will not be maintained if there are insufficient judges for the purpose or if for any other reason the court lacks the necessary capacity. Where the judicial power of the Commonwealth is vested in a federal court, the exercise of that power must be by or on behalf of the court itself, that is, the court consisting of judges, notwithstanding that the court may employ for that purpose an organization extending beyond the judges themselves. Whether or not the exercise of judicial power is by or through the court itself will be a matter of practical as much as of theoretical judgment.

25. It was not suggested that the appellant was precluded from litigating the question whether the terms of the order were agreed by the parties. Rather, it was said that a document which the parties signed came into existence in the course of or as a result of something said during a registrar's conference convened under O.24, r.1 and that, by O.24, r.1(8) and (9), evidence could not be given of what was said at that conference. No argument was put as to the proper construction or validity of O.24, r.1(8) and (9). It was merely asserted that the effect of O.24, r.1(8) and (9) was to preclude a consideration of the question whether the terms of the order were agreed by the parties. That is not so. At most, the provisions limit the evidence admissible on that issue. That being so and whatever the effect of O.24, r.1(8) and (9), the question raised is not one touching the validity of O.36A, r.2. Rather, it is a question of the power of the Family Court to make a Rule of Court purporting to render inadmissible what would otherwise be admissible evidence in a proceeding properly instituted under the Act. That question was not raised in the Family Court nor in the Notice of Appeal. It is not appropriate for that question to be further explored, particularly as the respondent did not appear on the hearing of this appeal.

26. It is necessary to turn to the nature of the review process required by s.37A(9) of the Act. In so far as that sub-section provides for the "review" of the "exercise of (a) power" delegated to a registrar or deputy registrar in accordance with that section, it was clearly intended that there should be a process enabling complete consideration of the matter as dealt with and not merely a process, such as is involved in the appeal process under s.94 of the Act, directed to remedying errors of law. Such a review entails a consideration of whether, quite apart from legal or other error, a different result should be arrived at. But, as is clear from the word "review" and from the expression "exercise of power", it was also intended that a decision made in exercise of delegated power should have force and effect unless and until set aside in or in consequence of the review process. Thus, a decision is not one that is provisional or, as argued on behalf of the appellant, one that is set at nought by the filing of an application for review, with the consequence that in the present case the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79 of the Act. Rather, the review process is one in which the Family Court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result. Although the Full Court treated the review process as being of a more limited nature than that indicated, it was correct in rejecting the only argument put to it on behalf of the appellant concerning the nature of that process, namely, that merely by the filing of an application for review it was obliged to treat the question arising under s.79 as one to be determined as a contested matter.

27. The only questions raised by the appellant for the decision of the Full Court, namely, whether the power to make an order under s.79 of the Act when its terms have been agreed was validly delegated to a deputy registrar and whether, an application for review having been made, the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79, must be answered against the appellant. Other issues were raised in the Notice of Appeal and were the subject of argument in this Court. It now appears that the appellant is correct in one such matter. The remarks of the Full Court as to the nature of the review required by s.37A(9) do not reflect the true extent of that review. On that limited issue the appeal should be allowed.

McHUGH J. The principal question in this appeal is whether, consistently with Ch III of the Constitution, the exercise of any part of the judicial power of the Commonwealth conferred on the Family Court of Australia can be delegated to the registrars of that Court.

2. The facts and relevant constitutional and statutory provisions are set out in other judgments. Except to the extent necessary to explain my reasons, I will not repeat them.
The contentions of the appellant and the Commonwealth
1. The contention of the appellant

3. The appellant submitted that the only inference that can be drawn from the terms of ss.71, 72 and 79 of the Constitution is that the judicial power of a federal court, created by the Parliament pursuant to the provisions of s.71, can be exercised only by judges appointed in accordance with s.72 of the Constitution. Consequently, the Family Law Act 1975 (Cth) and the Rules made thereunder are invalid to the extent that they purport to authorise the delegation of any part of the judicial power of the Family Court to the registrars of that Court.

4. In Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. (1918) 25 CLR 434, this Court held that the Parliament could not create a federal court under s.71 of the Constitution unless the judges of that court were appointed in accordance with s.72 of the Constitution and that, on its proper construction, the then form of s.72 required that the Justices of the High Court and the judges of other federal courts be appointed for life: see also Reg. v. Davison (1954) 90 CLR 353, at p 365. Section 72 was amended in 1977 so that the term of appointment of a Justice of this Court or a judge of a federal court, appointed after the commencement of the Constitution Alteration (Retirement of Judges) 1977, is no longer for life. But that amendment has not altered the principle that the Justices of the High Court and the judges of other federal courts can be appointed to their offices only in accordance with the provisions of s.72.
2. The contention of the Commonwealth

5. The respondent did not appear on the hearing of the appeal. But the Commonwealth, which intervened, did not contend that the registrars of the Family Court were appointed in accordance with the provisions of s.72 of the Constitution. Moreover, the Commonwealth stated that its submissions did not "involve any challenge to the orthodox view that membership of a federal court is constitutionally confined to Justices holding tenure in accordance with s.72". Nevertheless, the Commonwealth submitted that s.37A of the Family Law Act is valid even though it authorises the exercise of judicial power by registrars of the Court. Section 37A is valid, the Commonwealth submitted, because the judicial powers exercised by the registrars are limited to those delegated to them by the Court and the exercise of those powers is subject to review by the Court.

6. The Commonwealth's submissions relied principally on the decision of this Court in The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49 ("the HCF Case"), which held that, consistently with ChIII of the Constitution, a State court, invested with federal jurisdiction under s.77(iii), may exercise that jurisdiction through an officer of the court who is not a member of the court. Gibbs C.J., with whose judgment Stephen and Aickin JJ. agreed, said (at p 59):
"The jurisdiction and powers of the court do not cease to be
its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was, in my respectful opinion, part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction."

7. The Commonwealth submitted that this reasoning is equally applicable to a federal court created under the provisions of s.71, and whose jurisdiction is defined in accordance with s.77(i) of the Constitution, because the word "court" had the same meaning throughout s.77. To support that submission, the Commonwealth also relied on what Mason and Murphy JJ. said in the HCF Case. Mason J. said (at p 64):
"However, as I see it, the vesting of judicial power in a
High Court consisting of a Chief Justice and justices should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court, whether as a delegate or otherwise, provided that the exercise is subject to review or appeal, more particularly now that the Court is autonomous by virtue of the High Court of Australia Act 1979 (Cth). In the case of other courts created by Parliament, whose membership is not confined by s.72 to judges, there is perhaps even less reason for denying that part of their jurisdiction and powers may be exercised by officers who are not judges, whether as delegates or otherwise, provided of course that they are officers who truly form part of the court's organization." Murphy J. said (at p 66):

"There is no provision express or implied in the Constitution which would prevent exercise of the jurisdiction of the High Court (or other court created by the Parliament) by officers or others who are not justices but act under the supervision of the justices (in the sense that their decisions are subject to review or appeal)."

8. Accordingly, the Commonwealth submitted that federal courts, like State courts invested with federal jurisdiction, can delegate the judicial power of the Commonwealth to officers of those courts. Indeed, the Commonwealth contended that to hold otherwise would lead in the long run to the erosion of the function and status of federal courts.

The applicable principle

9. At first sight, there is considerable attraction in the submission that the word "court" has the same meaning throughout s.77 of the Constitution and, therefore, if, as was held in the HCF Case, the powers and jurisdiction of a State "court" invested with federal jurisdiction can be exercised by officers of the court who are not members of the court, it should follow that the jurisdiction of a federal "court" can also be exercised by officers of that court who are not members of it. But the submission, when pushed to its logical conclusion, leads to the result that the judicial power of a federal court can be exercised by persons who neither were appointed pursuant to s.72 of the Constitution nor are subject to the supervision of the judges of that court. Nothing in the reasoning in the HCF Case suggests that the masters and other officers of State courts can exercise invested federal jurisdiction only if the exercise of the jurisdiction is subject to review by the judges of those courts. If the holding in the HCF Case is applied to the High Court and federal courts, there is no escape from the conclusion that the original jurisdiction of those courts can be exercised by persons who are not subject to review by the Justices or judges of those courts and who were not appointed in accordance with s.72 of the Constitution. Such a conclusion can hardly stand with the decision in Alexander if, as the Commonwealth conceded, membership of a federal court is constitutionally confined to Justices and judges holding tenure under s.72. Moreover, there is a real difference between the exercise of jurisdiction by State courts invested with federal jurisdiction and the exercise of jurisdiction by the High Court and federal courts created under s.71 of the Constitution. To fail to perceive the difference is to overlook the unique role which the federal judiciary plays in a federal system of government and the need to ensure that the federal judiciary is independent of the federal Parliament and the Executive Government of the Commonwealth.

10. In Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, Dixon C.J., McTiernan, Fullagar and Kitto JJ. pointed out (at pp 275-276):
"It was open no doubt to the framers of the Commonwealth
Constitution to decide that a distribution of powers between the executive and legislature could safely be dispensed with, once they rejected the system of the independence of the executive. But it is only too evident from the text of the Constitution that that was not their decision. In any case the separation of the judicial powers from other powers is affected by different considerations. The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed. This would be enough in itself, were there no other reasons, to account for the fact that the Australian Constitution was framed so as closely to correspond with its American model in the classical division of powers between the three organs of government, the legislature, the executive and the judicature. But, whether it was necessary or not, it could hardly be clearer on the face of the Constitution that it was done. The fundamental principle upon which federalism proceeds is the allocation of the powers of government."

11. In a federal system, the States and the people of the States must rely on the judiciary to protect them from unconstitutional encroachments by the federal Parliament or executive government. But there is a difference between the State judiciary and the federal judiciary in relation to this role. The Executive Government of the Commonwealth does not appoint the judges or officers of State courts; nor does the Parliament or the Executive Government of the Commonwealth have any powers with respect to the creation or constitution of State courts. If the Parliament wishes to invest State courts with federal jurisdiction, it must, subject to s.79 of the Constitution, take those courts as it finds them: Le Mesurier v. Connor (1929) 42 CLR 481. Moreover, it is in the highest degree unlikely that the officers of a State court, appointed by the executive government of that State, would not protect the State and its people from unconstitutional encroachments by the federal Parliament or the Executive Government of the Commonwealth. But a State and its citizens do not appoint, remove or remunerate the members of the federal judiciary. The Justices of the High Court and judges of other federal courts created by the Parliament are appointed by the Executive Government of the Commonwealth. Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government of the Commonwealth and the Parliament of the Commonwealth so that litigants in federal courts could have their cases decided by judges who were free from potential domination by the legislative and executive branches of government: cf. Commodity Futures Trading Commission v. Schor (1986) 478 US 833, at p 848. At the Adelaide Convention in 1897, in discussing what became s.72 of the Constitution, Mr Symon said (Official Report of the National Australasian Convention Debates, vol.III, (1897), at p 950):
"Now, the position of the High Court which is being
established under Federation is entirely different in many respects from that which prevails in connection with the Supreme Court of the colony or the High Court in England. The Federal High Court is placed in a position to safeguard the liberties of the subject and the rights of the individual States against the encroachment of the Legislature. It is placed in a position in which its independence must be absolutely assured." At the same Convention, Mr Kingston said (at p 946):

"I think we should be at great pains to secure the absolute independence of the Judges of the Federal Court, particularly of the Judges of the High Court of Australia, who are intended to adjudicate on matters which may affect the Federal Executive and the Federal Parliament. To my mind we shall be committing a glaring mistake if we do not protect these judges from ill-considered action either by the Federal Executive or by the Federal Parliament."

It was to ensure the independence and impartiality of the Justices of the High Court and the judges of the federal courts that the framers of our Constitution enacted s.72 so as to give security of tenure and remuneration to the federal judges who were to exercise the judicial power of the Commonwealth. It is plain that the framers intended that the judicial power of the Commonwealth should be exercised only by courts composed of Justices and judges appointed in accordance with s.72 or State courts invested with federal jurisdiction under s.77(iii) of the Constitution. Though the Parliament might confer federal jurisdiction on a State court whose members did not have the security of tenure and remuneration afforded by s.72, this result would ensue only because the State concerned did not want its judicial officers to have the same security of tenure as given by s.72. But the exercise of the judicial power of the Commonwealth by federal courts was another matter.

12. In my opinion, the question whether the Justices of this Court or the judges of the federal courts can delegate the exercise of their judicial powers to officers of their courts is not to be determined by comparing the organisation or position of those courts with the organisation or position of the State courts, or by considering the meaning of the term "court" in s.77 or the term "courts" in s.71 of the Constitution. Nor is it to be determined by mechanically applying the decision in the HCF Case to the High Court and the federal courts. To do so would be to miss the purpose and significance of s.72 in our Constitution.

13. As appears below, Chs I, II and III of the Constitution give effect to the political doctrine of the separation of powers. Chapter III seeks to do this by ensuring that judicial power is exercised by the judiciary and not by the legislature or the executive government. Nothing in Ch III or any other part of the Constitution, however, expressly prohibits the exercise of the judicial power of the High Court or a federal court by its officers subject to review by its Justices or judges. Prima facie, the terms of s.71 together with s.51(xxxix) are wide enough to authorise a law conferring on the Justices of this Court and the judges of the federal courts power to delegate the exercise of their judicial functions to officers of their courts, subject to review by the Justices or judges of those courts. If a prohibition against that delegation exists, it is because the mandatory propositions embodied in ss.71 and 72 of the Constitution are to be read as negatively implying that prohibition. But in a Constitution, an implied prohibition or limitation on the exercise of a power conferred by that Constitution can arise only from necessity and must be confined to the extent of its need. In Kirby, the mandatory terms of s.71 were read as negatively implying that the judicial power of the Commonwealth could be exercised only by courts constituted in accordance with Ch III of the Constitution. This negative implication was seen to be the necessary result of the separation of the functions of government between the legislature, the executive and the judiciary. Likewise, the question whether the Justices of this Court or the judges of a federal court are entitled to delegate the exercise of the powers of the court to an officer of the court must depend upon whether such a delegation would necessarily be contrary to the substance and spirit of the doctrine of the separation of powers.

The separation of powers

14. In strict theory, the doctrine of the separation of powers, as formulated by Montesquieu, requires that the legislative, executive and judicial powers of a political state should be exercised by separate and independent branches of government whose personnel "must not at any one time compose, or exercise the functions of, more than one (branch) of government": Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. (1970) 123 CLR 361, per Windeyer J. at p 389. Montesquieu's theory was based on his perceptions of English constitutional practice in the eighteenth century. The chief weakness of the theory was that "it exaggerated the sharpness of the separation": Holdsworth, A History of English Law, vol.X, (1938), p 721. But it exerted an enormous influence on the framers of the Constitution of the United States who sought to give effect to it by vesting the legislative power in Congress (Art.I), the executive power in a President (Art.II) and the "judicial Power of the United States ... in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (Art.III). Time proved that the strict application of the theory was as unworkable as it was inefficient in a modern body politic. Consequently, the courts of the United States have given Congress a discretion in many cases to determine which of the three branches of government is the most appropriate repository for the exercise of a particular power. In referring to the United States position, the joint judgment of the majority of this Court in Kirby, at p 276, pointed out "that the practical expedients by which the difficulties have been met have left the constitutional theorists somewhat at a loss in reconciling them with a priori principle".

15. The United States Constitution was the model for the Commonwealth Constitution. But from the commencement of the Australian federal system it was plain that neither the strict theory of the doctrine of the separation of powers nor even the modified version of that theory which was current in the United States in 1900 could apply to the Commonwealth Constitution. The requirement that "no Minister ... shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives" (s.64), together with the theory of responsible government, made it an impossibility: see Kirby, at p 275.

16. Nevertheless, as Viscount Simonds said in Attorney-General for Australia v. The Queen (1957) AC 288, at p 311:

"That the Constitution is based upon a separation of the functions of government is clearly to be seen in its structure, which closely follows the model of the American Constitution."

The vesting of the legislative power in a Federal Parliament (s.1), the vesting of the executive power in the Queen (s.61) and the vesting of the judicial power of the Commonwealth in the courts (s.71) make it clear that the Constitution "has broadly and, to a certain extent, imperatively separated the three great branches of government, and has assigned to each, by its own authority, the appropriate organ": Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153, per Isaacs J. at p 178.

17. Moreover, not only have this Court and the Judicial Committee of the Privy Council recognised that the Commonwealth Constitution is based to a certain extent on a separation of functions or powers, but they have taken a strict view of the separation of the judicial power from the legislative and executive power of the Commonwealth. In Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, Evatt J. said (at p 117):
"Questions of judicial power occupy a place apart under the
Constitution, not only because of the special nature of judicial power but because of the elaborate provisions of Chapter III. As Sir W. Harrison Moore has pointed out in his well known work on the Australian Constitution 'between legislative and executive power on the one hand and judicial power on the other, there is a great cleavage' (Commonwealth of Australia, 2nd ed., p 101)." In Attorney-General for Australia v. The Queen, after referring to various provisions of the Commonwealth Constitution, Viscount Simonds said (at pp 312-313):

"But enough has been said to suggest that in the absence of any contrary provision the principle of the separation of powers is embodied in the Constitution. Section 1, which vests legislative power in a Federal Parliament, at the same time negatives such power being vested in any other body. In the same way section 71 and the succeeding sections, while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction, negatives the possibility of vesting such power in other courts or extending their jurisdiction beyond those limits. It is to Chapter III alone that the Parliament must have recourse if it wishes to legislate in regard to the judicial power. That chapter is in its terms detailed and exhaustive, and their Lordships dissent from the contention sometimes explicitly, sometimes implicitly, advanced that, inasmuch as there is no express prohibition of other legislation in this field, it is open to the Parliament to turn from Chapter III to some other source of power."

18. But does it follow that the judicial power of the Commonwealth cannot be exercised by an officer of this Court or a federal court even if the exercise of that power is subject to review by the Justices or judges of that court? As long ago as 1867, the judges of the superior courts in England were authorised to empower the masters of those courts to transact the "Business" exercised by a judge of the courts sitting in chambers "except in respect of Matters relating to the Liberty of the Subject": Judges Chambers (Despatch of Business) Act 1867 (U.K.) (30 and 31 Vict. c.68). Thus, it would be surprising if the provisions of Ch III were intended to preclude the Justices of this Court or the judges of the federal courts from delegating at least some judicial powers to the masters and registrars of those courts, particularly if the exercise of the power was subject to review by the Justices or judges. In Davison, at p 365, Dixon C.J. and McTiernan J. pointed out:
"A court is composed of the judges which form it, but courts
are provided with officers and, under a unitary system of government, it is not uncommon to find that certain duties falling upon a court are executed, subject to judicial confirmation or review, by an officer of the court, such as a master. There is no distinct decision of this Court that under Chapter III no authority can be given by statute for the discharge in this way of the duties of a Federal court, although there are dicta to that effect: cf. per Isaacs J. and Starke J. in Le Mesurier v. Connor (at p 511, 512, 522- 525). The decision of Long Innes J. in Re Malcolm Fraser Grant; Ex parte Edgley ((1928) 29 SR(NSW) 31), perhaps necessarily implies it."

19. No doubt the decisions in Alexander, Kirby and many other cases establish that the judicial power of the Commonwealth can be exercised only by the High Court or by federal courts whose members have been appointed in accordance with s.72 and by State courts invested with federal jurisdiction in accordance with s.77(iii) of the Constitution. But this does not mean that the doctrine of the separation of powers or ss.71 and 72 is or are contravened by a delegation of judicial power to an officer of this Court or a federal court when that delegation is subject to review by a Justice or judge of the court who has been appointed in accordance with s.72.

20. The delegation of power to an officer of this Court or a federal court, subject to review by a Justice or judge of that court, does not take away from the Justices or judges of the court the power to give the binding and authoritative decision in the action. It does not undermine the theory of checks and balances embodied in the doctrine of the separation of powers and in ss.1, 61 and 71 of the Constitution. It does not threaten the values which Ch III of the Constitution seeks to protect - the independence and impartiality of the federal judiciary and the separation of the exercise of judicial power from legislative and executive power. It follows that such a delegation is not contrary to the spirit or the substance of the doctrine of the separation of powers. The mandatory propositions in ss.71 and 72 of the Constitution should not be read, therefore, as impliedly prohibiting such a delegation. In my opinion, the dicta of Isaacs and Starke JJ. in Le Mesurier and the decision in Re Malcolm Fraser Grant are erroneous in so far as they suggest the contrary.

21. It follows, in my opinion, that this Court or a federal court created under s.71 of the Constitution may be authorised to delegate the exercise of its judicial powers to an officer of that court provided that the exercise of the power is subject to review by way of a de novo hearing by a Justice or judge of that court who has been appointed in accordance with s.72 of the Constitution. It goes without saying that the Parliament cannot require the court to delegate any of its powers. Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient. That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer. Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court.
Section 37A and O.36A are valid

22. Section 37A of the Family Law Act is, in my opinion, a valid enactment of the Parliament. It confers on the judges of the Family Court, or a majority of them, the power to make rules delegating to the registrars the powers of the court except those referred to in sub-s.(2): s.37A(1). Any exercise of a delegated power by a registrar is "deemed to have been exercised by the Court or a Judge, as the case requires": s.37A(3). The delegation of a power does not prevent the exercise of that power by the Court or a judge: s.37A(4). Where the registrar has exercised a delegated power, a party to the proceeding may apply to the Court "to review that exercise of power": s.37A(9). Moreover, the Court of its own motion may review an exercise of power by a registrar: s.37A(10). In sub-ss.(9) and (10), the term "review" must be read as "review de novo". When it is so read, s.37A is validly made as an incident of the power to create the Family Court under s.71 of the Constitution.

23. Order 36A of the Family Law Rules (Cth) appears to have been made in reliance on the power conferred on the judges of the Family Court by s.37A. At the relevant time, O.36A, r.7(4) provided that the review of "an exercise of power by a Judicial Registrar or a Registrar shall proceed by way of a hearing de novo". Neither that sub-rule nor any other provision of O.36A purported to give any conclusory or presumptive effect to any finding of a judicial registrar or registrar. Any order of the judicial registrar or registrar could not take effect if a litigant wished his or her case to be retried by a judge of that Court since a litigant, dissatisfied with such order, was entitled to have his or her case heard de novo by a judge of the Court: O.36A, r.7(4). If the litigant was content to accept the order, the making of that order did not contravene any of the values which Ch III of the Constitution protects. Accordingly, O.36A was validly made and does not contravene the Constitution.

24. The attack on the constitutional validity of s.37A and O.36A must fail.

25. However, in the present case the judges of the Family Court have taken too narrow a view of their function when hearing de novo a review of the exercise of the power delegated under O.36A, r.2(1)(n). For the reasons given by Dawson J., Maxwell J. was bound to consider the matters referred to in s.79(4) of the Family Law Act and evidence was admissible of any subsequent withdrawal of consent by the wife.

26. The appeal should be allowed.

Orders

Appeal allowed.

Set aside the orders of the Full Court of the Family Court.

Remit the application of the appellant for review of the exercise of power by Deputy Registrar Lee to a single judge of the Family Court for determination in accordance with the judgment of this Court.

No order as to the costs of this appeal.