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…