Wainohu v New South Wales - [2011] HCA 24

HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
DEREK JAMES WAINOHU PLAINTIFF
AND
THE STATE OF NEW SOUTH WALES DEFENDANT
Wainohu v New South Wales [2011] HCA 24
23 June 2011
S164/2010
ORDER
Order that the questions stated in the special case be answered as follows:
Question 1:Is the Crimes (Criminal Organisations Control) Act 2009 (NSW) or any provision or part of it invalid on the grounds that:

a. it undermines the institutional integrity of the Supreme Court of New South Wales; or
b. it is outside the legislative powers of the Parliament of the defendant?

Answer:The Crimes (Criminal Organisations Control) Act 2009 (NSW) is invalid.
Question 2:Who should pay the costs of the special case and/or of the proceedings?
Answer:The defendant is to pay the costs of the plaintiff of the special case.

Representation
M A Robinson with W Baffsky and B J Tronson for the plaintiff (instructed by Hardinlaw Solicitors)
M G Sexton SC, Solicitor-General for the State of New South Wales and L A Babb SC with J G Renwick for the defendant and intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
S J Gageler SC, Solicitor-General of the Commonwealth with C C Spruce intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))
W Sofronoff QC, Solicitor-General of the State of Queensland with G P Sammon and A D Scott intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
P J Hanks QC with K E Foley intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Wainohu v New South Wales
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts – Non-judicial functions conferred upon judges of State courts – Section 5 of Crimes (Criminal Organisations Control)Act 2009 (NSW) ("Act") provided that Attorney-General may, with consent of judge, declare judge of Supreme Court to be an "eligible Judge" for purposes of Act – Section 6(1) provided that Commissioner of Police ("Commissioner") may apply to eligible Judge for declaration that particular organisation is a "declared organisation" for purposes of Act – Section 9(1) provided that eligible Judge may make declaration if satisfied members of particular organisation "associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity", and that organisation "represents a risk to public safety and order" – Section 13(2) relevantly provided that eligible Judge not required to provide "any grounds or reasons" for making declaration – Part 3 of Act empowered Supreme Court to make, on application by Commissioner, control order against member of particular "declared organisation" – Whether function conferred by Act upon eligible Judge to make declaration without requirement to provide grounds or reasons repugnant to or incompatible with institutional integrity of Supreme Court – Whether substantial impairment of institutional integrity of Supreme Court.
Words and phrases – "incompatibility", "institutional integrity", "persona designata", "reasons".
Constitution, Ch III.
Crimes (Criminal Organisations Control) Act 2009 (NSW), ss 5, 6(1), 9(1), 12, 13(2), 14, 19.
FRENCH CJ AND KIEFEL J.
Introduction

On 6 July 2010, the Acting Commissioner of Police for New South Wales applied to a judge of the Supreme Court of New South Wales for a declaration under Pt 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the Act") in respect of the Hells Angels Motorcycle Club of New South Wales ("the Club"). The declaration sought is an administrative, not a judicial act. The judge from whom it is sought is an "eligible judge" so designated under the Act by the Attorney-General of New South Wales.
If the eligible judge makes the declaration which is sought then, under Pt 3 of the Act, the Supreme Court will be empowered, on the application of the Commissioner of Police, to make control orders against individual members of the Club[1]. A member against whom such an order is made is called a "controlled member"[2]. It is an offence for controlled members to associate with one another[3]. They are also barred from certain classes of business and occupation[4].
[1]The Act provides for "interim control orders" and "control orders": ss 14 and 19.
[2]Act, s 3(1).
[3]Act, s 26(1).
[4]Act, s 27.
The plaintiff, Derek Wainohu, is a member of the Club and has been a member for 20 years. If the Club is declared as an organisation under the Act, he is at risk of being made subject to a control order. He has commenced proceedings in this Court seeking a declaration that the Act is, or particular provisions of it are, invalid. He challenges the Act's validity on the basis that it confers functions upon eligible judges and upon the Supreme Court which undermine the institutional integrity of that Court in a way that is inconsistent with the national integrated judicial system for which Ch III of the Constitution of the Commonwealth provides. He also contends that the Act infringes the freedom of political communication and political association implied from the Constitution.
The State of New South Wales filed a defence to the claim. The parties agreed a special case pursuant to r 27.08.1 of the High Court Rules. On 15 October 2010, Heydon J referred the special case to the Full Court.
The Act creates two important functions, both of which are exercised by judges of the Supreme Court of New South Wales. It was not in dispute that a declaration under Pt 2 made by an eligible judge is an administrative act. Nor was it disputed that a control order under Pt 3 is a judicial act. Although the two functions are linked as part of the one statutory scheme, the making of a declaration under Pt 2 is neither an incident nor an element of the judicial function of making a control order under Pt 3.
An eligible judge may make a determination under Pt 2 upon information and submissions, without regard to the rules of evidence[5], partly based on information and submissions not able to be disclosed to the organisation or its members[6], and with no obligation to provide reasons for the determination which is made[7]. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function.
[5]Act, s 13(1).
[6]Act, ss 8, 28 and 29.
[7]Act, s 13(2).
The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff's challenge to the validity of the Act should succeed.
An overview of the Act
The object of the Act, as appears from its long title, is "to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members". It is an object which has been pursued in the long history of laws restricting the freedom of association of certain classes, groups or organisations of persons involved or likely to be involved in the planning and execution of criminal activities[8]. It is an object legitimised by the incidence and sophistication of what is generally called "organised crime". It is nevertheless an object which must be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.
[8]South Australia v Totani (2010) 242 CLR 1 at 30-35 [32]-[41] per French CJ; [2010] HCA 39.
Under Pt 2 of the Act the Attorney-General may declare judges of the Supreme Court of New South Wales, who give their prior written consent, to be eligible judges for the purposes of Pt 2[9]. The Commissioner may apply in writing[10] to an eligible judge for a declaration under Pt 2 that an organisation is a declared organisation for the purposes of the Act[11]. The application must specify, inter alia, the names of any persons that the Commissioner has reasonable grounds to believe are members of the organisation[12]. It must set out the grounds upon which the declaration is sought and the information supporting those grounds[13]. The application must be supported by an affidavit from the Commissioner, or affidavits from senior police officers, verifying its contents[14].
[9]Act, ss 5(2) and 5(3).
[10]Act, s 6(2)(a).
[11]Act, s 6(1).
[12]Act, s 6(2)(d).
[13]Act, s 6(2)(e) and (f). The term "information" is not defined.
[14]Act, s 6(2)(h).
Members of an organisation the subject of an application for a declaration, and other persons who may be directly affected by its outcome, must be invited, by public notice, to make submissions to the eligible judge at a hearing to be held on a date determined by the eligible judge and specified in the notice[15]. Members of the organisation who are specified in the application[16] have a right to make submissions at the hearing. Other members, and persons who may be directly affected by the outcome of the application, may also be present and make submissions with the leave of the eligible judge[17].
[15]Act, s 7. Notice of the application must be published in the Gazette and in a newspaper circulating in the State of New South Wales.
[16]Act, s 8(1).
[17]Act, s 8(2). Neither of the terms "directly affected" and "submission" is defined.
The Commissioner can object to persons being present during any part of the hearing in which information classified by the Commissioner as "criminal intelligence" is disclosed[18]. The eligible judge must take steps to maintain the confidentiality of information that he or she considers to be properly classified by the Commissioner as criminal intelligence[19]. They include receiving evidence and hearing argument about the information in private, in the absence of the parties to the proceedings, their representatives and the public[20].
[18]Act, s 8(3). "Criminal intelligence" is defined in s 3(1) as information relating to actual or suspected criminal activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or to endanger a person's life or physical safety.
[19]Act, s 8(5) read with s 28. The terms of s 28 and the definition of "criminal intelligence" are similar to provisions of the Liquor Licensing Act 1997 (SA) considered in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4. If the judge considers the information cannot properly be classed as criminal intelligence, he or she must ask the Commissioner whether the Commissioner wishes to withdraw the information from consideration – see Act, s 28(4).
[20]Act, s 28(3).
A member of the organisation or any other person who may be directly affected by the outcome of the application, and who has reasonable grounds to believe that he or she may be subjected to action comprising or involving injury, damage, loss, intimidation or harassment in reprisal for making a submission, may make a "protected submission"[21]. An eligible judge is required to take steps to maintain the confidentiality of a protected submission[22].
[21]Act, ss 8(4) and 8(7).
[22]Act, s 8(6) read with s 29.
The power of the eligible judge to make a declaration in relation to a particular organisation is conferred by s 9(1):
"If, on the making of an application by the Commissioner under this Part in relation to a particular organisation, the eligible Judge is satisfied that:
(a)members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and
(b)the organisation represents a risk to public safety and order in this State,
the eligible Judge may make a declaration under this Part that the particular organisation is a declared organisation for the purposes of this Act."
"Serious criminal activity" is a defined term. It extends to obtaining material benefits from conduct that constitutes a serious indictable offence, or from conduct engaged in outside New South Wales that, if it occurred in that State, would constitute a serious indictable offence. It includes committing a "serious violence offence". That term is defined as an offence punishable by imprisonment for life or a term of 10 years or more, where the conduct constituting the offence involved loss or serious risk of loss of a person's life, serious injury or serious risk of serious injury to a person, or serious damage to property in circumstances endangering the safety of any person, or perverting the course of justice in relation to conduct that, if proved, would otherwise constitute a serious violence offence[23].
[23]Act, s 3(1).
The eligible judge may make a declaration if satisfied that only some of the members of the organisation associate for the purpose of serious criminal activity provided he or she is satisfied that they constitute a significant group within the organisation in terms of their numbers or their capacity to influence the organisation or its members[24]. A declaration remains in force for three years unless sooner revoked or renewed[25]. It may be revoked by an eligible judge on the request, in writing, of the Commissioner or on application by a member of the organisation[26]. A declaration creates no rights or liabilities. It is, however, a necessary condition for the exercise by the Supreme Court of the jurisdiction conferred on it by Pt 3 of the Act to determine applications for control orders against members of a declared organisation.
[24]Act, s 9(4)(a).
[25]Act, s 11(2).
[26]Act, s 12(1).
The rules of evidence do not apply to the hearing of an application for a declaration[27]. The eligible judge in making a declaration or a decision under Pt 2 is not required to provide any grounds or reasons for the declaration or decision[28]. There is no appeal from the judge's decision. A broadly expressed privative clause purports to prevent a decision by an eligible judge from being challenged in any proceedings, including proceedings for prerogative relief[29]. It was not in dispute, however, that the decision of this Court in Kirk v Industrial Court (NSW)[30] has the effect that the section would not prevent a person from seeking prerogative relief in the Supreme Court of New South Wales on the ground of jurisdictional error[31].
[27]Act, s 13(1).
[28]Act, s 13(2). The eligible judge is nevertheless subject to an obligation to provide reasons, upon request, to a person conducting a review under s 39 of the Act. Section 39, as amended in December 2010, requires the Ombudsman to report four years after the commencement of the Act on the exercise of powers by police officers under it. The section does not use the word "review".
[29]Act, s 35.
[30](2010) 239 CLR 531; [2010] HCA 1.
[31](2010) 239 CLR 531 at 580-581 [98]-[99] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Part 3 of the Act deals with the control of members of declared organisations. It empowers the Supreme Court to make interim control orders and control orders against such persons. The Act provides for an appeal to the Court of Appeal by the Commissioner or by a member to whom a control order applies[32]. The appeal lies as of right on a question of law and with leave on a question of fact[33]. The Court of Appeal may confirm, vary or reverse the decision the subject of the appeal and make any consequential or ancillary order[34]. A person to whom a control order or interim control order applies is referred to in the Act as a "controlled member".
[32]Act, s 24(1).
[33]Act, s 24(2).
[34]Act, s 24(5).
Section 26 of the Act makes it an offence for controlled members of a declared organisation to associate with each other. A controlled member must not recruit another person to become a member of the declared organisation[35]. Controlled members are barred from applying for, or holding, authorisation to conduct certain kinds of businesses or activities[36].
[35]Act, s 26A.
[36]Act, s 27. Relevant authorisations include those of casino operators and certain casino employees, pawnbrokers, commercial agents, private inquiry agents, tow truck operators, motor dealers, motor repairers and bookmakers. The prohibition extends to security activities under the Security Industry Act 1997 (NSW), carrying on certain activities in connection with the racing industry, selling or supplying liquor, and possessing or using firearms and carrying on business as a firearms dealer.
Any question of fact to be decided in proceedings under the Act is to be decided on the balance of probabilities[37]. That standard of proof does not apply in relation to proceedings for an offence against the Act[38].
[37]Act, s 32(1).
[38]Act, s 32(2).
The Act purports to have effect beyond the limits of New South Wales[39]. The question whether the Supreme Court of New South Wales would be exercising federal jurisdiction pursuant to s 39 of the Judiciary Act 1903 (Cth) in the event that a control order was sought against a person resident in another State was not explored by the parties or the interveners.
[39]Act, s 4.
The challenge to validity

The plaintiff attacks the validity of the Act by reference, inter alia, to:
.the functions it confers on eligible judges including the provisions for private hearings in relation to criminal intelligence and protected submissions; and
.the functions it confers on the Supreme Court in relation to the making of interim control orders and control orders and particularly the obligation to maintain, as against the person affected by such applications, the confidentiality of criminal intelligence and protected submissions.
Those functions are said to undermine the institutional integrity and independence of the Court. The plaintiff also claims that the Act infringes implied constitutional freedoms of political communication and political association.
Judges exercising administrative functions – historical context
There is no general constitutional prohibition against the appointment of judges to non-judicial offices or to carry out non-judicial functions.As an extensive literature on the subject demonstrates, there is a considerable history of such appointments in Australia[40]. There has nevertheless long been debate about whether it is appropriate for judges to engage in such activities and, if so, under what circumstances and conditions[41]. The same debate has taken place in other common law countries[42]. The question whether such activities are appropriate for a judge to undertake is not the same as the question whether they fall within limits imposed by the Constitution. Nevertheless, the existence of the debate and the historical practice are consistent with the absence of bright-line rules defining those limits.
[40]eg Hallett, Royal Commissions and Boards of Inquiry, (1982) at 57-74; McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985); Brown, "The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge", (1992) 21 Federal Law Review 48; Wheeler, "Federal Judges as Holders of Non-judicial Office", in Opeskin and Wheeler (eds), The Australian Federal Judicial System, (2000) 442.
[41]An historical overview of the debate appears in McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985). See also Holmes, "Royal Commissions", (1955) 29 Australian Law Journal 253 and comments thereon especially by Menzies QC at 264-267, Sir John Latham at 267-268 and Sir Owen Dixon at 272; Connor, "The Use of Judges in Non-Judicial Roles", (1978) 52 Australian Law Journal 482; McInerney, "The Appointment of Judges to Commissions of Inquiry and Other Extra-Judicial Activities", (1978) 52 Australian Law Journal 540; Brennan, "Limits on the Use of Judges", (1978) 9 Federal Law Review 1; Reid, "The Changing Political Framework", (1980) 24 (January-February) Quadrant 5; Winterton, "Judges as Royal Commissioners", (1987) 10 University of New South Wales Law Journal 108; Sherman, "Should Judges Conduct Royal Commissions?", (1997) 8 Public Law Review 5.
[42]See McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 34-50 in relation to the United Kingdom, New Zealand, Canada and the United States; Mason, "Extra-Judicial Work for Judges: The Views of Chief Justice Stone", (1953) 67 Harvard Law Review 193; Calabresi and Larsen, "One Person, One Office: Separation of Powers or Separation of Personnel?", (1994) 79 Cornell Law Review 1045.
The involvement of judges in non-judicial activities in or on behalf of the executive government was an unremarkable feature of government in the Australian colonies prior to Federation. The constitutions under which colonial legislatures, executives and judiciaries were established, and which continued and evolved as the Constitutions of the States, did not require separation of judicial from legislative and executive powers[43]. What Dr Twomey has written of New South Wales is generally true for other Australian States[44]:
"From the very beginning of responsible government in New South Wales, it was not considered inappropriate for judges to perform non-judicial tasks or offices."
Evatt J said in Medical Board of Victoria v Meyer[45]:
"Under the State Constitutions, where there is no provision which suggests any separation of powers between executive and judiciary, there is no reason why judges of the Supreme Court or any other court cannot be employed for the purpose of exercising administrative functions although such judges usually exercise judicial power."
A long-standing example, the use of State magistrates to carry out administrative functions, is "one of the best-known features of Australian legal history"[46], although it must be viewed in light of the evolution of the magistracy from functionaries subject to the executive government into an independent judiciary[47].
[43]See generally Carney, The Constitutional Systems of the Australian States and Territories, (2006) at 344-349. A durable example is the appointment from time to time of Chief Justices of the States as Lieutenant-Governors.
[44]Twomey, The Constitution of New South Wales, (2004) at 747.
[45](1937) 58 CLR 62 at 106; [1937] HCA 47.
[46]O'Donoghue v Ireland (2008) 234 CLR 599 at 616 [18] per Gleeson CJ; [2008] HCA 14.
[47]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 82 [82] per Gummow, Hayne and Crennan JJ; [2006] HCA 44 and see generally South Australia v Totani (2010) 242 CLR 1 at 39-41 [53]-[57] per French CJ.
Judges of federal and State courts have from time to time been appointed by executive governments, sometimes acting pursuant to specific legislation, to conduct Royal Commissions[48]. Principled opposition to such appointments was expressed by the Chief Justice of Victoria, Sir William Irvine, in a letter sent to the Attorney-General of Victoria in 1923[49]. The focus of the letter was upon the limits of the judicial function and the risk to the Bench of "being drawn into the region of political controversy." While successive Chief Justices of Victoria generally adhered to that position, occasionally judges of the Supreme Court did accept appointment as Royal Commissioners in areas of inquiry calculated to give rise to political debate[50]. The practice in other States varied, but over the past 100 years or so there have been a significant number of cases in which serving judges have sat as Royal Commissioners[51].
[48]Such Commissions, established by executive governments, whether under prerogative or by statutory authority to inquire and to report to government, are non-judicial in character: Clough v Leahy (1904) 2 CLR 139; [1904] HCA 38; McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 84 per Latham CJ, 100-101 per Dixon J; [1940] HCA 6; Lockwood v The Commonwealth (1954) 90 CLR 177 at 180-181 per Fullagar J; [1954] HCA 31; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 147-158 per Brennan J; [1982] HCA 31; X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at 642-643 [43] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 4.
[49]The text of the letter, often referred to as the "Irvine Memorandum", appears in McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 11.
[50]Sir Charles Lowe was appointed as a Royal Commissioner pursuant to the Royal Commission (Communist Party) Act 1949 (Vic), requiring him to inquire into the activities of the Communist Party in Victoria. Herring CJ, Gavan Duffy J and Martin J sat briefly as the Royal Commission into Allegations of Improper Conduct in respect of a No Confidence Motion moved in the Victorian Legislative Assembly in September 1952: McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 13-17. Barber J was appointed Chairman of the West Gate Bridge Royal Commission pursuant to the West Gate Bridge Royal Commission Act 1970 (Vic): McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 18-19.
[51]See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 31-34 per Kirby J; [1996] HCA 18.
Striking examples of the use of judges for executive functions requiring their fulltime absence from judicial duties included the wartime ambassadorial appointments of Sir John Latham and Sir Owen Dixon[52]. Sir Owen also acted during the war as Chairman of the Central Wool Committee, the Australian Shipping Control Board and the Marine War Risks Insurance Board[53]. These might be regarded as anomalous occurrences in unusual circumstances[54]. Nevertheless, there have been a number of judges, particularly in the second half of the 20th century, appointed to fulltime executive offices while continuing in judicial office[55]. In 1977, Fox J of the Federal Court was appointed as Ambassador-at-Large to promote the cause of nuclear non-proliferation[56].
[52]Sir John was appointed as Minister Plenipotentiary for the Commonwealth to Japan in 1940 and Sir Owen to the United States in 1942. These appointments were supported by statute: Judiciary Act 1940 (Cth), Judiciary (Diplomatic Representation) Act 1942 (Cth). See generally Connor, "The Use of Judges in Non-Judicial Roles", (1978) 52 Australian Law Journal 482.
[53]McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 33.
[54]Under the designation "Australian Minister to the United States", Sir Owen Dixon addressed the American Foreign Law Association in 1942 on "The Separation of Powers in the Australian Constitution", (1942) 24 American Foreign Law Association Proceedings 3. Many years later he said "I do not wish it to be thought that, looking in retrospect, I altogether approve of what I myself did": (1955) 29 Australian Law Journal 272.
[55]Prominent examples included the appointments of serving judges to the office of Director-General of Security in 1949 and 1976, and as Chairman of the National Crime Authority in 1984 and 1990.
[56]An appointment supported by the Judiciary (Diplomatic Representation) Act 1977 (Cth): McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 33.
Statutes establishing administrative tribunals in four of the States provide for their presidencies to be held by, and their membership to include, judges of the Supreme, District or County Courts[57]. Similar provisions require the presidencies of the Administrative Appeals Tribunal, the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal to be held by judges[58]. Each of these offices is currently held by a serving Federal Court judge. It is perhaps salutary in this context to recall the observation made by Sir Owen Dixon at his swearing in as Chief Justice of this Court in 1952[59]:
"There is in Australia a large number of jurisdictions and a confusion in the public mind as to the functions the jurisdictions possess. The character of the functions is misunderstood and the public do not maintain the distinction between the administration of justice according to law and the very important functions of industrial tribunals."
[57]Administrative Decisions Tribunal Act 1997 (NSW), ss 4(1), 12(1) and 17(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 3, 10(1) and 11(2); Queensland Civil and Administrative Tribunal Act 2009 (Q), ss 175(1) and 176(1); State Administrative Tribunal Act 2004 (WA), ss 107, 108(3) and 112(3).
[58]Administrative Appeals Tribunal Act 1975 (Cth), s 7(1); Competition and Consumer Act 2010 (Cth), s 31(1); Copyright Act 1968 (Cth), s 140(1); Defence Force Discipline Appeals Act 1955 (Cth), s 8(1).
[59](1952) 85 CLR xi at xvi.
Relevantly to the present case, judges on federal, State and Territory courts have for many years undertaken executive functions in relation to the issue of an array of statutory warrants or authorities[60]. A significant number of the judges of the Supreme Court of New South Wales have been appointed, with their consent, as "eligible" judges to carry out such functions under State laws[61]. In November 2010, 31 of the judges (including two acting judges) were eligible judges under the Act[62].
[60]Relevant federal statutes include: Australian Security Intelligence Organisation Act 1979 (Cth), s 34AB; Criminal Code (Cth), s 105.2; Customs Act 1901 (Cth), ss 183UD and 219RA; Telecommunications (Interception and Access) Act 1979 (Cth), s 6D.
[61]See eg Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), ss 11(1), 12 and 14(1); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 46B, 46C(2), 46D(2) and 48; Surveillance Devices Act 2007 (NSW), ss 5, 16(1), 30, 33 and 35; Terrorism (Police Powers) Act 2002 (NSW), ss 27B and 27K.
[62]As appears from a list of eligible judges provided to the Court by the State of New South Wales.
Debate about the desirability of conferring administrative functions on serving judges has more than one dimension. There are questions of principle relating to the independence and impartiality of the courts and the need for an appropriate distance from executive government, even if that distance only accords with convention and falls short of a separation of powers in the constitutional sense. Concerns have been expressed about embroiling judges in political controversies[63]. A practical consideration is the extent to which a judge discharging extraneous administrative duties (even if only on a part-time basis) is diverted from judicial work. Some functions, such as those relating to the issue of statutory warrants, may involve only a minor imposition on judicial time. Others may be considerably more burdensome. The issues to be determined on an application for a declaration under Pt 2 of the Act indicate that it falls into the latter category. The application to the eligible judge in the present case was accompanied by 35 volumes of material, some of which was said to be "criminal intelligence". A closed preliminary hearing was held before his Honour in the absence of any representative of the Club, in order that his Honour could determine whether the asserted criminal intelligence was "properly classified" as such within the meaning of s 28 of the Act. That hearing concluded on 27 September 2010 and was adjourned for further mention. It is clear that if the application proceeds it will occupy a significant amount of the judge's time.
[63]See eg the Irvine Memorandum, in McInerney, Moloney and McGregor, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, (1985) at 11.
Professor Gordon Reid, writing in 1978 about the use of judges in executive roles, said[64]:
"Modern developments in Australian national government give the impression that the conventional political institutions – Parliament, Executive and Judiciary – are being treated by policy-makers as inconvenient differentiations of a single activity – government."
His comment concerned trends in government at the Commonwealth level in the 1970s, but has contemporary relevance.
[64]Reid, "The Changing Political Framework", (1980) 24 (January-February) Quadrant 5 at 14.
By way of contrast, the opinion has been expressed that an unduly restrictive approach to the functions which it is appropriate for judges to undertake outside the judicial role carries with it a risk of loss of institutional "relevance" for the judiciary. In the same year that Professor Reid wrote, Brennan J, who was then a judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal, acknowledged that there was a risk of a loss of public confidence in the judiciary proportionate to the disparity between functions proposed for performance by a judge and the functions traditionally performed by the courts. He said, however[65]:
"But the risks must be run, or the institution of the judiciary may lose its relevance or, at the least, fall short of discharging fully the functions which the community would commit to it."
One of the risks to be balanced against apprehended loss of "relevance" is the erosion of the "inconvenient differentiation" between the judiciary and other branches of government, and relegation of the judicial branch to the status of one among a number of agencies charged with governmental functions.
[65]Brennan, "Limits on the Use of Judges", (1978) 9 Federal Law Review 1 at 14.
Debates about the appropriateness of conferring non-judicial functions on judges do not directly engage the constitutional question whether such offices and activities are compatible with the judicial functions of federal, State and Territory courts under Ch III of the Constitution. What the debates indicate is that questions of compatibility which require evaluative judgments are unlikely to be answered by the application of precisely stated verbal tests. As Gummow J said in Fardon v Attorney-General (Qld)[66]:
"the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes."
That conclusion is consistent with the imprecise scope of the judicial power[67], which historically was not limited to the determination of existing rights and liabilities in the resolution of controversies between subject and subject, or between subject and the Crown[68]. It is also consistent with the shifting characterisation of the so-called "chameleon" functions as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court[69]. Assessments of constitutional compatibility between administrative and judicial functions are not to be answered by the application of a Montesquieuan fundamentalism. As Cardozo CJ said in this context[70]:
"The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed".
[66](2004) 223 CLR 575 at 618 [104]; [2004] HCA 46.
[67]Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189; [1991] HCA 58; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267 per Deane, Dawson, Gaudron and McHugh JJ; [1995] HCA 10.
[68]R v Davison (1954) 90 CLR 353 at 368-369 per Dixon CJ and McTiernan J, Fullagar J agreeing at 375, 382 per Kitto J, 387-388 per Taylor J; [1954] HCA 46; Gould v Brown (1998) 193 CLR 346 at 385-386 [28]-[29] per Brennan CJ and Toohey J; [1998] HCA 6; Dalton v New South Wales Crime Commission (2006) 227 CLR 490 at 505-508 [37]-[46] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; [2006] HCA 17.
[69]Pasini v United Mexican States (2002) 209 CLR 246 at 253-254 [12] per Gleeson CJ, Gaudron, McHugh and Gummow JJ; [2002] HCA 3; Thomas v Mowbray (2007) 233 CLR 307 at 326-327 [10]-[12] per Gleeson CJ; [2007] HCA 33.
[70]In re Richardson 160 NE 655 at 657 (1928) quoted in Hilton v Wells (1985) 157 CLR 57 at 82 per Mason and Deane JJ; [1985] HCA 16 and in Grollo v Palmer (1995) 184 CLR 348 at 364 per Brennan CJ, Deane, Dawson and Toohey JJ; [1995] HCA 26.
Consideration by this Court of the constitutional validity of laws conferring non-judicial functions on designated serving judges has been confined to cases involving federal judges[71]. Apart from dicta, it has not extended to a consideration of State laws conferring administrative functions on the judges of State courts. Before embarking upon that consideration, it is necessary to refer to the principles enunciated by this Court in relation to the use of federal judges for such purposes.
[71]Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.
Non-judicial appointments of federal judges

The decisions of this Court in relation to the extent of Commonwealth legislative power to confer non-judicial functions on federal judges require compatibility between those non-judicial functions and the functions of the courts of which the judges are members. That requirement was engendered by the decision of this Court in R v Kirby; Ex parte Boilermakers' Society of Australia[72]. The majority in that case held that the judicial power of the Commonwealth could not be conferred on a "body established for purposes foreign to the judicial power, notwithstanding that it is organized as a court and in a manner which might otherwise satisfy ss 71 and 72"[73]. Their Honours also held that "Ch III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it."[74] A mechanism adopted to avoid the stringency of that constraint was the appointment of judges in a non-judicial capacity as "personae designatae" to carry out non-judicial functions not ancillary or incidental to the exercise of the judicial power of the court of which they were members. The incompatibility condition was attached to that mechanism.
[72](1956) 94 CLR 254; [1956] HCA 10.
[73](1956) 94 CLR 254 at 296 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[74](1956) 94 CLR 254 at 296 per Dixon CJ, McTiernan, Fullagar and Kitto JJ, a proposition foreshadowed in obiter remarks of Latham CJ in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 566-567, Rich J agreeing at 573; [1938] HCA 10, and reproduced in the majority judgment in the Boilermakers' Case at 293-294.
The idea that a non-judicial function could be conferred on a judge persona designata emerged early in the judgments of this Court[75]. Dixon J considered the distinctions which that idea imported to be "distinctions without differences."[76] Nevertheless he did not reject the idea. The device that followed from it became entrenched[77].
[75]Holmes v Angwin (1906) 4 CLR 297; [1906] HCA 64; C A MacDonald Ltd v South Australian Railways Commissioner (1911) 12 CLR 221 at 230 per Griffith CJ, 236 per O'Connor J; [1911] HCA 14.
[76]Medical Board of Victoria v Meyer (1937) 58 CLR 62 at 97 per Dixon J.
[77](1937) 58 CLR 62 at 72 per Latham CJ, Starke J agreeing at 81, 80-81 per Rich J, 104-105 per Evatt J; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144; [1953] HCA 11.
The term "persona designata" means "[a] person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character."[78] Its use in England in connection with judicial power developed significantly in the second half of the 19th century. That development was attributed by D M Gordon to "the building of railways, and the consequent creation of new statutory tribunals to deal with compensation claims."[79] It was used to characterise the capacity in which taxing masters of the Court of Exchequer exercised specific statutory functions in relation to costs assessed by non-judicial bodies[80]. It was also used in cases concerned with the construction of wills[81]. The concept did not put down roots in many common law jurisdictions. It flourished for a time in Canada. However, the terminology, along with the distinction it conveyed, was academically denounced[82] and twice judicially interred[83] many years ago.
[78]Jowitt's Dictionary of English Law, 3rd ed (2010) at 1700.
[79]Gordon, "Persona Designata", (1927) 5 Canadian Bar Review 174 at 178.
[80]Re Sheffield Waterworks Act1864 (1865) LR 1 Ex 54.
[81]eg Dimond v Bostock (1875) LR 10 Ch App 358; In re Stansfield (1880) 15 Ch D 84.
[82]Gordon, "Persona Designata", (1927) 5 Canadian Bar Review 174 at 184-185.
[83]Herman v Deputy Attorney General (Canada) [1979] 1 SCR 729; Minister of Indian Affairs and Northern Development v Ranville [1982] 2 SCR 518.
The concept found new life in Australia at about the time it was first dispatched in Canada. That new life corresponded with the growth in the 1970s in the use of judges of the Federal Court of Australia in administrative roles. It was invoked in 1979 to answer a challenge to the appointment of a judge of the Federal Court as a member of the Administrative Appeals Tribunal. The challenge was rejected in Drake v Minister for Immigration and Ethnic Affairs[84]. The Full Court of the Federal Court held that the judge was appointed persona designata. Bowen CJ and Deane J, with whom Smithers J agreed, found nothing in the Constitution to preclude a judge of a federal court "from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi judicial in their nature."[85] No suggestion was made in that case of a limiting principle based upon a requirement that any such appointment of a federal judge be compatible with the judge's judicial office.
[84](1979) 24 ALR 577.
[85](1979) 24 ALR 577 at 584 per Bowen CJ and Deane J, Smithers J agreeing at 592.
The challenge rejected in Drake was revisited in 1985 in relation to the Telecommunications (Interception) Act 1979 (Cth) in Hilton v Wells[86] with the same result. That Act, as it then stood, conferred on all Federal Court judges the power to issue warrants authorising interception of telephonic communications. It was common ground that the function was administrative. The majority held that the power was conferred "on the judges individually as designated persons" and was therefore validly conferred[87]. The minority, Mason and Deane JJ, based their dissent on the interpretation of the statute. They required "a clear expression of legislative intention" that the functions conferred were to be exercised by the judges in their personal capacities, detached from the court of which they were members[88]. They found that "clear expression" to be wanting. An important point made by their Honours related to the appearance of the connection between a judge on whom a non-judicial function is conferred and the court of which that judge is a member. They said[89]:
"Another reason for adhering to a strict application of settled principle is that when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity. To the intelligent observer, unversed in what Dixon J accurately described – and emphatically rejected – as 'distinctions without differences', it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade." (reference omitted)
The point made by Mason and Deane JJ translates to this case. An eligible judge under the Act is appointed to discharge a substantial non-judicial function. An application for a declaration in relation to an organisation will ordinarily require that there be placed before him or her an extensive array of "information" and "submissions", none of which need be admissible in a court of law. The hearing of the application will yield a decision which is closely linked to the exercise of jurisdiction conferred on the Supreme Court by the Act. It is very likely to involve the use of the facilities and services of that Court.
[86](1985) 157 CLR 57.
[87](1985) 157 CLR 57 at 69-73 per Gibbs CJ, Wilson and Dawson JJ.
[88](1985) 157 CLR 57 at 81-82.
[89](1985) 157 CLR 57 at 83-84. Leave to argue that Hilton v Wells was wrongly decided was refused by six members of the Court in Jones v The Commonwealth (1987) 61 ALJR 348; 71 ALR 497 on the basis, inter alia, that the relevant legislation had been amended to provide that the judges authorised to issue warrants were designated judges who had consented to that designation. The authority of Hilton v Wells was therefore confined to the provisions with which it had been concerned.
No argument was advanced in Hilton v Wells that the use of the "persona designata" mechanism was subject to a limitation based upon a requirement that non-judicial functions be compatible with the judge's office. Nevertheless, the majority considered the possibility of incompatibility. They said[90]:
"If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid."
[90](1985) 157 CLR 57 at 73-74 per Gibbs CJ, Wilson and Dawson JJ.
The applicability of the persona designata mechanism to federal judges was accepted in Grollo v Palmer[91]. The Justices in the plurality used the term[92]:
[91](1995) 184 CLR 348.
[92](1995) 184 CLR 348 at 363 per Brennan CJ, Deane, Dawson and Toohey JJ.
"as a shorthand expression of a limitation on the principle of Boilermakers, acknowledging that there is no necessary inconsistency with the separation of powers mandated by Ch III of the Constitution if non-judicial power is vested in individual judges detached from the court they constitute."
Their Honours, however, identified two necessary conditions, derived from the judgments in Hilton v Wells, on the use of the mechanism[93]:
."no non-judicial function that is not incidental to a judicial function can be conferred without the judge's consent"; and
."no function can be conferred that is incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power".
The latter condition was designated the "incompatibility condition". Incompatibility was said to arise if[94]:
.the commitment to the performance of non-judicial functions were "so permanent and complete" that further performance by the judge of his or her judicial functions would not be practicable;
.the non-judicial function were such that the capacity of the judge to perform his or her judicial functions with integrity would be compromised or impaired; or
.the non-judicial function were of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the judge to perform his or her judicial functions with integrity would be diminished.
In the event, their Honours rejected the submission that the conferring of power upon designated judges of the Federal Court to issue warrants under the Telecommunications (Interception) Act infringed the incompatibility condition.
[93](1995) 184 CLR 348 at 364-365.
[94](1995) 184 CLR 348 at 365.
McHugh J, who dissented in the result, described the incompatibility condition as a "necessity"[95]. He said[96]:
"In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence … The greater the association between the judicial status of the persona designata and the executive functions that he or she performs, the greater is the likelihood that the judicial and non-judicial functions of that person will seem to be fused. In that situation, it is likely that members of the public will fail to distinguish between the judicial functions of the judge and the executive functions of that person as persona designata and will conclude that the judge is neither independent of the executive government nor impartial when dealing with actions between the citizen and the government and its agencies."
That reasoning was unaffected by the differences between his Honour and the majority judges. Although applied to federal judges and federal courts, it is apposite in the determination of the question whether a non-judicial function conferred on a State judge impairs the institutional integrity of the court of which that judge is a member by impairing the reality or appearance of its independence and impartiality.
[95](1995) 184 CLR 348 at 376.
[96](1995) 184 CLR 348 at 377.
In Hilton v Wells and Grollo, the judicial office of the persons empowered to issue interception warrants was a necessary qualification of their authority, albeit that authority was conferred upon them as personae designatae. The incompatibility condition applies also to a non-judicial function conferred upon someone who is a federal judge even though that person's judicial office is not a qualification for the exercise of the function. That was the case in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[97].
[97](1996) 189 CLR 1.
In Wilson, a judge of the Federal Court was nominated by the Minister under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to prepare a report in relation to an area for which a group of Aboriginal people was seeking statutory protection by way of ministerial declaration. In their joint judgment, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ pointed to features of the role of the nominated judge which led them to conclude that her appointment was incompatible with her work as a federal judge. They included:
.the report prepared by the judge was no more than a condition precedent to the exercise of ministerial power and was an integral part of the process of its exercise[98];
.the reporter lacked the usual judicial protections and was in a position equivalent to a ministerial advisor[99];
.there was nothing to prevent the Minister giving directions to the reporter and the reporter deciding to comply with those directions[100]; and
.the report involved the preparation of an advisory opinion on questions of law, a function alien to the exercise of the judicial power of the Commonwealth[101].
The particular procedures adopted by the judge to reflect her independence from the executive were held to be irrelevant to the question of the validity of her appointment[102]:
"The Constitution is concerned not with the conduct of a judge who exercises his or her discretion to maintain independence from the Legislature or the Executive Government but with the limits on legislative and executive power that might be exercised to confer a function bridging the separation of the Judiciary from the Legislature and the Executive Government."
That is to say, the way in which a judge chooses to exercise a non-judicial function does not determine whether that function complies with the standard set by the constitutional incompatibility condition.
[98](1996) 189 CLR 1 at 18.
[99](1996) 189 CLR 1 at 19.
[100](1996) 189 CLR 1 at 19.
[101](1996) 189 CLR 1 at 19-20.
[102](1996) 189 CLR 1 at 20.
The Court in Grollo and Wilson was concerned with the application of the incompatibility condition to the appointment of a federal judge to carry out a non-judicial function. That condition is derived from the separation of powers doctrine.
The incompatibility condition has been said to indicate standards which may be sufficient to ensure that a State law conferring a non-judicial function on State judges is consistent with the requirements of Ch III[103]. As will be discussed, requirements of compatibility may also be seen as present in the Kable[104] doctrine, although the source of that doctrine is not the separation of powers. Of the Kable doctrine, the plurality in Baker v The Queen said[105]:
"The doctrine in Kable is expressed to be protective of the institutional integrity of the State courts as recipients and potential recipients of federal jurisdiction. If the State law in question confers jurisdiction of a nature which would meet the more stringent requirements for the exercise by the Supreme Court of judicial power under investment by federal law, there is no occasion to enter upon the question of whether the less stringent requirements of Kable are met." (footnote omitted)
[103]Consistently with the reasoning of the plurality in relation to functions conferred upon State courts in Baker v The Queen (2004) 223 CLR 513 at 534 [51] per McHugh, Gummow, Hayne and Heydon JJ; [2004] HCA 45. See also HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561-562 [14] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; [1998] HCA 54; Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at 186 [10] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; [2004] HCA 9.
[104]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.
[105](2004) 223 CLR 513 at 534 [51].
State courts and the national integrated court system
Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system[106]. The term "institutional integrity", applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartiality[107]. Other

[106](1996) 189 CLR 51 at 96 per Toohey J, 103 per Gaudron J, 116-119 per McHugh J, 127-128 per Gummow J; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561-562 [14]; Baker v The Queen (2004) 223 CLR 513 at 519 [5] per Gleeson CJ; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 591 [15] per Gleeson CJ.
[107]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 77 [66] per Gummow, Hayne and Crennan JJ.
[108]Leeth v The Commonwealth (1992) 174 CLR 455 at 469-470 per Mason CJ, Dawson and McHugh JJ; [1992] HCA 29; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354-355 [55] per French CJ, 379-380 [141] per Heydon J; [2009] HCA 49.
[109]Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; [1976] HCA 23.
defining characteristics are the application of procedural fairness[108] and adherence, as a general rule, to the open court principle[109]. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution.
The principle was described by Kirby J in Baker v The Queen as[110]:
"one of general operation, derived from the Constitution; from the integrated character of the Judicature, federal and State; from the peculiar arrangement for the vesting of federal jurisdiction in State courts; and from the role of this Court at the apex of the entire system." (footnote omitted)
It is not within the power of a State legislature to enact a law conferring upon courts which have or can have federal jurisdiction conferred upon them functions incompatible with the role of such courts under Ch III of the Constitution as repositories of federal jurisdiction[111]. A function conferred upon a court which substantially impairs the institutional integrity of the court has that effect. In Kable[112], Gaudron J reasoned that:
.there is nothing anywhere in the Constitution to suggest that it permits different grades or qualities of justice depending on whether judicial power is exercised by State courts or federal courts created by the Parliament; and
.State courts, when exercising federal jurisdiction, "are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States"[113].
Gummow J applied Gaudron J's rationale in Fardon v Attorney-General (Qld)[114]. The Kable principle does not have its source in the doctrine of the separation of powers. Hayne J made the same point in South Australia v Totani[115]:
"Kable dealt with one respect in which the Constitutions of the States are affected by the federal Constitution: the legislative powers of the States are not unlimited. The relevant limitation is not one which follows from any separation of judicial and legislative functions under the Constitutions of the States. Rather, it is a consequence that follows from Ch III establishing, in Australia, 'an integrated Australian legal system, with, at its apex, the exercise by this Court of the judicial power of the Commonwealth'." (footnotes omitted)
[110](2004) 223 CLR 513 at 543 [82].
[111]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102 per Gaudron J.
[112](1996) 189 CLR 51 at 103.
[113]The quoted words were taken from Leeth v The Commonwealth (1992) 174 CLR 455 at 498-499.
[114](2004) 223 CLR 575 at 617 [101].
[115](2010) 242 CLR 1 at 81 [201].

So much for the three integers in conventional litigation. What is their application when judges are acting as designated persons? It was concluded above[257] that s 13(1), rendering the rules of evidence inapplicable in Pt 2 hearings, is not damaging to validity. It was also concluded above[258] that the criminal information provisions are not damaging to validity. And it was concluded above[259] that s 13(2), denying any duty to give reasons for Pt 2 declarations, is not fatal to validity. Even if a combination of those three integers – no rules of evidence, secrecy of criminal information and no duty to give reasons – or any of them taken singly is repugnant to the judicial function in conventional litigation, why would it render invalid legislation providing not for the exercise of a judicial function in conventional litigation, but for designated persons to carry out an administrative function independently of the Executive in accordance with procedures having those three integers?
[257]At [132].
[258]At [181].
[259]At [165].
Implied right to political association
The plaintiff also submitted that there was in the Constitution an implied right to political association, or an implied right to association for the purpose of political communication. For that submission many authorities were cited. None of them supported it. There is no general freedom of political communication in the Constitution beyond that necessary for the effective operation of the system of representative and responsible government provided for in ss 7, 24, 64 and 128 of the Constitution[260]. That qualification was present in statements on which the plaintiff relied[261]. The Act is not concerned with political communication, but with preventing serious criminal activity. Even if the rights claimed by the plaintiff to exist did exist, there is no necessary impairment of them because s 19(7)(a) permits the Supreme Court, on making a control order, to make an order permitting the person against whom the order is made to associate with a controlled member of a declared organisation where there is "good reason" for this. And s 25 permits the Supreme Court to vary a control order.
[260]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561, 567 and 571; [1997] HCA 25.
[261]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 232; [1992] HCA 45; Kruger v The Commonwealth (1997) 190 CLR 1 at 115; [1997] HCA 27.