Wilson & Ors v Minister for Aboriginal and Torres Strait Islander Affairs

[1996] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Adelaide  No A21 of 1996

B e t w e e n -

DOROTHY ANN WILSON, DULCIE CECELIA WILSON, BERTHA GOLLAN, MARGUERITA EFFIE WILSON, JENNIFER CHRISTINE GRACE, BETTY ELIZA TATT, VEENA JOYCE GOLLAN, AUDREY MARY DIX and BERYL LENA KROPINYERI

Plaintiffs

and

THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS and JANE HAMILTON MATHEWS

Defendants

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 JUNE 1996, AT 10.20 AM

Copyright in the High Court of Australia

___________________

MR M.L. ABBOTT, QC:   May it please the Court, I appear with my learned friend, DR S.C. CHURCHES, for the plaintiffs in this matter.  (instructed by Piper Alderman)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:If the Court pleases, I appear with my learned friends, MR E. WILLHEIM and MS M.A. PERRY, for the Minister.  (instructed by the Australian Government Solicitor)

MR E.WILLHEIM:   May it please the Court, I appear for the second defendant to submit to the order of the Court except as to costs.  (instructed by the Australian Government Solicitor)

BRENNAN CJ:   Yes, Mr Willheim, thank you.  There was a letter from the Australian Government Solicitor to the same effect but, I take it, that you are appearing simply to inform the Court of the same matter.  Mr Abbott.

MR ABBOTT:   If the Court pleases.  These questions call into consideration the role of the reporter under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. I would like to take the Court, firstly, to the Act and, in particular, to sections 9 and 10. The role of the reporter is a very sensitive role. As section 10, in our submission, makes clear, upon receipt of an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals - and Tickner v Bropho established that the only requirement is a valid application - the Minister is then required to nominate a reporter.  The Minister thereafter awaits the job done for him by the reporter, and after a receipt of a report by the reporter and considering

such other matters as he thinks relevant, he may make a declaration.

I point out that the declaration could be of substantial and great significance to many members of the community, depending upon the area to which the declaration pertains.  Of course it is significant to the applicants who have made the application, but it is also significant to those persons whose proprietary or other rights may be affected.  The Act has the capacity for raising strong views one way or the other about what the reporter does and whether or not the Minister should make a declaration.  The Act provides for no compensation.  It effectively can defeat Torrens Title and alienate property rights and excise an existing ownership because Parliament has deemed it proper that an application by Aboriginal people or a group of Aboriginal people who can show that the area is a significant Aboriginal area and that it is under threat of injury or desecration should be protected under the Heritage Protection Act.

I point out that in section 10(3) and 10(4) is the entire legislative direction and mandate for the reporter.  The reporter is obliged by subsection (3) to publish in the Government Gazette and significantly, we say, in a local newspaper indicating that Parliament was aware of the feelings, one way or another, which these applications may be capable of engendering in the community and the reporter is obliged in the notice to state the purpose of the application and the matters required to be dealt with by him or her in his or her report. 

The expression “purpose” and the word “matters” were the subject of Justice Burchett’s judgment in Tickner v Chapman at page 481 where he said in essence that it was not enough to baldly state the purpose or merely to recite parrot fashion the matters set out in subsection (4) because although the Federal Court has held that the matters in subsection (3)(a) are those matters and only those matters in subsection (4) ‑ ‑ ‑

GUMMOW J:   Now, these decisions of the Federal Court, they are on administrative appeal under the AD(JR) Act, are they not?

MR ABBOTT:   Yes, they are.

GUMMOW J: So, it operates on the footing that the declaration of the Minister under section 10(1) is a decision to which the Administrative Decisions (Judicial Review) Act applies?

MR ABBOTT:   Yes, it does.

GAUDRON J:   Is it reporting conduct to which it applies?

MR ABBOTT:   It has been held to be conduct, in particular, in Chapman.  We note that in subsection (4) the ambit of the reporter’s work is spelt out by the curious phrase that the report “shall deal with the following matters”.  It does not say, in any way, “adjudicate on”, it says, “deal with the following matters”, and then, your Honours ‑ ‑ ‑

TOOHEY J:   Why is that curious, Mr Abbott?

MR ABBOTT:   Well, because it provides little guidance, if your Honour pleases, as to the way in which the words “deal with” are to be complied with.

TOOHEY J:   But it could hardly say adjudicate.

MR ABBOTT:   Well, no, but it spells out nothing further as to how the reporter is to deal with the following matters.  It does not say by gathering evidence, it does not say by investigating.  The role of the reporter is to invite interested persons to furnish representations.  Thereafter, having received the representations, give due consideration and then deal with the matters specified in subsection (4) in the course of his or her report.  The Minister has power under subsection (4)(h) to, in essence, add to the list of matters the phrase, “such other matters (if any) as are prescribed”, must, in our submission, mean prescribed by the Minister and presumably, from time to time, the Minister could prescribe other matters for the reporter to deal with.

The Act, in our submission, permits the applicants to add to their material and, presumably, if other matters of significance are added to the application, the Minister may find it necessary to readvertise, or indeed renominate, if the application is substantially changed or added to from its initial state.

BRENNAN CJ:   Prescription seems to be dealt with by section 32, does it not?

MR ABBOTT:   Yes, your Honour.

BRENNAN CJ:   The regulation‑making power.

MR ABBOTT:   Yes.

BRENNAN CJ:   It was the Governor‑General’s power.

MR ABBOTT:   Yes, but I point out under section 31 that the powers of the Minister are non-delegable so far as sections 9 and 10 are concerned.  The only delegable function would appear to be the reporter’s role which, in our submission, strengthens our submission that the reporter in this case is the agent of the Minister for the particular purpose of reporting.

KIRBY J:   But would not under the theory of legislation the reporter have to perform the reporter’s function as the Parliament has intended as a separate independent report?

MR ABBOTT:   Obviously there is a degree of separation; there is a degree of independence ‑ ‑ ‑

KIRBY J:   I think it would be a misuse of the powers conferred by Parliament on the reporter for the reporter to conceive of himself or herself as simply the toady or the delegate or agent of the Minister.  The Minister has his functions; the reporter has his or her functions.  They each have to perform them as the statute contemplated.

MR ABBOTT:   That may well be so, if your Honour pleases.  However, it is the public’s perception which is, in our submission, all important in considering issues of compatibility and incompatibility.

McHUGH J:   But is that the point of the case?  Your submissions, with great respect, do not seem to me to deal with what is the central point in this case, and the central point in the case seems to me, at the moment, to be as to whether the words, “report from a person nominated by him” as a matter of construction was intended to deal with a federal judge having regard to the doctrine of separation of powers.  Now, prima facie, the word “person” is a wide power, but when you look at what the person is supposed to do; when you look at other statutes which specifically name judges as persons to whom, or upon whom such similar powers can be vested, then one would, prima face, think that a federal judge was not a person who the Minister could nominate.  In other words, whatever “person” may include, it does not include, as a matter of construction, a federal judge.

MR ABBOTT:   That is how we had perceived question 1, and I regret that our submissions have failed to properly grapple with that issue.  Could I tackle it this way?  We have made the submission that the obstacle of the doctrine of separation of powers require some form of legislative intent, and the issue of whether this section giving the power to nominate a person is sufficient acknowledgment of legislative intent, and we would submit that it is not, because the cases where it most times has been done, although not every time, one finds the express words of other Acts expressly permitting the appointment of a Chapter III judge and also invariably telling the Chapter III judges as a persona designata how to go about his or her task, are in there to provide a safety net for the judge.

TOOHEY J:   You are not quite facing up to the matter that Justice McHugh put to you, are you, Mr Abbott?  It was put to you that as a matter of construction, or it was raised with you whether, as a matter of construction, section 10, in its use of the word, “person”, excludes a judge of the Federal Court.  Is that your submission, that as a matter of construction “person” does not include a judge of the Federal Court?

MR ABBOTT:   I think we have to go that far.

TOOHEY J:   It is a matter for you, but do you go that far?

MR ABBOTT:   Yes, we do.

DAWSON J:   But you have to then look at it a little more closely than that because the section does not, on its face, attempt to foist a function which is non‑judicial upon a Chapter III judge or court.  It has nothing to say about it.  What it does do is enable the Minister to appoint someone and, of course, the Minister can appoint someone persona designata.  It is not a function of a statute to do that but it is enabling the Minister to do that himself.

McHUGH J:   That is why I do not think this case has got anything to do with persona designata.  It is not as if the statute nominated a federal judge, and then the question then arose as to whether it was an attempt to construe non‑judicial power on a federal judge or whether the judge was persona designata.  This is a question of construction, and whether or not the person has a duty to accept, and if so, perhaps, if a judge did it, whether as a matter of private conduct it was compatible with the role of a judge.

DAWSON J:   Excepting - perhaps you might reply to that first of all.

MR ABBOTT:   I would reply to that, if I may, by agreeing with your Honour.

DAWSON J:   If you do that, excepting that the section does not enable the Minister to appoint a Chapter III judge or court as such to perform these functions and that it must be read down accordingly, does the section then also not entitle the Minister to appoint a person not as a judge but as persona designata?

MR ABBOTT:   Well, we would respond ‑ ‑ ‑

DAWSON J:   You cannot get out of that problem quite so easily.

MR ABBOTT:   No, I think we would answer in this way:  just because Parliament can clearly legislate for a Chapter III judge to be appointed as persona designata, it does not mean the words of this section do not mean that the executive by the Minister can likewise appoint just because they are general words.

DAWSON J:   Why not?  Why can he not appoint as a persona designata?

MR ABBOTT:   Because of the incompatibility which such appointment ‑ ‑ ‑

DAWSON J:   But it is the persona designata which removes the incompatibility.

MR ABBOTT:   Well, persona designata may remove the incompatibility but if incompatibility nonetheless remains ‑ ‑ ‑

DAWSON J:   Well, that is another question.

MR ABBOTT:   Yes.  So, in one sense, one comes back at all times to incompatibility because if one recognises that there is power to appoint, absent incompatibility, then the issue then becomes one of only incompatibility. 

TOOHEY J:   I am sorry to prolong the interruptions but just so that I understand your argument, Mr Abbott, is your answer then to question 1, “No” because section 10, in its use of the word “person” does not include a judge of the Federal Court or is it something else?

MR ABBOTT:   It is that.

GAUDRON J:   But you will have to go further, Mr Abbott.

MR ABBOTT:   Yes.

GAUDRON J:   It does not include a person who is also a judge of the Federal Court.

MR ABBOTT:   As a matter of construction, the words “a person”, while general in their face, do not include a person who is a judge of a Federal Court.

KIRBY J:   But the words are, as has been pointed out, words of the greatest generality.  They are not confined or limited by the statute.  They are used by Parliament against the background or use in this country of Federal judges to perform various functions, sometimes by a statute, sometimes by executive appointment, and why should we read it down?  Was there anything in the speech by the Minister that  ‑ ‑ ‑

MR ABBOTT:   Because then you look at the subsections as to what the person nominated has to do and the absence of any rules and regulations as to how the person nominated is to go about his or her job as a reporter.

KIRBY J:   But this, as you have pointed out, is a very sensitive matter.  It is therefore a matter upon which, seeking a persona designata, a Minister would look around for a trusted, respected citizen to perform the function and a judge would fall within, or might be thought by the executive, to fall within that function.  If it can be done by Parliament, why can it not be done by the executive?

MR ABBOTT:   Well, that is not strictly the issue, but it can be done by Parliament in a way which would only then raise incompatibility as the determinant of the validity of a clear law passed by Parliament, spelling out the appointment of a Chapter III judge to this position but, in our submission, the words “from a person nominated by him” mean, in essence, the reporter.  You look at whether those words are capable of including a Chapter III judge and ‑ ‑ ‑

KIRBY J:   But they are, are they not, obviously?  But now, let us get down to tin tacks.  Let us assume, for the purposes of argument, that section 10 must be read down so that the Minister cannot appoint a Federal Court judge or a Chapter III court as a reporter because the functions of the reporter are non-judicial functions.  Let us accept that.

MR ABBOTT:   Yes.

KIRBY J:   Why then, cannot the Minister appoint this person as a person, not as a judge or a court, to perform these functions if they are not incompatible with the exercise of judicial functions. 

MR ABBOTT:   Well, you are ‑ ‑ ‑

DAWSON J:   Just answer it.

MR ABBOTT:   You are answering the question ‑ ‑ ‑

DAWSON J:   No, no, I am not.  We will get on to compatibility later.  Assuming the functions are not incompatible because judges, as persona designata, often perform functions which are not judicial functions -  assuming the functions are not incompatible with the performance of judicial functions, why cannot the Minister appoint a person as a person?

MR ABBOTT:   The Minister clearly can appoint a person as a person.

DAWSON J:   Yes, all right.  So then the only question is whether these particular functions are incompatible with the performance of judicial functions in the sense in which Grollo dealt with it, that they disable the person even though performing these functions as a person from properly performing that person’s judicial functions.

MR ABBOTT:   There is the ancillary question which rests upon a consideration of incompatibility viewed in the light of subsections (3) and (4) as to whether what is spelt out in subsections (3) and (4) is intended to refer to a Chapter III judge as persona designata when you look at the words, “a person nominated by him”.

DAWSON J:   I do not understand that.

MR ABBOTT:   In a sense, it is a reflection of incompatibility.  Our argument is that if you look at subsections (3) and (4) as to what the reporter has to do, the legislative intention to be gleaned from a consideration of subsections (3) and (4), and then turning to subsection (1), “a person nominated by him”, give rise to the argument at least that Parliament did not intend that those general words will allow the appointment of a Chapter III judge as persona designata.

DAWSON J:   You see, persona designata doctrine is an exception to the separation of powers argument.  We have already established by assumption that Parliament cannot require a judge as a judge or a court as a court under Chapter III to perform these functions.  Now, assuming that, the only question is whether that is what - and we can assume that the Minister purported to do that, what he purported to do would be invalid because it is not covered by the section, but what he did do is appoint a person who happened to be a judge.  Now, the question is, really, to act consistently, whether the functions given to that person are incompatible with the performance separately of her functions as a judge.

GAUDRON J:   Perhaps that puts it a little too narrowly.  There may be a question whether it impairs the capacity of the court of which she is a member to perform its functions.

McHUGH J:   You might also ask, would you ordinarily expect Parliament, knowing that judges are appointed to perform judicial duties, to authorise a Minister under such a general power to the nominating judges to perform functions other than their non-judicial functions?

DAWSON J:   I do not mind, for the purposes of argument presently, how widely or how narrowly you define incompatibility, that is a separate argument, but it is a question merely of the incompatibility of these functions with the performance of the functions of a judge.

BRENNAN CJ:   I think we have seen the various views that have been concerning the members of the Bench, Mr Abbott.  We have this proposition that the word “person” considered by itself is a word of general connotation.  You accept that, as I understand it?

MR ABBOTT:   I do.

BRENNAN CJ:   You then point to subsections (3) and (4) in order to demonstrate the functions which the person appointed or nominated is to perform, is that correct?

MR ABBOTT:   That is so.

BRENNAN CJ:   And by reference to those sections and the functions there set out, do you suggest that the word “person” should be read down so as not to authorise the appointment of a person who is also a judge, because the functions therein set out are functions which are incompatible with the performance by the judge, or possibly by the court of which the judge is a member, of her or its functions.  Is that correct?

MR ABBOTT:   Yes.

BRENNAN CJ:   So those are the issues that we have to determine?

MR ABBOTT:   Yes.  I am not clear whether there is just a wider issue of incompatibility in general, but if one takes incompatibility as necessarily arising ‑ ‑ ‑

BRENNAN CJ:   Well, the incompatibility of which you speak, and correct me if I am wrong, is the incompatibility between the performance of the functions outlined in subsections (3) and (4), in the context of the entire Act, with the performance either of the judicial functions of the particular judge or of the functions of the court of which the judge is a member.

MR ABBOTT:   Yes.  It is our submission that the incompatibility we look at is incompatibility arising at the time of nomination.

BRENNAN CJ:   Well, that may be so, but there has been no relevant change anyhow at any time here, has there?

MR ABBOTT:   No, but I mean, what I am suggesting is that it is either incompatible or it is not.

McHUGH J:   I do not know why you have got to go that far.  It strikes me at the moment that you just would not expect, first of all, constitutionally you would not think Parliament could nominate a judge as a judge of the Federal Court, in her capacity of a federal judge, to do this.  So the next question is, does it include a person who was also a judge and ordinarily, and I would have thought for the moment anyway, that one would not expect Parliament to be authorising ministers to nominate judges to do non-judicial work.  Full stop.  That is the presumption that you would approach the construction with, and then there may well be, well if it does, the question arises about compatibility, but that is another question.

MR ABBOTT:   We would certainly want to approach it in the way your Honour has spelt it out, on the basis there is such a presumption.  Descending from the presumption to the particularity, we call in aid the express words of all the other Acts, where they have expressly permitted the appointment of a Chapter III judge ‑ ‑ ‑

GUMMOW J:   And confer immunity.

MR ABBOTT:  ‑ ‑ ‑ and also told or given guidelines to how the Chapter III judge, as persona designata, is to go about his or her job.

GUMMOW J:   No, no, no; confer immunity from civil actions.

McHUGH J:   Immunity from defamation actions.  This person has only got qualified privilege to protect the person.  Who is going to pay for expenses and matters of that nature?

MR ABBOTT:   It is a question you will have to ask those on my right.

McHUGH J:   Yes, well.

MR ABBOTT:   Could I put it this way, if your Honours please.  The occasion such as Grollo, sections 45 and 46 of the Telecommunications (Interception) Act, show that a judge who issues warrants does not have to make up his own procedures.  The legislation provides a safety net, if you like, of judicial precedent, and ‑ ‑ ‑

GUMMOW J:   Well, section 6D(4) confers protection in performance of these functions.  That is the sort of section one expects to see.

MR ABBOTT:   Exactly.

GUMMOW J:   It is not here.

MR ABBOTT:   And moreover, 45 and 46 have a whole host of rules as to how a judge is to approach his or her task.  So we would suggest as a corollary to the presumption, that the total failure of section 10 to spell out procedures should more readily lead this Court to the conclusion that a Chapter III judge who accepts a nomination as persona designata cannot do so because of the incompatibility aspect.

TOOHEY J:   But when you put it like that, you have moved away from question 1, have you not?

MR ABBOTT:   Yes, I have.

TOOHEY J:   The argument is taking on a fairly elusive quality.  As a matter of construction I understand your argument to be that the section must be read down so that “person” does not include a person who is also a judge of the Federal Court.  I understand that argument, but are you addressing that argument now when you speak of incompatibility, because you have moved to the acceptance of the appointment or of the nomination by the person in question and that would seem to take us into question 2 rather than question 1?

MR ABBOTT:   It was an inelegant choice of words.

TOOHEY J:   It is not elegance or lack thereof that is troubling me.  It is just trying to focus on the argument and its relationship to either or both of the questions before the Court.

MR ABBOTT:   May I stick with question 1.  However, I have great difficulty in dealing with question 1 removing all considerations of incompatibility from it.

BRENNAN CJ:   Perhaps you should address the question which Justice McHugh has been raising with you.  As a matter of construction, where a statute contains an authority vested in a Minister to authorise another person to engage in some function not being a judicial function, is there a presumption that the use of the general term does not include a Chapter III judge simply because the function is non‑judicial and the person under contemplation is a judge?  That has got nothing to do whether it is compatible or incompatible.

MR ABBOTT:   We say yes because of the doctrine of separation of powers.

GAUDRON J:   Perhaps you have to qualify it.  There may be cases where it is clearly compatible with judicial office, for example, appointment to a law reform commission.

MR ABBOTT:   But the reason for Justice McHugh’s presumption is the doctrine of separation of powers.  It is that obstacle which - and which Parliament is deemed to have in mind when it legislates at all times that creates the presumption.

KIRBY J:   Would you help me on what it is precisely in this statute that the reporter has to perform that you say is incompatible with the judicial function?

MR ABBOTT:   In very brief, and I would like to come back to it, the reporter has to get his or her hands dirty in the local community by going about gathering representations.  The reporter has to listen to the representations.  The reporter has to give due consideration to them.  The reporter has to attach them to her report and then has to deal with a whole host of matters of local and particular importance to both contending sides:  those for and those against the making of any declaration.

DAWSON J:   But before we get to that I would still like to have the questions clear.  I think you can assume that a statute which is purported to allow the Minister to confer these functions upon a judge or upon a court, and they being non‑judicial functions, would offend against the separation of powers.  Why do you not put that to one side?  The statute merely talks of conferring the function upon a person.  Now, what Justice McHugh was putting to you, you have to read the section down further and say, “But by referring to a person, because they are non‑judicial functions, the legislature did not intend” - or if it did intend, that is another question - “to include a judge or court.”

MR ABBOTT:   That is precisely the Grollo question.  In Grollo Parliament ‑ ‑ ‑

DAWSON J:   Stop there.  That is the question.  The difficulty that Justice Gaudron put to you about that is that of course there may be some functions which are not incompatible ‑ I think that is way I want to put it ‑ with judicial office, which would restrain the reading down to that extent; the extent that Justice McHugh put to you.  Now, what I am going to suggest to you is that in reality you cannot get away from the persona designata doctrine, and that was what Justice Gaudron was reintroducing, because it is an exception to the principle that separation of powers is offended by someone who is a judge exercising non-judicial functions.  But, of course, that question arises at a different stage.  The statute does not necessitate that doctrine arising because we have excluded already judges being appointed as such, but the Minister can appoint a person and presumably the Minister can appoint a person not as a judge, but just simply as a persona designata, and it is then that the question arises, and that embraces what Justice Gaudron had ‑ ‑ ‑

MR ABBOTT:   Incompatibility.

DAWSON J:   ‑ ‑ ‑ the question of incompatibility.  Now, there be different  views on what is incompatible, but we do not get to that until we know what question we are asking.

MR ABBOTT:   But is not the answer to the processes which your Honour has spelt out, Grollo¸ where you have a case, in the Telecommunications (Interception) Act, of the legislature deciding that Chapter III judges should have a function, or indeed exercise a power, and so it has appointed them as persona designata by the express words of the Act.  And then the issue then becomes one of incompatibility as to whether or not such legislation is valid or invalid because of incompatibility.  Here this legislation does not give the express right to the Minister to appoint a Chapter III judge as persona designata.

DAWSON J:   It does not make any difference.  It gives a right to appoint a person.  Why cannot the Minister appoint a person not as a judge, but as a person?

MR ABBOTT:   Because of the doctrine of separation of powers.  Because the separation ‑ ‑ ‑

BRENNAN CJ:   You have said that before, I think, Mr Abbott, and I think we have really exhausted this area of debate.  The points are quite clear; the construction of the word “person”, having regard to the various considerations that have been put to you on the question of incompatibility of function.  Now, do we need to take it any further?

MR ABBOTT:   I would like to say this, your Honour, and again mention the phrase“separation of powers”.  Our argument is that because of the separation of powers and because a Chapter III judge can only be appointed as person designata, the fact that this Parliament has passed general words, the issue is whether, on a construction of those general words, power is given to the Minister to say, “In the unusual case of Chapter III judges who can only be appointed persona designata, I can do so without further legislative direction”.  That is the way we approach question 1.  I will pass on then to ‑ we say, “No”, because of the presumption that your Honour Justice McHugh referred to and for the other reasons.  As we have said in our written submissions that in a sense could be considered as a side‑wind, subverting separation of powers. 

Could I turn now to some further reasons why we suggest that the clear legislative intent to appoint a Chapter III judge as persona designata is required.  I have mentioned the Act and Grollo, and the fact that, in most cases, it is hard to generalise, and certainly not in all cases, but in most cases where Parliament has specifically nominated a Chapter III judge, or the court to which he or she belongs, as persona designata, Parliament has also set out certain rules and procedures for that person to follow.

We look at, in this case, this legislation to see what rules and procedures there are for this reporter to follow if she can accept, as persona designata, the role of reporter.  We find this legislation is significantly lacking to the extent that she has had to make up, in the sense of compile, her own procedures.  They are annexed to my learned friend’s written submission and show the lengths to which deficiencies, and we say significant omissions in the Act, require the person who is nominated as reporter, then to set about deciding how he or she will conduct her role.

DAWSON J:   That raises a further question, because the Act, upon that view of it, does not require the person to go about the task in a way which is incompatible with the exercise of judicial function.  The mere fact that a judge does perform a function in a way which is incompatible with the judicial function, may be just misbehaviour, but not unconstitutionality.

MR ABBOTT:   But, for the purpose of dealing with the following matters, it may require, depending on the exigencies of any particular reporting process, for the reporter to engage in that sort of conduct.

If one looks at subsection (4) and the phrase, “shall deal with the following matters”, our submission is that essentially that means “present both sides”.  She is, in essence, a fact gatherer, not a fact finder.  She is required, if she is able to accept this position - and we say she is not - to gather, via the representations so furnished, the facts which relate to each of the matters set out in subsection (4)(a) to (g) and it is that role which we say is clearly incompatible - I am not moving into compatibility - but the fact that she then has to report on those facts which she has gathered and canvass these matters bring in to issue the incompatibility argument, but also support our view on the first question that nothing is spelt out as to how she will deal with the following matters.

KIRBY J:   These arguments lead to the proposition that if Parliament had inserted “a person may be a judge of the Federal Court” that it would have been struck down because, by reason of the duties imposed or conferred, they are incompatible with judicial office.

MR ABBOTT:   Yes, that would lead only to one argument, and that is the incompatibility argument.

KIRBY J:   So we have to compare this case with Grollo.  The Commonwealth says that this is much closer to what judges do and less offensive to what they ordinarily do, namely gather facts, listen to people ‑ ‑ ‑

MR ABBOTT:   Adjudicate.

KIRBY J:   ‑ ‑ ‑provide the decision, or provide the information and lays down those facts as they find them; but this is quite different to Grollo.

MR ABBOTT:   Exactly.  I say this places the judge in a very difficult and dangerous situation, which is why incompatibility, we suggest, is so clearly raised in this matter.  She is a Chapter III judge, but as persona designata is advertising in the local newspaper and having literally hundreds of people ‑ ‑ ‑

DAWSON J:   You have got to realise that incompatibility is something that is far removed from merely performing a non‑judicial function.  The basis of the law is that you can confer non‑judicial functions upon a person so long as you do not confer them on him or her as a judge or a court.  Incompatibility is something which is different.  There are varying views on the extent but it must at least be something which by reason of the performance of those functions by the person, that person or the court as a whole, is disabled from performing its judicial functions.  But the mere fact that they are non‑judicial functions does not establish incompatibility.

MR ABBOTT:   We would submit the test is not disablement but prejudice to - it is not a question of her being disabled from performing her judicial functions.

DAWSON J:   For instance, bias.  If it necessitates a demonstration of even apprehended bias, that is a disabling circumstance because the judge simply cannot sit on the case.  It is that sort of thing, I suggest, that the court had in mind when it talked about incompatibility and it may extend beyond the individual judge to the court itself, but all I am saying to you at the moment is, not the fact - you are saying these are non-judicial functions.  Well, we may assume that.

MR ABBOTT:   Yes, I had assumed that.  They are obviously non‑judicial functions, but they are non-judicial functions which are significantly removed from the normal work of a judge, and whilst it may be perceived to have been desirable by the Minister to appoint a judge to be the reporter, to cast the judge into what were already very troubled waters ‑ ‑ ‑

DAWSON J:   It may have been controversial, but that does not matter.  Why is gathering facts incompatible with judicial function?

MR ABBOTT:   Because she has to write a report on the basis of those facts gathered in which she deals with one side and the other in terms of the representation she has received and ‑ ‑ ‑

DAWSON J:   Why is that incompatible?

MR ABBOTT:   Because, unlike a judge, her report is merely advisory to the Minister who can accept or reject so much of it as he sees fit.

DAWSON J:   That is the point.  It is a non-judicial function, that is clear, but why is it incompatible?

MR ABBOTT:   Because it is so far removed from judge-like functions that it becomes incompatible.  The incompatibility is demonstrated by what she has to do.

DAWSON J:   It does not matter how far removed it is.  That does not establish incompatibility by itself.

MR ABBOTT:   We would submit that the lack of any directions as to how she shall go about her job demonstrates, on the face of the statute, significant incompatibility.  Judges have a body of rules, the rules of court.  They have precedents, the doctrine of precedent by which they follow.  This judge, as persona designata, is cast, as I said, on the troubled seas of this inquiry as a reporter without those two great aspects of assistance which a judge normally has.

KIRBY J:   Yes, but judges for centuries have been adapting procedures.  They have been going to communities even smaller than this community.  They have been listening to lots of people.  They have been getting information and they have been summarising it and providing it in judgments.  They have been doing these sorts of functions for a long while.

MR ABBOTT:   Yes, but the reason why judges do it is that there is not - judges may engage in cases which are political, if you like, because they are the subject of or grow out of political controversies, but a judge, unlike a reporter, is perceived to be, in exercising judicial power, adjudicating and whilst certainly they can be involved in political controversy, they hear the case, and in so hearing a case which may be political, they do not derogate from their role and they do not act in a way which the public perceives them to be acting incompatibly with their role.  Judges act as judges in entering the political fray.  This judge is acting as a reporter in a political fray, and the difference between the two is chalk and cheese we say.

KIRBY J:   But she is acting as a reporter because she is a person.  She is not acting as a judge.  Justice Mathews remains a person.

MR ABBOTT:   Yes, but the public may not perceive that to be so and therein lies the danger.  As Justice McHugh observed in Grollo, in determining whether incompatibility exists the appearance of independence or impartiality is as important as its existence and in our submission, it is because the public knows that a judge is impartial when a judge sits on a case.  The public knows that a judge has not been singled out by a Minister or selected to adjudicate on an issue because of any perceived criterion.

GUMMOW J:   The question that the Court here is engaged through the possibility - and one might think perhaps, inevitability in some of these cases - of applications for judicial review which have to be brought into the Federal Court, a member of which is the person who has advised the Minister who has produced the decision in respect of which review is sought or, indeed, a direct application is made in respect of the conduct.

MR ABBOTT:   Yes.

GAUDRON J:   And its circumstances where there is nothing in the Act or the circumstances of the appointment that detaches her from the court of which she is a member and which has that jurisdiction.

MR ABBOTT:   Exactly.

KIRBY J:   That last point is important because, of course, members of the Administrative Appeals Tribunal and other tribunals of the Commonwealth are the subject of judicial review in the Federal Court.

MR ABBOTT:   Yes.

KIRBY J:   Here, there is no such statutory detachment.

MR ABBOTT:   And, indeed, we have made much of that, probably too great a length, in the course of our written submissions and we dealt with that aspect that specifically relates to Justice Mathews at page 44 of our written submissions.

DAWSON J:   But that does not go to separation of powers.  That only goes to undesirability.  I mean, it may be undesirable for a judge to take a position as a chairman of a tribunal which is not a statutory tribunal simply because that judge may be hauled before his fellows and it is suggested he, for instance, did not afford natural justice.  It is undesirable but it does not have anything to do with separation of powers.

MR ABBOTT:   That may be so, your Honour, but incompatibility can be either at large, if you like, in other words ‑ ‑ ‑

DAWSON J:   But at base we are talking about separation of powers in this area.

MR ABBOTT:   Yes.

DAWSON J:   There is a confusion between - I hesitate to say - misbehaviour, undesirable behaviour on the part of a judge and separation of powers.  The two are not co-extensive.

MR ABBOTT:   No.

KIRBY J:   Your theory would cover appointments by governments to university councils.

MR ABBOTT:   No, it would not, your Honour, because I say that has got nothing to do with the separation of powers.  Judges can perform other functions and being on a university council, a hospital foundation, are not examples of ‑ ‑ ‑

KIRBY J:   Well, I have been on three university councils and university councils often have to engage in inquiries into student activity or staff activity and sometimes are alleged to have withdrawn natural justice or failed to accord it.

MR ABBOTT:   Yes.

KIRBY J:   Usually, the judges are the people who sit on those inquiries.

MR ABBOTT:   But, your Honour, persona designata was not leaping from one of the three branches of government into another.  Your Honour was joining a university council which is neither legislative nor executive.

TOOHEY J:   Well, that perhaps points up another question.  What is the function that the reporter performs?  Do you describe it as executive?

MR ABBOTT:   We do.

TOOHEY J:   Why do you do that?

MR ABBOTT:   Because the only power is given to the Minister to make a declaration.  The Minister is thereafter, by the Act, obliged to engage in a process.  It can only be an executive function which he is performing.

TOOHEY J:   Well, that may not be an issue but that was not my question.  The question was:  why do you describe the functions of the reporter as executive?

MR ABBOTT:   Because they are being done for the Minister and because of the nature of the functions that she does.  If they are not executive, what are they?  They are certainly not judicial, and ‑ ‑ ‑

TOOHEY J:   May they be administrative?

MR ABBOTT:   Administrative and executive, we would submit.

BRENNAN CJ:   What is the difference, if any?

MR ABBOTT:   None.  So that we say in acting administratively for the Minister, in performing these functions she is performing the executive functions, the Minister is exercising executive power and there is comment in the Tickner and Chapman Cases, part of one of the judgments, I think the judge at first instance, Justice O’Loughlin, accepted an argument that was put to him by one of the counsel that the reporter exercises no power at all, merely exercises functions on behalf of the Minister.  Now I realise that that is under the AD(JR) Act and must be treated with some caution, but ‑ ‑ ‑

DAWSON J:   But merely to say that she was exercising administrative functions is to say that she is exercising non-judicial functions; I thought everyone accepted that.  It does not carry you the distance.

MR ABBOTT:   Well there are functions that - I would distinguish between functions such as Justice Kirby has adverted to, functions which do not fall within one of the three branches of government.

DAWSON J:   Perhaps they might, but all you are saying is, in suggesting these are administrative functions, is that they are non-judicial functions.  Well, so what?

MR ABBOTT:   And that they fall within the power and function of the executive branch.

DAWSON J:   Yes, yes.

GAUDRON J:   And that she is in fact acting as the servant or agent of the executive, which ‑ ‑ ‑

MR ABBOTT:   Yes.

DAWSON J:   She is doing something non-judicial.

MR ABBOTT:   But that raises, calls into ‑ ‑ ‑

DAWSON J:   That raises questions of incompatibility, but that is the question.

MR ABBOTT:   I am reminded of Reg  v Davison (1954) 90 CLR 353 at page 370, the passage commencing some five lines from the top, where the Court in essence seems to be saying that the reporter or the enquirer, whilst acting initially, is only performing executive functions. It is:

The nature of the final act determines the nature of the previous inquiry.

And we rely upon that principle that the nature of the final act, in this case, is the Minister deciding to make or not making a declaration, and we say that determines the nature of the previous inquiry which leads up to involve the Minister.

If I could go to our argument on the functions which the second defendant, as reporter, is required to discharge, at pages 45 and following of our written outline, we submit that the issue of incompatibility must be looked at, first of all generally in relation to the interpretation issue, and I have covered that as best I am able to, and secondly, with reference to this particular appointment, because that raises fairly and squarely the issue of incompatibility.

At page 44 of our written submissions we have addressed some matters which, in our submission, are especially referrable to Justice Mathews acting as persona designata and which militate against her so acting.  We have referred to the fact that she is the President of the Administrative Appeals Tribunal, Deputy President of the national Native Title Tribunal and in the light of those positions, as we have said further on, she runs a risk of having her actions as a reporter the subject of litigation in the Federal Court, of which she is a member.

KIRBY J:   Can we take notice of the fact that this was a very contentious, highly sensitive, very newsworthy sort of matter and that that could be a reason why a minister would want to have somebody who had high standing of independence, integrity and experience in dealing with not strictly judicial inquiries?

MR ABBOTT:   I think was undoubtedly the reason why the Minister ‑ ‑ ‑

KIRBY J:   Why should the words “any person” be narrowed down and why is this incompatible with an inquiry by such an experienced person who happens to be a judge?

MR ABBOTT:   First of all, dealing with just how contentious it is, I think your Honour can also take notice of the fact that there was a reporter first of all, Professor Saunders.  Her report led to the litigation in Chapman v Tickner, in the Federal Court Tickner v Chapman.  It led to a Royal Commission in South Australia, which is referred to, and after the Royal Commission’s results had been announced another application substantially from the same but with some additional applicants and certainly with reference to the same area as the first application was lodged.

BRENNAN CJ:   Mr Abbott, these questions were reserved by me for the opinion of the Full Court on the facts pleaded in the statement of claim and in the light of the letter from Senator Crowley.  That is the terms of the order.

MR ABBOTT:   I will desist from giving your Honours a potted history.

KIRBY J:   But we have been taken to the cases in the Federal Court.

MR ABBOTT:   Yes, which say something of the history.

KIRBY J:   I suppose we cannot really ignore them.

MR ABBOTT:   Could I deal with incompatibility by referring the Court to the tests which this Court has from time to time propounded in relation to incompatibility.  There are two decisions on which I rely.  In Hilton v Wells (1985) 157 CLR 57 the majority at the bottom of page 73 spoke of:

If the nature and 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.

Justices Mason and Deane, at page 83, line 6, spoke of:

This recognition is no doubt subject to the general qualification that what is entrusted to a judge in his individual capacity is not inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power.

In Grollo - and they are the only two references that I discern in Hilton v Wells - the majority, at page 235 - and the report I am reading from is (1995) 131 ALR 225 - said:

The incompatibility condition may arise in a number of different ways.  Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable.

In our submission, if that is one of the indicia of incompatibility, then one looks at what this judge does and that is helpfully provided by my learned friends in their appendix, and we find that this particular judge has taken on I think a number of roles as persona designata.  The role of a reporter is but the latest to a substantial list and we would, with all respect, invite the question:  when does she get time to act as a judge given the heavy workload which she has perforce assumed as persona designata.

KIRBY J:   Yes, but that is not unusual for judges to be seconded for a time to do royal commissions.  Look at Justice Wood in New South Wales at the moment.

MR ABBOTT:   No, it is not.

KIRBY J:   It has been done by judges in the whole history of this nation.

MR ABBOTT:   I recognise that.  I merely raise it as to whether or not there is a straw that breaks the camels back, and we argue that this is yet another commitment that she has made as persona designata to an already long list of commitments as persona designata.

KIRBY J:   Yes, but for all I know, there is time for Justice Mathews within her other duties to perform some work in the Federal Court, that is not unusual, in the arrangements, whereas Justice Wood, for example, performs no functions in the Supreme Court at the moment because his Royal Commissioner.  He has abeen for a year.

MR ABBOTT:   I submit the test is not what we know but what the public perceives, and if the public perception is that a judge, a serving Chapter III judge is in fact doing no work as a Chapter III judge, then the public perception ‑ ‑ ‑

KIRBY J:   When Sir Owen Dixon accepted his appointment to Kashmir, he did not work on this Court at that time.

DAWSON J:   And I think here is where the difficulty - and I wonder about the passage you have not yet been able to complete really - whether it is not too wide in some respects because you must bring it back, as the passage does at the end, every time to the separation of powers.  There are certainly some things that a judge should not do and if he does them will impair his capacity to function as a judge, but no question of separation of powers arises.

MR ABBOTT:   No.  That is obviously one ‑ ‑ ‑

DAWSON J:   And some of the larger statements here seem to get away from that and deal just with what is appropriate behaviour on the part of a judge and what is inappropriate behaviour and one has to distinguish, it seems, between constitutional imperatives and other requirements.

MR ABBOTT:   One of the constitutional imperatives which we say is mandated by a person’s appointment as a Chapter III judge is that that person serve as a Chapter III judge; as the repository of judicial power that he or she exercises it.

DAWSON J:   Yes.

GUMMOW J:   And is paid for.

MR ABBOTT:   Yes.  Well paid for.  The Court went on to say:

It might consist in the performance of non‑judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired.  Or it might consist in the performance of non‑judicial functions of such a nature that public confidence ‑

and we say that all these criteria are to a greater or lesser extent visible, at least from the public perception, in the case of this judge acting as a reporter in this case.

KIRBY J:   I do not quite understand it, but I do want to try to understand it.  Why, in a highly sensitive matter which has been through, if we could take notice of it, other inquiries and a lot of public concern, is it incompatible that a judge, a person of established integrity and experience, should perform?  It seems to be exactly the sort of thing that, if it had been a royal commission, a judge could do; why is it so incompatible with its being done as a reporter?

MR ABBOTT:   Because of the fact, as we identify in our outline, she acts in an advisory capacity to a Minister.  She gathers ‑ ‑ ‑

KIRBY J:   I suppose a royal commissioner does that, in a sense, to the Governor‑General.

MR ABBOTT:   Yes.  My response to the example of a royal commission is that that is on a different footing.  It is hallowed by a long tradition.  It has its own body of rules, at least under the prerogative under common law ‑ ‑ ‑

KIRBY J:   And a statute.

MR ABBOTT:   ‑ ‑ ‑ and statute.  There are books written about the conduct and behaviour and the way in which royal commissions are to be conducted.  A royal commissioner who engages upon his or her course has the safety net of commissioners’ precedent, and ‑ ‑ ‑

KIRBY J:   But that was devised in earlier times.  We now live in an age of great administration and lots of it.  Are we frozen in time?  We cannot adapt our procedures for new problems.

MR ABBOTT:   Well, obviously, as a general proposition, we can.  But the issue is whether or not, in striking out in a new direction of appointing serving Chapter III judges as reporters, this Court should give its imprimatur to such a course, and we would say not, for the reasons advanced.

KIRBY J:   It is not quite giving imprimatur.  I mean, the question has been raised as the distinction between the constitutionality, the statutory construction and the desirability or propriety.  So, we would not be giving imprimatur; we would simply not be striking it down as unconstitutional or incompatible with the statute.

MR ABBOTT:   One of the crucial distinctions which we draw between not just royal commissions, but some of the other appointments that have been made and which are on my learned friend’s list, is that they do not deal with disputes inter partes.  One has got to consider just what is happening here.  The report has gone down to an area of South Australia where there is an island.  We have got people who, in the one sense have their property potentially affected, and the reporter is, in effect, put straight into a melee of an inter partes dispute, and the Act recognises that by stating the matters which he has to consider and deal with.  One of them is subsection (4)(e), the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the applicants. 

So, she is right in the thick of things but, alas, unlike a judge, she pronounces no final determination.  She pronounces no definitive view.  She merely gathers facts and then writes a report, in which she fleshes out the facts and presumably might give some of her views ‑ it would be appropriate for her to do so ‑ such views may then be disregarded, in whole or in part, by the Minister.

It is those factors, with others, which we say put this reporter’s role far removed from that of a judge.  It may be very desirable, if it were possible that you get someone who is nearly like a judge to do so, but you have to look at the larger picture - whether, in getting a person who is a judge, it derogates from the very important, and we would say, the much more important role she has to perform as a judge as the repository of the judicial power of the Commonwealth.

DAWSON J:   It may be a function which is inconsistent with the importance and dignity of a judge; it may seem to be a fairly rudimentary administrative task, and for that reason it may something that a judge ought not to accept, but I do not see that that gets you to the separation of powers.

MR ABBOTT:   It gets me, I submit, to the incompatibility tests propounded by this Court in Grollo ‑ ‑ ‑

DAWSON J:   Incompatibility is just separation of powers in another guise.

GAUDRON J:   It may get you somewhere on your interpretation point, may it not.  It is not to be supposed that the Act authorises the performance of functions by a judge which would not be consistent, leave aside incompatibility, with that judge’s office.

MR ABBOTT:   I suppose the word is “demean”.

GAUDRON J:   Yes.

McHUGH J:   I do not know that you have to go so far, but it is important from the point of view of the separation of powers that public confidence in the impartiality of federal judges be maintained, and it is a corollary of that that federal judges be seen to be entirely independent of the executive arm of government.  Now under this legislation, everything can be done in secret.  The report does not have to be published; the judge does not sit in public; interviews persons; and on the theory that the Act would otherwise authorise a person who is also a judge to do this, they can do a bit of moonlighting on behalf of the executive government - probably getting their expenses paid by the executive government - interviewing people and then furnishing a report to the Minister.  It would seem to me that rather than non‑judicial standards of these other arguments that you have been relying on, it is this perception that seems to be a stronger point to my mind, anyway.

MR ABBOTT:   I have already mentioned the lack of any safety net for this judge as persona designata in performing her function.  No pre‑existing standards or methodology that she can use to protect herself from the real apprehension which we suggest the public will have that she is nothing more than a minion, if you like, of the Minister.  That seems to me to be the vice inherent in her taking on this role.  She becomes so closely identified with the Minister, but notwithstanding that she has chosen so she will not be, there is the very real risk that the public perceive her to be.  If this Court adjudges that to be a real risk, then we say incompatibility is thereby made out.

BRENNAN CJ:   What you are really saying is that you do not see judges in the anteroom to a ministerial office?

MR ABBOTT:   I hope not.  Of course, your Honour, one does not see them there.  That is why judges do not sit in Parliament; that is why judges do not accept direct employment from Ministers.  This is, in a sense, nothing more, we would submit than direct employment ‑ ‑ ‑

KIRBY J:   I do not think you can say this.  This is a statutory office that has its own statutory functions given by Parliament with its expectations of independent performance of the donee of statutory powers.  It is not an employment by the Minister.  It would be quite wrong for the person appointed to take that view of the office.

MR ABBOTT:   Well, I take that view on behalf of the public.  I say the public will perceive it as being nothing more than the Minister employing a judge to do his work for him and it is the public’s perception which is the important criterion.

KIRBY J:   Is there any guidance in discerning what is the proper limit of the function of a judge in either statements of other courts or statements of international principle on the limit of judicial function?

MR ABBOTT:   Yes, your Honour.  We have a copy of the American Bar Association “Model Rules of Professional Conduct and Code of Judicial Conduct”.  I have 10 copies which I hand up.  This is the 1989 ‑ ‑ ‑

KIRBY J:   There were some principles adopted in Quebec by an international conference that went to the United Nations, I think, and were adopted by the United Nations.

MR ABBOTT:   I must profess my total ignorance of that, your Honour, and I regret not having examined them.  These are, as we understand it, the latest, although promulgated in 1989, “Model Rules of Professional Conduct and Code of Judicial Conduct” and we particularly refer the Court to G, which should be on the third page in.  It is Canon 5 subplacitum G, “Extra Judicial Appointments”, and we say this puts it quite nicely:

A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy or matters other than the improvement of the law, the legal system, or the administration of justice.

And just pausing there, we say that many of the examples in my learned friend’s list deal with the improvement of the law, such as the Law Reform Commission, the Family Law Commission, Copyright Commission.  I read on:

A judge, however, may represent his country, state or locality on ceremonial occasions or in connection with historical, education, and cultural activities.

KIRBY J: These, of course, are expressed as meant to be, they must be and they should, and this touches the question of what a judge should do or should not accept as an office is nonetheless if accepted either outside the statute or incompatible with the Constitution.

MR ABBOTT:   Yes.

GUMMOW J:   But your point is, Mr Abbott, as I understand it, one would expect the Parliament, in using the words “any person”, in putting in section 10 to act on these premises also.

MR ABBOTT:   Yes, or premises like them, yes.  So you look at the function that she is obliged to carry out and you say that Parliament cannot have intended that she would do it, and thereby be appointed.

KIRBY J:   I suppose one.....for you on that argument is the fact that, in many cases where judges have been used, Parliament has expressed in federal statutes so provided and provided conditions and terms in the continuation of their judicial office, and so on; it is not universal for the list in the appendix, but it is very common.

MR ABBOTT:   Far more often than not, there are a couple of exceptions and I do not want to have to get - and nor do I intend to debate them case by case.  I want to make the general observation that on by far the greater number of cases where Parliament has attempted to utilise the valuable services of a serving Chapter III judge as persona designata, Parliament has expressly said so and expressly said how that persona designata will go about performing his or her role and that is what is missing from this legislation. 

Could I return to Grollo’s Case and deal with - after passing from the examples in the majority judgment at page 235 - I will not pause to read out the various examples - to then deal with the matters that your Honour Justice McHugh referred to at page 244.

McHUGH J:   I was a dissenting judge there.

BRENNAN CJ:   Nonetheless valuable, on that occasion.

McHUGH J:   It is a brooding omnipresence in the sky, waiting to be accepted.

MR ABBOTT:   Your Honour attempts to dismiss your Honour’s valuable judgment as a dissenting judgment.  I would like to urge a reconsideration of your Honour’s judgment in view of the fact that this Court may need to revisit the test of incompatibility in considering the questions in this case.

BRENNAN CJ:   What do you mean by that?  Do you mean that you want to ask the Court to reconsider Grollo and come to an opposite conclusion?

MR ABBOTT:   No, your Honour.  I am not here to argue, as I have said to your Honour before, that judges cannot be appointed as persona designata.  That is the first limb of Grollo. The second limb of Grollo, the incompatibility issue, I suggest there is some room for consideration by this Court as to the exact nature of the test.  I take what fell from this Court, from the majority, at page 235 as being a very broad statement with a number of examples thereunder, the broad statement being what is at the top of page 235, at line 7:

no function can be conferred that is incompatible either with the judges performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

I do not ask the Court to revisit that test.  What I do say then is what thereafter followed on page 235 appear to be examples of that test and your Honour Justice McHugh’s judgment, albeit dissenting, contains a number of valuable obiter which, in my submission, are in no way in conflict with the test proposed by the majority at page 235, if I am right in my selection of what is the test.

McHUGH J:   I think it was just the application of the test.

MR ABBOTT:   Yes, so I invite a consideration of your Honour’s dissenting judgment as some guide to how the test might be applied in the case in relation to the questions that this Court is currently considering.

Your Honour at page 244 spoke of the fact that there must be some limit to persona designata appointments and that seems obvious.  It is a limitation.  Your Honour said at line 18:

The constitutional wall that separates the exercise of judicial power and the exercise of executive power would be effectively breached if a federal judge could exercise any executive power invested in him or her as persona designata.  If, therefore, the non‑judicial functions of a federal judge threaten the ability of the judge to perform his or her judicial functions or if those non‑judicial functions are of such a nature that public confidence in the independence or impartiality of a federal judge to carry out judicial functions is threatened, those non‑judicial functions undermine the doctrine of separation of powers and are incompatible with the office of a federal judge.

From that I glean that this Court, in considering these questions, needs to address the degree to which it is perceived or not perceived that public confidence in Justice Mathews’ independence may be undermined by were she, as she has been, nominated as reporter and, as your Honour Justice McHugh went on to say:

In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence.

We stress those words and, in our submission, there is little appearance of independence and impartiality in the case of this reporter carrying out this job, which again militates against the Act being construed to allow appointment of Chapter III judges as personae designatae.  At the bottom of page 244 your Honour put the test this way, or at least put one approach this way:

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 citizens and the government and its agencies.

This is the very danger which is present in this case.  For the very reasons that the Minister would want to appoint a judge, lies in the danger in so making the appointment, or nomination in this case.  The very reasons why a minister would want to have a judge, so that the public might perceive that the reporter is acting judge‑like, the statement has in its own self the seeds of its own destruction because if this Court, as we submit it should, concludes that the dual functions, that is, judicial and executive, of the judge might be seen by the public to be merged, or at least that independence not preserved by what she has to do as a reporter, then that, in our submission, raises fairly and squarely an inability to appoint a Chapter III judge pursuant to the doctrine of separation of powers.

GUMMOW J:   I notice that the instruments, if that is what they are, or decisions that the reporter is issued from time to time, which are in the Commonwealth book, they are not signed “Jane Mathews, reporter”; they are signed “Justice Jane Mathews, reporter”.

MR ABBOTT:   Yes.  She has at all times ‑ ‑ ‑

GUMMOW J:   And a person reading that would think that this is issued by a judge.  Ordinary members of the community have bedrock views about what judges do?  They do not have fine views about their......by educated lawyers in sophisticated circumstances, but anybody reading that, and this was issued to these people or tendered at these various meetings, would get a pretty clear message I would have thought, that this is a judge who is acting as an adjunct to the Minister.

MR ABBOTT:   Your Honour has identified one of the important matters that we pray in aid of our argument, and that this really reinforces what your Honour Justice McHugh said at the foot of page 244 and the top of page 245, that in acting as she does and in calling herself a judge, how does the citizen perceive the crucial ‑ ‑ ‑

DAWSON J:   This is something which is implicit in a persona designata doctrine.  You have someone performing non-judicial functions and the public might perceive that they are doing it as a judge, but the fact is they are not.  There are lots of criticisms of the persona designata doctrine and very powerful criticisms, but that is implicit in the doctrine.

MR ABBOTT:   But the limit the doctrine and, particularly, the limit of the doctrine when - we are up against the doctrine of separation of powers, is not that she is acting as persona designata, therefore, that is enough.  It is the public perception, because that is the whole vice to which the doctrine separate of powers is aimed at, that is, one of the vices, the accumulation of different powers in the hands of one individual at the same time, and if the public perception is that the doctrine of separation of powers in whatever form the public perceives it, is being breached ‑ ‑ ‑

DAWSON J:   Yes, but what I was putting to you was that, really, the problems thrown up Justice Gummow is to say the public may not understand that the judge is a persona designata, not a judge.

MR ABBOTT:   And, indeed, let us accept that they do not ‑ ‑ ‑

DAWSON J:   But that does not carry you anywhere with the separation of powers, or perhaps it does.

MR ABBOTT:   I would submit that it does, because it would be a fortiori then, because it points to, as I said, the vice which the separation of powers doctrine is designed to prevent, the accumulation of powers in one hand.

DAWSON J:   Well, then, it comes down to this, that if the nature of the function is such that one cannot keep a clear distinction between persona designata and the judge, then that is incompatible.

MR ABBOTT:   Yes, and indeed Justice McHugh said so at page 245, line 4:

The persona designata exception to the Boilermakers’ principle must therefore give way when the exercise of non‑judicial functions impairs a federal judge’s ability to perform judicial functions -

and these are the important words -

or when it would give rise to a reasonable doubt as to the independence or impartiality of a federal judge.  In either case, parliament cannot constitutionally invest executive power in a federal judge as a persona designata.

We say that the touchstone is not what a lawyer might think of this or indeed, with respect, what your Honours as individuals might think of it; the touchstone is what the public perceive, because the doctrine is a protection for the public and it is whether or not the public perceive that the doctrine has been flouted or in any way abrogated, and your Honour Justice McHugh said as much, at line 15 on page 245:

If, therefore, reasonable people, not trained to discover “distinctions without differences”, might reasonably apprehend that the functions undertaken by a judge as persona designata impaired his or her ability to carry out judicial functions or conflicted with the judge’s independence or impartiality, those non-judicial functions cannot constitutionally be invested in a person who is a member of a federal court.

We submit your Honour is not there at odds with the majority; the majority did not, I think, directly allude to that aspect in the judgment of the majority, and we would invite this Court in answering these questions to endorse at least that portion of your Honours dissenting judgment.  We are heartened and indeed adopt the concluding words your Honour said in this section:

those who assert the compatibility of the non-judicial and judicial functions of a person who holds office as a federal judge have the burden of proving that those functions are compatible.

So it was perhaps a case for my learned friends going first.  Those are the submissions we wish to make on the issue of incompatibility, so far as the law is concerned.  I do not propose to read out large slabs from my written outline in view of the ‑ ‑ ‑

BRENNAN CJ:   It is unnecessary to do that, Mr Abbott.

MR ABBOTT:   Thank you.  I think I have finished, if the Court pleases, in putting the important matters in oral argument that I wanted to add to my written argument.

BRENNAN CJ:   Yes, thank you, Mr Abbott.  Yes, Mr Solicitor.

MR GRIFFITH:   If the Court pleases, can we go first to the construction point, which has been teased out, it seems, in exchanges between my learned friend and the Bench.  Your Honours, dealing with the question of whether or not “person” should be construed as having a limited meaning, in our submission there is a short answer to that.  We do open up on the various provisions where there is an absence of express statutory warrant in our appendix 1 to our green volume of materials on page 12, under the heading (3), where we refer to statutory examples of:

Absence of express statutory warrant for the appointment of a Chapter III judge -

and, of course, in the appendix (2), which Justice Gummow referred to, we list various judges, some of whom have accepted appointment under this Act, but could I take the Court ‑ ‑ ‑

GUMMOW J:   Well, a matter of fact, Mr Solicitor, the attribution for me in this class in paragraph 20 on page 19 is just wrong; I was a member of the New South Wales Bar when I received that appointment.  I do not know how many other materials that your assistants have ferreted out are wrong either.

MR GRIFFITH:   Your Honour, thank you for pointing it out.  Our source was “Who’s Who”, so we apologise for having a less than integrable source, your Honour, so we do apologise for that and may we withdraw that ‑ ‑ ‑

GUMMOW J:   I am not offended, but I just wonder about the veracity of the rest, that is all.

MR GRIFFITH:   Your Honour, it was rather a difficult table to draw up and our source was not as authoritative as it should be, so may we withdraw.  But, your Honours, with that unfortunate start, may I refer to what we say is a position which gives a plain answer, and that is the Royal Commissions Act.  Could I give the Court a print of merely the first page, sections 1 and 1A, of that Act.

GUMMOW J:   But what about section 7 of the Royal Commissions Act?

MR GRIFFITH:   Your Honour, I have not got to section 1A yet, but that is an immunity provision.

GUMMOW J:   Exactly.

MR GRIFFITH:   Yes, well, your Honour ‑ ‑ ‑

GUMMOW J:   That throws some meaning on these sections you have partially given us.

MR GRIFFITH:   Your Honour has picked me up on my first step of what was meant to be a series of propositions.

GUMMOW J:   One would have to read section 7 with section 1.  Of course it contemplates a judge because it then gives the judge these protections under section 7, which you are not given in this case.

MR GRIFFITH:   Can I go back?  Your Honour, the Royal Commissions Act section 1A provides a statutory authority for a royal commission.

GUMMOW J:   Yes.

MR GRIFFITH:   We submit that that is merely supplemental to a prerogative capacity and in many cases it is difficult to say from the Commission itself whether it is pursuant to the prerogative or pursuant to the statutory provision of section 1A.  In either case, the provisions of the Royal Commissions Act would apply according to their terms and give coercive powers.  Your Honours, in ‑ ‑ ‑

KIRBY J:   Has not the Royal Commissions Act expelled the prerogative in this respect?

MR GRIFFITH:   No, your Honour, it does not.  The prerogative power to appoint royals commissions is maintained.

KIRBY J:   Is that specifically reserved in the Act?

MR GRIFFITH:   It is in section 1A that I just gave to the Court.

KIRBY J:   I see, yes, I am sorry; I had not looked at it.  Is that, in fact, used, or do you say it is not clear as to whether the royal commission ‑ ‑ ‑

MR GRIFFITH:   My understanding is that often it is not clear.  That it seems there is no need to discriminate because the functions of the Royal Commissions Act is regarded as giving the coercive powers.  Absence a requirement to have coercive powers, then, of course, there is the common law capacity to appoint a person to inquire.  Could I hand the Court the reported decision of Justice Stephen in this Court in Reg v Collins; Ex parte ACTU‑Solo Enterprises Pty Ltd, 8 ALR 691. There, of course, at page 694 and 695, his Honour ‑ ‑ ‑

BRENNAN CJ:   Just wait for a moment, if you would, Mr Solicitor.

MR GRIFFITH:   At the foot of page 694, after reference to the CSR Case which is often referred to on the issue of authority to appoint royal commissions, his Honour Justice Stephen noted:

At common law no limit exists as to the powers of inquiry of the executive government; these powers it may exercise by means of Royal Commissions and if it does so no question can arise for the courts as to the propriety of doing so.  The courts will not “inquire into the propriety of executive action”-

and his Honour goes on to say:

The power to legislate carries with it a power to make inquiry, if necessary by Royal Commission.....no legal objection exists to “commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos.

Your Honours, we would say that, firstly, the provisions of section 10 of the Act are perfectly compatible with the relevant report being furnished by a royal commissioner appointed either pursuant to the prerogative power or pursuant to section 1A of the Royal Commissions Act.  All that is required is that there be a report received under subsection (4) and that under subsection (4) there is a requirement as to matters to which a report may deal.  We would say it goes without argument that were a person appointed a royal commissioner, pursuant to the prerogative of the Royal Commissions Act, such a report could constitute a report within the full meaning and operation of section 10.

BRENNAN CJ:   What would you contemplate as the terms of reference of such a royal commission?

MR GRIFFITH:   It would be to report in relation to the matters required to be reported on pursuant to subsection (4) in relation to the particular matter of inquiry.

BRENNAN CJ:   Has there ever been a royal commissioner appointed to report on matters, the existence of a report being a condition precedent to the exercise of a statutory power?

MR GRIFFITH:   Your Honour, I cannot immediately report such an example but, of course, the nature of royal commissions is, your Honour, that they may investigate many things.

BRENNAN CJ:   Yes.

McHUGH J:   But another problem about this argument is, is it not, that royal commissioners are appointed by the Governor‑General with the advice of the executive council.  Section 10 is talking about a person nominated by the Minister.

MR GRIFFITH:   We submit, your Honour, that it would be consistent with the language of section 10 for the person nominated by the Minister to be granted a royal commission.  A report pursuant to a royal commission, nonetheless, would comply with section 10.  Now, your Honours, the point we make is that it must go without argument that a judge might be appointed a royal commissioner.

GAUDRON J:   Well, I am not too sure about that.  You assume it but it may well depend on the subject matter of the royal commission.

MR GRIFFITH:   Your Honour, we have several examples in our appendix 2 under paragraphs 11, 12, 32, 33, 47.

GAUDRON J:   And, in particular, it may depend on whether or not you have got a situation in which a royal commissioner is clearly being appointed as a servant or agent of a minister for the purpose of making a statutory decision.  You see, you may say that you could appoint a royal commissioner, but it does not seem to me to answer the problem in this question.  If you appoint a royal commissioner who happens to be a Chapter III judge; I think you have still got the same problem.

MR GRIFFITH:   Well, your Honour, I refer to this on the issue of the issue of construction:  what does person mean for the purpose of section 10?  It is suggested that there is something inherent in the nature of the report under section 10 which may indicate that “person” means any person other than a Chapter III judge.

McHUGH J:   The point, it seems to me, Mr Solicitor, is that in a system of a separation of powers, you would not ordinarily expect the Parliament, except in the absence of clear words, to be asking judges, persons who hold judicial office to, in effect, moonlight on behalf of the Executive Government.

MR GRIFFITH:   Your Honour, we submit this is not any moonlighting on behalf of the Executive Government.  It is a function to make a report.

McHUGH J:   But it is done in secret, or it can be done in secret.  There is no need to have a public inquiry.  You would furnish a report to the Minister.

MR GRIFFITH:   Well, your Honour, so may royal commissions be done in secret.

McHUGH J:   Well, of course they may but it is all done under statute and authorised and, as Justice Gummow pointed out, the royal commissioner has all the protection of a judge.  Here, this judge furnishes a report; may be sued for defamation; she has got the doctrine of qualified privilege to protect her and nothing else.  You would not ordinarily expect governments to put judges in that position, people who hold judicial office.

MR GRIFFITH:   Your Honour, that is exactly what happens in the Grollo situation.  It could be that a Federal Court judge who makes an order in respect to an interception warrant could be put in a witness-box in the Federal Court and interrogated as to the circumstances of the making of an order of an issue of an interception warrant.

McHUGH J:   That is so, Mr Solicitor, but the judge has protections and immunities under the Telecommunications (Interception) Act, section 7(4), if I remember rightly.

GUMMOW J:   Section 6D(4).

MR GRIFFITH:   With respect, your Honour, the issue of whether or not the judge requires immunity should be a decision for the particular judge.

DAWSON J:   Anyway, it has got nothing to do with separation of powers.

MR GRIFFITH:   That is my point, your Honour.

DAWSON J:   While you are interrupted, the section does not impose a duty on a person nominated to furnish a report if that person does not accept the nomination.  Do you concede that?

MR GRIFFITH:   Of course, your Honour.  The precise point of the annexure to the case of the letter of authority shows that it was after an indication from the judge that she would accept the nomination.  Of course there is no aspect of duty whatsoever and, your Honour, as to the question of protection, if the judge seeks to accept the office and agrees to accept the office without the protection of section 7 of the Royal Commissions Act or some equivalent in this Act, in our submission, that is a matter for the individual judge.

KIRBY J:   But many commissions of inquiries which are in your appendix 1 which have been conducted by judges, some of them State judges, some of them federal, were they performed pursuant to the prerogative or particular statutory function, do you know?  It is appointment by the executive.  Take for example the inquiry that Sir Owen Woodhouse performed on compensation and rehabilitation.  How would that have been done?  Just appointed by the Minister I suppose.

MR GRIFFITH:   Your Honour, there probably will be examples where there is an appointment in inquiry which does not constitute an appointment pursuant to a particular statute or certainly not pursuant to a royal commission.

KIRBY J:   What about Sir Nigel Bowen, his committee of inquiry into public duties and private interests?  Presumably it was just an appointment by the Attorney‑General.

MR GRIFFITH:   Presumably, yes, your Honour.

KIRBY J:   Is there any case where there is a statutory provision dealing with “any person”, save for the Royal Commissions Act, that is analogous to this case or not?

MR GRIFFITH:   Your Honour, we do list those examples, where there are relevant examples of judicial persons taking the office, by reference to paragraph (3) on page 12 running onto page 13.  They are all statutory examples where, as one will see from appendix 2, judges have been appointed as an individual to such offices.

KIRBY J:   The chairperson of the National Crime Authority, does that Act contain specific provision relating to a judge being appointed?  I thought it did.  I am looking at page 12.

MR GRIFFITH:   I am sorry, I am at paragraph (3), your Honour, on page 12.

KIRBY J:   I am sorry, I was looking at (2).

MR GRIFFITH:   Of course the examples under (2), your Honour, I think there are specific provisions saying that if the director‑general is a judge, for example, but those under paragraph (3) are examples of appointment.  While we refer to that, can we deal with the issue raised by Justice Gummow, the fact that the judge describes herself as “Justice Jane Mathews” on page 11 of annexure 2 to our submission.

Your Honours, in our submission, that is no more than equivalent of the judge signing herself Ms or Mrs J Mathews ‑ any judge whose designation is “Justice”, if they are a judge of the court of record, or ‑ ‑ ‑

KIRBY J:   I have a dim recollection, Solicitor, that in the Law Reform Commission Act, when I was appointed, it had a specific provision to the effect that service as a member of the Commission shall be deemed to be service as a judge, which I always took to be there in order to protect against some doctrine that, without that specific provision, it might be that it would be an interruption of service.  There is nothing here that gives such protection to Justice Mathews.

MR GRIFFITH:   Well, of course, your Honour, that was dealing perhaps with the problem relating from the designation of judges of the Arbitration Commission and Industrial Relations Commission ‑ ‑ ‑

KIRBY J:   No, no, it was in the original Act, I think.

MR GRIFFITH:   Well, then as a statutory provision for the appellation justice to be given to those officers.

KIRBY J:   I think it was a general provision in the Law Reform Commission Act.

MR GRIFFITH:   Your Honour, perhaps that was thought necessary because it was a full time appointment, your Honour ‑ total detachment for five years - but the point I would desire to make, it would be more in question of how your Honour might be listed as a chancellor of a university, in our submission, if one went to the university records, one would find the designation, “Justice Michael Kirby, AC, CMG”. That is your Honour’s designation. 

KIRBY J:   Yes.  Myself, I am not troubled by the fact that Justice Mathews described herself as Justice Mathews.  However, she could not describe herself really ‑ ‑ ‑

MR GRIFFITH:   Well, perhaps I had better turn left, your Honour, because that was the point I was seeking to address by picking up the reference to the fact that she has got written underneath, “Justice”.  I suppose ‑ ‑ ‑

BRENNAN CJ:  But, the point that is being made is not really a question of personal appellation, it is a question of the personal appellation being rightly attributed; what is the effect of that in the context of the functions which her Honour is performing?

MR GRIFFITH:   Your Honour, we have circulated the second reading speech.  May I take your Honours to that, in particular page 2130 of the Minister’s ‑ the extract commenced 2129 ‑ and I will not take your Honours to the left‑hand column which summarises the operation of legislation and its importance, but in the right‑hand column under “Scheme of protection”, after paragraphs 1, 2, 3, the Minister says:

Where a declaration may be made in respect of an area for a period of more than 30 days, the Minister will be obliged to receive and consider a report prepared by an independent person dealing with the range of issues that such an application may raise.

Now, in our submission, your Honour, notwithstanding the descriptions of prejudice of my learned friend, this matter of inquiry is a matter of true independent inquiry.  It is not ‑ quite frankly, your Honours, we would submit it is insulting to describe Professor Saunders, let alone this person, Justice Mathews, as being a minion of the Minister in this inquiry.

BRENNAN CJ:   This seems to me to raise the real difficulty of reference to second reading speeches.  What would be outside the power of the Minister under section 10 if the Minister were to appoint his private secretary to make the report?  Would it be ultra vires?

MR GRIFFITH:    No, your Honour.

BRENNAN CJ:   Well then, what is the significance of a second reading speech that speaks of independence?

MR GRIFFITH:   Your Honour, perhaps I should go back to the statute itself, and say that the duties of inquiry are independent ones, which, where there are obligations which may be enforced by review under the Administrative Decisions (Judicial Review) Act, and which have been enforced in respect of these very matters of inquiry, which make it quite plain, your Honour, that this inquiry is an independent inquiry as to matters of fact, by reference to the paragraphs of subsection (4), where there is an obligation of the person engaged in the inquiry to comply with appropriate principles of procedure and fairness and the like.

BRENNAN CJ:   In other words, to conform to ordinary administrative requirements?

MR GRIFFITH:   Exactly, your Honour.

BRENNAN CJ:   That does not maintain the question of independence in the sense in which that is being put into the second reading speech.  That is obviously a piece, if I might say so, of departmental double-speak in order to dress up the proposition that is within the legislation.

MR GRIFFITH:   Your Honour, I could be discarding that case, your Honour, but perhaps I could assure your Honour there is no intention to dress up because we would submit, your Honour, until the suggestion is made that the word “person” in this particular context should not be given its ordinary meaning as that word “person” is used in, for example, section 1A of the Royal Commissions Act and given a particular narrow purpose, there is no reason to dress anything up to deal with it.

Your Honour, our submission is that it would be to introduce a new concept to require - when one has a provision of this sort, to have the introduction of provisions of extension beyond the wide word “person” to say, “including a person who may be a Chapter III judge”.

GAUDRON J:   But we must start with the proposition that it is to be read down.  It cannot be a judge of the Federal Court, it cannot mean that.

MR GRIFFITH:   As such.

GAUDRON J:   As such.  So that we start by reading down.  The question is where you draw the line at reading down.

MR GRIFFITH:   With respect, your Honour, that is a completely untenable suggestion as being a relevant matter for inquiry.  It could not possibly be intended that “a person” would mean that there would be a power within the Minister to appoint a judge as a judge.

GAUDRON J:   Exactly.

MR GRIFFITH:   It does not get in the ring.

GAUDRON J:   That is right.  So we have started by reading down.

MR GRIFFITH:   Not at all, your Honour, because that is a completely different, with respect, to say, “Is there, within the ambit of the word ‘person’, an extended meaning which means ‘a person in their capacity of a judge of a Federal Court’”?  Perhaps we are approaching it from a separate way, your Honour, but we would submit that it must be a starting point to say that this provision has absolutely nothing whatsoever with any issue of vesting functions in either a Chapter III court or in any justice of the Chapter III court in their capacity as a justice.  We submit that is a non‑issue.

GAUDRON J:   You would not read it as applying to a judge other than in his or her capacity as a judge if the functions were, in truth, incompatible.

MR GRIFFITH:   Your Honour, that might be the question of where one decides the impossibility.  Our submission is, your Honour, one decides in the impossibility not by, at that stage, adopting an unnatural construction of “person”, but at the next stage of saying, “Well, if that person happens to be a Chapter III judge and that function is incompatible, well, then notwithstanding that they are a person, as any adult individual would be, nonetheless, because of the incapacity, it is constitutionally impermissible.”  One gets the same result.

GAUDRON J:   Yes.  Then why would you not go the next step and reverse the negative when you say you would only read it as including a person who is a judge if it is clear that the functions involved would no way bring his or her judicial office into question?

MR GRIFFITH:   Your Honour, that is perfectly acceptable.  It has the effect of collapsing question 1 and 2 together.

GAUDRON J:   Yes.

MR GRIFFITH:   One difficulty for us with the plaintiffs’ submissions is that, firstly, on question 1, that was in the first 29 pages, doing the best we could, we were unable to discern the point which was being made and dealt with it as best as we could in, I think, the two and a half pages of our written submissions, but it does seem now we have made progress and identified, if there is a separate issue, not collapsed together, as to whether or not, as a matter of construction, we would understand the inquiry, apart from having already concluded that there is an incompatibility of function, if such person is appointed, which means one gives a restricted meaning.

The point I was seeking to make, but I hope it is not regarded as spite, by reference to section 7 of the Royal Commissions Act, is that we would submit that the word “person” should no more be read down in section 10 than in section 1A, accepting your Honour’s point that, yes, but there is a difference, because one carries with it the protections, the other does not.

GUMMOW J: Yes, but “person” simply cannot mean “person”. It has to be read down to some extent. It cannot mean the Governor‑General. It cannot mean a member of either House of Parliament. We say, “Why?” Well, obviously because it comes out of the Constitution. Now, why is it any different vis‑a‑vis Chapter III?

MR GRIFFITH:   Well, with respect, your Honour, to adopt that approach is to establish a new doctrine that when one uses the word “person” one must, if ever to apply to a judge, add a designation of “judge”.  For example, in the Income Tax Assessment Act provision.

McHUGH J:   No, but when you are going to invest this sort of executive power in a person to assist a Minister.  As I said earlier, it seems to me, in a system of separation of powers you would not ordinarily expect Parliament to be asking judges or persons holding office as judge to be doing work on behalf of Ministers or for Ministers.

MR GRIFFITH:   Your Honour, with respect, firstly, this is a power of inquiry, not an executive act.

McHUGH J:   Mr Solicitor, I accept that but the inquiries can be in secret.  There is nothing public about it.  The report does not have to be published.  The Minister can be on the phone every day to the  ‑ ‑ ‑

MR GRIFFITH:   No, we would deny that, your Honour, absolutely deny it.  Your Honour, we say we have annexed procedures to show that the judge has established her own procedures and is exercising her powers completely independently, your Honour, we say ‑ ‑ ‑

KIRBY J:   I must say that I would have interpreted the statute to require that of the reporter.  The reporter is a person who has functions under an Act.

MR GRIFFITH:   We submit, your Honour, that section 10(3) sets out exhaustively the manner in which representation is to be obtained and the matters which a report must cover under section 10(4).  There is no uncertainty about the function.  The Minister has no power to interfere with reporting function at all.  We say the section plainly envisages that once there is the appointment, the Minister has no role to play between the act of nominating and receiving the report.

McHUGH J:   But why cannot the reporter receive representations from the Minister, for example.  I mean, I appreciate ultimately he has got to make the decision but why is there anything to stop the Minister making representations.

MR GRIFFITH:   Well, your Honour, that would establish the independence of the person that the Minister, like anyone else, makes representations.

McHUGH J:   Yes, but they can be made in private; the report can be handed over in private.

MR GRIFFITH:   Well, your Honours, so may a royal commission report.  It may be entirely suppressed.

McHUGH J:   Well, Iknow this but the point is that it is usually held in public, although sometimes they are held in secret.

TOOHEY J:   I have to say, Mr Solicitor, my concern is that the two questions really - some stages they are being considered separately.  I do not mean in your argument - but other times they are run together and blurred, I think, because the question of construction is one question which really goes to the nomination of a person.  The acceptance of the nomination by that person may, in a particular case, such as the present, raise questions of incompatibility by reason of that person’s office but it does seem to me that they are two quite separate questions.

MR GRIFFITH:   Yes, your Honour, but it does seem the first question is only postulated when one apprehends there might be an issue on the second question.  Absent that one does not have to postulate the first question.  So that, it is clear, as perhaps the exchange with Justice Gaudron indicated, that, in effect, this whole issue is controlled by the issue of incompatibility, in our submission.

TOOHEY J:   Well, only if it then intrudes into the area of construction leading, on one view, to a reading down of “person” to exclude someone who holds judicial office under the constitution.

MR GRIFFITH:   Your Honour, we would submit that if there is incompatibility, then that is the end of the matter.  So, it is not necessary to read down, as it were, the meaning of “person” because a judge cannot take the office, whatever the meaning of person.  If there is no incompatibility, in our submission, there is no occasion to engage in this reading down process so that it may well be, as I think it was implicit in Justice Gaudron’s question that ‑ ‑ ‑

GAUDRON J:   I put it around the other way.

MR GRIFFITH:   I think your Honour put it both ways, in the end.

GAUDRON J:   No, I put it on the basis that why would you not read “person” generally - I am speaking in a general context - as not including a Chapter III judge unless it is clear that the functions in issue are compatible and do not bring judicial office into question. 

MR GRIFFITH:   Your Honour, perhaps that is the equivalent of saying that if the function is one which is not incompatible with judicial office ‑ ‑ ‑

GAUDRON J:   You do not go to ask that question, you just ask, “Is it clearly compatible?” full stop, or, another way of saying it is, “Look at this” and say, “Look what is to be done.  Would you expect a judge to be acting as the servant or agent or even as the nominee of the Minister?”  Answer, “No”.  Therefore, the judge is not a person for the purposes of section 10.

MR GRIFFITH:   With respect, we would say that the answer is not no, and that is why we refer in appendix 2 to the long tradition of judges, exercising their own discretion - there may be grey areas - but, your Honours, may I make a passing reference to the fact that the plaintiffs did file supplemental materials referring to United States decisions, particularly Mistretta.  We were not quite sure where the submission came from, but it was filed, and we have filed today a response which I do not intend to take the Court to in detail, other than to say that in as much as the plaintiffs put this matter of US cases in the ring, our written submission seeks to answer that, but the United States’ decisions of Mistretta and Scarfo there discussed, indicate that there is a distinction between judicial activities which are forbidden by the Constitution and those which are merely undesirable from the standpoint of public perceptions of the courts, and we would submit that this was in essence the point that Justice Kirby seemed to be making in his questions of my learned friend, Mr Abbott.

So that an extrajudicial appointment of a judge is not necessarily unconstitutional merely because it is open to criticism on grounds of its effect on public perceptions of the court, so the view might be taken that a Justice of this Court should not be ambassador to Washington or a view might be taken that a justice of the Federal Court should not be ambassador in large as to matters dealing with nuclear weapons and the like.  But, in our submission, that does not characterise it as unconstitutional merely because there may be criticism.

GUMMOW J:   I think a point that was made there though was that they are rather distant from the sort of thing that judges do and that the problem for you in this case is that the sort of thing that Justice Mathews is doing is dealing with an inter partes dispute, affecting the rights of parties indirectly or may affect them and that this confabulates it in the public’s mind.  This is Justice McHugh’s point drawing on, I think, the US Supreme Court in Grollo. It is when it gets very close to the judicial that it becomes confusing and that that is the sort of thing, reading the section in the context of the Constitution, that one would not have inferred that “person” involved a judge doing that without express power.

MR GRIFFITH:   Your Honours, I will not take you through the list of these matters which are in our appendix 2, but, for example, someone might take the same view as a judge being president of a copyright tribunal recommending against parallel importation and increasing the value of CDs by $10; one has very much there a mixing with matters of controversy and current political policy of, in effect, having a repository of a recommending capacity to deal with the developments of the whole range of copyright law and intellectual property, but, your Honours, the examples are many.  Some are, as in Sir Owen Dixon, somewhat historical, others very much still contemporary. 

Indeed, the issue of the Law Reform Commission might be one example.  One looks at the polemical nature of many of the current references of recent years to the Australian Law Reform Commission, and one has an acceptance that it is quite appropriate for a judge of a Federal Court to be involved in issues of perhaps contentious, social and political debate in making recommendations, and we would submit that, notwithstanding the fact that the Minister is the person who must make a decision under the terms of this Act in the Minister’s capacity as Minister, the function of the report is merely to give a dispassionate report on the facts, the matters listed in subsection (4), which are matters very much consistent with the sort of function which a judge exercises.

DAWSON J:   It is put against you that to accept an appointment of this sort is demeaning the judicial office.  What do you say?  That has got nothing to do with separation of powers?  It may reflect upon the court, but it does not reflect upon the court in a way in which separation of powers is involved?

MR GRIFFITH:   Indeed, your Honour, and we also make the point that in respect of this matter of controversy, it could be put, on the other hand, entirely appropriate that one should have the capacities of judicial ability brought to bear for this function of reporting on the facts to the Minister.

DAWSON J:   But that may be said, on the other hand, to be incompatible because what the Minister is attempting to do is to use the status of a judge in order to add veracity to use of administrative function; and that is incompatible function of the court.  That is the sort of thing which is said.

MR GRIFFITH:   With respect, the inquiry is one of whether or not the constitutional line of incompatibility has been closed.  We refer to this list to indicate that certainly there are divergent approaches by Federal Court judges.  There are various offices which could be described as falling, if one might put it, in the grey area.  None of these offices which we list has been held to be unconstitutional, and we make the point that the attributes of this inquiry are far closer to those of the judicial function than are the attributes of the function in the Grollo Case with respect to the issue of interception warrants.

DAWSON J:   Search warrants are really in a separate position because of their history and so on, are they not?  There are difficulties about them which were decided in the Grollo Case in a particular way, but they stand in a position of their own.  Do you draw a distinction between undersirability and incompatibility?

MR GRIFFITH:   Your Honour, that is what I was seeking to do by referring to this variation in practice, that minds might differ between Justices within this Court or judges of other federal courts, but the issue is when do we get to the point of incompatibility?

DAWSON J:   One of the distinctions would be where a judge disables himself from performing a function by, for instance, prejudging an issue or in some other way incapacitate himself from carrying out his judicial function.

MR GRIFFITH:   We would accept that, your Honour, but the fact that this judge could not sit in a matter involving the Hindmarsh Bridge is not the point at all.

DAWSON J:   No, not that.  I mean, for instance, that the judge has to determine the very issue that may rise to the determination in judicial proceedings.  That sort of incapacity.  Then it said that is not enough because it is not just the individual judge, it is the whole court and the conduct may be such as to reflect upon the court so as to impair its capacity to perform its functions.

MR GRIFFITH:   Your Honour is, in effect, right in large, the area identified by Grollo, and not so much in the middle of the page but the top paragraph in the page my learned friend referred to, and what we submit to the Court is that notwithstanding the acceptance of this limitation, both in Hilton v Wells and in Grollo, there has yet been no decision of this Court as to an example of judicial incompatibility which falls within that recognised and accepted category.

BRENNAN CJ:   This is the problem, it seems to me, Mr Solicitor, this case raises.  It is not really answered by the historical materials with which you favour us.  If there is a real limitation on the persona designata doctrine by reference to incompatibility then perhaps it is necessary to go further than was gone in Grollo in order to define what that criterion of incompatibility  is.

MR GRIFFITH:   We accept that, your Honour.

BRENNAN CJ:   It may be that one looks at the kind of function that a statute intends to be reposed in a particular person in order to determine whether or not it goes beyond the power.

MR GRIFFITH:   Your Honour, could I say something about that?  On this issue of construction the point is whether or not “person” should be construed as person other than a person holding office as a Chapter III judge.  Our submission is, for the purpose of the inquiry your Honour just postulated, if one assumed that section 10 said “person, including a person who happens to hold office as a Chapter III judge, if that person consents to such appointment”, then we would agree one gets to that point of inquiry and our submission is, your Honour, that is the point of inquiry in this case because we say the proper construction of “person” does include an operation which would include a person within the ambit of the definition of “person” who is not being appointed in their capacity as a judge, but they happen to have the office of a judge.

BRENNAN CJ:   It would really only alter the point of reference, would it not?  If the functions conferred on the reporter under section 10(2), having regard to their nature as defined in subsections (3) and (4), are incompatible with, however one wants to put it, the dual performance of judicial office, if it is a question of the ministerial power to make the nomination, one simply reads down “person” to be within constitutional power.  If it were legislatively expressed so that it expressly included, for example, a judge, then the question would be whether it is constitutionally valid.  It is the same point.

MR GRIFFITH:   Exactly, your Honour, but what we attempt to do in paragraph 3, commencing page 3 and running to page 8 of our submissions, is to make that sort of analysis of these provisions to make out the case .

GUMMOW J:   But one distinction that is not drawn, and I know you rely heavily on the Royal Commissions Act ‑ ‑ ‑

MR GRIFFITH:   Your Honour, I do not in our written submissions, but this is another point we make in answer to the reconstitution.

GUMMOW J:   Yes, but one of the factors in all of this is who makes this appointment.  The Governor‑General in Council is one thing, and that is the Royal Commissions Act; a letter from a minister, it seems to me, is quite another.

GAUDRON J:   Or a telephone call.

DAWSON J:   I am not sure that I perceive the distinction.  It is still just an executive appointment.  The fact that the minister goes through the process or the Governor‑General does not seem to me to make much difference in practice.

MR GRIFFITH:   That is really the point of my reference to Justice Stephen’s judgment, to say one can have inquiries by way of exercise of the prerogative power or the statutory power to appoint a royal commission.  One can have an equally efficacious inquiry if one does not desire to have the coercive provisions by any old appointment, a letter from the minister or whatever.

DAWSON J:   It goes to the dignity of the occasion and that to some may be very important, but at the moment dignity to me does not seem to be the crucial issue.

MR GRIFFITH:   Your Honour, with respect it does seem that these identifications go to the issues which we seek to answer squarely on pages 3 to 8, paragraph 3.1 to 3.7 of our submissions.  That is what we identified as the issue.  Now, it is a matter, I will not say of impression, but of decision for this Court.  Your Honour Justice McHugh, as it were, flagged a more strict approach, particularly emphasising the aspect of perception as being important.  Now, that is a perfectly understandable approach.  If that is the approach to which a majority of this Court have adherence, then that means the inquiry here is a lot more close and anxious than if one says just applying the views of the majority in Grollo.

DAWSON J:   I wonder what is one perceiving?  A member of the public may perceive that here is a judge - and they see it as a judge - who is performing a non-judicial function, which undoubtedly she is.  Well, so what?  You then say that she is not doing it as a judge but as a persona designata.  To a member of public, that would not mean much.  They would say, “But she’s a judge; she signs herself as a judge”, but really, the question is, would they perceive that in performing that function, which they perceive as different, the judge would then be disabled from performing the judicial function when she returned to it?

MR GRIFFITH:   Exactly, your Honour.  We say there is no more difficulties than Justice Morling conducting the Chamberlain inquiry.  It had been a matter that had gone through all courts, including this Court, and then Justice Morling had another shot at the issues acting, we say, in personam as a royal commissioner and we say there is no ‑ ‑ ‑

DAWSON J:   The public may say, “Well, look, it’s a funny thing for a judge to be doing it.  It’s a bit demeaning, isn’t it?”, and, “Really, isn’t she getting too close to the Minister in performing this function?” but then asked, “Is she disabled from performing her judicial function?”  It does not necessarily follow the question as “yes”, but if she had to make a decision or, in some way, exhibit bias or, in some other way, necessarily impair the way in which she performed her judicial functions, the answer would be different.

MR GRIFFITH:   Yes, your Honour, and of course she would be subject to the Administrative Decisions (Judicial Review) Act et cetera.  In this particular case, she did not comply with the requisite standards.  In the same way, one could say, as a judge of this Court serving on an Administrative Appeals Tribunal would be amenable to review by judges who hold office in the same court as that person with respect to their actions as a member of the Administrative Appeals Tribunal.

Your Honours, this exchange really seems to indicate that we are perhaps furiously in agreement as identifying the area for inquiry, and we wish to make it plain that we have made our analysis of the Act in paragraph 3, as I have referred to in the second part of our written submissions, dealing with that issue.  Your Honours, in essence, having identified that point, having identified the two views being put, it does become a matter for this Court to identify whether in this further area that your Honour the Chief Justice has put quite properly to me, one can take a step and articulate a stricter rule than that which has hitherto been articulated.

Our submission is that by reference to the appropriate standards required to protect the integrity of judicial office and the integrity of federal courts, for the reasons we have stated, there is no operable incapacity, inhibition, however one might describe it.  So that there is a transgression upon an area of constitutional prohibition.  Now, if the majority of the Court, on analysing those situations, take the contrary view, well, that will help Hilton v Wells, Grollo, this case to mark out a further extension, as it were, as to what has yet been recognised as the area of constitutional incompatibility.

DAWSON J:   In the exercise, there is this danger of a logical glide from constitutionality to undesirability.

MR GRIFFITH:   Well, yes, your Honour.  A very powerful case can be made that the third column on appendix 2 should be totally eliminated with respect from the capacity of any serving federal Chapter III judge. 

KIRBY J:   I do not think that necessarily follows because it depends on what the principle is.  I mean, in many of those cases the statute provides; it provides expressly, it provides the judges and the functions that are clearly compatible with judicial function.

MR GRIFFITH:   Could I deal with that, your Honour.  Our submission is this is a matter of constitutional power.  It does not matter a whit what the statute provides or does not provide.  If there is a transgression beyond what is constitutionally permitted, it would not be possible for provisions of the statute to affect that incompatibility.  If that is the constitutional fact, no structure of the legislation will circumvent the impediment which we are here seeking to identify so that, in our submission, one can look at it both ways. 

If there is no constitutional impediment to the appointment, well then, you are not circumventing anything by admitting the possibility that a person who happens to be a Chapter III judge may choose to accept this designated appointment so that - perhaps there is an element of circularity here but we say there is no reason of giving the words in the statute other than their ordinary meaning unless one is face to face with reaching the constitutional impediment if one does so.  I hope I am making myself clear to your Honours.  What we do say is that this is not a matter for appropriate expression in the legislation because even if it were spelt out chapter and verse, if the impediment is there, if this function is regarded as executive, the minion of the Minister, et cetera, so as to be contrary to the principle, well then, that is it, whatever the statute says and that is ‑ ‑ ‑

KIRBY J:   Mr Abbott has founded his objection and his claim of constitutional impediment upon the nature of the functions performed by this donee of statutory powers.

MR GRIFFITH:   Exactly, your Honour, and paragraph 3 of our submissions is our answer to it.  Your Honour,  to some extent, we must point out there is some circularity in Mr Abbott’s foundings, but we seem to have drawn it together in the exchange, but nonetheless we would say, if that is the heart of it, we analyse, in our short four pages in paragraph 3, and say, in this statutory context, there is no statutory impediment.  Now, your Honours, doing the best we can ‑ ‑ ‑

BRENNAN CJ:   So, the question 1 and question 2, coming back to a problem Justice Toohey raised earlier, in your submission, necessarily are simply obverses of the same proposition?

MR GRIFFITH:   I can accept that, your Honour, yes.  We were content just to have question 2 stated, because to us, that was the issue.  Is there constitutional incompatibility, and the rest would follow, and, your Honour, it is not a question of reading down, of course, because it would not be the question that the Act itself is invalid because “person” might include a judge and that is impermissible, but we would accept the appropriateness is its incompatibility of making that reading, saying, “person” excludes a Chapter III judge.  Why?  Because it is constitutionally impermissible.  You cannot do it. 

DAWSON J:   It is constitutionally impermissible because a judge cannot perform the two functions at the same time.

MR GRIFFITH:   Exactly.

DAWSON J:   That is what is incompatible, and really the persona designata doctrine is to be saying, “Yes, but he can, as long as he doesn’t perform them both at the same time”.

MR GRIFFITH:   Yes.

DAWSON J:   And, really, questions of incompatibility must be at the fringe then.  I mean, there is no question that the performance of these functions and judicial functions at the same time is incompatible with the separation of powers.

MR GRIFFITH:   At the absolute same time; of course, your Honour.

DAWSON J:   Yes.

MR GRIFFITH:   But we say when persons perform ‑ ‑ ‑

DAWSON J:   But we get around that ‑ perhaps I should not use that expression ‑ the persona designata doctrine performs a qualification to that.  But, is there still incompatible functions in a sense?

MR GRIFFITH:   Yes, your Honour, but, of course, when one looks at the lists of some of these activities by judges, they were off the Bench for years.  A justice of the AAT is off the Bench.

BRENNAN CJ:   No, he is not.  I can say that with some experience and passion.

MR GRIFFITH:   Well, your Honour, he could or she could be off the bench.

BRENNAN CJ:   Could be, and, I must say, for my part, ought not to be.

MR GRIFFITH:   Should not be, I should add that, your Honour.  That may well be the case.  For example, your Honour, the acting as an ambassador, for example, in respect to nuclear weapons.

BRENNAN CJ:   Yes.  This is really at the heart of the problem, it seems to me, because although one may put it in terms of persona designata problems, it seems to me that the real question you would have to face, and it is not an easy question, is whether or not there is a constitutional inhibition upon the functions that judges can be called upon to perform, and, not only it is a matter of should, but whether there is a real limitation on power.

MR GRIFFITH:   Your Honour, we entirely accept that.

BRENNAN CJ:   It really raises the question of the extent to which judges thus far have been used.

MR GRIFFITH:   Of course, your Honour, and when you go back to the origin of this Court with Justice Higgins as a member of this Court.

DAWSON J:   Of course one can, yes.  But, you see, if you take - I am not going to put words in his mouth.  Justice McHugh’s view, which he expressed in Grollo, really it comes close to saying, “Well, the incompatibility exists whether or not the functions are exercised at one and the same time.”

MR GRIFFITH:   Your Honour, I am not going to go say anything.  I will leave your Honours in chambers to resolve that.

McHUGH J:   That is certainly what I said and what I meant.

MR GRIFFITH:   Your Honour, I have long learnt not to cite to a judge what he has said as authority for my propositions.

McHUGH J:   Putting it that way, that is basing it on a separation of powers.  But the approach which has hitherto been adopted, there is no incompatibility where the functions are exercised separately, except in extreme situations of the sort I was putting to you.

MR GRIFFITH:   Your Honour, we all know that Sir Owen Dixon said -Sir John Latham exercised particular functions - particularly Sir Owen Dixon ‑ ‑ ‑

BRENNAN CJ:   And had second thoughts?

MR GRIFFITH:   Yes, your Honour.  Your Honour, it may well be that it would be not possible for any Justices of this Court to serve as an ambassador representing the government.  I hesitate to think that I would ever advise a government that it was possible or I would seek to defend that now.

McHUGH J:   Times change.  Lord Tenterden, while Chief Justice of England, served in the Cabinet.  That was as recently as 1808 or 1810.

MR GRIFFITH:   Yes, and in 1867 Solicitor‑Generals had a right of private practice, your Honour.  This is accepted.  I do not go down the right‑hand column and say this is all fixed - times do change.  But, it really comes back to the point, if I may say, of Justice Kirby:  you may have a grey area of arguable errors of judgment but the issue is when do you cross beyond that.  Even the extract that my learned friend handed up of the Code of Judicial Conduct - firstly, when one turns over to the second page on the commentary, one sees, in effect, the embracing of this concept of the grey area.  What this case is concerned with is not the grey area:  would any Judges of this Court have done it?  Perhaps I could make a proposition that - perhaps I will not make it, your Honours - but, just in the question of the Interception Act, one cannot be surprised that some Justices choose to exercise that function; some do not.

Similarly, in some of these historical and current matters which we list here by reference to federal judges, but the point we make is, as yet there has been no decision by this Court which has identified that which is beyond the bounds of compatibility.  One reason why that is so, we submit, is because of the good sense of Federal Court judges, who, although they might get into a grey area, one thing they have not done hitherto is ever been identified as getting into a black area.  That is exactly what one would expect of Federal Court judges.  There may be a difference of approach, but it would be a very surprising thing to see a judge intentionally - one would say history has shown inadvertently going beyond this yet unidentified point but admitted point where there must be incompatibility.

Now, this case might be one which your Honours find is useful to make a further statement in elucidation.  The last paragraph of our submissions make what we think is a simple point, that this is a better case on the issue of incompatibility so far as what is compatible is concerned in Grollo.  Possibly times have changed since the Grollo decision, but ‑ ‑ ‑

GAUDRON J:   But the difference is there were some historical antecedents for the issue of warrants.

MR GRIFFITH:   Yes, your Honour.  That may well be the case that accepting that Grollo is closer to the line and it only made it because of history.  We would accept that that could be put.

GAUDRON J:   Yes.  In fact, without history there may be no basis for the decision in Grollo.

DAWSON J:   I think that is right.

MR GRIFFITH:   I would not demur from that, your Honour.

BRENNAN CJ:   Grollo was a very exceptional case.

MR GRIFFITH:   Your Honour, I had to argue it.....  I could see where we were, your Honour, and the judgments are very interesting, but the point we make is that this is within the area of individual choice of persons for the purpose of this inquiry who happen to Chapter III judges who are asked to do something just as these other judges we have listed by way of example, withdrawing entirely the reference to your Honour.  We will seek more

authoritative sources for dates in the future and I apologise for that, but we were attempting to do our best to garner together what seemed to be the historical examples and, your Honours, there really is no point, particularly having regard to the time and the arduous nature of your Honours’ week, for me to seek to elucidate that any further.

The point is identified, we would say, with clarity and far more clarity than is seen to initially come from the written submissions, so this oral process has been useful, but, your Honours, we say that is the point and we make in our written submissions and support them today the case as to why we say this is not a matter to be characterised beyond the line, but unless your Honours wish me to step‑by‑step elucidate that which we say is within the content, those are the submissions for the Minister.

BRENNAN CJ:   Thank you, Mr Solicitor.  Mr Abbott.

MR ABBOTT:   My learned friend said there was no duty on an individual judge to accept the nomination.  He said it was a matter for the individual judge, but that poses the question this legislation raises as to how does the judge discern incompatibility?  In our submission, the answer is that it is not a question of a judge discerning incompatibility, which this legislation would throw up before Justice Mathews accepted or rejected the nomination.  That is why you need legislation which carries with it a clear legislative imprimatur that she can do it.

KIRBY J:   But do you accept the proposition that if your thesis is correct, especially invoking the separation of powers, it has very large ramifications for that third column in the use in a country with relatively scarce resources and relatively few people who can perform trusted functions, to exclude federal judges from performing those functions in the future?  That is a very large result.

MR ABBOTT:   I accept that potentially it does have large ramifications, but ‑ ‑ ‑

KIRBY J:   No federal judges in the AAT?

MR ABBOTT:   No, your Honour, this case would not decide that.  The questions may decide what are the limits of the persona designata doctrine.  That in turn may impinge on that, but not necessarily.  On the other hand, I could respond by saying, if you allow the definition of the word “persons” to include every Chapter III judge, then you throw open the floodgates for another column to be added to my learned friend’s list, you allow Chapter III judges to be appointed to executive functions everywhere.  In our submission, “person” has to be read down.  As your Honour Justice Gummow observed, it cannot be the Governor-General.  We would say “person” cannot be a member of Parliament, even acting without pay - moonlighting.  Of course, they cannot hold an office of profit, but they could not even do it free.  We say the word “person” cannot include a member of Parliament, cannot include Governor-General and cannot include Chapter III judges.

As to royal commissions, we answer what my learned friend said on the basis that royal commissions have the confidence of the public; they are not something which cause members of the public to consider and to pause and say, is this inappropriate?  Royal commissions have a hallowed tradition.

As to the effect of tenure, and this was mentioned by one of the members of the Court, “What is the effect on Justice Mathews’ tenure?” there is nothing to be gained from a consideration of the Act.  The HREOC Act, however, we observe does have a section on tenure, section 10 which preserves tenure.

GUMMOW J:    Which Act is that?

MR ABBOTT:   The Human Rights and Equal Opportunity Act section 10.  Finally, your Honour Justice McHugh asks whether the reporter could receive representations from the Minister.  That seems to us to be a question which can only be answered in the affirmative.  Indeed, in the Crocodile Farm Case, Minister for Aboriginal Affairs and Torres Strait Islander Affairs v Douglas - the reference is in our list of authorities - but at page 24 of that as yet unreported decision, the Court said:

It follows that the reporter may well be involved in a process of fact‑finding which places the reporter in dialogue with those whose interests may be affected and with State governments, or their agencies, which administer other legislation having similar purpose.

If the Court pleases.

BRENNAN CJ:   Thank you, Mr Abbott.  The Court will adjourn briefly before determining what course it will take in this case.

AT 12.53 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.03 PM

BRENNAN CJ:   In the light of the ongoing inquiry to which the questions reserved in this case relate, the Court has given consideration to whether or not it could and should at this stage answer the questions which have been reserved.  The Court is unable, at present, to give an answer to those questions.  Accordingly, the decision in this case will be reserved. 

Adjourn the Court to Brisbane at 2.15 on Monday next.

AT 1.04 PM THE MATTER WAS ADJOURNED