1. Topic 4 Separation of Judicial
Power
Part 2 Exceptions to the Boilermakers
Doctrine

2. Exceptions to Boilermakers
• Some incidental powers may be created in
Chapter III courts
• Courts may make rules of procedure, despite
being a parliamentary function
• Courts may exercise administrative function of
winding up companies because it is incidental
to judicial exercise of power

3. Judicial power in s 51 powers
• Lane vMorrison(B&W p 619) Brian Lane charged
for an act of indecency against a superior officer.
• He brought proceedings in the High Court that
the Australian Military Court was invalid on the
grounds that its jurisdiction granted by s 51(vi)
offended the judicial power in s71.
• The Court found that the AMC was independent,
was not an inquest, and could punish.

4. Concept of Persona Designata
• A judge may act in their personal capacity in
an office performing administrative or
executive functions including quasi-judicial
functions: Drake v Minister for Immigration
(1979).
• In Drake a judge was appointed to the AAT (an
executive body) but it was found that the
appointment was in a personal capacity, i.e.
persona designata.

5. Persona Designata
• The Commonwealth can confer non-judicial
functions on a federal court judge if they are
appointed in a personal capacity, i.e. detached
from the court they sit in: GrollovPalmer
(1995).
• A judge may exercise their non-judicial
functions in their chambers with assistance of
their staff, as opposed to operating in an open
court: Hilton vWells (1985).

6. Presumption of Persona Designata
• If the Commonwealth confers a non judicial
power then it is presumed that the judge is
acting persona designata: Hilton vWells
• If the legislation specifies that the
appointment is “persona designata” then this
militates heavily toward being legitimate
• After Hilton v Wells, the legislation (TIA) was
amended to remove any doubt as to whether
the appointment was persona designata.

7. Construing the exception
• To determine whether there is a persona
designata exception, requires statutory
construction.
• Is the function conferred on a judge or a
court: Hilton v Wells.
• Does the law give all judges powers, or only
some and under what circumstances: Hilton v
Wells; Grollov Palmer

8. Hilton v Wells
• Case related to evidence obtained by Federal
Police using telephone tapping devices
operating by way of warrants.
• The issue was whether the Federal Court’s
power to issue the warrants infringed the
Boilermakers’ doctrine.
• The judges’ powers to issue warrants were
incidental to their role as judges.

9. Hilton v Wells (cont.)
• The question was whether appointment of the
judge ought to be construed as persona
designata
• Gibbs CJ, Wilson and Dawson JJ (3-2 majority):
found that s 20 of the Telecommunications
(Interception) Act was valid.
• The judges were well qualified to issue warrants,
the role was not incompatible with their status or
independence, nor inconsistent with judicial
power.

10. Hilton v Wells
• Mason and Deane JJ: dissented saying that “all
judges” were given the power, no separate
body for issuing warrants, and therefore the
powers were given as judges.
• Legislation was subsequently amended to
specify appointment as persona designata.
• Hilton v Wells was criticised in Jones v
Commonwealth (1987).

11. Grollov Palmer (facts)
• Even though legislation (TIA) had been
amended to provide persona designata
appointment, the issue of whether the role is
incompatible was raised.
• Judges were given the power to issue phone
tapping warrants, ex parte, no reasons
provided, no openness, unreviewable, no
transparency

12. Grollov Palmer (issues)
• Raises the issue of incompatibility of the extra
judicial role
• Notwithstanding personal
appointment, incompatibility of position
creates invalidity
• Practical incompatibility of the judge
operating in the appointed role.
• Relates to judicial independence and judicial
integrity, and public perception.

13. Grollov Palmer (analysis)
• Brennan CJ, Deane, Dawson and Toohey JJ:
Public may view judges issuing phone tapping
warrants as a clandestine
affair, however, majority found that the
eligible judge could validly issue a phone
tapping warrant without creating
incompatibility
• Safeguards could be implemented within the
courts procedures to prevent judge who
issued the warrant from hearing the matter.
i.e. recusal.

14. Grollov Palmer (cont.)
• Majority also said that the role of issuing
warrants needed to be undertaken by some
one in society, and that judges were in the
best position to do so.
• McHugh J: dissenting said that there are other
suitable persons to fill the role of issuing
warrants, e.g. retired judges or other officials
• Consider the impact on public perception

15. Wilson (1996)
• Justice Jane Mathews, a federal court judge
was required to provide a report to the
Minister for Aboriginal and Torres Strait Island
Affairs.
• Specific directions given to the judge by the
Minister.
• Politically charged issue
• Judge was appointed persona designa

16. Wilson (Issues)
• Question the role the judge is appointed to.
• Is the role too close to another arm of
government?
• Was the role politically controversial?
• Was the judge directed or instructed by the
executive?

17. Wilson (analysis)
• Brennan CJ, Dawson, Toohey, McHugh and
Gumow JJ: held that the judge’s role of issuing
a report would have undermine the public
perception of judicial integrity.
• Distinguished judges in a Royal Commission as
having to act judicially in procedural factfinding and application of law (B&W p 632).
• Distinguished AAT judges who are not
required to act on advice from the minister.

18. Wilson (cont.)
• Majority: “The report may be prepared to
accord with ministerial policy”
• Kirby J: judge reporting was much less
incompatible than the phone tapping role in
Hilton and Grollo.
• Kirby J: the judges skill to report on these
issues, and the disinterested position in which
they are suited for this role.