Civil Aviation Safety Authority v Boatman

The judicial power of the Commonwealth 37 The judicial power of the Commonwealth may be vested in federal courts that are created by Parliament pursuant to s 71 of the Constitution. Section 77 of the Constitution gives Parliament the power to define the jurisdiction of those courts. It is well established however, that 'powers which are foreign to the judicial power' may not be attached to those courts; The Queen v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254at 289 ('Boilermakers'); see also Sue v Hill (1999) 199 CLR 462. Powers that are ancillary or incidental to the exercise of judicial power are not foreign to it and may be conferred on such courts; Boilermakers at 296; see also Nicholas v The Queen (1998) 193 CLR 173. The respondents submit that the power vested in the Federal Court under s 30DE is administrative in its nature and, as indicated above, cannot be validly conferred on the Court. Implicit in this submission is the proposition that the power conferred under s 30DE is not judicial power, nor is it ancillary or incidental to the exercise of judicial power. 38 There are many ways in which one might approach the task of determining if a power can properly be described as judicial. There are ample decisions in which the High Court and others have described the nature of judicial power. The classic, and frequently quoted, description of judicial power is that of Griffith CJ in Huddart, Parker and Co Proprietary Limited v Moorehead (1909) 8 CLR 330 ('Huddart Parker')at 357: 'I am of opinion that the words "judicial power" as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.'

39 Although in The Queen v Davison (1954) 90 CLR 353 ('Davison') at 367, Dixon CJ and McTiernan J referred with approval to Griffith CJ's description, their Honours also noted that no 'exclusive and exhaustive' definition had been formulated. They pointed out that although Griffith CJ emphasised the element of controversy, such an element is 'entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.' Their Honours made the same point about elements emphasised in other definitions, such as the determination of existing rights as distinguished from the creation of new ones (see The Queen (Wexford County Council) v The Local Government Board for Ireland (Webster's Case) (1902) 2 IR 349) and the parties' submission of the case to adjudication and enforcement of the judgment (see Muskrat v United States 219 US 346 (1911) per Miller J at 356). Their Honours quoted the observation of the High Court in The Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151, to the effect that functions, not in themselves judicial, may be committed to a court because they are incidents of the exercise of strictly judicial powers, and commented at 369-70: 'It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power.'

This double aspect has been recognised by Gleeson CJ who observed in Luton v Lessels (2002) 210 CLR 333 at 345, that decision-making by 'the application of legal criteria to facts as found' is characteristic of many administrative as well as judicial functions; see also Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-89 ('Precision Data'). 40 Ultimately the history of courts and their traditional role is of considerable importance in determining what is or is not judicial power; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267 ('Brandy'). The point was made by Deane J in Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501 at 607: 'Common sense and the provisions of Ch III, based as they are on the assumption of traditional judicial procedures, remedies and methodology … compel the conclusion that, in insisting that the judicial power of the Commonwealth be vested only in the courts designated by Ch III, the Constitution's intent and meaning were that that judicial power would be exercised by those courts acting as courts with all that that notion essentially requires. [emphasis added] 41 It is that history that largely explains the acceptance of voluntary sequestration, the administration of assets or judicial guidance of a trustee as appropriate subjects for the exercise of judicial power; see Davison at 365-8. It is the combined effect of history and the double aspect to which Dixon CJ and McTiernan J referred that results in there being some overlap between judicial and non-judicial functions. Consequently there is no single test that will, in every case, distinguish between judicial and non-judicial functions and determine if a grant of power is valid within Ch III of the Constitution. 42 There are, however, some features that are essential. Specifically, there must be a 'matter' that is the subject of the grant of power. Section 77 of the Constitution allows Parliament to make laws defining the jurisdiction of this Court with respect to any of the 'matters' mentioned in ss 75 and 76. In the absence of a matter within the meaning of those sections, an attempt to confer judicial power on the Federal Court will be invalid; In Re The Judiciary Act and In Re The Navigation Act (1921) 29 CLR 257 ('Re Judiciary and Navigation Acts').

43 In The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 708, O'Connor J interpreted 'matters' as meaning 'matters capable of judicial determination'. It follows that a matter is not merely a legal proceeding; it is 'the subject matter for determination in a legal proceeding' and there can be no matter 'unless there is some immediate right duty or liability to be established by the determination of the Court'; Re Judiciary and Navigation Acts at 266. Those rights, duties and liabilities must relate to concrete situations and 'exist independently of the jurisdiction or a court or its procedures'; Abebe v Commonwealth of Australia (1999) 197 CLR 510 ('Abebe')at 517 per Gleeson CJ and McHugh J; see also Kirby J at 588-9 and Callinan J at 603-5; see also The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 ('Tasmanian Breweries') at 374 and Precision Data at 189. They are not to be determined by 'the formulation of policy or the exercise of an administrative discretion'; Brandy at 268.

44 The conclusive determination of existing rights, duties and liabilities, (although subject to appeal), is 'at the heart' of the constitutional notion of a matter; Abebe at 524 per Gleeson CJ and McHugh J. Their Honours elaborated on this point in their recent decision in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 206 ALR 130 at 134: 'A "right or privilege or protection given by law" may give rise to a "matter" within the meaning of ss 75 and 76. Likewise, an existing claim of right or any criminal liability or civil duty imposed by federal legislation may also give rise to a "matter" within the meaning of ss 75 and 76. However, there can be no "matter" for the purpose of ss 75, 76 and 77 of the Constitution unless the relevant legislation identifies - expressly or inferentially - some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person. Most "matters" involve the determination of a duty or liability in one party and a correlative right or standing in another person to enforce the duty or liability.' [footnotes omitted]

Although their Honours went on to refer to 'matters' where there is no lis inter partes or adjudication of rights, they emphasised that such matters were exceptions to the general rule.

45 The rejection in Re Judiciary and Navigation Acts, of the legislature's attempt to give the High Court the power to issue advisory opinions reinforces the importance of there being a 'controversy' to be resolved. Where a court is given power to resolve a controversy between subjects of the Crown, or between the Crown and a subject, by determining existing rights, duties or liabilities and it is also given the power to enforce its determination, there would need to be compelling other considerations for the power not to be properly described as a judicial power; Davison at 367-8. Where these circumstances exist it is not to the point that, as their Honours observed at 368, 'It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.'

Nature of the power conferred by s 30DE 46 The respondents submit that in this proceeding there is no matter in the sense described above because there is no controversy that can be determined on principles of law and because the resolution of the issues in s 30DE of the CAA requires the Court to take account of political rather than judicial considerations. They submit that s 30DE involves an exercise of administrative power because it involves not the determination of existing rights and obligations, but whether there are risks that are 'serious and imminent', that is, a determination as to future events. In support of these submissions they contend that there is no pre-existing standard for the Court to apply, that air safety is a matter uniquely within the expertise of CASA and that the Court is not empowered to make a final determination. In addition they point to the fact that the CAA does not require notice of an application under s 30DE to be given to the relevant authorisation holder and therefore the application could be made ex parte. The respondents say that the fact that the application could be heard without a contradictor reinforces the characterisation of the power under s 30DE as a non-judicial power, as does the fact that the Court is mandated to continue the suspension initially imposed by CASA if it reaches the requisite satisfaction. 47 Under s 30DE the Court is required to decide if it is 'satisfied that there are reasonable grounds to believe' that the authorisation holder suspended under s 30DC 'has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB'. That is the 'matter' for determination. The rights and privileges of an authorisation holder (in this case the licence to fly an aeroplane) are at stake in any proceeding brought under s 30DE. Section 30DB sets out the criterion by which that determination is to be made. As previously mentioned, s 30DE(3) requires the Court, in making its decision, to have regard to s 3A and ss 9A(1) of the CAA. Those sections provide: '3A The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. …

9A(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.' 48 The respondents submitted that the effect of the direction in s 9A(1) was to require the Court to have regard to ministerial views and directions in making its determination, in the same way that ss 12, 12A and 12C of the CAA require CASA to do. That submission must be rejected. In my view, the effect of the direction is to require the Court (as well as CASA) to regard the safety of air navigation as the most important consideration. Further, the reference to s 3A merely directs the Court to have regard to the expressed main object of the statute. There is no justification for regarding either direction as subjecting the Court to ministerial policy other than is expressed in the CAA. 49 In making its determination under s 30DE the Court must consider the conduct that is said to have occurred and assess that conduct against the criterion of 'a serious and imminent risk to air safety'. In assessing the conduct the Court is not in the position of having to formulate its own standards but may be guided by the detailed standards regulating air safety set out in the relevant regulations, Civil Aviation Publications and Civil Aviation Orders as well as other evidence before the Court. This distinguishes the instant case from The Queen v Spicer; ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312 ('Waterside Workers'). In Waterside Workers the High Court held that s 37 of the Stevedoring Industry Act 1956 (Cth) was invalid because it purported to confer an administrative or industrial power on the Commonwealth Industrial Court. The section was concerned with the right to appeal of a person whose registration as a waterside worker had been cancelled or suspended. Section 37(2) provided that if the Court was satisfied that the cancellation or suspension should be set aside or varied it could do so. In their joint judgment, Dixon CJ, Williams, Kitto and Taylor JJ commented at 317, that a discretion to grant or withhold a remedy must be 'governed or bounded by some ascertainable tests or standards'. Their Honours also said, at 319: 'If s 37 had been framed in such a way as to invest the Commonwealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by waterside workers of prescribed standards of conduct … there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Commonwealth.' 50 As Sackville J pointed out in Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543 ('Yanner')at 555-6, the legislative history of the provision considered in Waterside Workers was important to the High Court's conclusion. The same power had formerly been reposed in the Commonwealth Court of Conciliation and Arbitration, which was not a Ch III court. The High Court inferred from this history that its exercise should be governed, among other considerations, by consideration of 'all matters which might seem relevant to a sound and wise administrative control over the stevedoring industry'; Waterside Workers at 320. 51 In Yanner, the absence of discernible criteria in the legislation for the exercise of a statutory discretion was one reason the majority of a Full Federal Court (Drummond and Kiefel JJ, Sackville J dissenting) held that s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) was an invalid attempt to confer non-judicial power on the Federal Court. Section s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) provided that a person was not disqualified from appointment as an ATSIC commissioner if, among other reasons, the Federal Court 'declares that in spite of the person's conviction, he or she ought not to be disqualified'. On this point Sackville J differed only in that his Honour was of the opinion that the tests or standards necessary to characterise the power as judicial could be gleaned from the statue guided by the 'principles applicable to similar provisions in other fields'; Yanner per Sackville J at 559. As I have already indicated, in my view these cases are distinguishable from the present. A court making a determination under s 30DE would find in the CAA, in the regulations made under it and in other evidence before it, sufficient guidance to assess the impugned conduct. 52 The purpose of an application by CASA under s 30DE is to extend the initial suspension of a civil aviation authorisation. Although the CAA does not require notice of such an application to be given to the authorisation holder, other than where the holder decides not to enter an appearance it is difficult to imagine circumstances in which the application would be heard ex parte. The normal procedure of the Court would, as in this case, require the application to be served on the holder; O 7 r 1 Federal Court Rules. The fact that once an application is made to the Court within the period required under s 30DE(1) the initial suspension continues until the Court makes an order (see [35] above) also means it is extremely unlikely that there would be a need for the Court to hear the application ex parte. Even if, for reasons that I cannot presently imagine, it should be necessary for the Court to hear the application ex parte, it would not be a novel approach but a recognised aspect of the Court's procedures. While most applications are heard inter partes, in limited circumstances ex parte orders may be made; Grollo v Bates (1994) 53 FCR 218 at 231. A Court faced with an ex parte application must consider whether such an order would be consistent with the demands of justice. In my view, however, a decision that the circumstances warrant an order being made ex parte is not inconsistent with this Court exercising judicial power. 53 Under s 30DE(2) the Court must decide if the initial suspension is to be continued, with a consequent impact on the rights of the authorisation holder. The Court must consider if the prohibition contained in s 30DB had been breached. This involves CASA putting before the Court the facts of the alleged contravention that are said to constitute a serious and imminent risk to air safety as well as any other evidence relevant to the assessment that the Court must make under s 30DE(2). The authorisation holder has an obligation not to contravene s 30DB and the Court must decide if he or she has done so or is likely to do so. It determines this question with reference to the standards laid down by the Act and the regulations. CASA's right to interfere with the authorisation holder doing that which is permitted by the authorisation is conditioned by the Court's determination under s 30DE(2). 54 The determination that the Court makes under s 30DE(2) should not be confused with the quite separate determination that CASA, under s 30DI, must make once its investigation is complete. The Court's determination relates to a more limited question (whether there are reasonable grounds to believe etc…) and will presumably be based on more limited evidence; but in relation to that question its decision is final. The Court's order that the initial suspension should or should not be extended finally disposes of the question whether the initial suspension should be extended. The order is no less final because the period of the suspension is limited by s 30DE(4), or because a further application to extend or shorten the period may be made under s 30DF. The fact that the Court's determination is subject to appeal under s 25 of the Federal Court of Australia Act 1976 (Cth) does not affect this characterisation; Huddart Parker at 357. The Court must make its determination objectively ('reasonable grounds'). I am not convinced that the requirement that the Court be 'satisfied' indicates a discretionary power but, even if it does, it would not be inconsistent with the Court exercising judicial power; Tasmanian Breweries at 377. 55 The respondents also submitted that the Court's power under s 30DE(2) took on an administrative character because it is exercised in the context of the undisputedly administrative powers of CASA. The respondents referred to the Court having only a 'cameo' role in the overall administrative task of investigating the alleged contravention of s 30DB. The purpose of extending the initial suspension imposed by CASA, it was submitted, is to facilitate CASA's investigation, and is therefore ancillary to that administrative function. I do not accept that submission. As discussed in [32] and [33] above, there are rational reasons for vesting the decision whether to extend the initial suspension in the Court. Whether the power given to the Court is judicial must be decided with respect to the established principles that determine such matters. 56 The fact that the Court has only a limited role to play in the overall controversy between the parties does not undermine the judicial nature of the power vested in it. As Gleeson CJ and McHugh J said in Abebe at 525: 'Nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy.' 57 The respondents submitted that there is an analogy between the nature of the power conferred by s 30DE(2) and the power to issue search warrants, which has been authoritatively accepted as administrative in nature; Aston v Irvine (1955) 92 CLR 353, Baker v Campbell (1983) 153 CLR 52, Hilton v Wells (1985) 157 CLR 57, Love v Attorney-General (NSW) (1990) 169 CLR 307, Coco v The Queen (1994) 179 CLR 427 and Grollo v Palmer (1995) 184 CLR 348. That analogy, it was submitted, leads to the conclusion that the power conferred by s 30DE(2) is also administrative. I do not find this analogy helpful. To my mind it assumes what it seeks to prove. Whether a particular power is judicial or non-judicial must be decided by application of established principles and criteria. Analogy may assist in identifying the principles or criteria but it can never be a substitute for them. I accept that there is no single definition or rule that can be applied to determine the issue however, as mentioned above at [44], if a power has accepted hallmarks of judicial power it is highly likely to be judicial.

58 In Yanner at 545, Drummond J, summarising the factors that led him to conclude that s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) was invalid, listed the following points: '(1) it is a discretionary power to be exercised in circumstances where there are no criteria for its exercise discernable in the legislation; (2) the power involves the creation of a new right as opposed to the determination of existing rights; (3) the exercise of the power does not involve an adjudication between disputants; and (4) it involves the exercise by the Court of a new power neither inherently judicial in character nor a power with that character because historically it has been exercised by courts of law.'

None of those factors apply here. The power conferred by s 30DE(2) involves the final determination of the existing rights and obligations involved in the matter before the Court. It is determinable with reference to standards and principles that have their source in the legislation. These factors, in my view, are sufficient to conclude that the power is judicial power. For present purposes I do not think it is necessary or desirable to attempt to distinguish the search warrant cases. It may be that, just as some powers are categorised (perhaps anomalously) as judicial because they have traditionally been exercised by courts (see [41] above), categorisation of the power to issue search warrants has been influenced by its history as part of the investigation of criminal offences. The fact that applications for search warrants are necessarily ex partemay be another relevant factor. I do not, however, express any conclusion on that issue. 59 For the reasons I have set out above, the question reserved should be answered 'Yes'. I agree with the orders proposed by Sundberg J. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

PLACE: SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

REASONS FOR JUDGMENT SELWAY J: 60 A Judge of this Court has reserved a question of law for the answer of the Full Court, namely "Whether s 30DE of the Civil Aviation Act, 1988 (Cth) is valid?". 61 Pursuant to Order 50 Rule 1 of the Federal Court Rules a question to be reserved must be in the form of a "special case". Such a procedure requires that all facts necessary for the determination of the question of law be stated in the special case. At common law a Court hearing the special case could not inquire beyond those facts - indeed, subject to the relevant statutory context, it usually could not even draw inferences from the facts as stated in the special case: see Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 482-484. In this instance no facts are stated. However, the question reserved by His Honour in this case is a question of law relating to constitutional validity. In relation to such a question the Court can make such factual inquiries, even on a case stated, as may be necessary for it to determine the question of constitutional validity: see Gerhardy v Brown (1985) 159 CLR 70 at 87-88 (where the High Court ascertained further facts when hearing an appeal from a decision of the South Australian Supreme Court on a case stated from a Magistrate). Whether the Court should make such inquiries is another matter: see Sport Odds Systems Pty Ltd v State of New South Wales [2003] FCAFC 237 (Sport Odds) at [47]-[50]. However, in this instance the relevant fact necessary to answer the constitutional question is not contentious, and is readily ascertainable from the Court's file. Notwithstanding that the procedure adopted in this case would not seem to conform with the requirements of Order 50 Rule 1, there is no reason why the Court cannot answer the question reserved. 62 The relevant fact in this case is that which establishes a sufficient jurisdictional basis for this Court to answer the constitutional question raised by the question reserved. That fact serves to show that the legal question reserved is not advisory or hypothetical, but properly arises in these proceedings. The relevant fact is that the applicant (CASA) alleges in these proceedings that: (a) The respondents are each the holder of a "civil aviation authority" as defined in the Civil Aviation Act, 1988 (Cth) (the CAA); (b) CASA has reason to believe that each of the respondents has engaged in conduct that contravenes s 30DB of the CAA. That section provides: The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety. (c) CASA has suspended the authorisation of each of the respondents pursuant to s 30DC of the CAA. That section provides: (1) Where CASA has reason to believe that the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, CASA may suspend the authorisation by giving written notice to the holder. Note: CASA is not required to give the holder a show cause notice before making a decision under this subsection. (2) The notice of the decision must include a summary of Subdivisions C and D. However, a failure to include such a summary does not affect the validity of the notice. (3) The suspension ends at the end of the fifth business day after the day on which the holder was notified of the suspension, unless before that time CASA makes an application to the Federal Court under section 30DE. Note: If CASA makes an application in time, the suspension continues in force until it comes to an end under the rules in section 30DJ. (d) Before the end of the fifth business day after the day on which the respondents were notified of the suspension, CASA applied to this Court for an order under section 30DE(2) of the CAA. 63 Assuming that these allegations can be established, this Court's jurisdiction arises out of s 30DE of the CAA which provides: (1) If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section. (2) If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful. (3) In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1). (4) Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA's decision to suspend the authorisation. 64 The period of suspension can extend for up to 40 days from the date of the order. Plainly enough the date of the order may be later than the date on which CASA makes its application to the Court, but the suspension continues during the interim: see ss 30DC(3) and 30DJ of the CAA. Under s 30DF of the CAA the Court can extend (by up to 28 days) or reduce the period of suspension ordered under s 30DE of the Act. 65 It would seem clear that the purpose of the suspension is to prevent the holder of an authorisation from exercising the rights conferred by the authorisation during the period that CASA requires to complete its investigation. This is clear enough by the terms of s 30DE(4) of the CAA which requires the Court when making an order to fix a period of not more than 40 days "… that the Court considers reasonable to allow CASA to complete an investigation …". It is reinforced by the requirements of s 30DG of the CAA which impose a duty upon CASA to complete its investigation by the end of the period of suspension imposed by the Court. 66 Once the investigation is completed CASA may vary, suspend or cancel the authorisation if "satisfied that a serious and imminent risk to air safety" would otherwise exist (s 30DI(1)(a) of the CAA). CASA's powers in this regard are subject to compliance with the requirements of s 30DH of the Act requiring notice to the authority holder and affording the authority holder a right to show cause why the relevant powers should not be exercised. This Court has no role in relation to that decision, save for its usual review jurisdiction under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) and under s 39B(1) of the Judiciary Act, 1903 (Cth). Save for the power conferred by s 30DE, the CAA does not seek to vest the judicial power of the Commonwealth on any court in relation to the ultimate question of whether the actions of an authority holder were in breach of s 30DB of the CAA and whether (and if so what) action should be taken in relation to such a breach. Those issues are left for CASA to resolve and determine. 67 The question reserved raises the issue of whether s 30DE of the CAA exceeds the legislative power of the Commonwealth Parliament in seeking to confer on this Court power other than the judicial power of the Commonwealth. 68 It is a necessary inference from the structure and text of the Commonwealth Constitution and, in particular, of Chapter III of the Constitution that the judicial power of the Commonwealth is separate and distinct from other governmental powers: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (Wilson) at 10-11. One consequence of this distinction is that the "judicial power of the Commonwealth" cannot be conferred on any body other than the courts identified in s 77 of the Constitution: see New South Wales v Commonwealth (1915) 20 CLR 54 at 62. Of course there are qualifications arising from other provisions of the Constitution, such as s 49 (the privileges of the Commonwealth Parliament) and s 122 (the Territory power). 69 Another consequence is that the Commonwealth Parliament cannot confer on federal courts any power other than the "judicial power of the Commonwealth" or a power that is ancillary or incidental to a judicial purpose: see The Queen v Kirby Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 296. Again there are some qualifications arising from other provisions of the Constitution, such as s 122. 70 The necessary distinction between "judicial power" and other powers is a functional distinction. The judicial function can only sensibly be understood and described by reference to what courts do and historically have done, and by the way in which they do it and historically have done it: see Nicholas v The Queen (1998) 193 CLR 173 (Nicholas) at 185. Broad descriptions of the nature of judicial power and of the judicial function can and have been attempted. Judicial power is commonly understood to involve the authoritative determination of whether legal rights exist or whether they have been transgressed or whether legal duties have been breached together with the consequent imposition of any penalty or the ordering of any legal remedy: see, for example, Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; Wilson at 11; Abebe v Commonwealth (1999) 197 CLR 510 at 555. However, such definitions are not exhaustive. As it was put by McHugh J in Nicholas at 219: '… They are simply descriptive of factors that are usually present when a tribunal is called on to exercise judicial power. Thus, although much emphasis has been given to the need for judicial power to involve binding and authoritative decisions between subjects or between subjects and the Crown, it is clear that not every binding and authoritative decision made in the determination of a dispute between such parties will constitute the exercise of judicial power. Similarly, although judicial power requires a determination of existing rights and duties according to law, an exercise of an administrative or arbitral power may also involve a determination of existing rights and duties. It is also probably necessary for a decision to be enforceable before it can be said to have been given in the exercise of judicial power although the enforcement need not be undertaken by the Court responsible for the exercise of the power. For present purposes, however, it is unnecessary to attempt any more precise definition of judicial power than that which appears in Huddart, Parker and Fencott.' [footnotes omitted] 71 In this case the respondents have submitted that there are a number of factors which, taken together, serve to distinguish the Court's power under s 30DE of the CAA from the "judicial power of the Commonwealth". Those factors included: (a) The power conferred by s 30DE does not involve the determination of existing rights; (b) The power is in aid of or for the purpose of an administrative power; (c) The power requires the Court to consider policy factors; (d) The decision is not final; (e) The process of decision making is inconsistent with the judicial process; (f) The discretion conferred on the Court is too broad. 72 There are a number of problems with this method of analysis in this case. Not least is that some of the factors identified by the respondents cannot be accepted, at least on the broad basis upon which they were put. For example, the respondents argued that the reference to "section 3A and subsection 9A(1)" in s 30DE(3) of the CAA had the effect that the Court was required to take into account in determining whether to make an order, any Ministerial policy directions that may be given to CASA under various provisions of the Act. Whatever subsection (3) does mean, it clearly does not have the effect of requiring the Court to give effect to Ministerial directions. 73 Similarly the argument put by the respondents that the discretion conferred on the Court by s 30DE(2) is so broad as to be consistent with the judicial function, cannot be accepted. True it is that a broad discretionary power to create new rights is indicative of legislative rather than executive power. But s 30DE(2) of the CAA does not confer legislative power. It is a precondition of the conferral of power under that subsection that the Court be "satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB". The statutory requirement to be "satisfied that there are reasonable grounds" causes some problems in interpretation involving, as it does, an onus of proof ("satisfied") as to an objective fact ("reasonable grounds to believe") where the objective fact itself involves issues of judgment and assessment: see, for example, Tepper v Kelly (1988) 47 SASR 271 at 272-273; Loughlan v Magistrates' Court of Victoria [1993] 1 VR 685 at 692 and contrast R v Zotti (2002) 82 SASR 554. However, notwithstanding those problems in interpretation, the words "satisfied that there are reasonable grounds" are capable of being interpreted and applied by a court, as the above cases show. 74 The words "engaged in, is engaging in or is likely to engage in conduct the contravenes section 30DB" of the CAA are similarly capable of being interpreted and applied by a court. The respondents argued that the requirement in s 30DB that there be a "serious and imminent risk to air safety" involved a broad subjective discretion that was inappropriate for a judicial function. However, it does not involve any broader discretion than does the determination of whether an act or omission is negligent, or reckless. These determinations are plainly consistent with the judicial function. It is possible that trial courts will make errors in their initial understanding of the meaning of s 30DB of the CAA, at least until that meaning is clarified by the usual judicial process of reasoned decisions, appeals and precedent. However, that is true whenever the Parliament chooses to use a form of words which involve some ambiguity or at least which require fresh judicial interpretation. In my view the statutory formulation in s 30DE of the CAA of the basis for this Court's jurisdiction does not have the consequence that the jurisdiction conferred is other than the judicial power of the Commonwealth. 75 However, the basic problem with any analysis based solely upon the consideration of a number of factors, whether individually or cumulatively, is that it provides no sound basis for identifying what is, and what is not judicial power at least in those instances where the issue is not clear and obvious. The areas of overlap between, for example, many judicial and executive functions is considerable: see Pasini v United Mexican States (2002) 209 CLR 246 (Pasini) at 265. One of the functions of the executive is the enforcement of the law. Although the executive is required to defer to the judiciary as to what the law is, there can be no objection otherwise to the executive determining for itself what the law requires in any particular instance. Indeed, subject to the proper role of the courts, the executive is required to do so: A v Hayden (1984) 156 CLR 532 at 562; P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366 at 383. For that purpose administrative tribunals and other administrative decision makers can determine legal issues in the context of making administrative decisions: see Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577, 584-585. In making those decisions they are usually required to adopt procedures which bear some similarity to those adopted in some courts. As McHugh J noted in the above quotation from Nicholas, there are many decision making functions which could lawfully be conferred by the Parliament either on an administrative body or on a court. In relation to those functions the distinction between what is a judicial function and what is not will largely be dependent upon what body has been chosen to perform the task, rather than anything inherent in the task itself: see R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 562. Not only is there no "bright line" distinction between judicial and other governmental functions there is, in fact, no line at all in relation to these significant areas of functional overlap. 76 Given these large areas of functional overlap between judicial and other governmental powers it is often not of any great assistance merely to identify a range of factors that may or may not be present in any particular case on the basis that those factors are indicative of the character of the particular governmental power. What is likely to be more useful is to look at existing categories of functions that have been judicially or historically accepted as being functions that can be characterised as judicial or non-judicial and then to identify in what manner and to what extent those functions differ from those in the case at hand. History, practice and judicial analysis may also be referred to for the purpose of identifying the relevance and significance of any differences that may be identified. The purpose of the inquiry is to identify by analogy whether the function being conferred in the case at hand can properly be characterised as judicial power or not. 77 In this case the category of functions having some apparent similarity to the power conferred by s 30DE of the CAA is the power to issue search warrants. There is an example in s 32AF of the CAA: (1) An investigator may apply to a magistrate for a warrant under this section in relation to particular premises. (2) Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises a particular thing that may afford evidence of the commission of an offence against this Act or the regulations. (3) The magistrate must not issue the warrant unless the investigator or someone else has given the magistrate, either orally or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought. 78 The power to be exercised by a magistrate under s 32AF(2) has some similarity to the power conferred on the Court by s 30DE of the CAA. Both powers are related to an investigation process being undertaken by the executive; both powers are conditional upon the relevant decision maker being "satisfied" that there are "reasonable grounds"; both powers relate to a breach of a duty imposed by the CAA. 79 It is clear that the power of a Magistrate under s 32AF of the CAA to issue a search warrant is a non-judicial power. The power is exercised by a Magistrate as a persona designata, not as a judicial officer. It is a power that cannot be conferred on a Court. That has been clearly established in the cases: see Aston v Irvine (1955) 92 CLR 353 at 363; Baker v Campbell (1983) 153 CLR 52 at 92; Hilton v Wells (1985) 157 CLR 57 at 67; Love v Attorney General (NSW) (1990) 169 CLR 307 (Love) at 319-323; Coco v The Queen (1994) 179 CLR 427 at 444; Grollo v Palmer (1995) 184 CLR 348 at 359-360. The Solicitor General for the Commonwealth (intervening) accepted that the function conferred by s 32AF of the CAA was an executive function - not a judicial one. The reason why the relevant function has historically been so treated is clear enough. At least within the common law tradition, the investigation of criminal offences has not been treated as part of the judicial function. This may be contrasted with the tradition in France and other civil law countries where the judiciary do have a role in the investigation of crime. As discussed below, it may also be contrasted with the traditional role and function of common law courts, particularly those exercising equitable jurisdiction, to make pre-trial and even pre-action orders in civil proceedings so as to assist the parties in the investigation and preparation of their respective cases.

80 The question then is what are the features that relevantly distinguish the conferral of jurisdiction on this Court under s 30DE of the Act from the conferral of a non judicial power by the issue of a search warrant. It seems to me that there are five possible distinguishing features that need to be considered: (a) The function is conferred on a Court, not on an administrative body. As discussed above, that may be important where the function is one that could be either administrative or judicial depending upon whom the function is conferred upon. However, in the case of search warrants the cases are clear that the function is entirely administrative: see Love. In my view this is not a distinguishing factor at least in this case at least until it has been determined that the function is one which is capable of being a judicial function. This involves further analysis of the other factors referred to below. (b) The power is to be exercised inter partes whereas the issue of a search warrant is usually ex parte. Although the respondents argued that the procedure in relation to an application under s 30DE of the CAA is an ex parte procedure, I am satisfied that the ordinary procedures of this Court are applicable in relation to such an application: see Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554 at 560. This Court does have an inherent jurisdiction to make orders ex parte if it is necessary to do so in the interests of justice, but in the usual course the proceedings in this Court are inter parte proceedings. There is no reason why proceedings under s 30DE of the CAA should be any different. The fact that the proceedings under s 30DE of the CAA are inter parte (in contrast to the power under s 32AF) is a relevant factor suggesting that the power conferred by s 30DE of the CAA is more analogous to judicial power than is the power to issue a search warrant. However, by itself it would not seem to me to be a sufficiently distinguishing factor to enable the search warrant cases to be distinguished. I note, for example, that extradition proceedings are also clearly treated as an exercise of administrative rather than judicial power, even though those proceedings are inter partes: see Aston v Irvine (1955) 92 CLR 353; Pasini at 253-254. (c) The function relates to disciplinary powers, rather than criminal powers. As already noted, a distinction can be drawn between the investigation of criminal offences, where the power to issue search warrants has been characterised as non-judicial, and the investigation of civil claims where similar powers have been treated as judicial. The power of this Court under Order 15A Rule 6 of the Federal Court Rules to order pre-action discovery in civil proceedings is an example. That power has been held to be constitutionally valid, although it may be that the particular issue in relation to the separation of judicial power was not considered: see Hooper v Kirella Pty Ltd (1999) 167 ALR 358. Nevertheless, the Full Court in that case did discuss the historical practice of Chancery in making orders for pre-action discovery (see at 364-365). For present purposes it may be accepted that the making of pre-action orders for discovery may properly be considered as an aspect of the judicial power. In my view the fact that the power conferred by s 30DE of the CAA relates to the investigation of a disciplinary breach under a licensing scheme, rather than to a criminal investigation does serve to distinguish this case from those involving a search warrant. The distinguishing effect is ameliorated to a degree in that the relevant investigations may also be directly applicable to criminal offences also: see, in particular ss 20A and 29 of the CAA. (d) There may be a relevant difference between the powers conferred by s 30DE and s 32AF of the CAA in the extent to which the relevant powers actually assist the investigative process. A search warrant directly authorises what would otherwise be an unlawful act (the entry onto property and the search and seizure of property whilst there) for the purposes of obtaining evidence. An order of the Court under s 30DE of the CAA only suspends the relevant authority for the period specified in the order. Nevertheless, as already noted, the purpose of the power conferred by s 30DE of the CAA must be, at least in part, the facilitation of the investigation being undertaken by CASA. In the result I think that this factor, if it does operate to distinguish between the two powers, is not a significant distinction between them. (e) The final factor that distinguishes the power conferred on the Court by s 30DE of the CAA from the power to issue a search warrant is the context and purpose in which the power is conferred. Ultimately search warrants are issued in aid of the criminal judicial process, in the same way that pre-action discovery is in aid of the civil judicial process. Both of those processes ultimately involve the exercise of judicial power. The distinction between pre-action orders to assist civil and/or criminal investigations has already been noted. But even in relation to civil matters in my view the conferral on the Court of the power to make orders for discovery in Order 15A of the Federal Court Rules is only valid because there is, in contemplation, a potential judicial proceeding in which the discovered documents might be relevant. If such powers of discovery were conferred on a court for the purpose of assisting a Minister to undertake an administrative investigation then in my view the power is likely to be characterised as administrative, not judicial: see, for example, the comments of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 390 that judicial power must be exercised separately from the exercise of other governmental powers. In this case the ultimate process is not judicial. The Court has no ultimate role in determining whether there has been a breach of s 30DB of the Act. The function of making an order to suspend the authorisation is not in the furtherance of or incidental to a judicial function - it is in furtherance of or incidental to an administrative function of investigating and determining breaches of s 30DB of the CAA. This is not to deny that Courts can exercise judicial power in aid generally of the rule of law. The grant of injunctions to prevent anticipatory breaches of the criminal and civil law is an obvious example: see Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286. However, it could not be argued that the jurisdiction in this case was to serve any broader purpose of facilitating the rule of law. The purpose is clearly to facilitate a function that the Commonwealth Parliament had chosen to confer upon an executive agency. It is an administrative function. 81 After considering these various factors I have reached the view that the power conferred on this court by s 30DE of the Act is not judicial power. Consequently the conferral of that jurisdiction upon this Court is invalid. The fact that it is CASA that has the function under the CAA of determining whether or not there has been a breach of s 30DB of the Act seems to me to compel the conclusion that the power conferred on the Court by s 30DE of the Act is an administrative or executive power. This is so notwithstanding that there are some features of the power conferred by s 30DE of the CAA which are more analogous to judicial power than is (for example) the power to issue a search warrant under s 32AF of the CAA. 82 In these circumstances it is unnecessary for me to consider the separate question as to whether the jurisdiction conferred on the Court is in respect of a "matter". That question is related to the question of whether the jurisdiction conferred involves the exercise of judicial power (see, for example Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 206 ALR 130 at 134). Having come to the view that the jurisdiction conferred on the Court does not involve judicial power I do not think any useful purpose would be served having regard to the facts in this case by discussing separately the question of whether there is, in any event, a "matter" in relation to which judicial power has been conferred. 83 For these reasons I would answer the question reserved as follows: "Whether s 30DE of the Civil Aviation Act, 1988 (Cth) is valid? Answer: No" 84 Given that my view is a dissenting one it is not necessary to consider to what extent other provisions of the CAA may need to be read down or severed in light of the invalidity of s 30DE. In any event that issue does not strictly arise in light of the limited question that has been reserved. The parties have not made full submissions in relation to it. Nevertheless, I refer to the comments on severance in SportOdds at [18]-[21] and note that there may be a real question of whether the Parliament could have intended that those provisions of the Civil Aviation Amendment Act, 2003 (Cth) which brought into operation Division 3A of the CAA or which revoked the pre-existing regulation 268 of the Civil Aviation Regulations 1988 would operate in circumstances where s 30DE of the CAA was invalid. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate: Dated: 25 June 2004 Counsel for the Applicant: Mr I Harvey

Solicitor for the Applicant: Mr A Anastasi, Civil Aviation Safety Authority

Counsel for the Respondents: Mr D Langmead SC with P Cawthorne

Solicitor for the Respondents: Grundy Maitland & Co

Counsel for Intervener Mr DMJ Bennett QC, Solicitor-General for the Commonwealth with Ms K Eastman

Solicitor for the Intervener Australian Government Solicitor