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[1998] HCA 54
defendant. Demurrers by the first and third defendants allowed; judgment for the defendants with costs. The challenge to the Act's validity failed: [24]–[25].
The High Court held that Queensland could legislate to change the planning rules for the Morayfield site even though the change affected a landowner's pending appeal. The statute applied to the land and relevant people generally; it did not tell the Court of Appeal how to decide the appeal or otherwise control the judicial process. The Court therefore rejected the constitutional challenge and entered judgment for the defendants.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,221 words · generated 05/10/2026
H A Bachrach Pty Ltd owned land in the Shire of Caboolture on which it operated a shopping centre. Keylim Pty Ltd sought approval to develop another shopping centre at Morayfield, within the same shire. The proposed development required changes to the planning arrangements for the site. The Caboolture Shire Council approved rezoning despite Bachrach's objections. Bachrach appealed under the Queensland planning legislation, the Local Government (Planning and Environment) Act 1990 (Q).
14 cited instruments linked from this judgment.
The Planning and Environment Court dismissed Bachrach's appeal on 10 May 1996. Bachrach then had a statutory right of appeal to the Queensland Court of Appeal on a question of error or mistake in law. It filed that appeal on 25 July 1996. In the meantime, Queensland had introduced a Bill for a special Morayfield planning statute, and the Bill was enacted on 26 July. The Act received Royal Assent on 30 July 1996 ([4]–[6]).
The special Act changed the legal position of the site. Among other things, it placed the specified land in the central commercial zone, treated certain uses as included among permitted purposes, and provided that activity carried out under a qualifying planning deed was lawful. Although the Act itself was to expire after one year, s 10 applied s 20A of the Acts Interpretation Act 1954 (Q), so that its legal effect did not simply end on expiry ([6]–[9]).
Bachrach challenged the Act in the High Court, seeking a declaration that it was invalid. Its main contention was that the legislation interfered with judicial power or the judicial process, contrary to Ch III of the Constitution. The State and Keylim demurred to the Statement of Claim. The High Court allowed those demurrers and gave judgment for the defendants with costs ([1]–[2], [24]–[25]).
The dispute was not about whether a shopping centre was desirable as a matter of planning policy. The constitutional question was whether Parliament's enactment of a special land-use regime crossed the boundary between changing the law and impermissibly intervening in the work of a court.
The Court's starting point was the character of the rights and powers affected. It distinguished matters that are exclusively judicial, such as determining criminal guilt or trying an action for breach of contract or civil wrong, from planning rights created by statute. Planning powers and rights do not necessarily have to be entrusted to a court. Their character depends on the nature of the body or tribunal exercising them in the particular statutory arrangement ([15]).
That distinction mattered because the Act changed planning rules, rather than deciding a matter that had to be resolved by a court as an exclusively judicial function. Under the general planning legislation, an objector could appeal a Council decision to the Planning and Environment Court and then, on a question of law, to the Court of Appeal. But Parliament had not surrendered its ability to amend that statutory scheme or make a special law for a particular area. The Court said that the existence of pending or threatened proceedings under an earlier law did not deprive Parliament of its power to legislate about the land ([4], [16]).
The Court also focused on the difference between altering substantive rights in litigation and interfering with the judicial process itself. It relied on the reasoning in Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth. That case had concerned legislation cancelling an organisation's registration while proceedings about its registration were pending. As the High Court explained in Bachrach, legislation can change the rights in issue in a case without necessarily intruding into the court's process. The concern is different where legislation regulates the proceeding itself or dictates how the court is to resolve it ([19]–[20]).
The Act did not refer to Bachrach's appeal. It did not direct the Court of Appeal to dismiss it, state what facts had to be accepted in deciding it, or otherwise prescribe the result. Instead, it established a legal regime for the Morayfield land, with effects for Keylim, the Council, Bachrach and others who might have an interest in the land's use ([21]–[22]). The Court considered that the Act's general operation was consistent with the State's stated legislative objective of making the development lawful, rather than merely dealing with one appeal.
Bachrach argued that the Act's language, including the phrase “are taken to include” in s 3, resembled provisions in a New South Wales case that had dealt specifically with current litigation. The Court distinguished that legislation: it had expressly addressed the pending case, stipulated facts for deciding the issues, and dealt with the costs of the proceedings. The Morayfield Act did none of those things ([21]).
The Court also rejected the argument that the statute was legislation ad hominem, meaning legislation directed at a particular person. Its practical operation was directed to land and future uses, and it bound a wider group than Bachrach alone. On the Court's reasoning, merely pointing to the litigation's timing or to political statements about it did not change the Act's legal character ([10], [12], [22]–[23]).
The judgment treated two propositions as compatible. First, courts have a constitutionally protected judicial function, and legislation may be invalid if it usurps or impermissibly interferes with that function. The Court cited Liyanage v The Queen as an example of legislation found invalid on that kind of ground, and referred to the discussion in Nicholas v The Queen ([17]). Second, the fact that a statute affects rights involved in an existing case does not, by itself, establish such an interference ([17]–[20]).
The decision therefore did not state that Parliament may always legislate to affect pending proceedings. Instead, it applied a distinction: does the statute change the substantive legal rights relevant to the dispute, or does it intrude into the judicial process by controlling how a court is to deal with the case? In Bachrach, the Court placed the Act on the substantive-rights side of that distinction because it altered the planning law governing the land and applied beyond the parties to the appeal ([19]–[23]).
The judgment also explained how the Kable principle fitted into the analysis. The Queensland Court of Appeal was a State court, not a federal court created under s 71, and the pending appeal was not an exercise of federal jurisdiction invested under s 77(iii). The Court noted that Kable began from principles applicable to federal courts and federal judicial power. It then reasoned that if an equivalent Commonwealth law would not offend those principles, there was no occasion to apply Kable to invalidate this State law ([13]–[14], [20]).
The judgment's stated result was confined to the Act and challenge before it. It held that this particular statutory regime did not amount to the alleged interference. It did not decide every possible constitutional limit on State legislation affecting pending litigation, nor did it say that a statute's general form will always be decisive. The Court's approach required attention to the law's actual operation and effect ([12], [21]–[24]).
At [12], the Court said: “it is the operation and effect of the law which defines its constitutional character”. In plain English, the question is what the statute legally does, not simply what a litigant says its promoters hoped to achieve. The Court still allowed the litigation history to be considered as context, but said that allegations of improper motive did not replace analysis of the law's actual effect.
At [17], the Court stated that “the circumstance that a statute affects rights in issue in pending litigation does not necessarily involve an invasion of judicial power”. This is the central caution against treating timing alone as determinative. A law can change the legal setting relevant to a case without necessarily taking over the court's function.
At [19], the Court quoted the distinction between legislation that affects substantive rights and legislation that “interferes with the judicial process itself”. The distinction directs attention to how a statute engages with the proceeding. A law that changes the governing legal rights is not automatically equivalent to a law that dictates the court's treatment of a particular case.
At [22], the Court described the Act as establishing “a legal regime affecting the Morayfield shopping centre land” and binding the developer, Council and other persons, including Bachrach. That passage explains why the statute was not treated as merely a direction to resolve Bachrach's appeal in a particular way. It changed the rules applying to the site more generally.
At [23], the Court said that legislation directed only at Bachrach's proceedings would not have achieved the attributed objective of ensuring the proposed development was lawful. The point was not that the Court endorsed the policy choice, but that the structure and reach of the statute supported its characterisation as a land-use law rather than a measure confined to the litigation.
The judgment is most directly relevant where a legislature changes statutory rights or a regulatory scheme while proceedings about those rights are pending or threatened. Its reasoning suggests that a court examining a constitutional challenge will need to identify the subject matter of the original proceedings, the legal changes made by the later statute, and whether the statute operates beyond the particular litigants.
Features supporting the analogy in Bachrach include: the law concerns a subject Parliament may regulate by statute; it changes the substantive legal regime relevant to the dispute; its provisions apply to a site, class, or regulatory subject beyond a named litigant; and it does not prescribe facts, a result, or procedure for the pending case. In Bachrach, the statute regulated future use of specified land and applied to anyone concerned with that use ([8]–[9], [22]).
Features that could make a comparison less straightforward include express reference to pending litigation, a direction about how a court must decide a case, legislative declarations of facts for the case, or provisions controlling procedural matters such as costs. The Court identified those features in distinguishing the New South Wales decision discussed at [21]. The judgment does not set out a complete test for all such situations, so these are indicators drawn from the distinctions the Court itself made, not an exhaustive checklist.
The decision also involved planning rights that were not inherently exclusive to courts. The Court contrasted those rights with criminal guilt and ordinary civil claims, which it described as inalienable exercises of judicial power ([15], [18]). The precedent therefore calls for care before extending its reasoning to other fields where the nature of the function may differ.
The supplied judgment ends with the High Court's decision on 2 September 1998. It does not describe any later judicial treatment of Bachrach. On this source alone, it is not possible to say whether later courts followed, distinguished, limited or otherwise applied the decision.
Within Bachrach itself, the Court relied directly on Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth for the proposition that Parliament may alter rights in pending litigation without necessarily interfering with judicial power ([19]–[20]). It also discussed Kable, Nicholas, Liyanage and other authorities as part of its account of the constitutional principles, but those references describe the reasoning available to the Court in 1998, not later treatment of Bachrach ([13]–[20]).
For a research assessment of subsequent treatment, the judgment's own text is not enough. The only grounded statement here is that the decision drew a distinction between legislative alteration of substantive rights and interference with judicial process, and applied that distinction to the Morayfield Act. No claim about its later authority or status is made.
The judgment leaves the boundary between changing substantive rights and interfering with judicial process dependent on the particular legislation's operation. It identifies examples of features that mattered in the comparisons it made, but does not give a comprehensive test for every statutory form. Questions may remain in a later case about how much specificity, procedural direction or case-focused operation is needed before a law is characterised as interfering with judicial process.
The Court also did not decide the Art 9 issue. It recorded that debate about the Bill of Rights 1689 arose from the allegations concerning parliamentary statements, but concluded that resolution was unnecessary ([11]). The judgment therefore cannot be read as determining the scope or application of that issue.
Nor did the Court decide that motive is irrelevant in every constitutional inquiry. It said that the validity question here did not depend on the motives or intentions attributed to the Minister or individual legislators, and that constitutional character depended on operation and effect ([12]). The precise role of legislative history in another constitutional context is not resolved by this case.
Finally, the Court did not decide whether every special statute affecting a pending planning appeal would be valid. Its conclusion was based on the Act's particular features: its general legal effect in relation to the land, its application to persons beyond the plaintiff, and the absence of provisions directing the Court of Appeal's decision ([21]–[24]). Those limits are important when comparing other legislation.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, GUMMOW, KIRBY AND HAYNE JJ
H A BACHRACH PTY LTD PLAINTIFF
AND
THE STATE OF QUEENSLAND FIRST DEFENDANT
CABOOLTURE SHIRE COUNCIL SECOND DEFENDANT
KEYLIM PTY LTD THIRD DEFENDANT
H A Bachrach Pty Ltd v The State of Queensland
(B16-1997) [1998] HCA 54
2 September 1998
ORDER
2. Judgment for the defendants with costs.
Representation:
E J P F Lennon QC with R M Derrington and G F Carney for the plaintiff (instructed by Phillips Fox)
P A Keane QC, Solicitor-General for the State of Queensland with R W Campbell and G R Cooper for the first defendant (instructed by Crown Solicitor for Queensland)
No appearance for the second defendant
J C Sheahan SC with J D McKenna for the third defendant (instructed by Minter Ellison)
Interveners:
B M Selway QC, Solicitor-General for the State of South Australia with L K Byers (instructed by Crown Solicitor for South Australia) intervening in support of the first defendant.
L S Katz SC, Solicitor-General for the State of New South Wales with N Hopkins appearing on behalf of the Attorney-General for Victoria (instructed by Victorian Government Solicitor) intervening in support of the defendants.
L S Katz SC, Solicitor-General for the State of New South Wales with S Gageler (instructed by Crown Solicitor for New South Wales) intervening in support of the defendants.
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Constitutional law – Restrictions on Commonwealth and State legislation imposed by Constitution, Ch III – Judicial power – Whether Local Government (Morayfield Shopping Centre) Act 1996 (Q) interferes with the exercise of judicial power or judicial process of the Supreme Court of Queensland, contrary to requirements of Ch III.
The Constitution, Ch III.
Local Government (Morayfield Shopping Centre) Act 1996 (Q).
Local Government (Planning and Environment) Act 1990 (Q).
GLEESON CJ, GAUDRON, GUMMOW, KIRBY AND HAYNE JJ. This action was commenced in the original jurisdiction of this Court on the basis that it is a matter arising under or involving the interpretation of the Constitution within the meaning of s 30(a) of the Judiciary Act 1903 (Cth). The plaintiff seeks a declaration that an Act of the Queensland legislature is invalid. There are three defendants. The first and third defendants have demurred to the Statement of Claim. The second defendant submits. The demurrers are before the Court for determination.
The plaintiff owns land in the Shire of Caboolture on which there is a shopping centre. The third defendant, Keylim Pty Ltd, ("Keylim") wished to build a shopping centre on land at Morayfield in the same shire. That necessitated rezoning. The second defendant, the Caboolture Shire Council, approved such rezoning. The plaintiff appealed unsuccessfully to the Planning and Environment Court. Before the plaintiff could pursue a further appeal to the Court of Appeal of the Supreme Court of Queensland, the Queensland Parliament enacted the Local Government (Morayfield Shopping Centre Zoning) Act 1996 (Q) (the Act), which had the effect of permitting the development. The plaintiff asserts that the Act is invalid, primarily on the ground that it involves an interference with the exercise of judicial power. It is also claimed that the Act "constitutes an unwarranted intervention in the judicial process of the Supreme Court of Queensland as part of an integrated Court system exercising the judicial power of the Commonwealth" and is incompatible with Ch III of the Commonwealth Constitution. The first and third defendants contend that the Act is a law with respect to the use of a particular area of land at Morayfield, that it does not interfere with the exercise of judicial power, and that it is within the law-making power of the Queensland Parliament.
The operation of the Act is to be understood against the background of the Local Government (Planning and Environment) Act 1990 (Q) (the Planning and Environment Act). That legislation, according to its statement of objectives (s 1.3), provides a code by which a local government (such as the second defendant) or the Minister may undertake the planning of an area to facilitate orderly development and provides a framework for a person to apply for approval in respect of a development proposal and appeal rights in respect of such an application. It should be noted, however, that in Queensland, as in other Australian States, the legislature has, on occasion, enacted special legislation taking particular land either wholly or partly out of the general scheme of such a code1. When a State legislature enacts legislation which sets up a general scheme of town planning and development control it does not thereby surrender its power to deal differently, by legislation, with particular areas of land where this, for a reason which commends itself to Parliament, is regarded as appropriate. Whether such a power should be exercised in relation to a given area becomes a political question.
" It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.
'Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action'.
…
It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantial rights which are at issue in the proceedings …
Here the situation is very different. The Cancellation of Registration Act does not deal with any aspect of the judicial process. It simply deregisters the Federation, thereby making redundant the legal proceedings which it commenced in this Court. It matters not that the motive or purpose of the Minister, the Government and the Parliament in enacting the statute was to circumvent the proceedings and forestall any decision which might be given in those proceedings."
Those observations are directly applicable to the present case. It may be added that the fact that they were made in a context relating to the judicial power of the Commonwealth, and with reference to Ch III of the Constitution, makes the plaintiff's reliance upon Kable of no avail.
An attempt was made by the plaintiff to demonstrate that the Act interfered with the judicial process itself. Reliance was placed upon the language of s 3, providing that for the purposes of the relevant planning scheme "the column 3 purposes are taken to include" certain specified purposes. This use of language was compared with the legislation considered by the Court of Appeal of New South Wales in Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations14. The legislation considered in that case was, however, quite different from the Act. It specifically addressed current litigation, prescribed that for the purposes of determining the issues in that litigation certain facts were to be taken as established, and dealt with the costs of the litigation.
The plaintiff's legal proceedings are not mentioned in the Act. The manifest purpose and effect of the Act is to establish a legal regime affecting the Morayfield shopping centre land, binding the developer, the Council, and all other persons including the plaintiff. Indeed, assuming that the ultimate objective of the Government was to bring about the result that the Morayfield shopping centre could lawfully be constructed as expeditiously as possible, it would not have been sufficient to enact legislation which merely addressed the plaintiff's legal proceedings. In order to achieve the desired result, it was necessary to enact legislation binding all those who might possibly be concerned, in the future, with the proposed development and all those who might avail themselves of the broad standing provision in respect of "a person" provided by s 4.3(8) of the Planning and Environment Act.
The same consideration answers the plaintiff's argument that this was legislation ad hominem. An examination of the terms of the Act reveals that this is not so, and the objective attributed to Parliament by the plaintiff is such that it could not be so. Legislation ad hominem would not have achieved that objective. It was not enough to deal with the plaintiff's legal proceedings. It was necessary to ensure that the proposed development was lawful.
The challenge to the validity of the legislation fails.
The demurrers by the first and third defendants should be allowed. There should be judgment for the defendants in the action with costs.
eg Local Government (Harbour Town Zoning) Act 1990 (Q); Local Government (Robina Central Planning Agreement) Act 1992 (Q); Sanctuary Cove Resort Act 1985 (Q). ↩
See Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466-467. ↩
Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 727, 738; 152 ALR 540 at 546-547, 562. ↩
(1996) 189 CLR 51. ↩
Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444. ↩
See Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 706; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258, 269. ↩
Cominos v Cominos (1972) 127 CLR 588 at 606-607; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360-361. ↩
(1998) 72 ALJR 456; 151 ALR 312 ↩
[1967] 1 AC 259. ↩
(1973) 129 CLR 231 at 250. ↩
H A Bachrach Pty Ltd
Queensland [1998] HCA 54; 195 CLR 547; 156 ALR 563; 72 ALJR 1339
(1995) 184 CLR 453
(1998) 72 ALJR 722
(1996) 189 CLR 51
(1918) 25 CLR 434
(1991) 172 CLR 501
(1995) 183 CLR 245
(1972) 127 CLR 588
(1987) 163 CLR 656
(1991) 173 CLR 167
(1995) 183 CLR 323
(1998) 72 ALJR 456
(1973) 129 CLR 231
(1948) 75 CLR 495
(1986) 161 CLR 88
(1986) 7 NSWLR 372
Demurrers by the first and third defendants allowed; judgment for the defendants with costs. The challenge to the Act's validity failed: [24]–[25].
It suffices for present purposes to note the following features of the Planning and Environment Act. Planning schemes are provided for in Pt 2. There is a scheme, prepared under previous legislation, known as the town planning scheme for the Shire of Caboolture. The Council is empowered to rezone land, with or without conditions, and make amendments to the planning scheme (ss 4.3, 4.4). When an application for such rezoning and other amendments is made, a "person" is entitled to make an objection (s 4.3(8)). An objector who is dissatisfied with the Council's decision has a right to appeal to the Planning and Environment Court (s 7.1). The plaintiff exercised that right. The Planning and Environment Court was empowered to conduct a review of the Council's decision (s 7.2). It did so, and dismissed the appeal. The plaintiff then had a right to appeal to the Queensland Court of Appeal on the ground of error or mistake in law (s 7.4(3)). On the hearing of that appeal the Court of Appeal would have been entitled to remit the matter to the Planning and Environment Court for determination in accordance with the terms of the judgment. That might have involved questions of conditions, as well as the bare issue of allowance or disallowance of the rezoning or amendment of the permitted uses.
There had been a previous history of applications to rezone the Morayfield land for shopping centre development, and of objections by the plaintiff. In 1994 Keylim sought and obtained certain approvals from the second defendant, over the plaintiff's objections. The plaintiff appealed. On 10 May 1996 the Planning and Environment Court dismissed the plaintiff's appeal. On 15 May 1996 the Minister for Local Government and Planning introduced into the Queensland Legislative Assembly a Bill for the Act. On 25 July 1996 the plaintiff appealed to the Queensland Court of Appeal. On 26 July 1996 the Bill was enacted.
The Act commenced on 30 July 1996, the date of the Royal Assent. Section 12 of the Act states that the Act expires one year after the commencement of that section, namely on 30 July 1997. However, s 10 provides that s 20A of the Acts Interpretation Act 1954 (Q) applies, with the result that "the effect" of the Act did not "end" merely because of its expiry.
The scheme of the Act is as follows.
The Act is described in its long title as an Act to make provision about the planning scheme for the Shire of Caboolture. The subject land is described as the "rezoned Morayfield shopping centre land". The Act refers to a planning deed made by Keylim, the Council of the Shire of Caboolture, and any other party named in it, in a form to be approved under a regulation. Section 3 provides that the rezoned Morayfield shopping centre land is included in the central commercial zone of the planning scheme in the Shire of Caboolture, and the purposes for which the land may be used without the consent of the Council "are taken to include" certain identified purposes. Section 5 provides that anything done on the Morayfield shopping centre land under a planning deed of the kind referred to in the Act is lawful. Section 7 provides that compensation is not payable by the State or the Council merely because of the enactment or the operation of the Act or anything done to carry out or give effect to the Act. Section 9(2) provides that, for the purpose of the Planning and Environment Act, the Act is taken to operate as an amendment of the relevant planning scheme, and the provisions of a planning deed of the kind referred to are taken to be conditions attached to an amendment of the planning scheme under the Planning and Environment Act.
Both in form and in substance, the Act is legislation with respect to the use that may lawfully be made of the Morayfield land. Its provisions are of general effect, for the future, and they bind the Council, Keylim, the plaintiff, and any other person who may have an interest in, or claim to exercise rights in relation to, the use of the subject land.
In its Statement of Claim the plaintiff relates the legislation to the history of the plaintiff's objection to the rezoning and development, its appeal to the Planning and Environment Court, and its proposed further appeal to the Court of Appeal. Allegations are made concerning statements by the Minister in the Legislative Assembly, when the Bill was introduced, as to concern on the part of the Government that the plaintiff's appeals might frustrate or delay the proposed development, and as to the Government's view that the plaintiff's litigation was frivolous. It is alleged that the introduction and enactment of the Bill was "designed" (by whom is not entirely clear) to demonstrate that the State of Queensland does not respect the authority of the courts, that it is willing to interfere in pending litigation, and that it will, if necessary, nullify decisions of the courts.
These allegations prompted a debate as to whether the manner in which the plaintiff put its case involved an infringement of Art 9 of the Bill of Rights 1689 (Eng) in its application to the Queensland legislature2. In terms, Art 9 was directed to the English Parliament and provided that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. However, under pressure of argument that issue receded in importance, and its resolution is unnecessary.
Whether the Act constitutes an impermissible interference with judicial process, or offends against Ch III of the Constitution, does not depend upon the motives or intentions of the Minister or individual members of the legislature. The effect of the legislation is to be considered in context, and the plaintiff is entitled to point to the litigious background for such assistance as may be gained from it. However, it is the operation and effect of the law which defines its constitutional character, and the determination thereof requires identification of the nature of the rights, duties, powers and privileges which the statute changes, regulates or abolishes.3 An adequate appreciation of the operation of the Act, and its proper characterisation, as a matter of substance and not merely of form, may require consideration of the history of the plaintiff's pursuit of its legal rights under the Planning and Environment Act. However, it does not advance the plaintiff's argument to attribute malevolent designs to the Minister or to other persons who promoted or supported the legislation.
It will be apparent that the Queensland Supreme Court (including the Court of Appeal) is not a federal court created by the Parliament within the meaning of s 71 of the Constitution, and that the litigation pending in the Court of Appeal did not involve the exercise by it of federal jurisdiction invested pursuant to a law made by the Parliament under s 77(iii) of the Constitution. Hence the reliance by the plaintiff upon the decision with respect to the Supreme Court of New South Wales in Kable v Director of Public Prosecutions (NSW).4
However, Kable took as a starting point the principles applicable to courts created by the Parliament under s 71 and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise. The submissions for the first and third defendants and for the interveners correctly proceeded on that footing.
There are some matters which appertain exclusively to the judicial power.5 For example, the determination of criminal guilt and the trial of actions for breach of contract and for civil wrongs are inalienable exercises of judicial power.6 Changes by the legislature to what might be called town planning legislation previously enacted by it are not of this character. Rather, the rights, duties, powers and privileges created by such legislation are more aptly seen under a "functional" analysis of separation of powers as taking their character from the nature of the body dealing with them. Thus, when entrusted in an appropriate context to a court, dealings with those rights, duties, powers and privileges may attract the exercise of judicial power but they need not necessarily be so entrusted.7
Let it be accepted, as the plaintiff contends, that the pursuit by the plaintiff of its rights as an objector to the application of the third defendant, and the possibility of further legal proceedings, constituted the occasion for the intervention by the Queensland Parliament in the matter of the proposed Morayfield shopping centre development, and prompted the decision to facilitate the development by creating a special legal regime which would apply by way of amendment to that set up by the Planning and Environment Act. It does not follow that the legislature was acting beyond power, or interfering in any relevant sense with the exercise of judicial power. Parliament had the power to enact a special law relating to the use of land at Morayfield. It was not deprived of that power by pending, or threatened, legal proceedings under another law which it had previously enacted, and which it could repeal or amend as it saw fit.
The authorities recently considered in Nicholas v The Queen8 show that there may be circumstances in which legislation will be found invalid upon the ground that it involves a usurpation of or interference with judicial power, or an impermissible interference with the exercise of judicial power. Liyanage v The Queen9 is an example. However, as Mason J pointed out in R v Humby; Ex parte Rooney10 the circumstance that a statute affects rights in issue in pending litigation does not necessarily involve an invasion of judicial power11.
In this regard, the distinction between powers that are exclusively judicial and those that take their character from the body or tribunal on which they are conferred is important. A statute affecting litigation with respect to the guilt of a particular individual or group of individuals charged with criminal offences will involve quite different considerations from one affecting litigation as to rights which the Parliament may choose to have determined either by a judicial or non‑judicial body.
In Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth12 this Court was concerned with legislation enacted during the pendency of an application to the Court to quash a decision of the Australian Conciliation and Arbitration Commission empowering the deregistration of an organisation of employees. Before the application could be heard, the Parliament passed an Act cancelling the registration of the organisation. The Act was held valid. The Court said13:
See also Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 503, 579-580. ↩
(1986) 161 CLR 88. ↩
(1986) 161 CLR 88 at 96-97. ↩
(1986) 7 NSWLR 372. ↩