Wilson v Minister for Aboriginal & Torres Strait Islander Affairs

1. Is the nomination and/or appointment of the second defendant by the first defendant to make a report under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth effective to authorise the second defendant to make a report to the first defendant in satisfaction of s 10(1)(c) of the Act?

2. Is the second defendant incapable by reason of judicial office of accepting the nomination and/or appointment by the first defendant of the second defendant to make a report under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth?

The purposes of the Act are declared to be "the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition" (s 4). To effect these purposes the Minister is given the power to make a declaration under s 10 in relation to "a significant Aboriginal area" [21] . Section 11 provides that such a declaration -

(a) describe the area with sufficient particulars to enable the area to be identified; and

(b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.

Section 22 of the Act makes it an offence to contravene a declaration. Offences may be either indictable or tried in summary proceedings (s 23). 1. A term defined by s 3 as an area of land or water in Australia or an area of Australian waters "being an area of particular significance to Aboriginals in accordance with Aboriginal tradition".

The Minister had received an application seeking the preservation or protection of Goolwa and Hindmarsh Island, their foreshores, the Goolwa Channel and surrounding waters forming the mouth of the Murray River. He purportedly appointed Justice Mathews to make a report to him for the purposes of s 10 of the Act.

(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(i) that the area is a significant Aboriginal area; and

(ii) that it is under threat of injury or desecration;

(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

(d) has considered such other matters as he thinks relevant;

(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

Declarations or specific provisions therein made by the Minister under s 10(1) are revocable by either House of Parliament pursuant to s [1] . 1. Section 15 provides: "Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply to declarations as if in those sections references to regulations were references to declarations, references to a regulation were references to a provision of a declaration and references to repeal were references to revocation."

Justice Mathews' nomination to provide the Minister with a report for the purposes of s 10 was purportedly made pursuant to s 10(1)(c). In preparing a report, a reporter must follow the procedure prescribed by s 10(3) and address in the report the matters prescribed by s 10(4):

(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:

(a) publish, in the Gazette , and in a local newspaper, if any, circulating in any region concerned, a notice:

(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette ; and

(iii) specifying an address to which such representations may be furnished; and

(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a) the particular significance of the area to Aboriginals;

(b) the nature and extent of the threat of injury to, or desecration of, the area;

(c) the extent of the area that should be protected;

(d) the prohibitions and restrictions to be made with respect to the area;

(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

There is nothing in the Act nor in the terms of the letter of nomination by the Minister to Justice Mathews which purports to confer, or to request her to exercise, any judicial power. Indeed, the Act confers no powers of any kind on a reporter. Nor does it grant any immunity. Clearly the function of reporting is non-judicial. Justice Mathews was not nominated to report as a Judge of the Federal Court; she was nominated simply as an individual to perform that function. Accordingly, the basis on which a challenge was made in Hilton v Wells [2] to the validity of a law authorising a judge to issue warrants for telephonic interception - namely, the reposing of a non-judicial power in a court or in a judge acting as a member of a court - does not fall for consideration under s 10. When a power is classified as non-judicial and the repository of the power is a court or judge acting as such [3] , the problem is to determine whether the power is incidental or conducive to the exercise of judicial power [4] . None of those questions arises in a challenge to the nomination of Justice Mathews purportedly under s 10. No power of any kind is conferred on a person appointed to report under s 10; nor is a reporter appointed otherwise than as an individual - persona designata.

1. (1985) 157 CLR 57. 2. In the present context "a court or judge" signifies the High Court or a Court created by the Parliament or a Justice appointed to such a Court under Ch III of the Constitution (a Ch III judge). 3. Steele v Defence Forces Retirement Benefits Board (1955) 92 CLR 177 at 186, 187; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151 Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [No 2] (1982) 152 CLR 179 at 183, 186-187.

The question which does arise in this case is whether performance of the function of reporting to the Minister under s 10 is a function which is constitutionally compatible with the holding of office as a judge appointed under Ch III of the Constitution. That there is a constitutional restriction on the availability of Ch III judges to perform non-judicial functions is undoubted. The general principle was stated by the joint judgment in Grollo v Palmer [5] :

The conditions on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge's consent; and, second, no function can be conferred that is incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (the incompatibility condition). These conditions accord with the view of the Supreme Court of the United States in Mistretta v United States [6] where the Court said: "This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch". One reason why the Constitution restricts the availability of Ch III judges to perform non-judicial functions was stated in a passage in the opinion of the Supreme Court of the United States in Mistretta [7] adopted by McHugh J [8] and Gummow J [9] in Grollo : The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action. The passages cited from Mistretta are equally relevant to the interpretation of Ch III of the Constitution of this country. 1. (1995) 184 CLR 348 at 364-365. 2. (1989) 488 US 361 at 404. 3. (1989) 488 US 361 at 407. 4. Grollo (1995) 184 CLR 348 at 377 5. Grollo (1995) 184 CLR 348 at 392

Constitutional compatibility of function is not a question of judicial sensitivity. Nor is it a question of the desirability of employing judicial skills in order to perform a service for the Executive Government. The Minister may consider it desirable to nominate a judge to make a s 10 report because he believes that the qualifications and status of the judge are needed to settle a controversy. There may well be situations, the Hindmarsh Island case among them, in which there are vexed issues that can be clarified by an investigation and report made by a person who holds an independent office and who possesses the judicial skills of impartially assessing facts and applying the law. Desirability is not the point of the challenge to the nomination of Justice Mathews.

The success of the challenge must turn on the meaning to be attributed to the phrase in s 10(1)(c) which speaks of a report to be made by "a person nominated by him", that is, by the Minister. If the function of reporting is constitutionally compatible with the holding of office as a Ch III judge, there is no reason why any restriction should be read into the connotation of the term "person". On that hypothesis, the Minister had authority to nominate any person, whether a Ch III judge or not, to make a report. But if the function of reporting is constitutionally incompatible with the holding of office as a Ch III judge, s 10(1)(c) must be read down so as to preclude the Minister's nomination of a person who holds office as a Ch III judge [10] . So construed, s 10(1)(c) would afford no authority to the Minister to nominate Justice Mathews and consequently would deny to Justice Mathews the capacity to accept any purported nomination. If s 10(1)(c) be so construed, it matters not whether the Minister thinks it desirable to nominate a judge to report.

Chapter III provides for the appointment of judges to constitute Courts vested with the judicial power of the Commonwealth [11] . The judges who constitute those Courts are the members of the judicial branch of government. The functions of the judicial branch are constitutionally separated from the functions of the Legislature and the Executive - the political branches of government: "The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes - legislative, executive and judicial" [12] . In each branch of government, its proper powers are vested: ss 1, 61 and 71 [13] . The Constitution reflects the broad principle that, subject to the Westminster system of responsible government [14] , the powers in each category - whose character is determined according to traditional British conceptions - are vested in and are to be exercised by separate organs of government [15] . The functions of government are not separated because the powers of one branch could not be exercised effectively by the repository of the powers of another branch. To the contrary, the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed [16] .

1. Officers of the Commonwealth on whom the title and status of a Justice are conferred by statute (such as s 8 of the Commonwealth Grants Commission Act 1973 Cth, ss 4 and 5 of the National Crime Authority (Status and Rights of Former Chairman) Act 1984 Cth and s 9 of the Industrial Relations Act 1988 Cth) but who are not appointed as a Justice of the High Court or of another court created by the Parliament are not "Justices" for the purpose of Ch III. The Constitution thus imposes no restriction on the availability of those officers to perform non-judicial functions. 2. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264, referred to in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 273 3. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275 4. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275 5. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 276 Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 537-538[1957] AC 288 at 311-312 6. See Polyukhovich v The Commonwealth (the War Crimes Act Case) (1991) 172 CLR 501 at 684-685.

Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, "a great cleavage" [17] . The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation [18] . This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion [19] . The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government.

1. Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910), p 101, quoted by Evatt J in Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 117The learned author added: "The danger of the usurpation of judicial power by the Legislature or the Executive furnishes a long chapter in our constitutional history which is familiar to every student." 2. In addition, there are certain traditional species of jurisdiction which do not require the quelling of controversies: see R v Davison (1954) 90 CLR 353 at 368 3. Fencott v Muller (1983) 152 CLR 570 at 608

The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges. In R v Davison [20] , Kitto J identified the conceptual basis of the Constitution's division of the functions of government:

It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed. As an assertion of the two propositions that government is in its nature divisible into law-making, executive action and judicial decision, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers as developed in political philosophy was based upon observation of the experience of democratic states, and particularly upon observation of the development and working of the system of government which had grown up in England. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [21] , Windeyer J traced back the doctrine of separation of powers to Montesquieu's proposition that "there is no liberty if the judiciary power be not separated from the legislative and executive power". Blackstone adapted Montesquieu's proposition to the realities of the British Constitution, especially the law-making function of the Judiciary [22] . Blackstone, as Brennan J has noted elsewhere [23] , commended as a protection of liberty "the separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown" [24] . 1. (1954) 90 CLR 353 at 380-381. 2. (1970) 123 CLR 361 at 390-393. 3. See Vile, Constitutionalism and the Separation of Powers (1967), pp 104-105. 4. Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 151 5. 1 Bl Comm 269.

The separation of the judiciary is no mere theoretical construct. Blackstone rightly perceived that liberty is not secured merely by the creation of separate institutions, some judicial and some political, but also by separating the judges who constitute the judicial institutions from those who perform executive and legislative functions. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [25] , Windeyer J said that "it is well-recognised dogma for us that the judicial power is to be exercised separately from the exercise of the other two powers, and by different people. This is a necessity of our written constitutional law as well as a compelling part of our inheritance of the British tradition of the independence of the judges." (Emphasis added.) The inherited tradition of judicial independence is rooted in and manifested by the Act of Settlement 1700 [26] - which provided for judges to hold their commissions during good behaviour and for their salaries to be "ascertained and established" and which stated that removal from office might lawfully be effected upon the address of Lords and Commons - and by Ch III of the Constitution. Neither of these laws speaks of independence but both enhanced the security of tenure of judges as the means of buttressing judicial independence.

1. (1970) 123 CLR 361 at 390. 2. 12 & 13 Will 3 c 2.

The separation of judicial function from the political functions of government is a further constitutional imperative that is designed to achieve the same end, not only by avoiding the occasions when political influence might affect judicial independence but by proscribing occasions that might sap public confidence in the independence of the Judiciary. That independence is especially important in a federal system. In Attorney-General (Cth) v The Queen [27] , Viscount Simonds said:

in a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive. To vest in the same body executive and judicial power is to remove a vital constitutional safeguard. McHugh J re-stated that proposition in Harris v Caladine [28] : Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government of the Commonwealth and the Parliament of the Commonwealth so that litigants in federal courts could have their cases decided by judges who were free from potential domination by the legislative and executive branches of government: cf Commodity Futures Trading Commission v Schor [29] . His Honour cited the speech of Mr Kingston at the Adelaide Convention in 1897 in discussing what became s 72 of the Constitution [30] : I think we should be at great pains to secure the absolute independence of the Judges of the Federal Court, particularly of the Judges of the High Court of Australia, who are intended to adjudicate on matters which may affect the Federal Executive and the Federal Parliament. To my mind we shall be committing a glaring mistake if we do not protect these judges from ill-considered action either by the Federal Executive or by the Federal Parliament. [31] 1. (1957) 95 CLR 529 at 540-541; [1957] AC 288 at 315. 2. (1991) 172 CLR 84 at 159. 3. (1986) 478 US 833 at 848. 4. Harris v Caladine (1991) 172 CLR 84 at 159see also at 139, per Toohey J. 5. Official Report of the National Australasian Convention Debates (1897), p 946.

The separation of judicial functions from the political functions of government is not so rigid as to preclude the conferring on a Ch III judge with the judge's consent of certain kinds of non-judicial powers. The difficult question is to determine the dividing line between the kinds of non-judicial powers that can, and those that cannot, be so conferred. In Grollo [32] , McHugh J pointed to this difficulty:

Clearly, a tension exists between complying with the principle of the separation of powers and vesting powers in federal judges as persona designata. If the separation of powers doctrine is to continue effectively as one of the bulwarks of liberty enacted by the Constitution, the incompatibility qualification on the persona designata doctrine is a necessity. Without that qualification, it would permit the Parliament "to sap and undermine" the separation of legislative, executive and judicial powers that is inferentially expressed by ss 1, 61 and 71 of the Constitution and which was rigorously applied by this Court and the Judicial Committee of the Privy Council in the Boilermakers' Case. The constitutional wall that separates the exercise of judicial power and the exercise of executive power would be effectively breached if a federal judge could exercise any executive power invested in him or her as persona designata. The constitutional condition on the vesting of non-judicial power in (or the conferring of a non-judicial function on) a Ch III judge is that the exercise of the power (or the performance of the function) be compatible with performance of judicial functions as stated in Grollo . When that condition is satisfied, judges not only are, but are seen to be, independent of the other branches of government. The appearance of independence preserves public confidence in the judicial branch. 1. (1995) 184 CLR 348 at 376.

The majority in Grollo [33] , another case relating to judicial warrants for telephonic interception, described the kinds of incompatibility which preclude the availability of a Ch III judge to perform non-judicial functions:

The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a Judge that the further performance of substantial judicial functions by that Judge is not practicable [34] . It might consist in the performance of non-judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. 1. (1995) 184 CLR 348 at 365. 2. A Justice appointed pursuant to s 72 is a public officer whose duties must be discharged during his or her tenure. In Herscu v The Queen (1991) 173 CLR 276 at 281, the joint judgment adopted the observation of McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 524: "A public office holder assumes the burdens and obligations of the office as well as its benefits. By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties: Peery v Coffman (1964) 137 SE 2d 5 at 8; State ex rel Preissler v Dostert (1979) 260 SE 2d 279 at 286. The duties of a public office include those lying directly within the scope of the office, "those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes": Nesbitt Fruit Products Inc v Wallace (1936) 17 FSupp 141 at 143."

In Grollo all members of the Court accepted the existence of the incompatibility doctrine. There was division of opinion as to its application. In the joint judgment great weight was placed on the independence of the function to be performed by Ch III judges and on international practice in coming to the conclusion that the condition of compatibility on the conferring of the power to authorise telephonic interception was satisfied. Gummow J held the condition to be satisfied but on narrower grounds than those in the joint judgment. McHugh J, concentrating on the nature of the power and the prescribed manner of its exercise, held the condition not to be satisfied.

Grollo was concerned with constitutional incompatibility, derived from the constitutional separation of the functions of the Judiciary from the functions of the Parliament and the Executive. It is a doctrine wider than, and to be distinguished from, the common law doctrine of incompatibility. The common law doctrine operates to vacate an office to which a person has been appointed when that person accepts another office and the duties of the two offices cannot be faithfully and impartially discharged by the same person [35] . The common law doctrine is based on inconsistency between the duties of the two offices; it eliminates the inconsistency by vacating one of the offices. The doctrine, at least in its original form, vacated the office first held but a later development suggests that, if a person be appointed to two offices the duties of which are incompatible, the first office is not vacated and that, rather, the party is "incapacitated" from accepting the second, save where the appointor to the second office has power to accept a resignation of the first [36] . The constitutional doctrine is to be distinguished in its purpose and probably in its effect. Its purpose is to protect effectively the independence of Ch III judges from the political branches of government as a guarantee of liberty and as a buttress to public confidence in the administration of justice by Ch III courts.

1. Dyer's Case (1557) 2 Dyer 158b [73 ER 344]; Milward v Thatcher (1787) 2 Term Rep 81 at 86-87[100 ER 45 at 47-48]; Comyns' Digest, 5th ed (1822), vol V "Officer", pp 190-191; Halsbury's Laws of England, 4th ed, vol 9, par 1273, p 753; People; ex rel Ryan v Green (1874) 13 Sickels' Reports (58 NY) 295 at 304-305; Lillich and Linton, Incompatible Municipal Offices in New York, Fordham Law Review, vol 28 (1960) 462, at pp 466-469. 2. R v Justices of Cheshire (1840) 4 Jur 484 at 485, discussing the decision in R v Patteson (1832) 4 B& Ad 9 at 23-26 [110 ER 358 at 364-365]. Further movement in this direction can be perceived from Worth v Newton (1854) 24 LT(OS) 157; 10 Exch 247 [156 ER 435].

The effect of the application of the constitutional doctrine, which might differ from the effect of application of the common law doctrine, is not to vacate the office to which the Ch III judge has been appointed but to sterilise the power to interfere with the protection which the Constitution gives to the independence of Ch III judges. Section 72 of the Constitution provides that the appointment of a Justice terminate only by removal, expiry of the term of the appointment or resignation. No common law doctrine can alter the security of the tenure thus created [37] .

1. For this reason, a Justice on appointment to a higher court formally resigns the commission to a lower court.

The capacity of Ch III judges to perform their judicial duties throughout the terms of their appointment independently of the political branches of government cannot be prejudiced by their appointment to non-judicial office or to perform non-judicial functions. If an appointment to non-judicial office or performance of non-judicial functions prejudices that capacity it is incompatible with the office and function of a Ch III judge. And that is inconsistent with s 72 of the Constitution. Thus constitutional incompatibility limits legislative and executive power; it does not effect a vacation of judicial office.

In the present case, the category of incompatibility that arises for consideration is "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished" [38] .

Bearing in mind that public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons exercising the political functions of government, no functions can be conferred on a Ch III judge that would breach that separation. The separation that is relevant here is separation in the performing of the particular non-judicial function; the principle does not touch personal relationships or relationships outside the area of governmental activity between judges and those who perform legislative or executive functions. Those relationships are matters for judicial sensitivity but not of constitutional significance. Constitutional incompatibility has the effect of limiting legislative and executive power. Where it has that effect, it is discovered on the face of the statute, or on the face of those measures taken pursuant to a statute, that purports or purport to confer a non-judicial function on a Ch III judge. That is not to say that constitutional incompatibility is a matter of mere form. The operation of the statute or of the measures taken pursuant to it is ascertained by looking to the circumstances in which the purported function might be performed. Where a non-judicial power is purportedly conferred, constitutional incompatibility is ascertained by reference to the function that has to be performed to exercise the power.

The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter "any non-judicial instruction, advice or wish"). If an affirmative answer does not appear, it is clear that the separation has been breached [39] . The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

1. See R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54

A judge who conducts a Royal Commission may have a close working connection with the Executive Government yet will be required to act judicially in finding facts and applying the law and will deliver a report according to the judge's own conscience without regard to the wishes or advice of the Executive Government except where those wishes or advice are given by way of submission for the judge's independent evaluation. The terms of reference of the particular Royal Commission and of any enabling legislation will be significant. Similarly, where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision [40] . And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the Tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a Minister. Thus, in the first deportation case to come before the Tribunal [41] . Brennan J pointed out:

The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views. Whenever the Tribunal is constrained or elects to remit a matter for reconsideration in accordance with its recommendations (see s 43(1)(c)(ii)) its function is discharged when the decision to remit is made. It is not concerned to ensure that its recommendation is carried into effect. The legislature, in creating a right of appeal to the Tribunal, no doubt intended that the successful exercise of the right should not be unjustifiably frustrated by subsequent administrative action, but the remedy, if any, is reserved for the courts or the Parliament - not this Tribunal. The Tribunal decides the appeal: it is left to the Executive to implement the decision. Independence from the Legislature and the Executive Government in the sense thus explained is essential to the constitutional compatibility of performing a non-judicial function with the holding of office as a Ch III judge. 1. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 33824 ALR 307; 2 ALD 1. 2. Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161

The only power conferred by s 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister's power to make a declaration. The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister's power. It is performed as an integral part of the process of the Minister's exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made [42] and shorn of the usual judicial protections [43] , in a position equivalent to that of a ministerial adviser [44] .

1. Acts Interpretation Act 1901 Cth, s 33(4). 2. The Act provides no immunity for the reporter. This in contrast with the immunity usually offered judges when accepting persona designata non-judicial appointments: see Telecommunications (Interception) Act 1979 Cth, s 6D(4); Royal Commissions Act 1902 Cth, s 7(1); Administrative Appeals Tribunal Act 1975 Cth, s 60(1); Aboriginal Land Rights (Northern Territory) Act 1976 Cth, s 53A(1); Native Title Act 1993 Cth, s 180(1); cf Jamieson v The Queen (1993) 177 CLR 574 at 589 3. In argument, some reliance was placed on a view that Brennan J expressed extra-judicially in "Limits on the Use of Judges", Federal Law Review, vol 9 (1978) 1, at p 13: "The function of determining questions as an ordinary step in advising the executive upon the exercise of executive power is not a proper function for judges. It tends to making the judicial function either nugatory or subservient, and neither of those results can long sustain public confidence in the judicial office." Whilst that view can be accepted, it was not expressed as flowing from a constitutional limitation.

The reporter is not expressly required to hold a hearing, but may nevertheless be obliged to observe requirements of procedural fairness [45] . That obligation is not significant. Significantly, the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined. Such a determination is essentially a political function. A reporter may choose to act independently of the Minister in determining the interests to be preferred, but the Act does not require the reporter to disregard ministerial instruction, advice or wish in preparing the report. The report may be prepared so as to accord with ministerial policy. If the Minister has no policy instruction or intimation to give to the reporter, the reporter himself or herself must make political decisions: "the extent of the area that should be protected" (s 10(4)(c)), "the prohibitions and restrictions to be made " (s 10(4)(d)) and "the duration of any declaration" (s 10(4)(f)). These decisions are not necessarily made by finding the nature and extent of an Aboriginal connection with the land or by an assessment of the extent to which Aboriginal beliefs or lifestyles are under threat [46] . The decisions to be made by a reporter are political in character. In addition, the reporter is required by s 10(4)(g) to furnish advice to the Minister upon a question of law, namely, the extent to which the area in question is or may be protected by or under a law of a State or Territory. Yet the giving to the executive of advisory opinions on questions of law is quite alien to the exercise of the judicial power of the Commonwealth [47] . The separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge.

1. The Full Federal Court has so held in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 2. cf the duties of the Aboriginal Land Commissioner under s 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth as explained in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 345, 348-349, 360-362; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 43, 57, 67-68. 3. When a Ch III judge, in the course of the permissible exercise of a power, whether judicial or non-judicial, perceives anomalies or inefficiencies in the operation of a law, the making of an observation upon, or a recommendation for the reform of, the law is a function properly regarded as incidental to the exercise of the power.

It seems that the criteria of incompatibility above expressed have not always been observed in practice. However, disconformity of practice with constitutional requirement is no inhibition against truly expounding the text and implications of the Constitution. Indeed, any practice of departure from the constitutional requirement makes the necessity to declare the requirement more imperative. It cannot be avoided by a judge choosing to adopt a procedure designed to erect a cordon sanitaire between the judge and the Legislature or the Executive Government. The Constitution is concerned not with the conduct of a judge who exercises his or her discretion to maintain independence from the Legislature or the Executive Government but with the limits on legislative and executive power that might be exercised to confer a function bridging the separation of the Judiciary from the Legislature and the Executive Government.

In the present case, no doubt Justice Mathews would have followed a judicial or quasi-judicial procedure and her Honour's report might well evidence an independence of view as to the course which she regards as a desirable one for a Minister to follow. Nevertheless, if the Act be read down as it must, it follows that the function was one which the Minister could not properly nominate her to perform, nor one which her Honour was capable of accepting.

We would answer Question 1: No; Question 2: Unnecessary to answer.

The facts, the relevant legislative provisions and the questions reserved for the consideration of the Full Court are set out in the joint judgment of Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ and in the judgment of Kirby J. They need not be repeated.

Section 71 of the Constitution establishes a judicature for the exercise of the judicial power of the Commonwealth, consisting of this Court, federal courts created by the Parliament, and such other courts as the Parliament invests with federal jurisdiction. The section has long been construed as a complete and exhaustive statement with respect to the exercise of the judicial power of the Commonwealth. Thus, no part of that power may be exercised by a person or body that is not a court as mentioned in s 71 [48] and no power may be conferred by the Parliament on the courts referred to in that section that is not judicial power or incidental to the exercise of judicial power [49] . So much follows from the words of the section when construed having regard to the nature of judicial power and its crucial significance in a federal system [50] .

1. See Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 2. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 3. See, eg, Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 469-470 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275-276 Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 540-541[1957] AC 288 at 315 Harris v Caladine (1991) 172 CLR 84 at 158-159

More recently, s 71 and the succeeding provisions of Ch III have been construed so as to limit the functions which Parliament may confer on the members of this and other federal courts in their capacity as individuals. Thus, it was held in Grollo v Palmer [51] that no function may be conferred "that is incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power". The notion of constitutional incompatibility was elaborated in the joint judgment of Brennan CJ, Deane, Dawson and Toohey JJ as follows [52] :

The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. The principle laid down in Grollo and elaborated in the passage just quoted also owes much to the nature of judicial power and its special significance in a federal system of government. 1. (1995) 184 CLR 348 at 365; see also at 376-377; per McHugh J; at 392, per Gummow J. See the earlier statements to the same effect in Hilton v Wells (1985) 157 CLR 57 at 73-74, per Gibbs CJ, Wilson and Dawson JJ; at 83, per Mason, and Deane JJ. 2. Grollo (1995) 184 CLR 348 at 365

Within our constitutional framework, the purpose of judicial power is to give binding decisions as to legal rights and obligations in settlement of controversies between individuals, between individuals and the polities which constitute the federation and, also, between those polities. Because of the need to adjudicate disputes involving the polities constituting the federation - polities which are "independent governments existing in the one area and exercising powers in different fields of action carefully defined by law" [53] - judicial power occupies a special position in a federal system of government. It will later be necessary to refer to that matter in greater detail. For the moment, it is sufficient to note that the effective resolution of controversies which call for the exercise of the judicial power of the Commonwealth depends on public confidence in the courts in which that power is vested. And public confidence depends on two things. It depends on the courts acting in accordance with the judicial process. More precisely, it depends on their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are [54] . And, just as importantly, it depends on the reputation of the courts for acting in accordance with that process.

1. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-268 2. See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374

So critical is the judicial process to the exercise of judicial power that it forms part of the definition of that power. Thus, judicial power is not simply a power to settle justiciable controversies, but a power which must be and must be seen to be exercised in accordance with the judicial process. As I explained in Harris v Caladine [55] , the Parliament is, on that account, precluded from conferring powers on a court that are to be exercised in a partisan manner or in a non-judicial way. Moreover, Parliament cannot require the courts to act in a way that tends to bring their reputation for impartiality or the integrity of the judicial process into question. Equally, Parliament cannot confer a function on a judge in his or her individual capacity if it has the capacity to bring the reputation of the judge or that of the courts into question. That is the third aspect of the notion of constitutional incompatibility elaborated in Grollo . And it is the only aspect involved in this case, there being no suggestion that the function purportedly conferred on Justice Mathews makes it impracticable for her to perform the duties of her office as a Judge of the Federal Court of Australia or that it has the capacity to compromise or impair her ability to perform her judicial functions with integrity and in accordance with the judicial process. In this context, it may conveniently be noted that it is not suggested that she has conducted herself other than with the utmost integrity and in complete conformity with judicial standards.

1. (1991) 172 CLR 84 at 150-151. See also Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496-497 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 685, 703-705; Leeth v The Commonwealth (1992) 174 CLR 455 at 501-502

It may be assumed that a judge will perform a non-judicial function conferred upon him or her as an individual impartially. Indeed, that is usually the reason why judges are requested to perform non-judicial functions. Very often, the function conferred will be comparable to some aspect of the judicial function, for example, the determination of disputed issues of fact. And often, although not invariably [56] , the function will be one that is required to be performed judicially, in the sense that it is required to be performed openly, impartially and in accordance with rules designed to satisfy the requirements of procedural fairness.

1. See Grollo v Palmer (1995) 184 CLR 348 at 379-381, per McHugh J as to the procedures involved in the granting of intercept warrants under the Telecommunications (Interception) Act 1979 Cth.

Although it may be assumed that a judge will ordinarily act impartially and with propriety in the performance of a function conferred in his or her individual capacity, it cannot be assumed that that will also be the public perception. In this regard, the rule as to apprehended bias provides a useful analogy. That rule obliges an unbiased judge to withdraw from proceedings if a fair-minded observer, with knowledge of the actual circumstances of the case, would conclude that he or she would bring other than an unprejudiced and impartial mind to the resolution of the issues involved [57] .

1. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87

If a question arises whether a particular non-judicial function would, if performed by a judge in his or her individual capacity, diminish confidence in the judge's integrity or that of the judiciary as an institution, it will often be appropriate to ask how its performance would be viewed by a fair-minded observer. In that regard, the rule as to apprehended bias provides another useful analogy. That rule proceeds on the basis that "it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of [a judge] to make an independent decision uninfluenced by previously expressed opinions" [58] . So too, it is not proper to attribute to the fair-minded observer a belief or assumption that judges will ordinarily act impartially and conformably with judicial standards in the performance of functions conferred upon them as individuals.

1. Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87, referring to Vakauta v Kelly (1989) 167 CLR 568

It is not possible to draw a complete analogy with the rule as to apprehended bias. That rule attributes to the fair-minded observer a knowledge of the actual circumstances of the case. That is appropriate where the concern is with judicial or other proceedings which are held in public and which form part of the public record. However, there are obvious difficulties in attributing knowledge of a function to a fair-minded observer if, for example, the function is not precisely defined, procedures are not specified or the function is to be performed behind closed doors.

The function purportedly conferred on Justice Mathews pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth (the Act) is for a precise purpose: it is to assist the Minister faced with an application in respect of an area to decide whether the area is a significant Aboriginal area and whether it is under threat of injury or desecration (s 10(1)(b)). The report is to deal with precise matters as specified in s 10(4) of the Act [59] . Moreover, the procedures to be followed are not at large: procedures for giving notice to interested persons and inviting representations are specified in s 10(3)(a); by s 10(3)(b), due consideration is to be given to representations received; and, of course, the rules of procedural fairness apply [60] . However, the Act neither requires public hearings nor specifies that the report is to be made public.

1. Section 10(4) provides: "For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters: (a) the particular significance of the area to Aboriginals; (b) the nature and extent of the threat of injury to, or desecration of, the area; (c) the extent of the area that should be protected; (d) the prohibitions and restrictions to be made with respect to the area; (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); (f) the duration of any declaration; (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law; (h) such other matters (if any) as are prescribed." 2. See Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40

Notwithstanding that there need not be public hearings and that the report required by s 10(1)(c) of the Act need not be made public, there is nothing, in my view, in the nature of that reporting function or the procedures attending its performance which would cause a fair-minded observer to question the ability of Justice Mathews to perform her judicial functions with integrity. Thus, the function is one that may validly be conferred on a judge in his or her individual capacity unless it is "of such a nature that public confidence in the integrity of the judiciary as an institution is diminished" [61] . And that issue requires further consideration of the special significance of judicial power in a federal system of government.

As already noted, the judicial power of the Commonwealth falls for exercise in the resolution of justiciable controversies involving the polities constituting the federation. Often the controversies are between individuals and one or other of those polities. That is an important consideration in itself. There is, however, an even more important consideration, which was identified in R v Kirby; Ex parte Boilermakers' Society of Australia [62] in these terms:

The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed. These are important considerations to be taken into account in the construction of the Constitution generally. However, they have a further significance in that they expose an important feature of the judicial power of the Commonwealth. 1. (1956) 94 CLR 254 at 276. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262-263, 271; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 164 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 648

As earlier indicated, impartiality and the appearance of impartiality are defining features of judicial power. Where, as in our federal constitutional system, the judicial power of the Commonwealth is to be exercised in resolution of justiciable controversies involving the polities constituting the federation and concerning their powers under the Constitution, impartiality requires that the courts exercising that power be and be seen to be completely independent of the legislatures and executive governments of those polities. If they are not independent in fact and in appearance, public confidence will be diminished in the judicature constituted by s 71 of the Constitution and, ultimately, in the Constitution itself.

Public confidence in the independence of the judiciary is diminished if, even in their capacity as individuals, judges perform functions which place them or appear to place them in a position of subservience to either of the other branches of government. Similarly, public confidence is diminished if the performance of non-judicial functions gives the appearance that a judge is acting as the servant or agent of either of those other branches of government.

Whether or not a function gives or is capable of giving the appearance that there is an unacceptable relationship between the judiciary and the other branches of government is a question that has to be answered both by reference to functions that have, historically, been carried out by judges in their capacity as individuals (for example, Royal Commissions) and by a consideration of contemporary needs. However, in considering functions that have been carried out in the past, it is necessary to bear in mind that, to a large extent, those functions were not carried out by Ch III judges.

In general terms, a function which is carried out in public, save to the extent that general considerations of justice otherwise require, which is and which is manifestly free of outside influence and which results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches of government. And there may be functions (for example, the issuing of warrants such as those considered in Hilton v Wells [63] and in Grollo ) which do not satisfy these criteria but which, historically, have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence. However, history cannot justify the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the judiciary generally.

The function purportedly conferred on Justice Mathews pursuant to s 10 of the Act is not one that has, historically, been performed by judges. Moreover, it is not a function that must be carried out in public. Perhaps the interests of justice require that the matter upon which she was asked to report be considered in confidence. Whether or not that is so, the function of reporting under s 10 of the Act is not one which, in my view, can be conferred on a judge in his or her individual capacity. As the report need not be made public, it cannot be judged according to its own terms. Moreover, the report need not be carried into effect: the decision whether an area should be protected under s [64] is for the Minister alone. Reporting is simply a process which assists the Minister to decide what, if any, action should be taken.

1. Section 10(1) provides: "Where the Minister: (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; (b) is satisfied: (i) that the area is a significant Aboriginal area; and (ii) that it is under threat of injury or desecration; (c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and (d) has considered such other matters as he thinks relevant; he may make a declaration in relation to the area."

The function of reporting under s 10 of the Act is one which, if performed by a judge in his or her individual capacity, gives the appearance that the judge is acting, not in any independent way, but as the servant or agent of the Minister. Thus, it is not a function that Parliament may confer on a judge of a court exercising the judicial power of the Commonwealth.

Section 10(1)(c) of the Act must be read down to exclude persons who are judges of courts exercising the judicial power of the Commonwealth [65] . It follows that Question 1 in the case stated should be answered "No". It is unnecessary to answer Question 2.

1. See Pidoto v Victoria (1943) 68 CLR 87 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 Kirby J.

The plaintiffs object to the nomination of a judge of the Federal Court of Australia, Justice Mathews, by a Minister in the Executive Government of the Commonwealth to make a report pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth (the Act). As eventually argued, the plaintiffs raised two objections. First, they contended that, upon its proper construction, the Act did not contemplate the nomination of a federal judge to perform the task of reporting (the construction issue). Secondly, if their first contention failed, they argued that any law of the Commonwealth permitting the nomination of a federal judge, or act of the Executive in so nominating a federal judge, amounted to an unconstitutional invasion of the judicial branch of government and was therefore void (the constitutional issue).

The plaintiffs' objections arise for decision in the consideration of questions reserved by Brennan CJ for the opinion of the Full Court. The questions were reserved following the filing in the Court, in May 1996, of a statement of claim whereby the plaintiffs sought declarations intended, in effect, to present the construction and constitutional issues for decision. There are various defects in the plaintiffs' pleadings, obscurities in their written arguments and ambiguities in the questions presented to the Court for answer. But the foregoing represents the essence of it. In my opinion, the Court should deal with the matters of substance which arise from the questions.

Doing so requires the Court to go further down the path lately taken in Hilton v Wells [66] and Grollo v Palmer [67] . The dissenting opinions in each of those decisions illustrate the differences which can arise over the boundary for the lawful conferral of non-judicial functions upon federal judges who, in their judicial office, exercise the judicial power of the Commonwealth. As Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ have observed in this case, determining the dividing line of the permissible and impermissible presents "a difficult question". The earlier cases illustrate the different judicial views which exist over the performance by such judges, outside strictly judicial functions, of non-judicial activities. Hints have been thrown out that the doctrine expressed in Hilton v Wells [68] might be ripe for reconsideration [69] . However, in this case, no party sought to re-argue the correctness of the Court's holdings in Hilton and Grollo . By the same token, neither of those decisions determines the questions now before the Court. Here, the issue is not whether the appointment of a federal judge as a designated person to perform non-judicial functions is permissible as an exception to the constitutional separation of powers [70] . It is whether the statute envisaged that a federal judge could be appointed as reporter to a Minister and, if it did, whether the functions involved in the office of reporter were constitutionally incompatible with federal judicial office, because they undermine the integrity of, and public confidence in, federal judicial office [71] .

1. (1985) 157 CLR 57. 2. (1995) 184 CLR 348. 3. (1985) 157 CLR 57. 4. Jones v The Commonwealth (1987) 61 ALJR 348 at 349-35071 ALR 497 at 499-500 as noted by McHugh J in Grollo v Palmer (1995) 184 CLR 348 at 376 5. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 274-275 Attorney-General (Cth) v The Queen (1957) 95 CLR 529[1957] AC 288 6. cf Mistretta v United States (1989) 488 US 361

The Court must give the answer to the construction issue after an analysis of the language used by Parliament and with an understanding of the objects of the reporting function provided by the Act, viewed against the background of the performance by federal (and other) judges in Australia, over many years, of non-judicial activities. The answer to the constitutional issue is to be found in the application to the Constitution of the logic expressed in the majority opinions in Hilton and Grollo , not by the illicit embrace of the narrower views of the minority.

In the way in which the questions have come to the Court relatively few facts are disclosed. Ms Dorothy Wilson and eight other persons contest the purported nomination of Justice Mathews (the second defendant) by the Minister for Aboriginal and Torres Strait Islander Affairs (the first defendant). The nomination was purportedly made under the Act on 16 January 1996. Placed before the Court by agreement was a letter to Justice Mathews by Senator Rosemary Crowley, then a Federal Minister, "[a]cting for and on behalf of the Minister for Aboriginal and Torres Strait Islander Affairs". The letter referred to a telephone conversation between the Minister's office and the judge "in which you confirmed you are available to accept nomination to prepare a report under s 10 of [the Act]". The letter proceeds to nominate Justice Mathews under the Act "to prepare a report in relation to the attached application".

No question arises as to the power of Senator Crowley to act on behalf of the Minister. Nor was it in contest that, at the time of the nomination Justice Mathews was (as she still is) a judge of the Federal Court of Australia. The public record shows that her Honour is also the President of the Administrative Appeals Tribunal, a Deputy-President of the National Native Title Tribunal and a member of the Administrative Review Council of the Commonwealth. No question has arisen as to the standing of the plaintiffs to mount their challenge. Their interest to do so is suggested in the document attached to the Minister's letter to Justice Mathews.

That document discloses that the report sought from Justice Mathews arises out of an application made by another group of Aboriginal Australians (the applicants) who seek a declaration under the Act with respect to what they contend is a significant Aboriginal area "the protection and preservation of which is necessary to avoid threat of injury or desecration". This area relates to land and waters around Hindmarsh Island and between that island and the coast of South Australia. A proposal has been made to build a bridge linking the island with the mainland. The applicants contend that such a bridge, as proposed, would "undermine cosmological and human reproduction and cause Ngarrindjeri society and its traditions to ultimately disappear". The application reveals that Professor Cheryl Saunders in July 1994 concluded that "there was [a] strong basis to determine that construction of a bridge threatened injury or desecration to a significant Aboriginal area within the meaning of the Act". As appears from the application, the Government of South Australia considered that it was legally bound to build the bridge. It established a Royal Commission to report upon Aboriginal objections. It was awaiting the report of that Commission at the time of the nomination of Justice Mathews. The application noted an assertion by the applicants that:

By Ngarrindjeri customs and beliefs some of the [w]omen's traditional knowledge can only be revealed to privileged women

Given also the confidential nature of many of the aspects of the knowledge, the applicants are very concerned to ensure that any of the traditional knowledge should not be publicly revealed. Even then disclosure of the women's knowledge should be to as few chosen women as is absolutely necessary for the application to proceed in accordance with the Act.

The Minister treated the application as superseding previous applications. In doing so, she took into account a decision of the Full Court of the Federal Court of Australia on the earlier stage of the controversy [72] . The nomination of Justice Mathews to submit a report to the Minister under the Act fulfilled a request in a section of the applicants' application dealing with procedure "that any person assigned to report should also be a woman". 1. Tickner v Chapman (1995) 57 FCR 451See also now Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40

Placed before the Court without objection were certain procedural rulings made by Justice Mathews in her capacity as reporter. These indicate adoption of a procedure for the taking of submissions in writing with limited facilities for oral submissions under controlled conditions. The procedures adopted appear to be designed to protect confidentiality, expedite the hearings and reduce the risk of liability of any person for defamation.

The plaintiffs are described in the list of persons who attended the meeting convened to discuss the procedures to be followed in preparing the report as "another group of Ngarrindjeri women sometimes referred to as "the dissident women" ". They do not agree with the application under the Act.

The purposes of the Act are declared, by s 4, to be "the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters that are of particular significance to Aboriginals in accordance with Aboriginal tradition". By s 9(1) the Minister is empowered to make a declaration in relation to "a specified area". The Minister may only do so where he or she receives an application made by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration and is satisfied that the area is a significant Aboriginal area (as defined) (s 3(1)) and is under serious and immediate threat of injury or desecration (s 9(1)). A person who contravenes the provision of a declaration is guilty of offences subject, on conviction, to substantial punishment (s 22). Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct which contravenes or involves the breach of a declaration, that Court may grant an injunction as it determines to be appropriate (s 26). Proceedings in a court arising under the Act may be held in camera where the court is satisfied that it is desirable to do so having regard to the interests of justice and the interests of Aboriginal tradition (s 27). Compensation may be given for the acquisition of property or the operation of a declaration made under the Act (s 28). Clearly, such declaration may have a significant impact on the rights of those affected. Self-evidently, it is desirable that the declaration by the Minister under the Act should be soundly based. This is why the Act provides, as a pre-condition to such a declaration, the receipt of a "report".

(i) that the area is a significant Aboriginal area; and

(ii) that it is under threat of injury or desecration;

(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

(d) has considered such other matters as he thinks relevant;

(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:

(a) publish, in the Gazette , and in a local newspaper, if any, circulating in any region concerned, a notice ; and

(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a) the particular significance of the area to Aboriginals;

(b) the nature and extent of the threat of injury to, or desecration of, the area;

(c) the extent of the area that should be protected;

(d) the prohibitions and restrictions to be made with respect to the area;

(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

The entire statutory requirements relating to the appointment of a person to submit a report to the Minister are contained in the foregoing provisions. Unlike the legislation under consideration in Hilton , Grollo and other cases [73] , no express provision is made for the qualifications of the nominee. Still less is it expressly provided that he or she must, or may, be a judge of a federal or other court. The Act, in its sparse language, merely envisages the nomination by the Minister of a person who then, having accepted the nomination, is to submit a report to the Minister to fulfil the purposes, expressed and implied, in the Act. 1. eg, in the United States in Mistretta v United States (1989) 488 US 361

There is no limitation at common law on the power of the Executive Government to conduct an inquiry [74] . Certainly, if there is power to legislate on a particular subject matter, that power carries with it the constitutional entitlement to conduct an inquiry into the content and design of the legislation as well as the way in which it might be carried into effect [75] . The power of the Executive Government of the Commonwealth to conduct inquiries into matters of national concern probably goes further [76] . The Parliament may institute such inquiries and often does. So may the Executive, relying upon the implications of the Constitution, the residue of the royal prerogative and common law envisaged by the Constitution and powers expressly conferred on the Executive by legislation.

1. See R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 4738 ALR 691 at 694. The power to legislate carries the power to make inquiry, if necessary: Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182 at 194, 205. No legal objection exists to: "commissions of mere inquiry and report involving no compulsion, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos": McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 102, per Dixon J. The making of a report does not place rights "in new jeopardy" or subject them to "a new hazard" as Kitto J thought was done by the inspector's reports in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 at 368, 370. In Collins , Stephen J held that it was the exclusively informative function of Royal Commissions which had given them their special character and removed from them any offence to a pretence to the exercise of judicial power: R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 4738 ALR 691 at 695. 2. R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 4738 ALR 691 at 695. 3. cf Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 405-406, 419-420. See also the remarks of Sir Owen Dixon, cited by Shatwell, Some Reflections on the Problems of Law Reform, Australian Law Journal, vol 31 (1957) 325, at pp 340-342.

Since the earliest days of the Commonwealth the Executive Government has initiated countless inquiries, many of them conducted by judges. Many such inquiries have been conducted under the Royal Commissions Act 1902 Cth, enacted in the second year of the Commonwealth. In 1912, s 1A of that Act was added in its present terms which state:

Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorising him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.

Two matters are to be noted. The first is that the passage of the Act preserves the prerogative to initiate inquiries and to secure reports upon specified matters otherwise than by a Royal Commission. Secondly, no qualification is stated for appointment to conduct a Royal Commission, or for the issuance of Letters Patent in the name of the Sovereign to a Commissioner, save that the recipient must be a "person or persons". Judges, federal and State, have frequently been appointed by the Executive as Royal Commissioners, without the slightest demur from this Court [77] . Federal Royal Commissions appear to date back to 1908 when a Royal Commission on Insurance was conducted by Hood J of the Supreme Court of Victoria. Thereafter, there have been many such inquiries, a large number of them conducted by judges, lately in increasing number, federal judges. A schedule prepared in 1985 noted no fewer than thirty-six such commissions [78] . There have been several since. In addition, to 1985, sixteen other federal inquiries, chaired or conducted by judges, are recorded. Some of these were conducted pursuant to specific federal legislation. An example was the inquiry into the development of the Ranger uranium deposits in the Northern Territory conducted in 1975 by Fox J, then a judge of the Supreme Court of the Australian Capital Territory. That inquiry was conducted pursuant to the Environment Protection (Impact of Proposals) Act 1974 Cth. I will not delay to record the number and variety of others.

1. Clough v Leahy (1904) 2 CLR 139 McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 Lockwood v The Commonwealth (1954) 90 CLR 177 at 181 R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 4718 ALR 691; Ferraro v Woodward (1978) 143 CLR 102 Sorby v The Commonwealth (1983) 152 CLR 281 Hammond v The Commonwealth (1982) 152 CLR 188 2. Australian Institute of Judicial Administration Inc, Victoria Law Foundation, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, 1985, pp 83-87. See also Winterton, Judges as Royal Commissioners, University of NSW Law Journal, vol 10 (1987) 108, at pp 121-126.

Many judicial inquiries are recorded which derived, apparently, from no more than the exercise of the Executive's implied constitutional powers, including those in the residue of the royal prerogative. Thus in 1942 Lowe J undertook a Commission of Inquiry concerning the Japanese attack on Darwin. In 1944 Clyne J, the Federal Judge in Bankruptcy, conducted an inquiry into matters relating to the detention of certain members of the "Australia First Movement". The same judge in 1944 conducted a Commission of Inquiry into the Truth of the Imputation Contained in Certain Statements Attributed to A J Hannan, Crown Solicitor for South Australia. In the same year, Webb CJ of the Supreme Court of Queensland (later a Justice of this Court) conducted a Commission of Inquiry into Postal, Telegraphic and Telephonic Censorship. In 1945, Davidson J conducted a Commission into the Coal Mining Industry. Reed J conducted a Board of Inquiry into the Trial and Punishment of Offences against Military Law. Foster J of the Conciliation and Arbitration Court conducted an Inquiry into the Stevedoring Industry. I will not list all of the non-statutory federal inquiries conducted by judges appointed by the Executive. The best known amongst the most recent of them are the Committee of Inquiry into Compensation and Rehabilitation conducted by Woodhouse P of the Court of Appeal of New Zealand and Meares J of the Supreme Court of New South Wales and the Committee of Inquiry Concerning Public Duty and Private Interest chaired by Bowen CJ in Eq, later Chief Judge of the Federal Court of Australia.

A reflection on the extended list of federal inquiries in Australia conducted by judges, federal and State, demonstrates that the use of judges, as Royal Commissioners, statutory office-holders or otherwise, to investigate sensitive and complex issues (some of them very controversial and partisan in their potential) has been a settled feature of Australian public life during the whole history of the Commonwealth. If in the early days such inquiries were typically undertaken by State judges, this was because, until the last decades of this century, there were comparatively few federal judges. One of the earliest such inquiries was undertaken by the Chief Justice of this Court, Griffith CJ, in 1918. It was an inquiry into the war. Remarkably, it was concluded within a week [79] .

1. Joyce, Samuel Walker Griffith (1987), p 354. Note also the proposed inquiry into the arrests of seven members of the Irish Republican Brotherhood (Sinn Fein) for which, in 1918, Griffith CJ nominated Powers J but then, after consultation with Powers J, withdrew the nomination. Joyce, p 354.

The Act here in question is to be understood against the background of the language of the Royal Commissions Act, the practice of the Executive of the Commonwealth in appointing judges as "persons" to conduct such Commissions, other inquiries under statute and inquiries resting on nothing more than the Executive's powers, derived from the Constitution or by analogy from the residue of the royal prerogative. Statutes and practice, even over nearly a hundred years, cannot confer constitutional validity where it is missing. But they can and do require the Court to pause before establishing a rule which would, or might, cast doubt on such settled activity, until now seen as compatible with the separation of the judicial power of the Commonwealth from the other branches of federal government in this country.

Whilst acknowledging the width of the statutory phrase in the Act which requires that the Minister's nominee should simply be a "person", the plaintiffs submitted that the word had to be read down in its context so as to exclude federal judges. The argument went thus. The Act is written against the background of the Constitution which includes, as a foundation principle, the separation of the judicial branch of government from the legislative and executive branches. Parliament could be taken to know of, and to respect, this separation. Its legislation would reflect the principle. Where Parliament intended, as an exception to the principle, to involve federal judges as designated persons to perform non-judicial functions within the Executive, it would expressly so provide. So it had done under the Telecommunications (Interception) Act 1979 Cth considered in Hilton [80] and Grollo [81] . Where Parliament envisaged the use by the Executive of a person who, in that person's principal capacity exercised the judicial power of the Commonwealth, it would, and should, so provide expressly. It would spell out provisions for the detachment of such a judge from the federal court in question [82] . It would provide for the tenure of the judge notwithstanding such appointment [83] . It would afford the judge protection from suits of defamation and immunity from civil liability such as is normal to the performance by a judicial officer of the kind of functions assigned to, or performed by, him or her. Normally, although not universally, the judge might be expected to perform the duties of office in public. It was acknowledged that Royal Commissions sometimes, and "eligible judges" performing duties under the Telecommunications (Interception) Act always, departed from this public feature of judicial activity. Usually, although not always, where a judge of a court enjoying the prestige of the Federal Court of Australia was to be involved, in effect, in the provision of advice to the Executive Government, the appointment would be made not by a letter from a Minister but by formal instrument of the Federal Executive Council, envisaged by a statute and published in the Gazette . The judge's report would have a formal status. Although advising the Executive, it would typically be more than a mere pre-condition to the exercise of a Ministerial statutory power. The expectation of a clearer provision, greater specificity and more detailed incidents of the appointment of a judge of a federal court did not rest upon arguments of prestige and status alone. Such provisions recognised the importance of the reality, and appearance, of judicial independence. They imposed a control on any risk of debasement of the separation of the judicial from the other branches of government which, it could be assumed, the Parliament would wish to preserve. They also provided a break on the willingness of some judges to involve themselves in the interesting, but risky and controversial, tasks of the Executive as a relief from the unrelenting work of judicial life. Consistent with the doctrine expressed by the Court in Hilton and Grollo , Parliament could provide for the assignment of Executive functions to federal judges who were willing to perform them as designated persons. But it should do so expressly, clearly and under proper conditions. Where it did not, constitutional principle and the rule protective of the independence of the judicial branch of government would oblige a construction of the legislation such that general words (person) were read down as not applying to a federal judge.

1. (1985) 157 CLR 57. 2. (1995) 184 CLR 348. 3. See Administrative Appeals Tribunal Act 1975 Cth, s 7A. 4. Law Reform Commission Act 1973 Cth, s 13. See discussion in Brown, The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge, Federal Law Review, vol 21 (1992) 48, at pp 60-62.

So went the arguments of the plaintiffs on the issue of construction. As I trust I have shown, they are not without substance. However, they do not convince me.

The primary duty of a court in construing the provisions of the Act is to accord to the words used their natural meaning so as to fulfil the imputed purpose of the Parliament in enacting the Act. A court must eschew giving words of generality a narrow meaning, simply to fulfil its own view of what is desirable, for example, in the use of federal judges to perform functions in relation to the Executive. Upon such a matter different judges will hold different opinions. In performing its function of construing valid legislation, a court must not substitute its opinions on policy for the plain language of the Act. It is only by such language that the Parliament, elected by the people, can express its will.

By the use of the word "person", unlimited and unqualified, it is clear that the Parliament's purpose was that the Minister should have available the widest possible pool of appropriate individuals from whom to choose a reporter [84] . It is true that the pool is not completely unlimited. Thus, any person who for constitutional reasons could not perform the function of reporter would be excluded. It is on this ground that the Queen or the Governor-General personally would probably be excluded. But for the moment, I have put to one side the constitutional issue concerning the use of federal judges.

1. cf Leske v SA Real Estate Investment Co Ltd (1930) 45 CLR 22 at 25 Re Jeffcock's Trusts (1882) 51 LJCh 507; R v Sheppard [1919] 2 KB 125 at 126 Digby v General Accident Fire & Life Assurance Corporation Ltd [1943] AC 121 at 136-137 Re Section 24 of the BNA Act [1928] SCR at 276[1928] 4 DLR 98

There is no apparent reason why a judge, federal or State, does not fall within the ambit of the word "person" where appearing in the Act. The history of the use of judges in Australia to conduct inquiries and to provide reports to the Executive contradicts the suggestion that, as a matter of construction, judges are not "persons" for the purposes of the Act. The very qualities which, over the entire history of the Commonwealth, have led to the appointment of judges for that purpose, suggests the contrary. Those qualities include training and skill to gather facts, identify those which are relevant, assess the honesty of evidence, evaluate competing arguments, act with sensitivity and neutrality in unravelling controversial issues and present an impartial report evidencing legal accuracy and dispassion. These are the qualities (apart from personal and professional reputation for integrity) which have caused federal governments of every political persuasion for nearly a hundred years, to use judges to conduct inquiries and provide reports to the Executive branch of government. Why should it be different in the case of a report under this Act where those qualities may be greatly needed?

The suggestion that a judge falls, as such, outside the statutory language of "person" is also contradicted by the text of the Royal Commissions Act. If it would be competent for the Executive, acting within its own powers, to appoint a federal judge to make an inquiry by Royal Commission into the conflicting claims of Aboriginal Australians and others in respect of the Hindmarsh Bridge development, it seems hardly convincing to assert that a judge is excluded because Parliament has used a word of the greatest generality in providing for the nomination of the reporter, being precisely the word (person) used in the Royal Commissions Act.

So far as the absence of a specific indication that a judge might be a "person" within the Act (and providing for judge's detachment and the terms of the appointment), this may be readily explained. It can be contemplated that most reporters under the Act will not be judges. But that does not exclude the availability of a federal judge, under the formula used by the Parliament, where the particular importance or sensitivity of the case is considered by the Minister to require a judge, in order to settle the concerns of parties and the public. Detachment and conditions of service might be expected to cover instances of longer term or full-time removal from a judge's principal duties. But that is not the function which the Act envisages of a reporter. Justice Mathews, by her procedural rulings, has recognised the short-term, temporary nature of her responsibilities.

The suggestion, made during argument, that a judge could not have been contemplated because he or she would be the "servant or agent of the Minister" completely misconceives the independent function conferred on the reporter by the Act. The Minister has no role to play between the nomination of a person to report and the receipt of the report from that person. It is true that the power to appoint in any statute ordinarily carries the power to remove. But that would have been so of virtually every judge appointed to an office established by legislation (other than a judicial office protected by the Constitution). The existence of such a power has not hitherto been thought a disqualification for judges, including federal judges, accepting appointment to an office created by statute.

The manner in which representations are to be obtained under the Act is established by the Parliament. The process is to be carried out exclusively by the reporter (s 10(3)). The matters with which the report must deal are specified in the Act (s 10(4)). The Minister cannot vary those matters. Nor has the Minister any power to interfere in the performance of the reporting function. The procedural rulings of Justice Mathews indicate a lively appreciation of her independence as reporter in the conduct of the inquiry. It is a serious mis-statement of the functions of the reporter under the Act, and a misconception of the statutory office of reporter, to describe the reporter as lacking independence and as a mere "emanation of the Minister" [85] . I also consider that it is erroneous to characterise the reporter, as envisaged by the Act, as no more than an integral part of the process of the Minister's decision making or as akin to a ministerial adviser. The integrity of the reporter's function has been upheld by decisions of the Federal Court which have also emphasised that a reporter must conform to the principles of procedural fairness (natural justice) [86] . As a donee of statutory powers required to act with lawfulness, integrity and fairness, the reporter, upon accepting nomination, is obliged to act in a way that is wholly independent of the Minister and completely conformable to the conduct normal to a judge.

1. Plaintiffs' submissions, par 3.4. 2. Tickner v Chapman (1995) 57 FCR 451 Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40

It is complained that the reporter's report is advisory only, and a pre-condition to the exercise by the Minister of his or her functions. But this is the usual, expected and constitutionally proper role of any "person" who conducts a Royal Commission, inquiry, statutory function or reporting process in relation to the Executive Government. This is the way in which countless unelected advisory bodies (not a few of them containing federal judges) interact with Ministers who are chosen from the elected Parliament, as s 64 of the Constitution envisages. It has never been suggested that the duties of a reporter under the Act are judicial or that they involve the exercise of the judicial power of the Commonwealth. The complaint that findings and recommendations may not be self-executing is therefore misconceived. So, in my respectful view, is the complaint about the giving of advisory opinions on matters of law. True, the Act was written against the background of the constitutional separation of powers. But it was also enacted after a century of the use of judges in Australia, including federal judges, to conduct inquiries and to provide reports upon their inquiries. Far from envisaging a widely focused inquiry, such as has been a feature of many investigations conducted by judges for the Executive Government of the Commonwealth in the past, the functions of the reporter under the Act are quite narrow. True, they can be sensitive and important. But this makes it appropriate that a Minister should have available, for a particular case, the special qualities of experience, reputation and integrity that a judge can bring to the office. This is not a case of the Executive Government foisting unwanted functions on a federal judge or court. The exhibited correspondence shows that Justice Mathews accepted the appointment voluntarily.

Apart from the constitutional arguments to which I will now turn, there is therefore no reason to read down the unlimited language of the Act or to give it a construction different from that given to the same word in the Royal Commissions Act over nearly a century of its operation. The plaintiffs' arguments based on the construction of the Act fail.

Constitutional prohibitions on the use of federal judges

This conclusion on the construction issue presents for decision the constitutional objection raised by the plaintiffs. This was put in various ways but it amounted to the contention that, in so far as the Act, by s 10, permitted the nomination of a federal judge as a reporter, or the Executive acted within its own powers to so nominate a judge, it was invalid as contrary to the separation of the judicial power mandated by the Constitution.

The following principles, derived from legal authority, may be stated to guide the evaluation of this contention:

The doctrine of the separation of powers in Australia rests on the construction of the Constitution [87] . The separation of the judicial power of the Commonwealth is inferred from the structure and language of the Constitution, rather than spelt out expressly in it. It is derived from the conception of the kind of government which the Constitution established for Australia, understood against the background of English constitutional history and law, United States constitutional theory, which greatly influenced the Founders and the debates of philosophers and political scientists whose writings informed the minds of those who drew up the Constitution. Because, under the Constitution, no Minister of State may hold office for a period longer than three months unless he or she becomes a Senator or Member of the House of Representatives [88] , some of the United States cases, theory and philosophical writings have to be read with care and their doctrines varied for the Australian context. But this much may be accepted. To secure its independence, the judicature provided for in Ch III of the Constitution is separate from the other branches of government. Those other branches may not exercise the judicial power of the Commonwealth. That power is vested in this Court and such other federal courts as the Parliament creates, and such other courts as the Parliament invests with federal jurisdiction [89] . The separation of the judicial power is rigorously applied [90] by the decision of this Court, confirmed by the Privy Council, in the Boilermakers' Case [91] . The separation is not merely a matter of a verbal formula [92] . It is a crucial foundation principle of the Constitution. Working out its implications has given rise to controversy and dispute. Thus, proposals have been made that the decision in Boilermakers' should be reconsidered [93] . No application was made in this case for leave to re-argue the Boilermakers' principle. But even without the Boilermakers' decision it is clear that the language and structure of the Constitution, as well as constitutional history and fundamental principle, require the separation of the judicial power, exercised by judges, from the other powers of the Federal Government. Evatt J, in Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [94] , a quarter century before the Boilermakers' Case, cited Harrison Moore's text on the Constitution with approval [95] : "[B]etween legislative and executive power on the one hand and judicial power on the other, there is a great cleavage." This Court reinforced that principle in the Boilermakers' Case by explaining that such a separation, unknown or less rigidly observed in unitary states, was inherent in, and essential to, the conduct of government in a federation where governmental power is divided. In such polities, neutral decision-makers must determine, in case of dispute, where power lies [96] . In cases where the principle of the separation of the judicature from the other branches of government is raised, the task of a court is typically to decide where "the constitutional wall" that separates the exercise of judicial power from the other powers of government stands [97] . This task is rarely clear cut. Its performance requires of the Australian judiciary, ultimately in this Court, an exercise of judgment which draws upon the language and design of the Constitution, past authority of the Court and an understanding of the legal principles and policy which that authority upholds. Included in the principles and policy is the cardinal importance of ensuring the fundamental right of every individual, in cases of serious legal dispute, to have access to courts which are "competent, independent and impartial" and "established by law" [98] .

Amongst the established principles which are derived from the doctrine of the separation of the judicial power in Australia are the following:

(a) The Parliament may not impose on a federal court an obligation which is not proper to the exercise of the judicial power [99] . Thus functions proper to the Executive Government "could not be assigned to a court, or to judges acting as a part of a court", created by or under the Constitution [100] .

(b) Where a federal judge, otherwise than as a judge or a member of a court, performs functions within another branch of government, they cannot be performed at the same time as the judicial power is being exercised. The judge may hold two offices but it must be plain, at any given time, whether he or she is exercising the judicial power for it is to be kept separate [101] .

(c) Duties to act otherwise than as a judge exercising the judicial power of the Commonwealth cannot be imposed upon a federal judge personally without that judge's consent. A distinction may be drawn between the conferral of non-judicial functions on a federal judge (which may be permissible) and the imposition of non-judicial functions on such a judge (which is not) [102] .

(d) No express prohibition is stated in the Constitution which forbids a federal judge from performing extra-judicial duties outside the judicature. Therefore, the appointment by another branch of government of a person who happens to be a federal judge to perform such duties is not, as such, incompatible with the text of the Constitution [103] . Nor (as has been demonstrated) is it incompatible with the longstanding historical utilisation of judges in Australia, both before and after Federation in the conduct of inquiries. In a personal capacity, a judge may perform administrative or executive functions which are conferred on the judge personally. Were it not so, the significant utilisation of judges, including federal judges, in the performance of tasks outside the strict exercise of the judicial power, would be forbidden, although incontestably to the benefit of good government. An inflexible rule could deprive the Commonwealth of the participation of federal judges in numerous statutory tribunals (such as the Australian Industrial Relations Commission, the Administrative Appeals Tribunal, the Trade Practices Tribunal, the National Native Title Tribunal, the Defence Force Discipline Appeal Tribunal, the Federal Police Disciplinary Tribunal, the Security Appeals Tribunal) and the like. It could exclude such judges from participating in Royal Commissions, as they have long since done. It could expel them from the numerous advisory bodies in which many of them take part both pursuant to statute [104] or under the Executive power [105] . In Australia, it is too late to deny the useful participation of judges, including federal judges, in such tribunals and advisory bodies. Even more than in the United States of America, where the availability of federal judges to perform such functions has been a matter of recent authority [106] , their use in Australia has been frequent, presumably because considered beneficial to the good government of the people of the Commonwealth. Australia's relatively small population, scarce governmental resources and limited numbers of trained personnel argue strongly against the imposition of a new and rigid constitutional rule which history, past practice and constitutional understandings to date would deny.

In some cases, the Parliament has purported to confer functions of an executive or administrative character on a person who is, or may be, a federal judge and who consents. This use of designated persons developed as an exception to the separation of the judicature from the other branches of government. Obviously, it has its limits. Otherwise, by the appointment of judges as designated persons, the "great cleavage" could be narrowed to a point of extinguishment. Upon whether, in a particular case, a federal judge may perform functions within another branch of government, typically the Executive, views may differ. This is shown by the majority and minority opinions in this Court in Hilton [107] and Grollo [108] . Similar differences of opinion have emerged in the United States both in the Supreme Court [109] and in the Circuit Courts [110] . If the differences are to rest upon something more than the individual predispositions of judges of ultimate courts, responding to the facts of particular cases, it is desirable that a consistent approach should (so far as possible) be developed. It may be accepted that not every kind of extra-judicial service (whether fulfilling a statutory office or not and whether the statute expressly provides for the appointment of a judge or not) accords with the Constitution or would be compatible with its requirements [111] .

The designated persons exception, in the case of legislation which expressly provides for the appointment of a judge to perform non-judicial functions does not raise a constitutional question which is different in kind from the case where the statute does not expressly provide for the appointment of a judge but a judge is appointed or where there is no statutory foundation for the appointment of a judge by the Executive to fulfil non judicial tasks for constitutional purposes. In each of these cases, the same essential question is presented. Is the appointment under consideration of such a character as to be incompatible with the discharge by the appointee of the duties inherent in the exercise of the judicial power of the Commonwealth [112] ? The incompatibility may exist in actuality or in perception. The Supreme Court of the United States has disclaimed an attempt to define with precision the outer limits of the non-judicial functions which are constitutionally permitted or forbidden to federal judges in that country [113] . Nevertheless, both in the United States and in this country, a number of criteria have been identified as relevant to reaching the judgment that is required. They include:

(a) Whether the position is of such a duration and involves the performance of such functions as effectively to prevent, indefinitely or at all, the performance of the judicial duties to which the person, as a judge of a federal court, has been appointed [114] . Appointment of judges to non-judicial duties will deplete "the capital of the judicial system" to that extent [115] . If too many judges were so appointed for too long, particularly in the context of crowded court lists, a question might arise as to the true character of their appointment to public office and whether it was incompatible with an appointment as a federal judge [116] .

(b) If the duties accepted were such as could prejudice the independence of the judicature, they would be incompatible with holding the office of a federal judge [117] . Many of the cases in the United States have involved an analysis of the duties and functions of the non-judicial office to which the federal judge is appointed to see whether such duties and functions are incompatible with those necessary to the exercise of the judicial power. One of the reasons which led McHugh J to his dissent in Grollo [118] was an opinion (with which I have much sympathy) that it is not compatible with the holding of federal judicial office in Australia for such an office holder to become involved as "part of the criminal investigative process", closely engaged in work that may be characterised as an adjunct to the investigatory and prosecutory functions [119] . Such activities could "sap and undermine" both the reality and the appearance of the independence of the judicature which is made up of the courts constituted by individual judges [120] . They could impermissibly merge the judiciary and the other branches of government. The constitutional prohibition is expressed so that the Executive may not borrow a federal judge to cloak actions proper to its own functions with the "neutral colours of judicial action" [121] .

(c) Where what is involved falls short of the participation of a judge in a function characterised as incompatible with the kinds of activities which judges have typically performed, more complex questions arise. These involve a need to analyse whether the functions envisaged draw upon those features of judicial experience which are normal to its character. Such features typically include exhibiting neutrality, detachment and disinterestedness; receiving evidence, assessing its credibility and evaluating submissions upon it; and reaching conclusions, conformable with the law, which are expressed with efficiency and promptness in a stated conclusion [122] . It is not necessarily incompatible with the judicial office for a judge to be involved in highly controversial matters and even matters which concern partisan or political questions. As the Supreme Court of the United States has pointed out, Marbury v Madison [123] was itself a highly contentious and "political" case in its day [124] . The closer the performance of the functions assigned to a judge are to those usually involved in the performance of the judicial function, the less objectionable is the utilisation of the judge to perform those functions outside the judiciary. But even here, care must be observed to avoid absolutes. Unusual circumstances may call forth unusual needs. Latham CJ, whilst remaining Chief Justice of this Court, was appointed first Australian Minister to Japan (1940-1941); Dixon J, whilst serving as a Justice, was appointed as war-time representative of Australia to the United States of America (1942-1944). Fox J, whilst a judge of the Federal Court of Australia was appointed Ambassador of Australia for Nuclear Non-Proliferation and Safeguards (1977-1980). There have been like appointments of an exceptional character in the United States. Jackson J, whilst a member of the Supreme Court of the United States, served as Prosecutor before the International Military Tribunal at Nuremburg (1945-1946). Goldstone J, a judge of the Constitutional Court of South Africa, is presently performing a similar function in the International Criminal Tribunals on the former Yugoslavia and Rwanda. Warren CJ accepted the request of President Johnson to conduct the inquiry into the assassination of President J F Kennedy (1963) over ten months although "[h]is service did indeed result in severe criticism" [125] . The use of judges of final courts of appeal, particularly in federations where the court must be able to discharge its vital constitutional functions, presents questions different from the appointment of other judges to non-judicial duties [126] .

(d) Where the appointment in question would involve a federal judge in the performance of non-judicial duties which could significantly erode public confidence in the integrity of the judiciary as an institution and in the capacity of individual members of the judiciary to perform their judicial functions, such an appointment could not be made by the Executive or accepted by the judge. It would be incompatible with the nominee's holding a commission as a federal judge. Some functions may appear to be within this class yet may be supported by long historical experience. The judicial involvement in the issue of search warrants (and, as it has been held, telephonic interception warrants) has hitherto been held to fall into this category. To the extent that the judge is appointed to perform non-judicial duties analogous to those in which judges possess relevant background and skill, it becomes more difficult to sustain the argument that such functions lie outside those which a federal judge may perform whilst holding office as a judge of a federal court [127] .

A court considering a constitutional challenge to the Executive's appointment of a federal judge to perform non-judicial duties must distinguish clearly between the issue of the validity of the appointment, which is in contest, and the desirability or wisdom of a person who is a judge accepting such an appointment, which is not. This distinction is clearly expressed in many of the United States decisions where the acceptance of non-judicial duties has sometimes been described as unwise but not unconstitutional [128] . This Court should scrupulously observe the same distinction. Its opinion on the wisdom, or unwisdom, of a federal judge accepting a non-judicial appointment is irrelevant except where the opinion of unwisdom hardens into a judgment that the causes of disquiet, leading to that conclusion, derive from the disqualifying features of the office in question.

In approaching the consideration of the suggested ground for the incompatibility of the function involved in the appointment with concurrent membership of the federal judicature, several further points may be made:

(a) The court making the judgment will address itself to the substance of the functions in question and not merely to the form of the legislation or instrument of appointment [129] .

(b) The court will address its attention not only to the question whether the particular judge or judges generally would in fact be affected in their independence and neutrality by the appointment but also whether the community, which may not be able to make the nice distinctions sanctioned by legal authority, might lose confidence in the integrity of the judiciary by reason of the appointment. The question is not whether members of the public might fail to understand the distinction between the performance of judicial and non-judicial duties by a particular judge or by judges in general. It is whether the performance of the particular duties might tend seriously to undermine community confidence in the integrity of the judiciary and its separation from the other branches of government [130] .

(c) It has been suggested that it is for those who assert that the performance of non-judicial functions is compatible with service as a federal judge to demonstrate that this is so [131] . Elucidation of the location of the burden of persuasion in complex tasks such as the present, is an arid exercise. It may equally be argued that those who contend that legislation is unconstitutional carry a burden of persuasion. Decisions of this character are not made in such a mechanical way.

1. Grollo v Palmer (1995) 184 CLR 348 at 392 2. Constitution, s 64. 3. Constitution, s 71. 4. Grollo v Palmer (1995) 184 CLR 348 at 376 5. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254confirmed Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 537-539[1957] AC 288 at 311-312 6. Hilton v Wells (1985) 157 CLR 57 at 73-74In Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580, Deane J suggested that the importance of the separation of powers doctrine lies in the need to avoid "the risk of undermining, or even subverting, the Constitution's only general guarantee of due process". 7. R v Joske; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation (1974) 130 CLR 87 at 90, 102. 8. (1931) 46 CLR 73 at 117. 9. Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910), p 101. cf Hamilton et al, The Federalist (1961 ed), p 490; Blackstone, Commentaries on the Laws of England, 17th ed (1830), p 269. 10. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-268 11. Grollo v Palmer (1995) 184 CLR 348 at 384, per Gummow J; at 376, per McHugh J. 12. Universal Declaration of Human Rights, Art 10; International Covenant on Civil and Political Rights, Art 14.1. Note that the Draft Universal Declaration on the Independence of Justice, Arts 22 and 24 states: "22. Judges may not serve in a non-judicial capacity which compromises their judicial independence. 24. Judges shall refrain from business activities, except as incidental to their personal investments or their ownership of property. Judges shall not engage in law practice." cf Minimum Standards of Judicial Independence, International Bar Association, October 1982, Arts 5 and 35 published in Centre for the Independence of Judges and Lawyers, CIJL Bulletin No 25-26: The Independence of Judges and Lawyers - A Compilation of International Standards, 1990, p 105. See also The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region noted by Malcolm CJ, Australian Law Journal, vol 70 (1996) 299, at pp 300-303. At 302 there is included a section "Relationship with the Executive". Relevantly, Arts 38 and 39 read: "(38) Executive powers which may affect judges in their office, their remuneration or conditions or their resources, must not be used so as to threaten or bring pressure upon a particular judge or judges. (39) Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions." 13. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254See also Re Richardson (1928) 160 NE 655 at 659, per Chief Judge Cardozo, cited in Grollo (1995) 184 CLR 348 at 364See also Hilton v Wells (1985) 157 CLR 57 at 83 14. cf Mistretta v United States (1989) 488 US 361 at 403 15. cf Mistretta v United States (1989) 488 US 361 16. Matter of the President's Commission on Organised Crime: Subpoena of Scarfo (1986) 783 F 2d 370 at 378-379. Grollo v Palmer (1995) 184 CLR 348 at 365 17. cf Mistretta v United States (1989) 488 US 361 at 398-404 18. eg, Board of Management, Institute of Family Studies; National Legal Aid Council; Administrative Review Council; Australian Law Reform Commission; Australian National Advisory Committee on AIDS; Family Law Council; Constitutional Commission. A list of the then existing or previously created inquiries of relevance to legal issues is contained in the first Annual Report of the Australian Law Reform Commission. See The Law Reform Commission, Annual Report 1975, p 21. 19. eg, Copyright Law Committee on Repographic Reproduction, 1976; Design Law Review Committee; Australian Defence Medical Ethics Committee; appointment to Councils of Universities etc. 20. Mistretta v United States (1989) 488 US 361 Matter of the President's Commission on Organised Crime: Subpoena of Scarfo (1986) 783 F 2d 370; Re Application of the President's Commission on Organised Crime: Subpoena of Scaduto (1985) 763 F 2d 1191. See also United States v Ferreira (1851) 54 US 13How 40. 21. (1985) 157 CLR 57. 22. (1995) 184 CLR 348. 23. Mistretta v United States (1989) 488 US 361 at 413-427 24. United States v Bogle (1988) 689 FSupp 1121. This must now be taken to be over-ruled by the Supreme Court decision in Mistretta v United States (1989) 488 US 361See also Application of the President's Commission on Organised Crime: Subpoena of Scaduto (1985) 763 F 2d 1191 at 1197. The principle in Scaduto (at 1197) was that it was impermissible to include in the President's Commission on Organised Crime a judge: "who is charged with assisting and improving enforcement efforts against organised crime [and who] must adopt a pro-government perspective which is ill-suited to his obligation to be neutral in the courtroom." This contrasts with the obligation of the reporter under the Act, as a repository of statutory power, to be neutral. 25. Grollo v Palmer (1995) 184 CLR 348 at 365, citing Mistretta v United States (1989) 488 US 361 at 404 26. "The ultimate inquiry remains whether a particular extra-judicial assignment undermines the integrity of the Judicial Branch.": Mistretta v United States (1989) 488 US 361 at 404, cited in Grollo v Palmer (1995) 184 CLR 348 at 365 27. Mistretta v United States (1989) 488 US 361 at 404 28. cf Hilton v Wells (1985) 157 CLR 57 at 73-74 Grollo v Palmer (1995) 184 CLR 348 at 364 29. Grollo v Palmer (1995) 184 CLR 348 at 392 30. R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 565-567 President's Commission on Organised Crime: Subpoena of Scaduto (1985) 763 F 2d at 1196-1197. 31. Hilton v Wells (1985) 157 CLR 57 at 73-74 Grollo v Palmer (1995) 184 CLR 348 at 364 32. Grollo v Palmer (1995) 184 CLR 348 at 369, 382. 33. Grollo v Palmer (1995) 184 CLR 348 at 380 34. Grollo v Palmer (1995) 184 CLR 348 at 376, per McHugh J. 35. Mistretta v United States (1989) 488 US 361 at 407, cited in Grollo v Palmer (1995) 184 CLR 348 at 377This point was made earlier by McInerney and Murray, in Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals, Australian Institute of Judicial Administration (1985), p 53. 36. Grollo v Palmer (1995) 184 CLR 348 at 366-367 Mistretta v United States (1989) 488 US 361 at 404, 407. 37. (1803) 1 Cranch 137. 38. INS v Chadha (1983) 462 US 919 at 943 39. Matter of the President's Commission on Organised Crime: Subpoena of Scarfo (1986) 783 F 2d 370 at 378. 40. Mistretta v United States (1989) 488 US 361 at 401, fn 26. See also Cooper, Battles on the Bench - Conflict Inside the Supreme Court (1995), pp 37-38. 41. Matter of the President's Commission on Organised Crime: Subpoena of Scarfo (1986) 783 F 2d 370 at 378. 42. Mistretta v United States (1989) 488 US at 401, fn 26; Matter of the President's Commission on Organised Crime: Subpoena of Scarfo (1986) 783 F 2d 370 at 379. 43. Grollo v Palmer (1995) 184 CLR 348 at 384 44. Grollo v Palmer (1995) 184 CLR 348 at 376See Stephen, Judicial Independence Depends on Standards On and Off the Bench, Australian Law News, 24 October 1989, p 12. 45. Grollo v Palmer (1995) 184 CLR 348 at 377-378

The appointment as reporter is constitutionally valid

When the stated principles are applied to the undisputed facts of the present case there is no constitutional invalidity either in the Act pursuant to which Justice Mathews was nominated as reporter or in the conduct of the Minister in so nominating her.

The separation of powers dividing the judiciary from the other branches of government remains intact. There is a clear divorce, in law and in appearance, between Justice Mathews's appointment as a judge of the Federal Court (on the one hand) and her other appointments to non-judicial duties under legislation enacted by the Parliament, including that of reporter here in question (on the other). The duties of reporter were not imposed on a federal court. Although it is true that Justice Mathews is described as a "Justice" in the documentation of her inquiry, this is but a normal courtesy, commonly observed in Australia. At no time did Justice Mathews concurrently perform duties as a federal judge and duties as a reporter. The Minister did not appoint her as reporter until her consent was first signified.

The actual duties of a reporter are considerably closer to those of the holder of a judicial office than, say, the duties of an "eligible judge" in providing a warrant for telephonic interception which the authority of this Court has upheld. Justice Mathews is in no way involved in functions incompatible with those of a judge as, for example, involvement in criminal investigation and prosecutorial duties arguably is. On the contrary, the very reason for her appointment to provide a report in the instant case is clearly to utilise the particular qualities which are normal to a judge in Australia: accuracy in the application of the law; independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion. Whilst the principles stated in Hilton and Grollo stand, and once the construction issue is disposed of, I am unpersuaded that the appointment of a federal judge as a person to provide a report, as the Act provides, is inconsistent with the Constitution.

There was no suggestion of any incompatibility in the performance of the limited function of reporting with Justice Mathews's primary commission as a judge in the Federal Court. Had her functions as reporter not been interrupted by these proceedings, her report would long since have been provided to the present Minister. So far as the duties and functions of the reporter are concerned, most of the attacks upon them arose from a serious misconception of the independent office of reporter required by the Act of such a donee of statutory powers. Far from the provision of a report damaging the federal judiciary, or Justice Mathews personally, I consider that the Australian community, in such an inquiry, would feel much more comfortable that the task of reporting was being performed by a judge, with nothing to gain or fear by the discharge of the accepted duty. Far from sapping and undermining the separation of powers, the provision of such a report of potential importance to Australians - Aboriginal and non-Aboriginal alike - would be in complete harmony with a century of unbroken experience during which numerous reports on troublesome and controversial subjects have been provided to the Executive Government by appointed judges, federal and state.

Whilst it is true that most of the functions of the reporter in this case would be carried out in private, the same is often true of Royal Commissions and other inquiries. It is always so in the case of "eligible judges" authorising warrants under the Telecommunications (Interception) Act 1979. Unlike such "eligible judges", Justice Mathews's nomination was publicly announced. Some of her proceedings were conducted in public. And she was subject to the rules of procedural fairness which could be enforced in the Federal Court.

Opinions may differ as to the desirability or seemliness of a federal judge accepting such a nomination. Doubtless, in accepting nomination, Justice Mathews would have considered the sensitivity of the matters upon which she was required to report, the need, in that task, to respect both the interests of justice and the interests of Aboriginal tradition [132] and the advantage of calling upon her judicial experience to suggest procedures which could be followed by later reporters who do not have the long and wide experience in state and federal courts which her Honour has enjoyed. This, it will be remembered, is the precise way, twenty years ago, that the Administrative Appeals Tribunal began under its first Presidential members all of whom, initially, were federal judges. Guidance of great value was given for those, of differing background and qualifications, whose appointments followed. Novel functions (including, in that case, the review of Ministerial decisions on matters of policy and the provision of recommendations to Ministers) were performed by persons who, although tribunal members performing non-judicial duties, were also federal judges [133] . The advantages were clear and wholly beneficial. A rigid rule would not only have been contrary to Australia's legal history. It would have deprived the Commonwealth of judicial experience and wisdom where the novelty of the functions and the sensitivity of their proper performance suggested the special utility of utilising federal judges. Far from eroding public confidence in the integrity of the federal judiciary as an institution and the independence of its members, the use of federal judges ensured the impartiality of the Tribunal, its compliance with the law and its high reputation amongst members of the community.

1. s 27 of the Act. 2. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413 Brown, The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge, Federal Law Review, vol 21 (1992) 48, at p 59.

It is no less useful or beneficial in the performance of the function of reporter under the Act in this instance. Just as in the case of the Administrative Appeals Tribunal there are some, including some judges, who are unsympathetic to the functions, unwilling themselves to perform them and anxious about the innovation, the same is doubtless true of a reporter under the Act. But no constitutional principle requires that the width of the legislative language ("any person") should be narrowed or that the discretion of the Executive Government to choose a "person" who happens to be a Federal Court judge to provide the report, should be circumscribed.

In my view and with great respect to those of a different opinion, the contrary conclusion represents a significant narrowing of the application of the accepted authority of this Court in Hilton and Grollo , if not of the authority itself. If the suggested test is impermissible closeness to the Legislature or the Executive Government and their respective functions, the activities of a federal judge, secretly and anonymously authorising telephonic intercepts, is clearly much closer to the functions of the other branches than are those of a statutory reporter, publicly identified, evaluating evidence and submissions, judicially reviewable and presenting a report which reality suggests would inevitably find its way into the public domain, save for any specially confidential parts. Yet by the authority of this Court, Hilton and Grollo permit the former and that authority was not challenged. This case will prohibit the latter. It is said that "historically" judges have been vested with functions such as authorising the issue of warrants. So they have. But they have also, in our history, been called upon to report to the Executive upon difficult and sensitive questions. History does not stand still.

In my respectful opinion, the decision in this case involves a departure from long-standing practice in Australia in the use of judges, including federal judges; a rejection of the principles found to be appropriate in the more rigid constitutional context considered by the Supreme Court of the United States; an undue constriction of the Parliament's decision to authorise utilisation of "any person" as a reporter; and a serious limitation on the privilege of the Executive Government to choose a person, who happens to be a judge, where the sensitivity and importance of the particular case is considered by it to warrant that course.

Having rejected both the construction and constitutional arguments advanced for the plaintiffs to attack the nomination of Justice Mathews as reporter under the Act, I favour giving the following answers to the questions reserved by the Chief Justice.

The matter should be remitted to the Federal Court of Australia to hear and determine the proceedings upon the plaintiffs' statement of claim in accordance with the answers given to the questions reserved.

The plaintiffs should pay the costs of the Minister of the special case and of the hearing and determination of the questions reserved.