The document discusses exceptions to the rule against federal courts exercising non-judicial powers established in the Boilermakers' case. It examines cases that have established some judges may exercise administrative functions if appointed in a personal capacity (persona designata) rather than as a member of their court. However, the role must not be incompatible with judicial independence or integrity or undermine public confidence. Hilton v Wells established some judges could issue surveillance warrants persona designata but later cases set limits, finding roles too close to or directed by the executive could compromise the judiciary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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