Part A Answer

Topic 9A – Separation of Powers Part A
As the corporate counsel for Progressive Technology Pty Ltd, in order to secure our Managing Director’s release from prison we would apply to the High Court for habeas corpus, and then show that the Restriction on Human Cloning Act 2002 (‘the Act’) offends a number of sections of Chapter III of the Constitution. Therefore our Managing Director’s detention is not valid and she should be freed.

The approach we take here is to analyse the Act in detail, section by section, to see whether parts of it challenge judicial power as defined in the Constitution and recognised in case law.

Parliament certainly has the right to legislate in fulfilment of Australia’s international obligations, pursuant to s 51 (xxix) of the Constitution. The Seas and Submerged Lands Case  is an example of a case where the High Court held that Parliament’s responsibility for external affairs is a justification for legislation.

Sections 3 and 4
Section 3 provides that Australia’s international obligations with respect to the Act are enforced by the Commonwealth Ethics Tribunal (the Tribunal), an independent statutory body. Section 4 establishes the Tribunal proper. It is common for acts of Parliament to create tribunals to oversee the enforcement of the Act itself; the Australian Industrial Relations Commission is an example of such a tribunal (in AIRC’s case it has powers under the Workplace Relations Act 1996 (Cth)).

Section 5
The Tribunal consists of an active Judge of the Federal Court of Australia, a lawyer and the Chief Scientist of the CSIRO. This is our first hint that the Tribunal is not a Chapter III court.

In Waterside Workers’ Federation of Australia v J W Alexander Ltd, J W Alexander successfully challenged the validity of the Commonwealth Court of Conciliation and Arbitration as its President did not have tenure as defined in section 72 of the Constitution. All members of a court must have s 72 tenure; otherwise the court cannot be a Chapter III court. Griffith CJ noted at 442 “any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective”.

In the case of the Tribunal, the Judge is a member of the Federal Court; therefore he or she must have section 72 tenure. However, the lawyer and Chief Scientist do not. Therefore, the Tribunal is not a court. There is nothing intrinsically wrong with this, but this does imply that the Tribunal cannot exercise Chapter III power. For an example of this see the Wheat Case, in which the plaintiff (the New South Wales government) argued that as the Interstate Commission (created by the Commonwealth under section 101 of the Constitution) was a Chapter V body, and not a Chapter III one, it could not exercise judicial power, such as issuing an injunction.

By similar reasoning we can be confident that the Tribunal is not a Chapter III court.

The tribunal is empowered to receive and investigate complaints relating to corporations engaged in researching into or producing ‘biological material of any nature that constitutes or may constitute a breach of the restrictions relating to human cloning’. Investigation is an executive function, somewhat like policing. It is not at all judicial in nature. In Hilton v Wells  the High Court found that it was constitutionally valid for a judge to be appointed to an executive branch role as a ‘persona designata’, or designated person.

However, in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs  the High Court held that an act appointing a judge to prepare a report for a minister was constitutionally invalid. In this case the Court said that even if a judge was appointed as a designated person, the act of preparing a report for a minister was far enough removed from a judicial role that it would undermine public confidence in the independence of the judiciary. In this case, there are not one, but two problems:

1.   The Federal Court Judge is performing an investigative role, quite different to their normal judicial role 2.   There is nothing present in the legislation that even suggests that the Judge is a ‘persona designata’.

Therefore it appears that the role of Chairperson of the Commonwealth Ethics Tribunal is not at all suitable for a Federal Court Judge.

Sections 8 and 10
If the Tribunal finds a complaint ‘proved’, it may issue an order requiring any respondent corporation to ‘desist from researching…until further notice’. Section 10 of the Act deems such orders ‘conclusive (emphasis added) as to all matters specified therein’.

Conclusive in this instance means the decision is not subject to appeal. As was found by the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation, the distinction between a board and a court was the ability to make a ‘convincing decision’. Their Lordships conceded that a tribunal might act judicially, but still remain as an administrative tribunal.

In Luton v Lessels  the court considered whether the Child Support Assessment Act 1989 (Cth) was making a conclusive decision. The court held that “[t]he Registrar did not determine existing rights and obligations, but created new rights and obligations addressed to the future and could not enforce his or her own assessments or determinations, and the Registrar’s decisions were not conclusive.”

Also, in Sue v Hill  the High Court said, “…there are some powers which are inherently judicial and which the Parliament can confer only on a court. The power to determine guilt or innocence is one.”

Therefore, as Section 10 of the Act seeks to empower the Tribunal to make conclusive orders affecting the existing rights of a party, it offends the provisions of the Constitution that only a court can make conclusive orders.

Sections 12, 14 and 16
The Act provides that orders to desist may be enforced by the relevant Minister. If the Minister chooses to they may refer the order to either the Federal Court of Australia or to the Federal Ethicist Court of Australia (‘FECA’), who is the Chairperson of the Tribunal.

In Grollo v Palmer, the High Court considered whether a Federal Court judge could issue warrants authorising the Australian Federal Police (AFP) to obtain evidence by intercepting the defendant Grollo’s telephone calls. The AFP obtained a warrant to do so by Heerey J, a Federal Judge, under the Telecommunications (Interception) Act 1979 (Cth). The Act stated that a Federal judge, ‘an eligible judge’, was able to issue an interception warrant so long as the circumstances met the criteria of ss 45, 46 of the Act. Grollo took the case to the Federal Court arguing that the provisions were invalid and also applied for an injunction so that the evidence obtained could not be used against him. The case was taken to the High Court pursuant to section 40 of the Judiciary Act 1903 (Cth)

The High Court said part of the test of whether a judge could act on behalf of the executive was whether it affected their independence (the “incompatibility condition”). Per Brennan CJ, Deane, Dawson and Toohey JJ at 365:

“The incompatibility condition may arise in a number of different ways…it might consist in the performance of non-judicial functions of such nature that public confidence in the integrity of the judiciary as an institution or the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.”

In Grollo v Palmer the High Court said that the issuing of warrants was not unconstitutional, because in that particular case it did not impair the ability of the judge to discharge their responsibilities.

However, in the case of the Federal Ethicist Court of Australia, it is clear that if the Chairman of the Tribunal leading the investigation and the judge with the power to enforce the orders of the Tribunal are one and the same person, clearly public confidence in the integrity of the judiciary would be severely diminished. Therefore section 16’s provision that FECA “is not prevented from exercising jurisdiction as the Court by reason of having participated in a proceeding of the Tribunal” also offends Chapter III of the Constitution.