Wilson v Minister for Aboriginal & Torres Strait Islander Affairs

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs

Citation: (1996) 189 CLR 1

Court: High Court of Australia

Plantiffs: High Court of Australia, Wilson & Others

Defendants: Minister for Aboriginal and Torres Strait Islander Affaris & Others

Judges: Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ

This case was about the Minster for Aboriginal and Torres Strait Islander Affairs nominating a Federal Judge 1984 to prepare a report under Section 10 (1) (c) of the ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT.

Held by Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ with Kirby J dissenting, section 10 (1) (c) could not appoint a judge in accordance with Chapter III of the Constitution as this did not allow for the Courts to exercise non-judicial power. Under section 10 (1) (c) the preparing of a report is purely an administrative, Executive, function.

Section 18 of the Judiciary Act 1903 Cwth states in "Any Justice of the High Court sitting alone, whether in Court or in Chambers, may state any case or reserve any question for the consideration of a Full Court, or may direct any case or question to be argued before a Full Court, and a Full Court shall thereupon have power to hear and determine the case or question." The two questions were as follows.

1) Is the nomination and/or appointment of the second defendant by the first defendant to make a report under s 10 of the effective to authorise the second defendant to make a report to the first defendant in satisfaction of s 10(1)(c) of the Act? and

The Plantiff argued no because there is no reference is section 10 regarding authorisation to nominate a Judge to prepare a report. If there was this would come under the Persona designata exception in which case the answer would be yes.

The persona designata exception requires either express reference in the statute or that the task be of such a nature that by necessary implication it mandates the appointment of a judge.

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 ?

The Plantiff argued yes as the task of reporting is cleary an executive task and is purely political and Chapter III Court excercising Executive power was not in line with the separation of powers and could result with the public undermining the Judiciary.

The Chief Justice decided that the first defendant, the Minister, did not have authority to nominate a judge under section 10 (1) (c) to prepare a report and found that question two was unneccessary to answer.