Persona Designata - Development of The Doctrine

Development of The Doctrine

The first clear expression of the doctrine in the post-Boilermakers context was in the 1979 Federal Court of Australia case of Drake v Minister for Immigration & Ethnic Affairs, which concerned a challenge to the appointment of Justice John Davies, of the Federal Court, to the position of Deputy President of the Administrative Appeals Tribunal. In their joint judgment, Chief Justice Bowen and Justice Deane said:

"There is nothing in the Constitution which precludes a justice from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Chapter III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."

The doctrine was first clearly applied by the High Court of Australia in the 1985 case of Hilton v Wells, which involved a challenge to the constitutional validity of certain telecommunications legislation which permitted telephone tapping by way of a warrant, which had to be issued by "a judge". The word "judge" in that piece of legislation was defined to mean a judge of the Federal Court or of the Supreme Court of the Australian Capital Territory, or, in certain circumstances, a judge of the Supreme Court of the Northern Territory or any of the State Supreme Courts. In their majority judgment, Chief Justice Gibbs and Justices Wilson and Dawson acknowledged the difficulty of determining whether a function has been conferred on a court or on a judge of that court, saying that:

"It is a question which involves fine distinctions, which some may regard as unsatisfactory... the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it."

The Justices continued, and considered the significance of the nature of the function being conferred to the question of whether the function is to be exercised by the judge in their capacity as a judge, or in their capacity as a regular person:

"If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person."

The High Court rejected the challenge to the constitutional validity of the legislation in a three to two decision.