Due Process, Judicial Power and Chapter III in the New High Court

Published date01 June 2004
AuthorFiona Wheeler
Date01 June 2004
Subject MatterArticle
Fiona Wheeler*
A decade ago, members of the High Court recognised an implied guarantee of
procedural due process in the exercise of federal judicial power. Polyukhovich v
Commonwealth,1 Leeth v Commonwealth2 and Chu Kheng Lim v Minister for Immigration3
were the leading cases.4 Thus in Lim's Case, Brennan, Deane and Dawson JJ said that
the Commonwealth Parliament cannot require or authorise a Chapter III court 'to
exercise judicial power in a manner which is inconsistent with the essential character of
a court or with the nature of judicial power.'5 Opinions about the content of this due
process principle varied. Most judges accepted that federal judicial power must be
exercised consistently with the rules of natural justice.6 Deane and Gaudron JJ went
further, however. They argued that the due process principle guaranteed the fair trial
of a federal offence,7 a requirement that, among other things, would prevent abolition
* Faculty of Law, ANU.
1 (1991) 172 CLR 501 ('Polyukhovich'), 607 (Deane J), 685, 689 (Toohey J), 703–4 (Gaudron J).
2 (1992) 174 CLR 455 ('Leeth'), 470 (Mason CJ, Dawson and McHugh JJ), 486–7 (Deane and
Toohey JJ), 502 (Gaudron J).
3 (1992) 176 CLR 1 ('Lim's Case'), 27 (Brennan, Deane and Dawson JJ).
4 But see also, eg, Harris v Caladine (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte
Young (1991) 172 CLR 460, 496 (Gaudron J); Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs (1996) 189 CLR 1, 22 (Gaudron J); Kable v Director of Public Prosecutions
(NSW) (1996) 189 CLR 51 ('Kable'), 98 (Toohey J), 108 (Gaudron J). See generally, Christine
Parker, 'Protection of Judicial Process as an Implied Constitutional Principle' (1994) 16
Adelaide Law Review 341; Leslie Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney
Law Review 166; George Winterton, 'The Separation of Judicial Power as an Implied Bill of
Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185;
Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched
Due Process in Australia' (1997) 23 Monash University Law Review 248.
5 (1992) 176 CLR 1, 27 (footnote omitted).
6 Harris v Caladine (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte Young (1991) 172
CLR 460, 496 (Gaudron J); Leeth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh
JJ), 487 (Deane and Toohey JJ) referring to 'the obligation to act judicially'; Kable (1996) 189
CLR 51, 116 (McHugh J).
7 Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J); Dietrich v The Queen (1992)
177 CLR 292, 326 (Deane J) and 362 (Gaudron J).
206 Federal Law Review Volume 32
of the inherent power of a court to stay an unfair criminal trial.8 In addition, they
accepted that due process prohibited the application by courts of retroactive federal
criminal laws9 and required 'equal justice' in the exercise of federal judicial power.10
These last two requirements were controversial and the High Court was divided over
their existence.11 In particular, commentators noted that they seemed to control the
substantive law applied by a Chapter III court.12
These developments occurred at a time when the High Court was taking an
expansive approach to express and implied constitutional rights and freedoms as
demonstrated by cases such as Street v Queensland Bar Association13 and Australian
Capital Television Pty Ltd v Commonwealth.14 The constitutional climate today, however,
has changed. Express and implied rights are no longer at the forefront of constitutional
interpretation15 and the High Court has sought to confine the scope of some of its
earlier findings in this area.16 Decisions such as Re Wakim; Ex parte McNally17 and
extra-judicial comments by members of the Court, notably Chief Justice Gleeson, have
led to claims of a resurgence of legalism in constitutional reasoning.18 As Professor
Leslie Zines has shown, this 'new legalism'19 is not necessarily a uniform trend. In
particular, some recent High Court decisions are consistent with the 'more purposive
or policy oriented form of jurisprudence'20 that typified the Mason Court.21 At the very
8 See generally, Wheeler, 'Constitutionally Entrenched Due Process in Australia', above n 4,
263–79. See also Wendy Lacey, 'Inherent Jurisdiction, Judicial Power and Implied
Guarantees under Chapter III of the Constitution' (2003) 31 Federal Law Review 57.
9 Polyukhovich (1991) 172 CLR 501, 612–14 (Deane J), 704–8 (Gaudron J). See also at 689
(Toohey J).
10 Leeth (1992) 174 CLR 455, 487 (Deane and Toohey JJ), 502–3 (Gaudron J); Kable (1996) 189
CLR 51, 107 (Gaudron J).
11 Cf the judgments of Mason CJ, Dawson J and McHugh J in Polyukhovich (1991) 172 CLR 501
and the joint judgment of Mason CJ, Dawson and McHugh JJ in Leeth (1992) 174 CLR 455.
12 See, eg, Winterton, 'Implied Bill of Rights', above n 4, 201–4.
13 (1989) 168 CLR 461.
14 (1992) 177 CLR 106.
15 George Williams, 'Implied Rights under the Gleeson Court' (1999) 2 Constitutional Law and
Policy Review 44.
16 In relation to the implied freedom of political communication, see Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520. On the implied guarantee of equality
recognised by Deane and Toohey JJ in Leeth (1992) 174 CLR 455, see Kruger v Commonwealth
(1997) 190 CLR 1 ('Kruger'), 63–8 (Dawson J), 112–13 (Gaudron J), 142 (McHugh J), 153–5
(Gummow J).
17 (1999) 198 CLR 511.
18 See Leslie Zines, 'Legalism, Realism and Judicial Rhetoric in Constitutional Law' (2002) 5
Constitutional Law and Policy Review 21, especially 26–9 (referring to Chief Justice Gleeson's
extra-judicial observations); Sir Anthony Mason, 'The Centenary of the High Court of
Australia' (2003) 5 Constitutional Law and Policy Review 41, 45. See also Justice J D Heydon,
'Judicial Activism and the Death of the Rule of Law' (2003) 23 Australian Bar Review 1
(noting, however, that this paper does not deal directly with constitutional and statutory
interpretation: at 4).
19 Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 26.
20 Sir Anthony Mason, 'Trends in Constitutional Interpretation' (1995) 18 University of New
South Wales Law Journal 237, 245.
21 Zines, 'Legalism, Realism and Judicial Rhetoric', above n 18, 28.

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