The Decisional Independence of Chapter III Courts and Constitutional Limitations on Legislative Power: Notes from the United States
| Date | 01 September 2005 |
| DOI | 10.22145/flr.33.3.2 |
| Published date | 01 September 2005 |
| Subject Matter | Article |
COURTS AND CONSTITUTIONAL LIMITATIONS ON
LEGISLATIVE POWER: NOTES FROM THE UNITED STATES
Peter A Gerangelos*
A INTRODUCTION
1
Preliminary remarks
This article will attempt to identify and define those constitutional principles, derived
from the doctrine of the separation of powers, which govern the relationship between
Parliament and the Chapter III courts in the precise situation where Parliament
purports to amend the law which is applicable in pending legal proceedings (whether
they are awaiting first instance hearing, or are on appeal). Arguably, these principles
are also applicable in circumstances where proceedings are being contemplated, but
have yet to be commenced. The fundamental enquiry is whether the separation of
judicial power in Chapter III of the Commonwealth Constitution places limitations on the
legislative competence of Parliament to affect the resolution of legal issues in the
pending case. This issue has been the subject of greater judicial and academic scrutiny
in the United States, providing considerable assistance in defining relevant
constitutional limitations applicable in Australia. It is the aim of this article to
undertake a detailed examination of the United States position to assist in the
appreciation and development of principle in Australia. The jurisprudence in that
jurisdiction is singularly germane given that the relevant constitutional provisions are
virtually identical.1 Moreover, it stands as a valuable reminder of the principal nature
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*
Senior Lecturer, Faculty of Law, University of Sydney. The writer wishes to thank Sir
Anthony Mason in particular for taking the time to read an earlier draft of this article, for
his comments and his invaluable insights. Particular thanks are also due to Dr Fiona
Wheeler of the Faculty of Law, Australian National University, and Professor George
Winterton of Sydney Law School, together with the anonymous referees, for their very
helpful comments and suggestions. The inadequacies in the article remain, of course, the
writer's own.
1 Article III, s 1 of the Constitution of the United States provides: 'The judicial power of the
United States shall be vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish.' Unlike Chapter III of the Australian
Constitution, however, no provision is made for the vesting of federal jurisdiction in State
courts. This difference is not presently relevant It will be a relevant consideration when
determining whether any defined constitutional limitations will extend to State
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Federal Law Review Volume
33
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of the issue being considered, a fact not lost on the Americans in light of their unhappy
experiences in this regard in the pre-Constitution era. Instances of egregious legislative
interference were not uncommon, such as legislatures acting as appellate courts and
directing the outcome of legal proceedings. This constituted a critical catalyst for the
original entrenchment of the separation doctrine in that nation's Constitution.2
The question of constitutional limitations on legislative interferences with judicial
functions is one of quite considerable conceptual complexity. Unlike legislative
usurpations of judicial power — such as a Bill of Attainder3 — legislative interferences
by way of legislative amendment to the applicable law are certainly permissible. The
difficulty lies in discerning those interferences which are not. This is complicated by
the fact that it is not sufficiently appreciated (if at all) that this issue is quite discrete,
albeit related to, the more dominant principles which derive from Chapter III. Thus its
consideration may not always, or solely, raise concerns about the denial of procedural
due process,4 concerns that an essential element of the judicial power of the
Commonwealth is being removed from the court, or that the court is being required to
exercise judicial power in a manner inconsistent with the essential character of a court
or with the nature of judicial power.5 Usually, the issue arises where there are
purported amendments to law contained in legislation which is ad hominem, or directed
to an easily identifiable class of person, retrospective, and which appear to be tailored
to address the very issues the court will be required to address in a pending case. Prima
facie, unlimited legislative power in this regard poses a serious threat to a fundamental
separation of powers value: ensuring that legal disputes — particularly where the
government is a party or in which it has an interest — are protected from the vagaries
and vicissitudes of political influence and factional interest.
Although the issue arises rarely, it tends to emerge in matters of high political
moment and where there is a serious possibility that the implementation of
government policy may be thwarted by litigation. The temptation, if not political
imperative, to legislative intervention is obvious. One need only list the facts of the
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Parliaments as a possible extension of the principles arising from the decision in Kable v
Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
2 For ease of reference, 'separation doctrine' will be used to refer to 'the doctrine of the
separation of powers'. See Gordon Wood, The Creation of the American Republic 1776–1787
(1996) 154–155; Mary P Clarke, Parliamentary Privilege in the American Colonies (1943) 49–51;
Edward S Corwin, The Doctrine of Judicial Review (1914) 37; 'Judicial Action by the Provincial
Legislature of Massachusetts' (1908) 15 Harvard Law Review 208. For contemporary accounts
of such interferences and their influence on leading figures in the drafting of the
Constitution, see, eg, The Federalist No 48 in Jacob E Cooke (ed), The Federalist (1961) 336–7
in which is also cited, at 336, Thomas Jefferson, 'Notes on the State of Virginia' (1787) 196.
See also Edward S Corwin, 'The Progress of Constitutional Theory Between the Declaration
of Independence and the Meeting of the Philadeplphia Convention' (1925) 30 American
Historical Review 511, 514–517. For a collection of examples, see Peter A Gerangelos, 'The
Separation of Powers and Legislative Interference with Judicial Functions in Pending
Cases' (2002) 30 Federal Law Review 1, 3.
3 Held now to be unconstitutional as a usurpation of judicial power in Polyukhovich v
Commonwealth (1991) 172 CLR 501.
4
Wilson v Minister for Aboriginal and Torres Islander Affairs [1996] 189 CLR 1,17 (Brennan CJ,
Dawson, Toohey, McHugh and Gummow JJ).
5
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ('Lim') (Brennan, Deane and
Dawson JJ).
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Constitutional Limitations on Legislative Power 393
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main cases here to illustrate the point: These include, for example, the criminal
prosecution of the perpetrators of an abortive coup (Liyanage v The Queen)6 the
deregistration of highly controversial industrial unions (the BLF cases),7 the detention
of asylum-seekers (Chu Kheng Lim v Minister for Immigration, Local Government and
Ethnic Affairs)8 and the admission of evidence in prosecutions for narcotics offences
resulting from the illegal conduct of law enforcement officers (Nicholas v The Queen).9
Moreover, the legislative response to the Tampa Incident, in which the Australian
government took action to remove from Australian waters the Norwegian ship which
had taken on board some 400 persons seeking asylum in Australia after it had rescued
them from their own sinking vessel, did raise the issue. This was not addressed by the
High Court as leave to appeal from the decision of the Federal Court was not
granted.10 The United States cases reveal similarly politically sensitive issues arising as
will be discussed below.
This article will proceed by, first, briefly stating the current Australian position
(examined in more detail elsewhere),11 before proceeding to a detailed examination of
the United States jurisprudence. This will form the basis for a detailed evaluation of the
principles identified, and their articulation and application by the courts. On the basis
of this evaluative analysis, the article will proceed to articulate a qualified
reformulation of these principles. Such reformulation, it will be argued, is necessary to
overcome the inherent weaknesses identified within the principles as currently
formulated and to avoid the inconsistent application thereof by the courts. The
constitutional limitations governing this critical crossroads between legislative and
judicial power have not been given broad coverage in Australia, either in judicial
exegesis or in constitutional commentary. A leading Chapter III scholar, Dr Fiona
Wheeler, has identified this precise issue as warranting a more detailed examination.12
Professor George Winterton had earlier identified this issue as one requiring more
precise attention in 1994,13 attempting the only initial exploration of this issue prior to
its being mentioned in the textbooks. This...
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