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Published online by Cambridge University Press: 24 January 2025
The power of the Commonwealth to confer authority on members of the Executive or Administration is restricted by the Constitution in two major respects—first, by the principle of the separation of powers, and secondly, by the doctrine that no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine is sometimes metapholically summed up in the maxim “the stream cannot rise above its source”. The separation of powers principle affects a wider range of decision-making than the “source and stream” doctrine; but the latter doctrine, within the area of its operation, appears to be a greater limitation on legislative power.
For example, the principle of the separation of powers seems to prevent an Act from validly conferring power on an administrator to make conclusive determinations of law (and possibly findings of fact). in the course of settling a dispute about existing rights and duties. But where the power confided to the administrator to make findings of existing law or fact is merely preliminary to the creation of new rights and duties, then, in some circumstances at any rate, such power of detennination will not breach the separation of powers principle.
1 Per Griffith C.J. in Heiner v. Scott (1914) 19 C.L.R. 381, 393.
2 The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Ply Ltd. (1970) 44 A.L.J.R. 126.
3 Padfield v. The Minister of Agriculture, Fisheries and Food [1968] 2 W.L.R. 924; Giris Pry Ltd v. The Commissioner of Taxation (1969) 43 A.L.J.R.99.
4 (1951) 83 C.L.R. 1,258.
5 Id., 189 per Dixon J.
6 (1925) 37 C.L.R. 36.
7 Id., 67. Starke. J. probably took a similar line (p. 136). Higgins J. expressly left the maler open. He thought an Act could probably leave to an official to decide whether a person was an “invalid” for the purpose of the power relating to invalid pensions (p. 122). A number of judges in the Communist Party case cited the judgment of Knox C.J. with approval—83 C.L.R. 1,220, 257.
8 Melbourne Corporation v. The Commonwealth (1947) 74 C.L.R. 31, 79 per Dixon J.
9 Crowe v. The Commonwealth (1935) 54 C.L.R. 69,.90.
10 (1931) 44 C.L.R. 492.
11 (1931) 46 C.L.R. 73, 103.
12 (1966) 115 C.L.R. 418.
13 (1908) 6 C.L.R. 41.
14 Stenhouse v. Coleman (1945) 69 C.L.R. 457, 471.
15 Marcus Clark and Co. Ltd. v. The Commonwealth (the Capital Issues case) (1952) 87 C.L.R. 177, 256.
16 (1944) 68 C.L.R. 504, 511.
17 Communist Party case (1951) 83 C.L.R. 1, 257.
18 (1943) 67 C.L.R. 95.
19 The decision in this case is probably wrong in the light of the Capital Issues case (1952) 87 C.L.R. 177.
20 (1946) 73 C.L.R. 157.
21 The King v. Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 C.L.R. 407. The Queen v. Australian Stevedoring Industry Board; Exparte Melbourne Stevedoring Co. Ply Ltd (1953) 88 C.L.R. 100.
22 (1970) 44 A.L.I.R. 126.
23 Id., 139.
24 Id., 145.
25 The King v. Governor of South Australia (1907) 4 C.L.R. 1497. However, Windeyer J., in Marks v. The Commonwealth (1964) 111 C.L.R. 549, 565, suggested that the Court might compel the performance of a duty by the Crown representative. Most of the authorities, however, are against this.
26 This matter is discussed by P. W. Hogg in 4Judicial Review of Action by The Crown Representative, (19.69) 43 A.L.I. 215.
27 The orthodox view is that an authority who has a discretion does not have to give any reasons for the exercise of that discretion. (S.A. de Smith, Judicial Review of Administrative Action, 2 ed., 133). In some recent authorities, it is suggested that the donee of the power cannot escape control by the Court by omitting to give reasons—Padfield v. The Minister of Agriculture, Fisheries and Food [1968] 2 W.L.R. 924, 944, 958, 962. In Giris Pty Ltd v. The Commissioner of Taxation of the Commonwealth (1969) 43 A.L.J.R. 99, Barwick C.J. and Windeyer J. interpreted a discretion given to the Commissioner of Taxation in the Income Tax Assessment Act as requiring him to give reasons if requested. In Tooth and Co. Ltd v. The Lane Cove Municipal Council (1968) 87 W.N. (Pt 1) (N.S.W.) 361, Street J. held interrogatories admissible regarding a meeting of a local council in relation to the making and levying of a rate. It cannot be said, however, that there is any general duty on administratorsto give reasons for their decisions.
28 (1946) 73 C.L.R. 157.182.
29 “Mr Justice Evatt and the Constitution”, 3 F.L. Rev. 153, 180.
30 (1969) 43 A.L.J.R. 99.
31 (1952) 87 C.L.R. 177.
32 Id., 253.
33 Id., 215 and 216.
34 6 Res Judicatae 214, 222.
35 (1952) 87 C.L.R. 177, 244.
36 Id., 202.
37 Id., 216.
38 Id., 214.
39 One possible line of approach is to adopt the reasoning of Lord Denning in Baldwin and Francis Ltd v. Patents Appeal Tribunal [1959] A.C. 663, 693. His Lordship stated that if a reason was assigned as the foundation of a judgment you could not presume that the authority had better reasons. There is as yet no indication that the High Court will follow this approach.
40 (1916) 21 C.L.R. 433.
41 Capital Issues case (1952) 87 C.L.R. 177, 256.
42 (1819) 4 Wheat. 316,421; 4 L.Ed. 579, 605.
43 Grannall v. Marrickville Margarine Pty Ltd (1955) 93 C.L.R. 55. 77.
44 (1957) 99 C.L.R. 57S, 614.
45 (1966) 115 C.L.R. 418.
46 Id., 434 per Kitto J.
47 Id.,437.
48 (1965) 113 C.L.R. 54.
49 The Queen v. Anderson; Ex parte Ipee-Air Pty Ltd (1965) 113 C.L.R. 177 was an interesting example of a situation where the Court was able to issue a writ of mandamus to compel the Director-General to issue a licence. The application was for a charter licence to operate inter-State. The Air Navigation Regulations provided that the Director-General should issue a licence unless the applicant, among other things, had not established thathe was capable of complying with the Regulations or any direction or order relating to the safety of operations. The Director-General had made it abundantly clear that he was satisfied that the applicant was capable of complying with all safety requirements but refused the licence oli the ground that the applicant would not be in a position to provide the aircraft necessary. Kitto, Menzies and Windeyer JJ. held that the unavailability of the aircraft was not a valid reason for refusal of the licence and ordered the Director-General to issue it. It seems, however, that if the Director-General had not already indicated that he was satisfied regarding the safety aspects, the Court could merely have ordered the Director-General to reconsider the application.
50 (1969) 43 A.L.J.R. 99.
51 Id., 101, 106.
52 (1955) 93 C.L.R. 121, 165.
53 (1954) 93 C.L.R. 1, 32.
54 Hughes and Vale Ply Ltd v. New South Wales (No. J) (1953) 87 C.L.R. 49, 112.
55 (1955) 93 C.L.R. 127, 166.
56 (1963) 110 C.L.R. 321.
57 (1952) 85 C.L.R. 488.
58 Id .,520.
59 Id., 522.
60 Communist Party case (1951) 83 C.L.R. 1, 222 per Williams 1.
61 Shrimpton v. The Commonwealth (1945) 69 C.L.R. 613, 629.
62 Anisminic Ltd v. Foreign Compensation Commission [1967] 3 W.L.R. 382, 392.
63 G. Sawer, 6 Res Judicatae 214, 219.
64 (1952) 87 C.L.R.177, 204.
65 (1955) 93 CL.R. 127, 165.
66 (1937) 57 C.L.R. 327. See also “Mr Justice Evatt and the Constitution”,3 F.L.Rev. 153, 177-180.
67 The Queen v. Wilkinson; Ex parte Brazell, Garlick and Co. (1952) 85 C.L.R. 467, 486.