¹ Chapter III of the Constitution of Australia. See J Quick and Groom, L E, The Judicial Power of the Commonwealth, (1904) 1-8Google Scholar; Huddart Parker & Co Ply Ltd v Moorehead (1909) 8 CLR 330, 335, per Griffith CJ; State of NSW v Commonwealth (Wheat case) (1915) 20 CLR 54, 89, per Isaacs J and 108 per Rich J.

² R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

³ Lane, PH, “The Decline of the Boilermakers Separation of Powers Doctrine” (1981) 55 AU 6Google Scholar; Gibbs, H, “The Separation of Powers - A Comparison” (1987) 17 FL Rev 151Google Scholar.

⁴ M V Mcinerney, G J Moloney and McGregor, D G, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals (1986)Google Scholar (Australian Institute of Judicial Administration); reviewed by Winterton, G, “Judges as Royal Commissioners” (1987) 10 UNSWU 108Google Scholar, including an introduction to the constitutional issues discussed in this essay. See also Brennan, F G, “Limits on the Use of Judges” (1978) 9 F L Rev 1Google Scholar.

⁵ Commonwealth Parliament Joint Select Committee, Tenure of Appointees to Commonwealth Tribunals, (1989); and the submission of Justice Michael Kirby to that committee, also appearing as “The Removal of Justice Staples and the Silent Forces of Industrial Relations” (1989) 31 J Industrial Relations 334, and Kirby, M, “The Removal of Justice Staples - Contrived Nonsense or Maner of Principle?” (1990) 6 Australian Bar Rev 1Google Scholar.

⁶ Macrae and Others v Attorney-General for NSW (1987) 9 NSWLR 268; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Kirby, MD, “Judicial Independence in Australia Reaches a Moment of Truth” (1990) 13 UNSWLJ 187Google Scholar; “Chief jurist raps Govt for appeal court move”, Courier-Mail (Brisbane), 13 December 1991, 3.

⁷ Australian Bar Association, as quoted by Carruthers, F, “Legal chiefs warn of threat to judicial independence”, The Australian, 19 April 1991, 10Google Scholar; cf R Campbell, “Faith in courts 'robust': 'healthy criticism good"', The Canberra Times, 22 January 1992, 2. See also Justice Dawson's address, “Independence of the Judiciary”, to the Australian Bar Association Conference, Darwin, July 1990; and the views of Chief Justice Mason, “Judicial Independence and the Separation of Powers - Some Problems Old and New” (1990) 13 UNSWLJ 173.

⁸ In this essay, references to statutes, parliamentary debates and statutory bodies are to those of the Commonwealth unless otherwise indicated.

⁹ (1985) 157 CLR 57. Also, most recently, Re Tracey; ex parte Ryan (1989) 166 CLR 518; Love v Attorney-General (NSW) (1990) 169 CLR 307 ; Re Limbo (1990) 64 ALJR 241; Harris v Caladine (1991) 172 CLR 84; and Polyuchovich v Commonwealth (1991) 172 CLR 501.

¹⁰ Justice J H Phillips, Chairperson of the National Crime Authority 1990-91, quoted in Who Guards the Guards? An Evaluation of the National Crime Authority, Report by the Parliamentary Joint Committee on the National Crime Authority, Parliament of the Commonwealth of Australia (1991), 225. Justice Phillips is now Chief Justice of Victoria.

¹¹ M V Mcinerney and G J Moloney, in M V Mcinerney, G J Moloney andMcGregor, D G, Judges as Royal Commusioners and Chairmen of Non-Judicial Tribunals (l986), 32-33Google Scholar .

¹² JQuick and Groom, LE, The Judicial Power of the Commonwealth (1904) 7Google Scholar.

¹³ Com Parl Deb 1940, Vol 164, 522 (21 August 1940).

¹⁴ Ibid 525 per Mr Beasley.

¹⁵ Sir Owen discharged other wartime roles, including chair of the Central Wool Committee, the Australian Coastal Shipping Control Board and the Marine War Risks Insurance Board: Com Parl Deb 1942, Vol 170,921, (6 May 1942).

¹⁶ Sawer, G, “The Separation of Powers in Australian Federalism” (1961) 35 ALJ 177, 180n20Google Scholar.

¹⁷ Com Pad Deb 1942, Vol 170, 922-924, (6 May 1942).

¹⁸ Ibid 921.

¹⁹ Galligan, B,Politics of the High Court (1987), 126Google Scholar.

²⁰ Eg, Corn Pad Deb 1940, Vol 164,524, (21 August 1940).

²¹ Although federally-constituted, it has been decided that the ACT Supreme Court “is not a federal court nor a court invested with federal jurisdiction within the meaning of s 71 and s 73 of the Constitution”, since “it derives its legislative force from s 51 of the Constitution” rather than s 71: Capital 1V and Appliances Pty Ltd v Falconer (1971) 125 CLR 591, 600 per Barwick CJ (referred to in Hilton v Wells (1985) 157 CLR 57, 67). This explains its significance, discussed below, as a court available to Parliament but outside the separation of powers limitation, which to date has been focussed on Chapter ill courts created pursuant to s 71.

²² Com Parl Deb 1945, Vol 185, 6132 (28 September 1945); 4-5 October 1945, 6569-6570.

²³ Com Parl Deb 1945, Vol 185, 6565 (4 October 1945) per Mr Menzies, 6567-6568 (4 October 1945) per Mr HolL

²⁴ H Reps Deb 1964, Vol 44, 2478 (20 October 1964). 1bis development was described by the Opposition Leader, Mr Whitlam, as “unexceptional” (2840), although in government in 1972-1975 his party was to create more government bodies headed by judges than had therefore existed.

²⁵ Clough v Leahy (1904) 2 CLR 139; Attorney-General for Commonwealth v The Colonial Sugar Refining Co Ltd (PC) (1913) 17 CLR 644; McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; Lockwood v Commonwealth (1954) 90 CLR 177; R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 AUR 471; Huston v Costigan (1982) 45 ALR 559.

²⁶ Mcinerney, M V and Moloney, G J, supra n 11, 9-46Google Scholar. See also Holmes, JD, “Royal Commissions” (1955) 29 ALJ 253Google Scholar ; and Mason, AT, “Extra-Judicial Work for Judges: The Views of Chief Justice Stone” (1953) 67 Harvard L Rev 193CrossRefGoogle Scholar; noted (1954) 28 ALJ 229-230.

²⁷ Holmes v Angwin (1906) 4 CLR 297, 304, per Griffith CJ.

²⁸ Mcinerney, M V and Moloney, , supra> n 11, 52, 54-55+n+11,+52,+54-55>Google Scholar; Brennan, F G, “Limits on the Use of Judges” (1978) 9 Federal Law Review 1, 3-4CrossRefGoogle Scholar.

²⁹ Mcinerney, M V and Moloney, G J supra n 11, 52, 55Google Scholar.

³⁰ Holmes, J D, supra n 26, 256Google Scholar.

³¹ Mclnemey, M V and Moloney, G J, supra n 11, 54Google Scholar.

³² Clyne v East (1967) 68 SR(NSW) 385, approved in Building Construction's Employees and Builders Labourers Federation of New South Wales v Minister for Industrial Relations (the BLF case) (1986) 7 NSWLR 372.

³³ (1978) 143 CLR 102. Note also that Royal Commissions in Victoria, the State in which the separation of powers has been most vocally defended, are still given by direct prerogative rather than any equivalent enactment; and that only the Supreme Court on separate application can enforce breaches of Commission process under the Evidence Act 1928 (Vic): ss 17, 19, 20.

³⁴ The only decision known to touch s 60, R v O'Dea (1983) 10 A Crim R 240, was a decision on the substantive issue of the nature of contempt defined by s 60(1).

³⁵ (1954) 90 CLR 177, especially at 181 per Fullagar J.

³⁶ Said of a Commission headed by Townley, J, in “Current Topics”, (1956) 30 AU 181Google Scholar.

³⁷ Holmes, J D, supra n 26, 256Google Scholar; quoting Sir Owen Dixon (1952) 85 CLR xvi.

³⁸ R v Kirby; ex parte Boilermaurs' Society of Australia (1956) 94 CLR 254; Attorney General (Cth) v The Queen (1956) 95 CLR 529 (Privy Council). See also Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; Victorian Stevedoring and General Contracting Co Ply Ltd and Meakes v Dignan (1931) 46 CLR 73; supra n 5, especially Appendix ill, “History of Sections 24 and 28 of the Industrial Relations Act 1988”, 103.

³⁹ Re Queensland Electricity Commission; ex parte Electrical Trades Union (1987) 72 ALR 1.

⁴⁰ Lane, PH, “The Decline of the Boilermakers Separation of Powers Doctrine” (1981) 55 ALJ 6, 14Google Scholar. See also Sawer's description of early proposals for a “Court of Commerce” Bill to protect the judicial status of the Inter-State Commission from the separation of powers principle: (1961) 35 AU 177, 180-181.

⁴¹ The Parliamentary Joint Select Committee (see text accompanying n 46) found that “No major changes were in fact made to the structure of the Commission and the legislation could have just as easily provided for the continuance of the old Commission under a new name”: supra n 5, 49.

⁴² As reported in the Sydney Morning Herald, 2 March 1989, 3. See M Kirby, supra n 5, 362-363, 367.

⁴³ Supra n 5, submission No 27, 42.

⁴⁴ Supra n 5.

⁴⁴ Committee of Review, Australian Industrial Relations Law and Systems (1985) (AGPS), Vol 2, 1. See Kirby, MD, supra n 6, 349-350Google Scholar.

⁴⁶ Supra n 5, xi-xii (conclusions 1 and 2, especially 2(i), 2(v) and 2(viii)), 17; see also 14, 21.

⁴⁷ Sen Deb 1988, Vol 129, 2175 (8 November 1988); see Kirby, MD, supran 5, 352-353Google Scholar.

⁴⁸ Note there are now at least 18 Commonwealth enactments creating 'quasi-judicial' tenures of varying sorts for such appointees: supra n 5, 32-33.

⁴⁹ In 1989, of the 154 Commonwealth administrative officers entitled to “judicial-type” tenure, the majority (87) were AAT members, with the bulk of the remainder (47) Industrial Relations Commissioners: supra n 5, 28. Cf the United States, where the Office of Hearings and Appeals in the Social Security Administration, Department of Health and Human Services, employs 800 “Administrative Law Judges”: Cofer, DP, Judges, Bureaucrats and the Question of Independence (1985)Google Scholar.

⁵⁰ (1979) 24 ALR 577, 583-585, per Bowen CJ and Deane J.

⁵¹ (1979) 2 ALD 1. See Kirby, MD, “Administrative Review on the Merits: The Right or Preferable Decision” (1980) 6 Mon U L Rev 171, 180-181Google Scholar. Justice Kirby notes both the coun-like nature of the tribunal and Justice Deane's dissent which deals with the question of separation of powers.

⁵² B Hill, “Uncertainty in the centre”, 11(1/2) Australian Society 15 (January-February 1992), 16; see also I Wright, “Wilderness and Wasteland”, Island (Tasmania) No 42, 1990; 3, 7.

⁵³ Anthony Lagoon Station Pty Ltd & Anor v Maurice and Others (1987) 74 ALR 77, 83 per NorthropJ.

⁵⁴ H Reps Deb 1977, Vol 106, 1646-1647 (5 October 1977).

⁵⁵ Ibid 1646.

⁵⁶ Ibid 1775-1776.

⁵⁷ Varley v Attorney-General for NSW (1987) 8 NSWLR 30. I am indebted to Justice Kirby for pointing out this case.

⁵⁸ The commentary provided by the Sydney Morning Herald (1984) includes a number of feature articles: “Politicians Lose Out to the Judges”, 21 July, 12; “Judges Defend Doctrine ....”, 24 July, 11; news articles: “Judge Offered Deal to End Row”, 21 July, l; “Judges Oppose Stewan Scheme”, 23 July, 3; “Judge Quits As The Row Goes On”, 24 July, l; “ACT Lawyers Add Their Criticism to Stewan Row”, 25 July, 3; and editorials: “No Deals On Justice”, 23 July, 12; “No Mere Quibble Mr Sheahan”, 23 January 1986.

⁵⁹ “Chairperson of RAC Has Wide Experience As Inquiry Head”, Resource Assessment Commission News, No 1, December 1989, 2.

⁶⁰ Amended to National Crime Authority (Status and Rights of Former Chairman) Act by the Resource Assessment Commission Act 1989, Part 8: “Arrangements if the Honourable D.G. Stewart appointed first Chairperson”.

⁶¹ H Reps Deb 1984, Vol 139, (11 September 1984).

⁶² Senator Evans as quoted in The Age (Melbourne), 24 July 1984, 4; see also H Reps Deb 1984, Vol 139, 1026 (11 September 1984), per Mr Snow (italics added).

⁶³ Ibid 1035. Mr Bowen also argued the need for Justice Stewart to retain his title in order to return to court after his non-judicial work, even though he had not presided over a court since becoming a Royal Commissioner less than a month after joining the NSW Bench, and has obviously been a career investigator and inquiry administrator rather than a judge.

⁶⁴ Ibid 1024, 1036 per Mr Ruddock; 1028 per Mr Steele Hall; 1037 per Mr McGuaran.

⁶⁵ Senator Evans as reported in The Age, 24 July 1984, 4; and Sydney Morning Herald, 25 July 1984, 3 (italics added).

⁶⁶ National Crime Authority (1991) Annual Report (AGPS) (1991), 8-9.

⁶⁷ Repon by the Parliamentary Joint Committee on the National Crime Authority Who is to Guard the G11ards? An Evaluation of the National Crime Authority, (1991), 224-225 (see quotation accompanying n 10 above).

⁶⁸ (1990) 64 AUR 175, 179 (italics added).

⁶⁹ Love v Attorney-General (NSW) (1990) 64 AUR 175; Hilton v Wells (1985) 58 ALR 245, discussed below. Note, in relation to magistrates endorsing arrest and e:iuradition warrants,the less than helpful decision of the High Court in Aston v Irvine (1955) 92 CLR 353 - a decision which, significantly, dates from the confusing pre-Boilermakers' period.

⁷⁰ The Helsham Inquiiy was conducted pursuant to the Lemonthyme and Southern Forests (Commission of Inquiiy) Act 1987 (Cth), s 13 of which rendered applicable the Royal Commissions Act 1902 (Cth). The other commissioners were a forest ecologist and an economist.

⁷¹ Fisher, DE, “Environmental Planning, Public Inquiries and the Law” (1978) 52 AU 14, 21Google Scholar. See also Fisher, DE, Environmental Law in Australia, (1980), 150-153Google Scholar, where he identifies three principles that mark such inquiries as administrative in nature.

⁷² This is the regime established by the Environmental Planning and Assessment Act 1979 (NSW). Woodward, J, “Environmental Inquiries in NSW” (1984) 1 Environmental and Planning U 317Google Scholar.

⁷³ Farrier, D, Environmental Law Handbook., Redfern Legal Centre (1988) 303-305Google Scholar Randwick. Municipal Council v Woodward (1983) 50 LGRA 55; Mundey v Woodward, NSW Land & Environment Court, 10 November 1986, per Cripps J.

⁷⁴ Jeffeiy, M I, “Appropriateness of Dealing with Scientific Evidence in the Adversarial Arena”, (1986) 3 Environmental and Planning Ll 313Google Scholar; The Hon BS Jenkins, “The Role of Couns in Risk Assessment”, in Dealing With Risk.: The Courts, Agencies and Congress, (1985) 3; McAuslan, P, “The Role of Courts and other Judicial Type Bodies in Environmental Management” (1991) 3 J Environmental Law 195CrossRefGoogle Scholar.

⁷⁵ One such analysis of a major inquiry in an overseas jurisdiction is provided by B Wynne, “Technology, Participation and Politics: The Windscale Inquiry into Nuclear Fuel Reprocessing” in Boeker, E and Gibbons, M (eds), Science, Society and Education (1978) 81-107Google Scholar. The Windscale inquiry was headed by Britain's Justice Parlcer.

⁷⁶ Report of the Ranger Uranium Environmental Inquiry (1977) l; D E Fisher (1978) supra n 71,23.

⁷⁷ Report of the Terania Creek Inquiry (1982) 1-9. A comprehensive analysis is provided by R Taplin, “Adversary Procedures and Expertise: The Terania Creek Inquiry” in Walker, K J (ed), Australian Environnuintal Policy: Ten Case Studies (1992) 156Google Scholar. See also “Terania Creek Inquiry”, (1980-81) 24 National Parlcs J 8; ABC Science Show, November 1980, in (1981) 25 National Parlcs J 20, especially at 24; J Angel, “Rainforests - The Final Act” (1982) 26 National Parlcs J 11.

⁷⁸ Report of the Commission of Inquiry into the Lemonthyme... (1988) (AGPS), vii-viii, 3-11; J Staples, “Getting It Wrong on Tasmania's Forests”, (1988) 16 Habitat 3; BM Tsamenyi et al, “Determining the World Heritage Values of the Lemonthyme and Southern Forests: Lessons from the Helsham Inquiry”, (1989) 6 Environmental and Planning U 79.

⁷⁹ “Chairperson Outlines Approach for Forest Inquiry”, Resource Assessment Commission News, no 2, March 1990, 4.

⁸⁰ H Reps Deb 1989, Vol 167, 3669 (16 June 1990) per McGauran.

⁸¹ An approach drawing criticism from the legal profession: “Lawyers Attack RAC As A Waste ex Time and Money”, TM Australian, 6 August 1990, 22.

⁸² Resource Assessment Commission, Kakadu Conservation 'Zone, (1991) (AGPS); Resource Assessment Commission, Forest and Timber IN{uiry Report, (1992) (AGPS).

⁸³ Fisher, DE, supra n 71, 20-21Google Scholar.

⁸⁴ Woodward, J, “Environmental Inquiries in NSW” (1984) 1 Environmental and Planning U 317, 319Google Scholar; The Honourable B S Jenkins, “The Role of Courts in Risk Assessment”, in Dealing With Risk: The Courts, The Agencies and Congress (1985) 3; Ecologically Sustainable Development Working Groups, Final Report - Forest Use (1991) (AGPS) 171-178.

⁸⁵ H Reps Deb 1989, Vol 166 1824 (3 May 1989) per Mr Kerin at (italics added).

⁸⁶ Mr Richard Mills, Head of Office, Resource Assessment Commission; personal interview, Canberra, 27 September 1990.

⁸⁷ “Mediating Role for Resource Assessment Commission”, Resource Assessment Commission News No.2, March 1990, l; Hartcher, P, “Threat to Cabinet on Green Disputes” Sydney Morning Herald, 6 August 1990, 3Google Scholar; Boer, B, Craig, D, Handmer, J and Ross, H, The Potential Use of Mediation in the Resource Assessment Commission Inquiry Process, Resource Assessment Commission (1990) (AGPS)Google Scholar.

⁸⁸ Sir Ninian Stephen, Address to Public Issue Dispute Resolution Conference (Queensland Government), Brisbane, February 1991; Solomon, D, “Push for environment tribunals: Law ill-equipped to settle conservation arguments, says Sir Ninian”, The Australian, 20 February 1991,2Google Scholar.

⁸⁹ Murphy, E F, Nature, Bureaucracy and the Rules of Property: Regulating the Renewing Environmsnt (1977) 119Google Scholar.

⁹⁰ J Madison, Remonstrance as quoted by CD Kilgare,Judicial Tyranny, (1977) 192.

⁹¹ Kirby, M D, supra n 6, 203-204Google Scholar.

⁹² R v Hegarty; ex parte Salisbury City Corporation (1981) 36 ALR 257, 285 per Murphy J. See also Commonwealth v HCF (1981) 40 ALR 673, 685-686 per Murphy J; R v Joske; ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1974) 2 ALR 447, 449-450 per Barwick CJ and 459 per Mason J.

⁹³ Report of the Advisory Committee on the Australian Judicial System to the Constitutional Commission (1987) (AGPS) 66.

⁹⁴ Attorney-General (Cth) v The Queen (1956) 95 CLR 529, 543-544. This view is reflected in Thomson, “The Separation of Powers Doctrine in the Commonwealth Constitution - The Boilermakers' Case” (1958) 2 Syd L Rev 480; J D Merralls, “Judicial Power Since the Boildennaker's Case: Statutory Discretion and the Quest for Legal Standing” (1959) 32 ALI 283, n 22. H Gibbs also notes that “the boundary between judicial and non-judicial functions has always been blurred”: “Separation of Powers - A Comparison” (1987) 17 Federal L Rev 151, 158.

⁹⁵ (1991) 65 ALJR 280, 282 per Mason CJ and Deane J.

⁹⁶ Polyulchovich v Commonwealth (1991) 65 ALJR 521,526, quoting Dixon CJ and McTieman Jin Reg v Davison (1954) 90 CLR 353, 366.

⁹⁷ Respectively, M V Mcinerney and G J Moloney, supra n 11; Tenure of Appointees, Commonwealth Tribunals (1989) (AGPS) 21; and Harris v Caladine (1991) 65 AUR 280, 282-283 per Mason CJ and Deane J.

⁹⁸ (1990) 64 AUR 175, 178, adopting Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892] 1 QB 431,452.

⁹⁹ Eg in the application of the rules of natural justice to Royal Commissions: Huston v Costigan (1982) 45 ALR 559; Re Mount Erebus Royal Commission; Air New Zealand Limited v Mahon (1981] 1 NZLR 618 (CA), [1983] NZLR 662 (PC).

¹⁰⁰ In the report Tenure of Appointees, Commonwealth Tribunals, (1989) (AGPS) see also the five elements of a “quasi-judicial” tribunal's duty to act judicially, in the view of R K Todd, Deputy President of the AAT: 21-22; the view of Industrial Relations Commission Deputy President Munro: 58; and advice provided by Mallesons Stephen Jacques on the “Tenure of Office for Members of Industrial Tribunals in Australia”, which was attached to the Law Council of Australia's submission to the Joint Select Committee (submission no 19) (1989) 15.

¹⁰¹ Huddart Porker & Co Ltd v MooreMad (1909) 8 CLR 330, 357 per Griffith CJ;National Telephone Company Ltd v Postmaster-General (1913] AC 558; Waterside Workers' Federation of Au.rtralia v J W Alemnder Ltd (1918) 25 CLR 434, 442, 463, 465; Reg v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-375; Cominos v Cominos (1972) 127 CLR 588, 599, 593-594; Polyukhovich v Commonwealth (1991) 65 AUR 521, 526, 559, 592; Harris v Caladine (1991) 65 AUR 280, 288-289, 301. See also J Crawford, Au.rtralian Courts of Law (2nd ed 1988) 28.

¹⁰² R v Spicer; ex parte Australian. Builders' Labourers' Federation. (1957) 100 CLR 277, 305 per Kitto J; PH Lane, “The Judicial Power of the Commonwealth: Recent Cases” (1958) 32 AU 3. Also R v Hegarty; ex parte Salisbury City Corporation. (1981) 36 ALR 275,282 per Mason J; Re Ranger Uranium Min.es Pty Ltd; ex parte Federated Miscellaneous Workers' Un.ion. of Australia [1987] 22 Le Rep 6, and the majority in Hilton. v Wells (1985) 58 ALR 245.

¹⁰³ J D Merralls, supra n 94, 303, 286.

¹⁰⁴ Sawer, G, “The Separation of Powers in Australian Federalism” (1961) 35 AU 177, 180Google Scholar.

¹⁰⁵ JD Merralls, supra n 94, 285.

¹⁰⁶ For the first approach: Prentis v Atlantic Coast Line Co (1908) 211 US 210, 226, as discussed by Deane Jin Polyukhovich v Common.wealth (1991) 65 ALJR 521, 559; and Northern Pipeline Co v Marathon Pipe Lin.e Co (1982) 458 US 50, 58-59, as discussed by Toohey Jin Harris v Caladine (1991) 65 ALJR 280. For the second approach, see Stump v Starkman. (1978) 435 US 349, 362, as discussed by Kirby Pin Yeldham v Rajski (1990) 18 NSWLR 48, 61. I am indebted to Justice Kirby for pointing out this case. For other introductions to the American history in this area, see G Winterton, “Judges as Royal Commissioners” (1987) 10 UNSWLJ 108, 123 (notes 89-90 and accompanying text); and A Woolhandler, “Judicial Deference to Administrative Action - A Revisionist History” (1991) 43 Administrative L Rev 197.

¹⁰⁷ See generally Eggleston, R, “What is Wrong with the Adversary System?” (1975) 49 AU 428Google Scholar.

¹⁰⁸ Love v Allorney-General (NSW) (1990) 64 AIJR 175, 178-179.

^l09 JD Merralls, supra n 94, 286, 287.

^llO (1937) 58 CLR 62, 71-72 per Latham CT. Note that this decision was contemporaneous with the decision of the High Court in R v Federal Court of Bankruptcy; ex parte Lowenstein (1937-38) 59 CLR 566-567, in which Latham CJ provided an early formulation of the “incompatibility” or “inconsistency” version of the separation of powers principle (discussed below: see text at nn 122-128).

¹¹¹ (1937) 58 CLR 62, 97; see Hilton v Wells (1985) 58 ALR 245,259.

¹¹² (1985) 58 ALR 245, 259-260 per Mason and Deane JI, who also follow Menzies J in Adelaide Fruil and Product Exchange Co Ltd v Adelaide Corporation (1960) 105 CLR 428, 434-5, and distinguish Holmes v Angwin (1906) 4 CLR 297 and Webb v Hanlon (1939) 61 CLR 313. Significantly, the majority in Hilton v Wells did not disapprove the Meyer approach. For a lucid analysis of Hilton v Wells, preferring the minority's “more convincing case for a contrary inteipretation”, see “Current Topics”, (1985) 59 AU 303.

¹¹³ (1985) 58 ALR 245, 261. The continuing need to redelineate the relationship between roles in this way is also evident in the decision in Harris v Calodine, restricting the extent to which an officer of a court (not being a judge) is independent of the court itself: (1991) 65 AUR 280, particularly Gaudron J at 306.

¹¹⁴ Sawer, G, “The Separation of Powers in Australian Federalism” (1961) 35 AU 177, 180Google Scholar.

¹¹⁵ Hamilton, in Cooke, J E (ed), The Federalist, No 78, 1788 (1961) 523-524Google Scholar.

¹¹⁶ M D Kirby, supra n 5, 363-364.

¹¹⁷ Sir Ninian Stephen, 1989 Blackburn Lecture, appearing as “Judicial Independence Depends on Standards On and Off the Bench”, (1989) 14 Australian Law News 12. “Security of tenure and of salary” are identified as the “chief manifestations of that immunity”.

¹¹⁸ (1989) 166 CLR 518, at 580. See also Report of the Advisory Committee on the Australian Judicial System to the Constitutional Commission, (1987) (AGPS) 66, on the basis of separation of powers being “certain institutional protections” of independence.

¹¹⁹ Kirby, MD, TIN Judges (1983) 38Google Scholar.

¹²⁰ Griffith, JAG, The Politics oftlN Judiciary (3rd ed 1985) 195Google Scholar.

¹²¹ Galligan, B, Politics oftlN High Court (1987) 257-258Google Scholar. See also Sir Owen Dixon (1952) 85 CLRxvi.

¹²² Lane, PH, “The Decline of the Boilermakers Separation of Powers Doctrine” (1981) 55 AU6Google Scholar.

¹²³ R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556, 565-567 per Latham CJ, 585 per Evatt and Dixon JJ. See also P Bayne, “Mr Justice Evatt's Theory of Administrative Law: Adjusting State Regulation to the Liberal Theory of the Individual and the State” (1991) 9(1) Law in Context 1, 20-21.

¹²⁴ Attorney-General (Cth) v TM Queen (1956) 95 CLR 529, 542 (Privy ColDlcil).

¹²⁵ Repon of the Advisory Committee on the Australian Judicial System to the Constitutional Commission (1987) (AGPS) 67.

¹²⁶ (1979) 24 ALR 577,584 per Bowen CJ and Deane J (italics added).

¹²⁷ (1985) 58 ALR 245, 255 per Gibbs CJ, Wilson and Dawson JJ; note the similar interpretation by Mason and Deane JJ that it is “the independence of the federal judiciary which is protected by the Boilermakers' case”: 261. See also H Gibbs, “The Separation of Powers - A Comparison” (1987) 17 Federal L Rev 151, 160. Also, most recently, Jones v Commonwealth (1987) 71 ALR 497; Re Tracey; ex parte Ryan (1989) 166 CLR 518; Love v Attorney-General (NSW) (1990) 64 ALJR 175; Re Limbo (1990) 64 ALJR 241.

¹²⁸ (1987) 71 ALR 497, 499. On these issues, see also the discussion by Winterton, G, “Judges as Royal Commissioners” (1987) 10 UNSWU 108, 121-126Google Scholar.

¹²⁹ Sir Johannes Bjelke-Petersen, MLA Queensland 1947-87, Premier of Queensland 1968-87, as questioned before the Fitzgerald Inquiry (1988). Commission of Inquiry into Alleged illegal Activities and Associated Police Misconduct (Queensland), Transcript of Evidence, 21167-21168 (December 1988).

¹³⁰ See notes 5-9 above and accompanying text, and the summary provided by M V Mcinerney and G J Moloney, supra n 11, 51.

¹³¹ M Kirby, supra n 5 especially at 343,351,359, 360-361, 362 and 368-369.

¹³² Attorney-General (NSW) v Quin (1990) 64 AUR 327, 333 per Mason CJ. Note the dissenting judgements of Deane and Toohey JJ, and see also M Kirby, supra n 6,203.

¹³³ M Kirby, supra n 6,196,202, 208-2()1).

¹³⁴ “Chief jurist raps Govt for appeal court move”, Courier-Mail (Brisbane), 13 December 1991, 3.

¹³⁵ MacKenzie, JP, TM Appearance of Justice (1974)CrossRefGoogle Scholar.

¹³⁶ See generally S Prasser (et al), Corruption and Reform: TM Fitzgerald Vision, (1990); Dickie, P, TM Road to Fitzgerald (1988)Google Scholar.

¹³⁷ Beasley, FR and Bren, P, “The Independence of Judges” (1953) 26 AU 582Google Scholar; see also M V Mcinerney and GI Moloney, supra n 11, 56-57.

¹³⁸ M V Mcinerney and GI Moloney, supra n 11, 53.

¹³⁹ Mr Whitlam saw this as the case in relation to Justice Fox and the Ranger uranium inquiry: H Reps Deb 1977, Vol 106 1776 (6 October 1977).

¹⁴⁰ M V Mcinerney and G J Moloney, supra n 11, 66.

¹⁴¹ Re Mount Erebus Royal Commission; Air New 'Zealand Limited v Mahon [1983] NZLR 662; M V Mcinerney and G J Moloney, supra n 11, 43-46.

¹⁴² Fisher, DE, Environmental Law in Australia (1980) 150Google Scholar. See also DE Fisher, supra n 11, 21-

¹⁴³ Note especially US Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79, and Australian Conservation Foundation and Harewood v Minister of Resources and Harris-Daishowa (Australia) Pty Ltd (1989) 19 ALD 70. L Pearson, “Standing: Recent Developments and Future Possibilities”, Impact (Environmental Defender's Office, Sydney) (September 1988); and L Karp and N Pain, “Some Developments on the Standing Front - Recent Cases”, Impact, (May 1990).

¹⁴⁴ Re Tracey, ex parte Ryan (1989) 166 CLR 518,581 per Deane J.

¹⁴⁵ H Reps Deb 1984, Vol 139, 1037 (11 September 1984), per McGauran. Supra n 67, 224-225 The conflict of roles appears to have been confirmed, in retrospect, by the fact that the execution of the Chair's role indeed combined judicial stature with the work of a super-policeman; see Stewart, D G, “National Crime Authority”, Police Life (December 1984) 224-225Google Scholar.

¹⁴⁶ Love v Altorney-General (NSW) (1990) 64 ALJR 175, 180.

¹⁴⁷ M V Mcinerney and G J Moloney, supra n 11, 39-41. See also the views of Professor Harrison Moore in 1910 noted in McGuinness v Attorney-General (1940) 63 CLR 73, 94 per DixonJ.

¹⁴⁸ Galligan, B,Politics of the High Court, (1987) 258Google Scholar.

¹⁴⁹ Sir Ninian Stephen, “Judicial Independence Depends on Standards On and Off the Bench” (1989) 14 Australian Law News 12; M Kirby, supra n 6, 191.

¹⁵⁰ Brerman, FG, “Limits on the Use of Judges” (1978) 9 Federal L Rev 1Google Scholar; M V McJnemey and G J Moloney, supra n 11, 56.

¹⁵¹ Bayne, P, “;Mr Justice Evan's Theory of Administrative Law: Adjusting State Regulation to the Liberal Theory of the Individual and the State” (1991) 9 Law in Context 1, 21Google Scholar.

¹⁵² Kilgare, CD, Judicial Tyranny (1977) 188Google Scholar.

¹⁵³ Parlcer, RS, “Power in Australia”, in Colin Hughes (ed), Readings in Australian Government (1968) 25Google Scholar. See also Etzioni-Halevy, E, Political Manipulation and Administrative Power: A Comparative Study (1979)Google Scholar;Encel, S, Equality and Authority (1970)Google Scholar.

¹⁵⁴ RS Parlcer, supra n 153, 26. Parlcer describes, in addition to industrial relations commissions, the electoral commissions, Commonwealth Grants Commission, Universities Commission, River Murray Commission, Stevedoring Industry Commission, Australian Tariff Board (since replaced by the Industry Commission), and Australian Broadcasting Control Board (since replaced by the Australian Broadcasting Tribunal).

¹⁵⁵ For an overview of mediation and conflict minimisation, and their relevance to public law and policy, see SB Goldberg, ED Green and FE A Sander, Dispute Resolution (1985); HT Edwards, “Alternative Dispute Resolution: Panacea or Anathema?” (1986) 99 Harvard L Rev 668; P Fitzpatrick, “The Rise and Rise of Inforrnalisrn” in Roger Matthews (ed), Informal Justice? (1988); W Pengilley, “Alternative Dispute Resolution: The Philosophy and the Need” (1990) l Australian Dispute Resolution Journal 82.

¹⁵⁶ Palmer, G, Corporatism in Australia (1986), 3Google Scholar. See generally Schmitter, P C and Lehmbruch, G (eds), Trends Toward Corporatist Intermediation (1979)Google Scholar.

¹⁵⁷ Schrnitter, P, “Still the Century of Corporatism?” (1974) 36 Review of Politics 93-94Google Scholar.

¹⁵⁸ I Thynne and J Goldring, for example, while acknowledging a role for “group activity and corporatist trends” in explaining current policy developments, understate the significance of these trends: Accountability and Control: Government Officials and the Exercise of Power (1987) 21-23.

¹⁵⁹ Eg Kenyon, P, Insiders, OuJsiders and Corporatism: An Interpretation of the Empirical Evidence on the Effects of the Accord (1990)Google Scholar.

¹⁶⁰ In addition to establishing the Resource Assessment Commission structure, recent Commonwealth Governments have proposed environmental “accords” such as a Forest Accord (see R J L Hawke, Our Country Our Future (1989) (AGPS)), and the multipartite Ecologically Sustainable Development Working Groups (see ESD Working Groups, Final Reports - ExecuJive Summaries (1991) (AGPS).

¹⁶¹ Unionist Bill Kelty endorses the view that “our task is not to say but to implement change, to get results, to negotiate. To negotiate involves the capacity to compromise, the capacity to walk away from an agreement committed to both the process and to the outcome” (Address to the Queensland Government's Public Issue Dispute Resolution Conference, 18-19 February 1991). Cf The Wilderness Society's view of a process “established along traditional adversary lines, [where] sectional interests dominate the agenda. Instead of achieving new ground they will continue to tread old pathways. a play to get the green agenda under control and to drain the conservation movement of its most active people by tying them into meaningless debate”: R Ledgar, “Wilderness, Development and Sustainability” (1990-91) Wilderness News No. 117, 13. See also “It's No to the RAC”, (1990) Wilderness News No 116, 13; B Burton, “The Meaning of Compromise” (1991) Wilderness News No 123, 22-23; and “ESD: Why We're Still In it”, Dancing With Wolves (Australian Conservation Foundation/World Wide Fund for Nature) No 1, April 1991.

¹⁶² E F Murphy, supra n 89, 119. See also “Mediating Role for Resource Assessment Commission”, Resource Assessment Commission News, No 2, March 1990, 1; and Ecologically Sustainable Development Working Groups, Final Report - Forest Use (1991) (AGPS) 153, 173.

¹⁶³ BM Tsamenyi et al, “Determining the World Heritage Values of the Lemonthyme and Southern Forests: Lessons from the Helsham Inquiry” (1989) 6 Environmental and Planning Law Journal 79, 89. Cf Canada as one place where justicial approaches to the environment are considered to be highly advanced: MI Jeffery, QC, chairman of the Ontario Environmental Assessment Board, “Appropriateness of Judicial and Non-Judicial Determination of Environmental Issues” (1988) 5 Environmental and Planning Law Journal 265.

¹⁶⁴ E F Murphy, supra n 89, 127, 126.

¹⁶⁵ Brennan, F G, “Limits on the Use of Judges” (1978) 9 Federal L Rev l, 8Google Scholar; M V Mcinerney and G J Moloney, supra n 11, 55.

¹⁶⁶ R Fitzgerald, “Judicial Culture and the Investigation of Corruption “, in S Prasser (et al),Corruption and Reform: The Fitzgerald Vi.rion (1990) 62-63.

¹⁶⁷ E F Murphy, supra n 89, 117, 112. This type of criticism, also the basis for the comments of DE Fisher, supra n 71 noted earlier, continues to be made: see Ecologically Sustainable Development Working Groups, Fmal Repon- Forest Use (1991) (AGPS) 33, 171.

¹⁶⁸ Wynne, B, “Technology, Risk and Participation: On the Social Treatment of Uncertainty” in Conrad, J (ed), Society, Technology and Ririe Assessment (1980) 181Google Scholar. Specifically, Wynne criticises Britain's Windscale Inquiry - considered progressive in this area - for treating as irrelevant political matters such as the track records of institutions that control technology in relation to questions of public trust, credibility and openness: (ibid 186).

¹⁶⁹ Supra n 5, 14, 21; see also 17 and xi-xii, conclusions 1 and 2.

¹⁷⁰ Griffith, J A G, The Policies of the Judiciary (3rd ed 1985) 48Google Scholar.

¹⁷¹ I am indebted to Justice Kirby for his perspective on these issues.

¹⁷² (1985) 58 ALR 245, 263 per Mason and Deane JJ.

¹⁷³ Note, eg the comments of JG Starlce QC upon the recent decision in Re Limbo (1990) 64 AUR 241, in “Current Topics”, (1990) 64 AU 514.

¹⁷⁴ M Kirby, supra n 5, 368-369.

¹⁷⁵ Eg Galligan, B, Politics of the High Court (1987) 257Google Scholar.

¹⁷⁶ “In a parliamentary system such as Australia's where, by the conventions of responsible government, the executive is in effect the leader of the legislature, the judiciary provides the [only] basic institutional check on majority rule”: Galligan, B, Politics of the High Court (1987) 42Google Scholar.

¹⁷⁷ Similar concerns are reflected in the minority views of the High Court, where they discuss the relationship between the Judiciary and the Legislature in Polyukhovich v Commonwealth of Australia (1991) 65 AUR 521 (especially per Deane J).

¹⁷⁸ F G Brennan, supra n 165, l; M V Mcinerney and G J Moloney, supra n 11, 54; Sir Ninian Stephen, “Judicial Independence Depends on Standards On and Off the Bench” (1989) 14 Australian Law News 12; M Kirby, supra n 6, 191.

¹⁷⁹ MacKenzie, JP, The Appearance of Justice (1974) 241CrossRefGoogle Scholar .

¹⁸⁰ Machiavelli, N, The Prince, Chapter 18 (1981 Penguin edition) 100-101Google Scholar.