The concept of Persona Designata PDF

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The concept of Persona Designata as an exception to the Boilermaker’s principle of separation of Ch 3 judicial power Define:  Boiler Makers The Constitutional case of R v Kirby; EX parte Boilermakers’ Society of Australia (1956), although far from criticised, sets out the Boilermakers principle which seeks to secure the independence of the federal judicial branch. It sets out that judicial power can only be exercised by Chapter 3 courts, & non-judicial Commonwealth powers can not be exercised by such bodies.  History (Context) of Case The principle was built upon earlier decisions which confirmed the exercise of Cth judicial power; decided against the background Wheat case (1915), Alexander’s case (1918), and Dignam (1931).  Wheat (1915): First significant decision to address the separation of judicial power. Recognised the importance of judicial impartiality, and the objective of SOP would be frustrated through control or interference by Parliament. This came to establish the First Limb of BoilerMakers; Federal Judicial power can only be exercised by Ch III courts.  Alexander (1918) & Dignam (1931): Second Limb Ch III courts can exercise nothing but judicial power  Persona Designata Is the exception to this rule. The exception permits judges may act in non-judicial roles where they are acting in their personal capacity (Hilton) provided that they consent, and the power vested in them is not incompatible with the judges official duties (Grollo;Wilson).  How its been upheld HCA in Drake (1979) and later in Hilton (1985) revoked a strict separation of judicial personnel by adopting the doctrine of persona designata to accommodate the vesting of nonjudicial powers in federal justices in their personal capacity. In Drake it was held nothing in the Constitution precludes a Justice of the High Court, to his/her own personal capacity, to be appointed to an office performing administrative functions that are quasi in nature. The first application applied in Hilton (1985).

Grollo v Palmer Joint judgment relied in particular on the minority judgment of Mason and Deane JJ in Hilton v Wells in declaring two conditions restricting the persona designata principle: First the judge must consent to exercising the non-judicial function (not incidents) and second, the exercise of such power must not be incompatible with the judge’s performance of judicial function. Incompatibility arises where; further performance of judicial functions are not practicable, integrity is compromised or public confidence in such integrity is diminished. Majority upheld no incompatibility in this case - judges can issue a warrant for phone tapping.  Significance; Public confidence and trust in the judiciary The majority in Grollo noted that the professional experience and mind of a judge guarantees appropriate balance will be kept between law enforcement agencies and criminal suspects or suspected sources of information about crime.

McHugh in the minority was of the opinion that such a power gave rise to direct conflict with judicial functions which meant that "public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner is likely to be jeopardised.'' 

Exceptions o Wilsons case (Public confidence and trust in the judiciary) o Kable

The decisions in Wilson (1996) and Kable each illustrate a different challenge to the integrity of the exercise of federal judicial power. In Wilson, it was the independence of a judge which was directly at stake while in Kable, it was the independence of the Supreme Court. Kable established a restriction on State power in relation to the vesting of non-judicial power in State Supreme Courts. Persona Designata does not apply to State courts unless exercising Federal jurisdiction  Granted the courts flexibility in its application of Boilermakers’ Evident in the majority’s reluctance to class the control order functions conferred in Thomas v Mowbray42 as non-judicial....