A purposive formalist interpretation of Chapter III of the Australian Constitution

Abstract

The question driving this thesis is how should the separation of federal judicial power, derived from Chapter III of the Australian Constitution, be interpreted to best achieve the independence and impartiality of federal courts? The interpretation of Chapter III is as hotly debated as it is fundamentally important. Two key viewpoints have emerged in this debate: formalism and functionalism. A formalist test – strictly separating government powers according to definition – limits the permissible powers of federal courts. A functionalist test – hinging validity on whether a power is incompatible with institutional independence and integrity – limits the powers of State courts and of judges in their personal capacities (‘personae designatae’). A rare point of consensus between the two viewpoints is that the separation of judicial power derived from Chapter III should be interpreted in a manner that achieves its core purpose. This thesis identifies this purpose as judicial independence and impartiality and queries which interpretive approach can best achieve this aim, with a view to contributing to contemporary debates and guiding future developments in the area. The central argument of the thesis is that a new, hybrid approach called purposive formalism presents a legitimate and preferable interpretation of Chapter III, better able to achieve judicial independence and impartiality than either the existing formalist or functionalist tests. The thesis tests the strengths and weaknesses of formalist, functionalist and purposive formalist interpretations of Chapter III in two case studies. The first case study concerns powers conferred on federal courts under the anti-terrorism control order provisions of the Commonwealth Criminal Code (the ‘Code’), and contrasts formalist and purposive formalist approaches to assessing the Chapter III validity of these provisions. The second case study concerns similar powers conferred on judges personae designatae under the anti-terrorism preventative detention order provisions of the Code, and assesses the relative strengths and weaknesses of purposive formalism and the functionalist incompatibility test in this context. The study as a whole reveals serious weaknesses in the existing approaches. Purposive formalism is consistently supported, not as a perfect or ideal approach, but certainly as a preferable interpretation of Chapter III better able to achieve the independence and impartiality of federal courts.