The ''persona designata''
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
is a doctrine in law, particularly in
Canadian
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
and
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.
Background
Constitution ...
which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court. The doctrine in the more general sense has been recognised throughout the common law countries (including the United States). ''Persona designata'', according to ''
Black's Law Dictionary
''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary.
History
The first edition was published in 1891 by West P ...
'', means "A person considered as an individual rather than as a member of a class"; thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group. While it has its origin in
Montesquieu
Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher.
He is the principa ...
's doctrine of the separation of powers, it can be traced back as far as
Aristotle
Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
's ''
Politics
Politics (from , ) is the set of activities that are associated with making decisions in groups, or other forms of power relations among individuals, such as the distribution of resources or status. The branch of social science that studies ...
''.
In Australia the doctrine is considered to be an exception to the
Boilermakers' doctrine of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, which holds that conferral of non-judicial power which is not incidental to the exercise of judicial power on a
Chapter III court
In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these cou ...
(a federal court) is unconstitutional.
[.]
Background
While the
Australian system of government is
parliamentary
A parliamentary system, or parliamentarian democracy, is a system of democracy, democratic government, governance of a sovereign state, state (or subordinate entity) where the Executive (government), executive derives its democratic legitimacy ...
, with a "
fusion of powers
Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled, typically the executive and legislative branches. It is contrasted with the separation of powers found in presidenti ...
" between the executive and the legislature, the
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
with respect to the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
has long been accepted as an important aspect of the
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
.
[ (1992) 21 ]Federal Law Review
The ''Federal Law Review'' is a quarterly peer-reviewed law review
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of resea ...
48. The importance of the principle is traditionally said to have reached its high point in 1956 with the
Boilermakers' case,
[.] in which the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
held that non-judicial power could not be conferred on a federal (ie Commonwealth) court established under
Chapter III of the Australian Constitution.
However, Australia also has a long history of judges being appointed to non-judicial positions.
The idea that some non-judicial functions can be conferred on judges in their personal capacity had been present in Australian law for some time; some trace it to cases such as ''Medical Board of Victoria v Meyer''
in 1937,
while others regard the doctrine as settled law since at least 1906,
and the case of ''Holmes v Angwin''.
[.]
Development of the doctrine
The first clear expression of the doctrine in the post-Boilermakers context was in the 1979
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...
case of ''
Drake v Minister for Immigration & Ethnic Affairs
''Drake v Minister for Immigration & Ethnic Affairs'',''Drake v Minister for Immigration & Ethnic Affairs''(1979) 46 FLR 409. (3 May 1979) Federal Court (Full Court). was a 1979 decision of the Federal Court of Australia dealing with drugs, depo ...
'', which concerned a challenge to the appointment of Justice
Daryl Davies
Darryl is an English name, a variant spelling of Darell.
Male variations of this name include: Darlin, Daryl, Darrell, Darryl, Daryll, Darryll, Darrell, Darrel.
Female and unisex variations of this name include: Daryl, Darian, Dareen, Darell ...
, of the Federal Court, to the position of Deputy President of the
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) is an Australian tribunal that conducts independent merits review of administrative decisions made under Commonwealth laws of the Australian Government. The AAT review decisions made by Australian Gover ...
. In their joint judgment, Chief Justice
Bowen Bowen may refer to:
Places
Australia
* Bowen, Queensland, a town
* Bowen Hills, Queensland, a suburb
** Bowen Hills railway station, a railway station in Bowen Hills
** Bowen Park, Brisbane, a park in Bowen Hills
* Bowen Bridge, crossing the Derw ...
and Justice
Deane said:
"There is nothing in the Constitution which precludes a justice f a Chapter III courtfrom, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Chapter III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."[''Drake v Minister for Immigration & Ethnic Affairs'' (1979) 2 ALD 60; (1979) 46 FLR 409]
The doctrine was first clearly applied by the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
in the 1985 case of ''
Hilton v Wells
Hilton or Hylton may refer to:
Companies
* Hilton Worldwide Holdings, Inc., a global hospitality company based in the United States that owns several hotel chains and subsidiary companies containing the Hilton name
** Hilton Hotels & Resorts, f ...
'',
which involved a challenge to the constitutional validity of certain
telecommunications
Telecommunication is the transmission of information by various types of technologies over wire, radio, optical, or other electromagnetic systems. It has its origin in the desire of humans for communication over a distance greater than that fe ...
legislation which permitted
telephone tapping
Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...
by way of a
warrant, which had to be issued by "a judge".
The word "judge" in that piece of legislation was defined to mean a judge of the Federal Court or of the
Supreme Court of the Australian Capital Territory
The Supreme Court of the Australian Capital Territory is the highest court of the Australian Capital Territory (ACT). It has unlimited jurisdiction within the territory in Civil law (common law), civil matters and hears the most serious Criminal ...
, or, in certain circumstances, a judge of the
Supreme Court of the Northern Territory
The Supreme Court of the Northern Territory is the superior court for the Australian Territory of the Northern Territory. It has unlimited jurisdiction within the territory in civil matters, and hears the most serious criminal matters. It is aro ...
or any of the
State Supreme Courts
In the United States, a state supreme court (known by other names in some states) is the highest court in the state judiciary of a U.S. state. On matters of state law, the judgment of a state supreme court is considered final and binding in ...
.
In their majority judgment,
Chief Justice Gibbs and Justices
Wilson
Wilson may refer to:
People
* Wilson (name)
** List of people with given name Wilson
** List of people with surname Wilson
* Wilson (footballer, 1927–1998), Brazilian manager and defender
* Wilson (footballer, born 1984), full name Wilson Ro ...
and
Dawson acknowledged the difficulty of determining whether a function has been conferred on a court or on a judge of that court, saying that:
"It is a question which involves fine distinctions, which some may regard as unsatisfactory... the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it."[.]
The Justices continued, and considered the significance of the nature of the function being conferred to the question of whether the function is to be exercised by the judge in their capacity as a judge, or in their capacity as a regular person:
"If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person."
The High Court rejected the challenge to the constitutional validity of the legislation in a three to two decision.
Mason and Deane JJ, in dissent, rejected the notion that functions, such as those granted under s 20 of the ''Telecommunications (Interceptions) Act 1979 (Cth)'' to provide for the ability of judges to issue telephone taps, could be exercised constitutionally by 'judges' as defined by s 18 of the Act. Mason and Deane JJ were of the opinion that conferring non-judicial functions could not be granted to a Chapter III court without undermining the doctrine in ''Boilermaker's Case'' and the separation of powers prescribed by the Constitution as 'a safeguard of individual liberty'.
Following ''Hilton'', the ''Telecommunications (Interception) Act 1979 (Cth)'' was amended to clarify that judges who authorised telephone taps under the legislation were acting as a ''persona designata'' and not in breach of the constitutionally warranted separation of powers between the judiciary, executive and legislature.
Limits
Two broad limits to the doctrine have been identified, which essentially act as preconditions to the conferral of a non-judicial function:
# the judge must agree to the conferral of the function, and
# the function must not be incompatible with the judge's judicial functions.
Incompatibility
The issue of incompatibility was expounded in the 1995 case of ''
Grollo v Palmer'',
which concerned new provisions in the same telecommunications legislation that had been considered in ''Hilton v Wells''.
Following the decision in ''Hilton'', the legislation had been amended to make it more explicit that the function of granting warrants was being conferred on judges in their personal capacity, and had made the judge's consent an eligibility requirement, but the changes had also introduced protections and
immunities for judges exercising the function, like those afforded to Justices of the High Court.
The court unanimously agreed that the function was being conferred on the judges as ''personae designatae'', but the question was whether the function was incompatible with their judicial office.
In a joint majority judgment, Chief Justice
Brennan Brennan may refer to:
People
* Brennan (surname)
* Brennan (given name)
* Bishop Brennan (disambiguation)
Places
* Brennan, Idlib, a village located in Sinjar Nahiyah in Maarrat al-Nu'man District, Idlib, Syria
* Rabeeah Brennan, a village located ...
and Justices Deane, Dawson and
Toohey, discussed what situations might enliven the incompatibility condition:
"Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished."[.]
The majority held that, although the function of issuing warrants was closely connected with the purely executive process of law enforcement, it did not amount to judicial participation in a criminal investigation (which would be incompatible) and that the participation of impartial, independent judicial officers in the process would actually reinforce public confidence in the judiciary.
That is, the majority recognised that the incompatibility exception existed, but found that it did not apply in this situation.
In 1996, the High Court applied the incompatibility condition in the case of ''
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs'' which concerned the appointment of Justice
Jane Mathews
Jane Hamilton Mathews (19 December 1940 – 31 August 2019) was a judge of the Supreme Court of New South Wales, a judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal.
Early life and education
Math ...
of the Federal Court to prepare an Indigenous heritage report in relation to the
Hindmarsh Island bridge development.The court held that legislation authorising the appointment was invalid, because the functions conferred, which included forming opinions and giving advice about areas which should be protected under heritage legislation, were incompatible with judicial office.
Criticisms
D M Gordon wrote in the Canadian Bar Review:
"the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles". This view has been upheld numerous times in Canadian Supreme Court decisions. For instance in Re Herman and Dep. A.-G. Can (1978), Chief Justice
Laskin stated:
"The concept of persona designata came from the Courts and it can be modified or abolished by the Courts. In my view, I think this Court should declare that whenever a statutory power is conferred upon a Judge or officer of a Court, the power should be deemed exercisable in official capacity as representing the Court unless there is express provision to the contrary. "
and affirmed in Minister of Indian Affairs & Northern Development v. Ranville (1982) where Dickson J. held:
" I was rather of the opinion that this troublesome notion of persona designata had been given its quietus in the recent Herman decision. The Chief Justice's aversion in Herman to the concept of persona designata could not have been more evident (at pp. 4–5 D.L.R., pp. 731–2 S.C.R.): – it is high time to relieve the Courts of the interpretative exercises that have been common in this country when they think that a decision has to be made whether a statutory jurisdiction has been vested in a Judge qua Judge or as persona designata. –
In the test formulated in Herman I endeavoured to confine the notion of persona designata to the most exceptional circumstances. The Federal Court of Appeal and the provincial courts which have had to deal with the notion since the Herman decision have grasped how exceptional recourse to persona designata must be. So far as I am aware, in applying the test in Herman, no federally-appointed judge has yet been found to be a persona designata"[139 D.L.R. (3d) 1 ]982
Year 982 ( CMLXXXII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place Europe
* Summer – Emperor Otto II (the Red) assembles an imperial expeditionary force at Tara ...
2 S.C.R. 518
Jurisprudence
On 19 June 2015, in ''Furfaro v. Cannavino'',
Quebec Court of Appeal
The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.
History
The Court wa ...
Justices Duval-Hesler, St-Pierre and Vauclair rejected hearing the appeal on the grounds that
Quebec Superior Court
The Superior Court of Quebec (french: Cour supérieure du Québec) is a superior trial court in the Province of Quebec, in Canada. It consists of 157 judges who are appointed by the federal government. Appeals from this court are taken to the Qu ...
Judge Antonio De Michele was acting as a ''Persona Designata'' in conducting a judicial recount of the English Montreal School Board elections of 1 November 2014. Therefore, their contention was that any opposition to Judge De Michele's rulings must be heard in Superior Court and not at the Quebec Court of Appeal. They rejected the plaintiff's counsel's arguments that Judge De Michele was, in fact, acting in his capacity as Quebec Superior Court Judge since the hearing took place in a courtroom, with opposing lawyers arguing opposing points, and that the Judge required to make rulings on the validity of votes is supposed to rule based on the law, the main responsibility of a judge.
Chief Judge Duval-Hesler said, repeatedly, that Judge De Michele was merely conducting a recount and completing a certificate of the tally of votes, not rendering any legal decisions. This interpretation is disputed. In fact, Judge De Michele rendered dozens of decisions on the validity of over 50 ballot papers which should have been based on the elections law but weren't. This was the reason for the appeal being brought.
Since the deadline to file a "challenge to a recount" (rather than an "Appeal") is 30 days, the Quebec Court of Appeal decision effectively denied the plaintiff all further recourse, leaving this election decided by the courts without regard for the will of the elector.
A written decision is forthcoming by the court.
See also
*
Legal person
In law, a legal person is any person or 'thing' (less ambiguously, any legal entity) that can do the things a human person is usually able to do in law – such as enter into contracts, sue and be sued, own property, and so on. The reason for ...
*
Separation of powers in Australia
The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation ...
References
{{Reflist
Additional references
Groves M, Lee HP. Australian Administrative Law: Fundamentals, principles and doctrines. Cambridge 2007
Australian constitutional law
Legal rules with Latin names