The first clear expression of the doctrine in the post-Boilermakers context was in the 1979
Federal Court of Australia case of
Drake v Minister for Immigration & Ethnic Affairs, which concerned a challenge to the appointment of Justice
Daryl Davies, of the Federal Court, to the position of Deputy President of the
Administrative Appeals Tribunal. In their joint judgment, Chief Justice
Bowen and Justice
Deane said: "There is nothing in the Constitution which precludes a justice [of a Chapter III court] from, 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." The doctrine was first clearly applied by the
High Court of Australia in the 1985 case of
Hilton v Wells, 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."
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. 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. which concerned the appointment of Justice
Jane Mathews 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==