Grollo v Palmer (1995)
•    Act (disputed in Hilton) amended to make clear that judge issuing warrant did so as persona designata.
•    Dispute concerned the compatibility of functions
•    Majority adopted two part test (drawn from a US authority)
1.    No non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent
2.    No function can be conferred that is incompatible either with the judge’s performance of his judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.
•    Examples of incompatibility
o    Might require such a permanent & complete commitment that they can’t do their other duties.
o    The extra duties may impair or compromise the judge’s integrity
o    Extra duties may diminish public confidence in judge or court’s ability to discharge judicial functions with integrity.

Drake v Minister for Immigration (1979)
•    Appointment of FC judge as deputy president of non-judicial tribunal.
•    Appointment was not conferring functions on the FC, only personal functions on the judge.
•    Distinction drawn between:
o    Permissible – Appointing a person, who has the qualification of a judge of the FC, to perform an administrative function.
o    Impermisisble - to invest a Ch 3 court with administrative functions

Hilton v Wells (1985)
•    FC judge empowered to issue telephone tap warrants (note that this was a non-judicial function that couldn’t be conferred on the court itself).
•    One of alleged conspirators argued that this was a conferral of administrative functions on a judicial officer & therefore unconstitutional.
•    HC rejected this argument – was a conferral of administrative functions to an individual, not to a court.
•    Fact that criteria was FC judge merely indicates parliament’s desire to single out judges because of their judgment and independence.
•    Note: Even if powers are conferred personally, if the nature of the functions conferred on the judge conflicts with judicial functions or impair their independence, then they will be invalid under 2nd Boilermaker principle.

Separation of Powers at State Level

•    There is no constitutional doctrine of separation of powers in either State constitutions or Cth constitution.
•    The only limitation applies to State courts that are vested with Federal Jurisdiction → Kable below

Incompatibility Doctrine Kable v DPP (1996)

•    State courts that exercise Federal jurisdiction cannot exercise powers that are incompatible with that exercise of federal jurisdiction
•    State legislation will be invalid due to breach of Ch3 if it confers powers upon State supreme courts which are incompatible with its exercise of federal judicial power.
•    Any function that undermines the institutional independence of the Supreme Courts from the executive will be incompatible with the exercise of the federal judicial power.
•    “This means they must be independent & appear to be independent of their own State’s legislature & executive govt as well as the federal legislature & govt.”
•    “non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive govt of the State” per McHugh J
•    Note: This isn’t a principle based on individual rights. Principle court was concerned with was the public’s confidence in the judiciary as an institution. Therefore, this doctrine wouldn’t apply to state powers vested in non-judicial bodies. ie. The case where they were to give the powers directly to the governor of Kable’s prison.

Attempts to extend the Incompatibility Doctrine

•    These cases sought to extend the incompatibility doctrine, as identified in Kable, by challenging certain laws on the basis that they required the courts to perform functions (ie by applying the laws) which were incompatible with the judicial function (the effect on public confidence in the judiciary being the main justification for this notion of incompatibility).  
•    The cases have failed to extend the doctrine in this direction beyond the specific example of Kable.

R v Moffat
•    S18(a) allowed Cth to pass effectively indefinite sentences
•    This was different from Kable because it had a broad application, & was still effectively punishment for the original crime (akin to parole)
•    Legislation was upheld in face of incompatibility challenge

Wynbyne v Marshall
•    Argued that mandatory sentencing laws removed judicial discretion
•    But Supreme Ct drew distinction with Kable because the Act didn’t direct the Ct to find a person guilty, all it did was change the prevailing statutory discretion when it came to sentencing.
•    In no way did this interfere with their independence in a way that made the functions incompatible.

Nicholas v R
•    Argued that amendment to Crimes Act to not exclude evidence obtained by entrapment etc, was impacting on the judicial process
•    Rejected on similar grounds to Wynbyne v Marshall above.