The Constitution strictly separates the government into three branches: legislature, the executive; and the judiciary. The application of this doctrine of separation is clear at federal level, and governed by the Constitution, but its application at State level is still questionable. The appointment of State Chief Justices as Lieutenants-Governor has been an exception to the separation of powers and administered by the individual Constitution Act of the States. This has been criticized by the public for the possibility of impairing confidence in the judiciary as well as constitutional compatibility. In this essay, Cremean and Twomeys’ views will be closely examined to determine whether the appointment of State Chief Justices as Lieutenants-Governor breaches the Federal constitutional separation of powers, and whether these conflicts can be avoided through the application of persona designata. II. WHETHER THE APPOINTMENT OF STATE CHIEF JUSTICE AS LIEUTENANT-GOVENOR IS CONSTITUTIONALLY COMPATBLE WITH THE SEPARATION OF POWER?
The key question in determining this is whether the performance of State Chief Justice as Lieutenant-Governor is constitutionally compatible with holding of the office of a judge appointed under Chapter III of the Constitution. Under Chapter III of the Constitution, Chapter III courts can exercise and only exercise judicial power. The Chief Justice who is vested within judicial power constitutes the court and represents that court and the judicial branch of government. He or she is constitutionally restricted from performing non-judicial functions. This separation of power is fundamental in ensuring the independence and impartiality of the judiciary, and in protecting the judiciary from the undue influences of other branches of government.
Conflicts arise here if a Chief Justice as Lieutenant-Governor is advised to act upon matters which relate to the judiciary and will raise the issue of judiciary independence. Cremean argues that the Constitution Acts of both New South Wales and Victoria which allow the appointments appears to be contrary to the ruling in the Boilermakers Case regarding federal jurisdiction. Similarly, Guadron J in Kable interpreted the Constitution as the following; if chapter III does not allow an exercise of certain power then the state cannot themselves exercise it. There is nothing in the Constitution Act (NSW) or in its terms that confer upon the Chief Justice any judicial power so clearly function acted by the Chief Justice appointed as Lieutenant-Governor will be non-judicial. Conversely, McHugh J stated in Kable that there is no restriction in Chapter III of the Constitution to prevent state courts from dealing with non-judicial functions, he then added, ‘the function itself must not be in the nature that it is likely to impair the public confidence on the independence of the judicial.’ III. IS THIS APPOINTMENT AUXILLARY OR INCIDENTAL TO THE EXERCISE OF JUDCIAL POWER?
Cremean acknowledges that the Constitution allows functions which are auxiliary or incidental to the exercise of judicial power. However, he argues that having a Chief Justice as Lieutenant-Governor is not an auxiliary or incidental exercise to that of the judicial power, for it is a separate arrangement. The duty of a Lieutenant-Governor involves the administration of the state government in the absence of Governor-General and is that of the nature dealing with executive branch of the government and exercising executive power. It is therefore certain that such appointment of non-judicial office is not incidental to the exercise of judicial power. IV. THE EXCEPTION OF PERSONA DESIGNATA A. The Doctrine of Incompatibility
Can the exception to the ruling in Boilermakers Case, persona designata be used as a remedy where non-judicial function is conferred upon a Judge in personal capacity? Would this concept be validly utilised to avoid the breach of applicable branch of