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Peter A Gerangelos[*]
This article will attempt to identify and define those constitutional principles, derived from the doctrine of the separation of powers, which govern the relationship between Parliament and the Chapter III courts in the precise situation where Parliament purports to amend the law which is applicable in pending legal proceedings (whether they are awaiting first instance hearing, or are on appeal). Arguably, these principles are also applicable in circumstances where proceedings are being contemplated, but have yet to be commenced. The fundamental enquiry is whether the separation of judicial power in Chapter III of the Commonwealth Constitution places limitations on the legislative competence of Parliament to affect the resolution of legal issues in the pending case. This issue has been the subject of greater judicial and academic scrutiny in the United States, providing considerable assistance in defining relevant constitutional limitations applicable in Australia. It is the aim of this article to undertake a detailed examination of the United States position to assist in the appreciation and development of principle in Australia. The jurisprudence in that jurisdiction is singularly germane given that the relevant constitutional provisions are virtually identical.[1] Moreover, it stands as a valuable reminder of the principal nature of the issue being considered, a fact not lost on the Americans in light of their unhappy experiences in this regard in the pre-Constitution era. Instances of egregious legislative interference were not uncommon, such as legislatures acting as appellate courts and directing the outcome of legal proceedings. This constituted a critical catalyst for the original entrenchment of the separation doctrine in that nation's Constitution.[2]
The question of constitutional limitations on legislative interferences with judicial functions is one of quite considerable conceptual complexity. Unlike legislative usurpations of judicial power — such as a Bill of Attainder[3] — legislative interferences by way of legislative amendment to the applicable law are certainly permissible. The difficulty lies in discerning those interferences which are not. This is complicated by the fact that it is not sufficiently appreciated (if at all) that this issue is quite discrete, albeit related to, the more dominant principles which derive from Chapter III. Thus its consideration may not always, or solely, raise concerns about the denial of procedural due process,[4] concerns that an essential element of the judicial power of the Commonwealth is being removed from the court, or that the court is being required to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power.[5] Usually, the issue arises where there are purported amendments to law contained in legislation which is ad hominem, or directed to an easily identifiable class of person, retrospective, and which appear to be tailored to address the very issues the court will be required to address in a pending case. Prima facie, unlimited legislative power in this regard poses a serious threat to a fundamental separation of powers value: ensuring that legal disputes — particularly where the government is a party or in which it has an interest — are protected from the vagaries and vicissitudes of political influence and factional interest.
Although the issue arises rarely, it tends to emerge in matters of high political moment and where there is a serious possibility that the implementation of government policy may be thwarted by litigation. The temptation, if not political imperative, to legislative intervention is obvious. One need only list the facts of the main cases here to illustrate the point: These include, for example, the criminal prosecution of the perpetrators of an abortive coup (Liyanage v The Queen)[6] the deregistration of highly controversial industrial unions (the BLF cases),[7] the detention of asylum-seekers (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs)[8] and the admission of evidence in prosecutions for narcotics offences resulting from the illegal conduct of law enforcement officers (Nicholas v The Queen).[9] Moreover, the legislative response to the Tampa Incident, in which the Australian government took action to remove from Australian waters the Norwegian ship which had taken on board some 400 persons seeking asylum in Australia after it had rescued them from their own sinking vessel, did raise the issue. This was not addressed by the High Court as leave to appeal from the decision of the Federal Court was not granted.[10] The United States cases reveal similarly politically sensitive issues arising as will be discussed below.
This article will proceed by, first, briefly stating the current Australian position (examined in more detail elsewhere),[11] before proceeding to a detailed examination of the United States jurisprudence. This will form the basis for a detailed evaluation of the principles identified, and their articulation and application by the courts. On the basis of this evaluative analysis, the article will proceed to articulate a qualified reformulation of these principles. Such reformulation, it will be argued, is necessary to overcome the inherent weaknesses identified within the principles as currently formulated and to avoid the inconsistent application thereof by the courts. The constitutional limitations governing this critical crossroads between legislative and judicial power have not been given broad coverage in Australia, either in judicial exegesis or in constitutional commentary. A leading Chapter III scholar, Dr Fiona Wheeler, has identified this precise issue as warranting a more detailed examination.[12] Professor George Winterton had earlier identified this issue as one requiring more precise attention in 1994,[13] attempting the only initial exploration of this issue prior to its being mentioned in the textbooks. This article, therefore, is an attempt to address a significant lacuna in constitutional law scholarship in Australia by drawing on the not inconsiderable lessons from the United States.
It is possible to identify the tentative development of a discrete set of constitutional principles emerging in Australian jurisprudence. These are based on the High Court's unequivocal confirmation of the legal entrenchment of the separation doctrine in the Constitution and its particularly rigorous application to the separation of judicial power.[14] Following the high formalism of Boilermakers[15] in separation of powers jurisprudence and Professor Sawer's remark that the result was 'a series of mandatory propositions implying negatives',[16] one is invariably seeking to define constitutional limitations on legislative power in this context. However, whilst the dominant concern of Chapter III jurisprudence appears to be the protection of judicial power from interbranch usurpation, in the pending case scenario equally important is the concern to ensure that the legislative competence of Parliament is not unduly eroded merely because changes in laws have an affect on pending proceedings. Thus, the first relevant constitutional limitation is in fact a limitation on the judicial branch: Parliament has the undoubted competence to make new law, or amend the law (even retrospectively[17] and of specific application) which Chapter III courts must apply in any pending case if the law is otherwise within power. The position was stated succinctly by Mason J (as he then was) in R v Humby; Ex parte Rooney: 'Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.'[18] This principle is, with respect, undoubtedly correct. The American shorthand for this rule, 'the Changed Law Rule',[19] shall be adopted here for ease of reference.
From this starting point, the question becomes whether there is a quality to the legislation which will render an interference of this kind unconstitutional. In addressing this question, it is necessary to define that precise element of judicial power which is sought to be protected. Here, the concern is to protect the independence of the judicial branch in its exercise of that core element of judicial power which is the conclusive adjudication of controversies between parties in litigation resulting in an authoritative and binding declaration of their respective rights and duties according to existing law.[20] Although 'judicial power' is a concept notoriously resistant to precise definition,[21] and indeed to such definition which may render it absolutely distinct from the non-judicial powers,[22] this core element remains at the centre of all serious attempts to provide some definitional framework.[23] The independence of the exercise of this power in the hands of the Chapter III courts has significant and obvious civil liberties undertones. There is a particular urgency in this regard where the Commonwealth (or one of its agencies) is a party, given the obvious advantage afforded it by the power of Parliament to legislate, and potentially to do so strategically, to effect a desirable outcome.
This very specific independence was referred to by Professor Martin Redish as the 'decisional independence' of the judicial branch: 'the ability … to interpret and apply… substantive legal principles in the specific context of an individual adjudication, free from control or interference by the purely political branches of the federal government.'[24] Redish emphasised the singular nature of this independence, anxious to distinguish it from 'institutional independence', that is, 'the noncase specific protections of salary and tenure explicitly provided for in Article III of the United States Constitution',[25] which protections also exist, of course, in Chapter III of the Commonwealth Constitution.[26] In the pending case scenario — because it is case specific — the decisional independence of the judicial branch is the particular concern, a concern articulated by Jacobs J in R v Quinn; ex parte Consolidated Foods Corporation where he noted that the separation of judicial power ensures that the rights of citizens are protected
by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example.[27]
It is significant for present purposes that his Honour also noted that 'there are multitudes of such instances.'[28]
Thus, the first limitation on legislative power in this context can be sourced from within the Changed Law Rule itself. In the dicta of Mason J abovementioned, the proposition was that the Changed Law Rule applies when there is an amendment to the law such that the court must apply the law even if it affects the rights in issue. The corollary — not given explicit expression, nor necessarily adopted by Mason J — was that if the purported legislation was not in substance a change in the law, if it was not substantively legislative, the Changed Law Rule could not apply. It is this proposition which was taken up in subsequent cases, albeit rather tentatively, to form the basis of the central constitutional limitation here. This will be referred to as the 'Direction Rule' for ease of reference. The Rule emerged most clearly from the seminal Liyanage case,[29] and subsequently confirmed in the BLF cases,[30] Lim,[31] and H A Bachrach Pty Ltd v Queensland;[32] although following the Nicholas case[33] its precise definition and application has become somewhat tentative. It can be stated succinctly thus: the Changed Law Rule will not apply if the legislation is not in substance an amendment to the law but rather a direction to the judicial branch which interferes with its independent adjudication in the pending case, or restricts or prevents the exercise of judicial discretion therein. The constitutional offence lies in the fact that Parliament is exercising a power which is other than legislative, and one which interferes with judicial functions in a pending case. For the Direction Rule to be breached, it is not essential that an actual outcome be expressly mandated so long as a particular aspect of the court's independent adjudication is interfered with in such a way as to secure or facilitate a particular result. The direction may be with respect to the court's resolution of legal issues, its determination of rights, liabilities, powers and duties, its findings of fact, or the exercise of judicial discretion. To appreciate the discrete nature of this particular principle, it must be borne in mind that a breach of the separation of powers occurs not merely because the judicial branch is denied its 'decisional' independence, but also because the legislature is acting in a non-legislative manner.
In certain circumstances, such directive legislation will be obvious on its face. Thus, for example, legislation expressly targeting particular legal proceedings and expressly directing a court how it must resolve a particular legal or factual issue could not be regarded as, in substance, a change in the law. Whilst such obvious prescriptions are rare, the provision declared invalid by the High Court as an impermissible legislative direction in Lim is a case in point: '[a] court is not to order the release from custody of a designated person.'[34] The term 'designated person' (referring to asylum seekers arriving by boat) was clearly applicable to the plaintiffs, and 60 other potential claimants, who had applied to the Federal Court for orders that they be released pending the reconsideration of their claim for refugee status. The legislation was enacted while their application was pending; although, in light of its uncompromising wording, the provision would also have been held invalid as a legislative direction whether or not proceedings were pending. The majority concluded that it purported 'to direct the courts, including this Court, not to order [a designated person's] release from custody regardless of the circumstances'.[35] It went on to give clear expression to the Direction Rule.
In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is quite a different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of jurisdiction. The former falls within the legislative power that the Constitution, including Chapter III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates.[36]
The majority thus confirmed the critical distinction between a substantive amendment to the law, which in this context would have been a statute that limited the jurisdiction of the courts in accordance with the Constitution,[37] and a statute that amounted to a direction to the courts as to the manner and outcome of their exercise of jurisdiction.
Usually, however, the situation is not as obvious, not even in the leading Liyanage case.[38] The Parliament of Ceylon (as it was then known) purported to amend retrospectively the Criminal Procedure Code in its application to particular persons accused of offences against the State for their part in an abortive coup. It widened the class of offences for which trial without jury could be ordered to include those with which the accused had been charged. It allowed for arrest without warrant for 'waging war against the Queen' and widened the scope of that offence to ensure that the actions of the accused came within its scope. In addition, it legalised ex post facto the detention of any persons suspected of having committed an offence against the state and made admissible in evidence certain statements and admissions made to the police which were otherwise inadmissible. Finally, it retrospectively increased the punishment which was to be imposed.[39]
The Privy Council held this to be an impermissible direction and not a substantive amendment to the law. Appreciating the difficulties in defining a more general principle, it eschewed the precise definition of an unconstitutional interference as it was 'not necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference.'[40] It settled rather for the identification of indicia of unconstitutional direction which impugned the substantively legislative nature of the enactment. These did not constitute a closed set, but were to be determined by the 'facts and circumstances of each case.'[41] In addition to the critical indicia of specificity and retrospectivity, relevant indicia were to be found in the following:
(a) 'the true purpose of the legislation' by which is meant, when read in context, the need to take a substance over form approach;
(b) 'the situation to which it is directed', which refers to the need to examine carefully the precise legal issue under consideration in the pending case; and
(c) 'the existence (where several enactments are impugned) of a common design'.
The common thread was the 'the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings.'[42]
It did not appear to be necessary that the ultimate outcome be explicitly prescribed. Suffice it if the legislation directed how any legal issue under consideration was to be resolved. The impugned legislation was clearly ad hominem as, whilst not expressly naming them, it was clearly aimed at 'particular individuals who had been named in a White Paper and were in prison awaiting their fate'.[43] To reinforce this departure from typical, generally applicable legislation, the purported amendment was to cease to be operative on the conclusion of the proceedings.[44] Moreover, it was clearly aimed at the precise issues which would be considered in the pending proceedings, and which might be likely to hinder a successful prosecution, almost as if to fit glove-like around them. This specificity was reinforced by the retrospective nature of the legislation.[45] The Privy Council also had regard to the fact that the legislation sought to interfere with matters that were traditionally matters reserved for the exercise of judicial discretion: the fact that the legislation made provision for trial without jury, legalised arrest without warrant, made admissible evidence which was otherwise inadmissible under the general law of evidence, and, increased the sentence to be imposed on the particular accused.
The Council was careful to stress that none of the indicia of direction were per se determinative of the issue.[46] It was their combination and interrelationship that led it to accept the appellant's submission that the 'the pith and substance of [the legislation] was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals.'[47] Further,
[t]he true nature and purpose of these enactments was revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere.[48]
Liyanage thus gave expression to the Direction Rule and confirmed its fundamental dichotomy between a change in the law and an unconstitutional legislative direction. It was not necessary to establish a usurpation of all the elements of judicial power; it being sufficient that the legislature overstepped the boundaries of branch power by acting in a non-legislative manner when interfering in pending proceedings. This is not to suggest that it did not hold a 'legislative judgment' to be unconstitutional. Nor is it to suggest that the enquiry is unconcerned with the effect of the legislation on the exercise of judicial power. It is so concerned; but only to the extent that the legislature is reaching into the exercise of that power, restricting its independent operation and directing its outcome.
Following Liyanage, in addition to its indirect endorsement in Rooney, some confirmation of the existence of the Direction Rule was evident in the judgments of Kirby P (as he then was) and Street CJ in the State BLF case.[49] They held that NSW legislation which was ad hominem, retrospective and requiring that 'for all purposes' executive action which deregistered the BLF be treated as valid — when such validity was at issue in the pending proceedings — was a direction to the court, not an amendment to the law. They would have held it to be unconstitutional if the separation of powers doctrine applied in the State.[50] They reiterated that the existence of an unconstitutional direction was to be determined pursuant to the indicia of direction as identified in Liyanage, although these were not to be limited to those. Analogous Commonwealth legislation was held by the High Court not to be a breach of the Direction Rule because the wording of the impugned statute made it clear that it simply deregistered the union by its own force, without directing the courts on the matter, even though pending proceedings were on foot.[51]
Whilst Australian Courts acknowledged the existence of the Rule in these cases, its reception and application has remained uncertain and tentative. This was most clearly apparent in the Nicholas case.[52] A federal narcotics prosecution involving the importation of heroin was pending. Legislation was enacted directing the court to disregard the illegality of the conduct of law enforcement agents when considering whether to admit evidence of the importation. This evidence was pivotal to the outcome of the case as the importation was the result of such illegal conduct, albeit part of a 'controlled operation'. These facts certainly warranted a thorough consideration of the application of the Direction Rule: The legislation was retrospective, and it was ad hominem in the sense that it targeted a known number of persons whose prosecutions had commenced or were about to commence. Even though it was not expressly directing the outcome of the prosecution, it removed a considerable hurdle to, and thus facilitating, its success; as in Liyanage. Yet, the Direction Rule was paid little attention. Its consideration was overshadowed by the more dominant Chapter III principles concerned with the maintenance by the courts of the integrity of their own processes, and public confidence in the administration of justice, pursuant to the rule in the then recently decided case of Ridgeway v The Queen.[53] The case was ultimately decided on those issues, the majority finding the impugned provision valid.
Although reliance on the Direction Rule was central to Nicholas's submissions, only Kirby J squarely addressed it and articulated the rule in some detail. Appearing very willing to invalidate the legislation on this ground, he relied rather on the other grounds above-mentioned to do so. McHugh J, who also held the legislation invalid, recognised the existence of the Direction Rule, but did not regard it as relevant on the facts. The majority, upholding the validity of the legislation, were predominantly concerned with these other grounds, giving scant attention to the Direction Rule. Gummow and Gaudron JJ did not consider the application of the Direction Rule. Brennan, Toohey and Hayne JJ did consider Liyanage, but interpreted it, with respect, unnecessarily restrictively and set a very high threshold for its application. It appeared from their Honours' judgments that the legislation had to be clearly directed at the ultimate outcome of the case, not discrete legal issues to be considered therein. In Liyanage, however, the legislation did target discrete issues which the court was to consider in the prosecution without directing, however, the ultimate conclusion.[54] As with the Nicholas legislation, the legislation in Liyanage was not directed explicitly to the ultimate conviction of the accused, but rather to the conduct of the law enforcement officers and the conduct of the legal proceedings. In addition to time limits being set for the operation of the amendment, the detention of the accused was legalised ex post facto, and arrest was allowed without warrant in the particular circumstances. Moreover, it dealt with aspects of the court proceedings by broadening the class of offences for which trial without jury could be ordered, including those with which the accused were charged. And, most significantly, the legislation made provision for the admissibility of certain statements and admissions made to the police which were otherwise inadmissible under the Evidence Code.
Thus, there were indeed significant similarities between the two cases which made them difficult to distinguish, and make questionable such a narrow interpretation of Liyanage. Whilst it was clear that the legislation in Liyanage was directed to ensure the conviction of the relevant accused, it was framed in such a way as merely to facilitate the prosecution case. This was precisely the effect of the impugned legislation in Nicholas, albeit achieved less egregiously. The main point of Liyanage was that the Court must examine the legislation in the context of the pending proceedings and determine whether there are sufficient indicia of direction to impugn its substantively legislative nature. The question whether an ultimate outcome is explicitly being mandated is not the issue. It is rather whether the legislation is such that, whilst in form a legislative amendment to law, in substance it is an impermissible legislative prescription directed at facilitating a particular outcome. The writer is not suggesting that the impugned provisions in Nicholas did constitute a legislative direction; but rather merely noting the tentative consideration of the Direction Rule and, apart from Kirby J, the unnecessarily restrictive way in which it was interpreted by the majority judges who examined it.
This uncertain reception and application of the Direction Rule in Australia is the point of departure of this article, inviting a consideration of the approach to the question in the United States with its far more elaborate jurisprudence on the point. The question must be asked whether the cause of its tentative application in Australia lies in the current formulation of the Rule, with its sole and heavy reliance on an open set of indicia of direction which ipso facto introduces inherent fluidity and lack of precision. This may provide the basis for overcoming the critical weaknesses in the definition of the Rule in order to articulate a form of the Rule which can be applied consistently and unambiguously by the courts, and whose immediate relevance in a pending case scenario is recognised. Given that legislative interference with judicial functions is a separation of powers issue of the first order, the need for a clear articulation of the relevant principles is self-evident. A precise definition of the Direction Rule, together with a proper understanding of its relationship with the Changed Law Rule, will also ensure the integrity of the exercise of legislative power in this context, so that it is not unduly hindered by the happenstance of pending litigation.
As the Direction Rule is founded on the strict dichotomy between a legislative amendment to the law and legislative direction which is not substantively legislative, it assumes the formalist premise that branch functions are capable of sufficiently precise definition to enable the strict separation of the functions of each; although certain functionalist overlays are evident when consideration is given to the identification of indicia of direction. Nevertheless, it is unlikely that the adoption of a purely functionalist approach will result in a different principle. This is because decisional independence involves such fundamental or core judicial functions that, even pursuant to functionalist analysis, these must be preserved absolutely from interbranch interference to preserve the integrity of judicial power. This is borne out by the United States experience. Whilst the overall position of the United States Supreme Court on the formalism/functionalism issue in separation of powers jurisprudence remains unresolved, with each school in the ascendant at various times and indeed in different contexts,[55]
it would appear that a consistent formalist approach has prevailed in relation to the maintenance of the fundamental tenet of the Direction Rule. Indeed it is in relation to this precise issue that the Supreme Court has expressed most clearly the purposive element to formalism, defending it from charges of fruitless conceptual categorisation and mere pedantry.[56] If a strict demarcation is not enforced, even for the best of policy reasons, the values protected by the separation doctrine will be threatened by gradual, yet inexorable, erosion. In the words of Scalia J, writing the opinion of the Supreme Court in Plaut v Spendthrift Farm Inc, the separation doctrine is a
structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.[57]
Whilst, by contrast, in all functionalist thought there is 'the unifying philosophy … to ignore definitional or conceptual constraints on branch power in light of the needs of the applicable social and political context,'[58] and indeed the efficient operation of government, recognition is given to limitations on interbranch interference, or usurpation, of function where such reaches a 'level of intensity' whereby it 'undermine[s] another branch's performance of its essential function' and allows for the accretion of too much power to the usurping branch.[59] Given that such 'level of intensity' is reached when it is core functions that are being usurped or interfered with, the central dichotomy underlying the Direction Rule has not been seriously challenged in that jurisdiction. The overall position of the High Court exhibits similarly eclectic tendencies, varying from the 'purposive functionalist' approach[60] most clearly evident in relation to the separation of the executive from the legislative power[61] to the high formalism of Boilermakers,[62] echoed more recently in Re Wakim.[63] However, as in the United States, where indisputably fundamental or core functions are being considered, the sharpness in the dispute between formalists and functionalists is lessened, indeed almost rendered otiose. At this level, formalism melds with functionalism to agree on strict protection of relevant branch functions (even in the relationship between legislative and executive power).[64]
That the decisional independence of the judicial branch does constitute one of those 'core' functions is uncontroversial. The judicial pronouncements abovementioned supporting the fundamental nature of decisional independence[65] are reinforced by the views of leading constitutional scholars. Functionalists must concede to the (purposive) formalists that the elements of branch power which underlie decisional independence are capable of sufficiently precise definition such as to enable a relatively strict protection. Indeed, within the very notion of decisional independence there is involved the central procedural requirement relating to the exercise of judicial power: the adjudication by independent judges of disputes between citizens, and citizens and the State, within the institutional, procedural and structural parameters of a hearing in court. Thus, from a functionalist perspective, to allow the legislature to interfere with such an adjudication, to influence or direct the outcome in a pending case, or to alter a final judgment as between the parties, would constitute a breach of the separation doctrine so fundamental that it would seriously undermine the very integrity and independence of the judicial branch. The self-imposed limits of the functionalist position will have been reached. Professor Zines, no formalist,[66] regards those elements of judicial power at the heart of decisional independence as being 'at the core' of branch power and as 'critical elements' thereof: 'the adjudication and conclusive settlement of a dispute between parties as to their rights and duties under the law.'[67] Central elements in judicial attempts to define judicial power have been the existence of a controversy about rights and a binding and authoritative determination.[68]
Sawer had previously recognised these same features as core branch functions.[69] He recognized them as being, '[o]n a more empirical view, the non-transferable part of judicial activity'.[70]
Therefore, it is possible to resolve — at least with respect to the precise concerns of this article — two critical interpretational issues. First, it is possible to achieve a sufficient degree of exclusivity in the definition of the core elements of judicial power such as to make possible the consideration of the relevant constitutional limitations on legislative interference with judicial functions. Second, given that the elements of judicial power involved in decisional independence can safely, and, as unequivocally as possible in these matters, be regarded as core — or 'non-transferable' in the words of Sawer — judicial functions, it is possible to define the relevant constitutional limitations with a degree of confidence that, whether a functionalist or formalist approach is taken, the result will be the same. Zines, with his espousal of a search for 'typical' (as opposed to 'exclusive') functions, was nevertheless able to conclude:
If these three elements are present, that is, the function involves a conclusive determination of a controversy about existing rights, the function belongs exclusively to the judiciary.[71]
Thus, the survival of the fundamental tenet of the Direction Rule in both the United States and Australia is an indication of the ascendancy, where this particular separation of powers issue is concerned, of a moderate formalist approach to separation of powers jurisprudence; an approach which even moderate functionalists would regard as appropriate in these circumstances, although for different reasons.
The first striking aspect of separation of powers jurisprudence in the United States is that it treats as central — not peripheral — this issue of legislative interference. Taking but one example, Doigt wrote:
The Supreme Court has long held that retroactive changes in law are to be applied to adjudicated cases pending appeal ... The Changed Law Rule inevitably creates conflict between the legislative and judicial branches, since, if applied without limitation, the Changed Law Rule allows Congress to alter judgements prior to the conclusion of the appeals process. Given that one of the purposes of the separation of powers doctrine is to insulate the litigation of private disputes from the vagaries of political power, there should seemingly be some limit on Congress's ability to employ this power.[72]
He added that 'the legislature's ability to manipulate the results of pending litigation undermines the ideal of ordered liberty and the protections against tyranny for which divided government strives'[73] Ronner went further to suggest that the Direction Rule/Changed Law Rule do not go far enough as constitutional limitations safeguarding the judiciary's decisional independence:
A separation of powers test, which allows a Congressional Act to intrude on judicial power as long as it can be construed as amending or repealing the law is not merely a nullity, but an invitation to Congress to aggrandize itself into The Court of Last Resort.[74]
The extensive American coverage confronts more directly the very same issues which have been problematic in Australia: the uncertainties surrounding the very concepts of 'interference' and 'direction' and the identification of clear indicia thereof. However, it is significant that the rigorous application of these twin rules seems to be unravelling in the United States for the same reasons as it is in Australia. The most recent decisions of the Supreme Court[75] reveal interesting similarities with the High Court's decision in Nicholas: a tendency to overlook the possible relevance of the Direction Rule and to qualify it in such a way as to impair seriously its efficacy as a constitutional limitation. This has met with the almost unanimous disapproval of constitutional scholars and with a significant body of judicial opinion in the lower federal courts, including the Court of Appeals, favouring instead a return to a more rigorous application of the Direction Rule.
The Direction Rule was given authoritative expression in the seminal decision of the Supreme Court in United States v Klein,[76] decided in 1871. It held that a breach of the separation doctrine occurs when 'the legislature prescribes rules of decision to the Judicial Department of the government in cases pending before it,'[77] and where 'no new circumstances are created by legislation,'[78] that is, where there was no substantive change to the law. Prior to Klein, Thomas Cooley, in his influential treatise Constitutional Limitations,[79] recognised that the legislature could not, pursuant to the separation doctrine, 'set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.'[80] Expanding on this proposition, Cooley clearly gave expression to a form of the Changed Law Rule, and the Direction Rule as a threshold test for its application:
If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the legislative judgement.[81]
This was no novel proposition, given that the need to protect the courts' decisional independence from legislative interference was a primary catalyst in the legal entrenchment of the separation doctrine in the United States Constitution.[82] Cooley derived these notions from first principles based on the constitutional entrenchment of the separation doctrine, Klein not being mentioned even in those editions of Cooley's work which post-dated the case.
The Changed Law Rule, on the other hand, had been given clear judicial expression as early as 1801 in United States v Schooner Peggy.[83] The Rule has been stated succinctly thus: 'the courts are obligated to apply law (otherwise valid) as they find it at the time of their decision, including, when a case is on review, the time of the appellate judgement.'[84] The case concerned the seizure of a French vessel and its forfeiture to the United States pursuant to a condemnation order. Whilst the matter was pending on appeal, the United States entered into a treaty with France by which all vessels which were not yet 'definitively' condemned were to be returned to their respective nations and this treaty was given domestic legal effect. The Court held this to be a change in the law which the appellate court had to apply, even though the change was effected while the appeal was pending. Because the vessel was not yet definitively condemned, the Supreme Court felt compelled to apply the new law and order the return of the vessel. Noting that where a treaty which is the law of the land 'affects the rights of the parties litigating in court', Marshall CJ said:
It is in general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied … I know of no court which can contest its obligation.[85]
Whilst no express reference was made to the separation doctrine, that the Rule was clearly consistent with that principle was implicit in the judgment. Moreover, it set the platform for the development of the Direction Rule by stating the fundamental condition necessary for the application of the statute to the pending case: that it be 'a law' that 'positively changes the rule which governs'.
The reasoning of Marshall CJ, delivering the opinion of the Court, revealed a strong appreciation of the need to maintain the courts' decisional independence in the face of legislative power. Whilst the fact that a suit was pending did not diminish the paramount power of the legislature to enact new law, and indeed the obligation of the courts to apply it, he expressed some disquiet about unbridled legislative power in this context. In particular, he was concerned about the retroactive application of new law to pending cases, commenting that a court will 'struggle against a construction' which will by retroactive operation affect the rights of the parties.[86] In an attempt to ameliorate the potential dangers, he drew a distinction between suits involving entirely private parties and those involving the government as litigant.[87] In the latter situation, he tentatively suggested the possibility of a higher threshold for the validity of retroactive application of statutes in cases involving private rights. However, this was not manifested in any legal principle. It was not until Klein that these particular concerns were again judicially addressed.[88]
At issue in Klein was a federal statute which provided a right to those whose property had been confiscated during the American Civil War to seek compensation in the (federal) Court of Claims by presenting proof of ownership and proof that they had never given 'any aid or comfort' to the Confederate cause.[89] The President subsequently granted a full pardon to those who had assisted that cause, including the restoration of all property rights, on condition that they took and kept an oath of allegiance.[90] Klein, the administrator of a deceased estate, had succeeded in a suit in the Court of Claims concerning the seizure and sale of the deceased's cotton by relying on such pardon granted to the deceased.[91] Whilst an appeal was pending, the Supreme Court decided in United States v Padelford[92] that presidential pardons had the effect of erasing disbarment to compensation.[93] Congress reacted by purporting to amend the law by legislation, 'the 1870 proviso',[94] which provided that proof of presidential pardon was inadmissible in the Court of Claims (or any appellate court) in support of compensation suits; that where such pardon had been given and accepted with no protestation as to involvement in the Confederate cause, it would be deemed conclusive evidence that the recipient did take part in and give aid and comfort to that cause; and on proof that such pardon had been granted, the 'jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant.'[95]
In Klein, unlike Schooner Peggy, the Supreme Court expressly founded its reasoning on the constitutional entrenchment of the separation doctrine. The 1870 Proviso was declared unconstitutional because any legislation which prescribes 'rules of decision to the Judicial Department of the government in cases pending before it' is constitutionally invalid on separation of powers grounds;[96] and such was held to be the effect of the 1870 proviso. By enacting it, Congress 'inadvertently passed the limit which separates the legislative from the judicial power … It is of vital importance that these powers be kept distinct.'[97]
Chase CJ, foreshadowing the seminal (in Commonwealth jurisdictions) Liyanage decision, emphasised substance over form. Prima facie, the legislation purported to regulate the jurisdiction of the Court of Claims and appeals therefrom. Because, pursuant to the Constitution, Congress had 'complete control' over the Court of Claims, if the 1870 Proviso did no more than that, then 'there could be no doubt that it must be regarded as an exercise of the power of Congress to make "such exceptions from the appellate jurisdiction" as should seem to it expedient.'[98] However, in substance the legislation did
not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have. The proviso declares that pardons shall not be considered by this court on appeal. We had already decided that it was our duty to consider them and give them effect, in cases like the present, as equivalent to proof of loyalty.[99]
The Court thus held that the effect of the legislation was to direct the outcome of decisions without in substance amending the law.
[T]he denial of jurisdiction to this court … is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease.[100]
It is at this point that Chase CJ gave expression to the Direction Rule:
It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way?[101]
The Court was sensitive to the fact that Congress, by enacting intervening legislation, was in a position to influence the outcome of the appeal in favour of the government. Accordingly, such legislation had to be subject to rigorous scrutiny. The separation doctrine was breached here because, first, the legislation was not a proper exercise of legislative power per se; and second, it prevented the judiciary from exercising a core element of the judicial power — the independent adjudication of a legal dispute.
[T]he Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of the pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of government in cases pending before it? We think not.[102]
However, the reasoning of Chase CJ was framed in terms which were sufficiently imprecise as to make the ratio problematic and in fact spawn an extensive literature as to whether in fact it is authority for the Direction Rule. One commentator described the judgment as combining 'the clear with the Delphic' and capable of being 'viewed as nearly all things to all men.'[103] Doubt has been expressed as to whether Klein constitutes authority for any proposition beyond the purely jurisdictional question, that is, the extent of congressional power to limit the jurisdiction of the federal courts.[104] Professor Henry Hart, in a seminal article published in 1953,[105] provided much needed clarity and cemented Klein's position as the leading authority on legislative interference. Hart suggested that the narrowest possible ratio was that Congress may not condition the Court's jurisdiction to hear a matter on the Court's abstaining from declaring certain acts as unconstitutional; in this case the interference by the legislature in the Executive's power of pardon.[106] A broader interpretation was required to establish the case as authority to support propositions relating to Congressional control over the Supreme Court's appellate jurisdiction arising under Article III of the Constitution, or indeed for the Direction Rule. Hart articulated such an interpretation. (For present purposes, the purely jurisdictional issue is not relevant.)[107]
Hart's main concern was the issue of Congressional control over the jurisdiction of the federal courts and the extent to which this control was consistent with the rule of law and the type of representative government set up under the United States Constitution. His central thesis was that whilst Congress, pursuant to Article III,[108] was granted plenary power to remove jurisdiction from the lower federal courts, legislative exceptions to the Supreme Court's appellate jurisdiction 'must not be such as will destroy the essential role of the Supreme Court in the constitutional plan.'[109] He elaborated with two limbs to his thesis: first, Congress could not direct a result in any case which was contrary to judicial interpretation of the Constitution.[110] Second, and more precisely relevant, Hart gave explicit recognition to the Direction Rule: Klein was authority for his proposition that once a federal court has jurisdiction, Article III of the Constitution is 'a limitation on the power of Congress to tell the court how to decide it'.[111] Other commentators followed Hart on this point. Of the most prominent, Gordon Young saw Klein as 'establish[ing] some protection from interbranch intrusion for the federal judiciary' based on the principle of direction.[112] As the authors of Hart and Wechsler put it, '[w]hatever else the Court may have had in mind, it is surely right … that invocation of the language of "jurisdiction" is not a talisman, and that not every congressional attempt to influence the outcome of cases can be justified as the exercise of a power over jurisdiction.'[113] That Klein is authority for the broader proposition of the Direction Rule is now on the whole undisputed in both academic commentary and judicial exegesis at the highest level in the United States.[114]
Indeed, that the Supreme Court in Klein was espousing the Direction Rule was confirmed — indeed put beyond doubt in the writer's view — by the fact that it expressly contrasted the 1870 proviso with the legislation challenged in its earlier decision in Pennsylvania v Wheeling and Belmont Bridge Co.[115] The legislation unsuccessfully impugned in that case[116] amended the criteria by which a structure was to be declared an obstruction to the public right of navigation on a river, thus rendering lawful a bridge which had previously been declared by a court an unlawful structure. This was despite the fact that the owners of the bridge were the subject of a previous injunction either to raise the bridge so that it met the previous legislative requirements, or demolish it, given that the bridge was unlawful pursuant to the law at the time. When the legislation was enacted, litigation was pending concerning compliance with that injunction. Referring to Wheeling Bridge, Chase CJ in Klein stated:
[n]o arbitrary rule of decision was prescribed in that case … [T]he court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us, no new circumstances have been created by the legislation. But the court is forbidden to give the effect to evidence which, in its own judgement, such evidence should have, and is directed to give it an effect precisely contrary.[117]
It was precisely because the Court saw in the 1870 proviso a direction to the court without a change to the underlying law that it was able to hold 'that Congress has inadvertently passed the limit which separates the legislative from the judicial power.'[118]
Klein also defined the precise relationship between the Direction Rule and Changed Law Rule; the former to be applied as a threshold test for the application of the latter, a position which had also emerged in the Australian constitutional context.[119] Indeed, how can it be conceived otherwise? For the Direction Rule itself was fashioned out of an attempt to identify legislation which does not in fact amount to a change in the underlying law; this being the critical basis for the application of the Changed Law Rule. It will be seen that in subsequent United States decisions this fundamental proposition has not always been appreciated. In maintaining this position, the Supreme Court in Klein exhibited a concern to preserve the integrity of judicial functions in the pending case by regarding decisional independence as a key element in the exercise of judicial power. It thus also maintained the integrity of legislative power in recognising that Congress was competent to amend the law which the courts were required to apply in any pending case in which it may be relevant.[120]
From Klein also emerged the original method for the determination of unconstitutional direction: by the examination of the circumstances and facts of each case to locate indicia of direction, although, as in the Australian cases, eschewing a precise definition thereof. Thus, the court examined first the 'language of the proviso', itself highly indicative of direction:[121] 'such [presidential] pardon … shall be taken and deemed in such suit … conclusive evidence that such person did take part in…the late rebellion … and on proof of such pardon … the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit'[122] Moreover, the legislation appeared to be precisely designed to address the key issue: whether a person was disbarred from compensation where such person had been granted and accepted a presidential pardon.[123] Furthermore, the legislation clearly favoured the government as a party:
Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself.[124]
Despite the absence of a precise ad hominem element in the legislation, although it was clearly aimed at an identifiable set of cases, unconstitutional direction was nevertheless found to exist. However, both in Klein and in Cooley's work, the indicia of direction were not sufficiently explored or clarified.[125]
Given the uncertainties relating to the precise meaning of Klein, a more detailed analysis of some of Hart's more critical propositions is necessary as a prelude to the examination of the modern cases. Whilst Hart recognised Congress' sweeping constitutional power over the jurisdiction of the federal courts, his thesis was based squarely on the premise that such power is subject to and limited by the separation doctrine entrenched in the Constitution, with its primary concern to limit the power of Congress in particular. Whilst Congress could severely limit the Supreme Court's appellate jurisdiction, to allow unqualified congressional control over the Court's jurisdiction would undermine the establishment of an independent judiciary with power to check constitutional violations. In the words of Anderson, '[t]he way to reconcile the competing values of judicial independence and political control, in Hart's view, is that Congress should be free to do as it sees fit, as long as it leaves some room for the exercise of judicial power.'[126] Hart attempted to give some definition to this 'room'; and it was to the maintenance of the decisional independence of the courts to which he turned to provide it. In so doing, he restored the issue of legislative interference in pending cases to its central position in separation of powers jurisprudence.
Hart argued that Congress can interfere with the outcome of a pending case only by substantively amending the law which the court in the pending case must apply. 'When the way of exercising jurisdiction is in question, rather than its denial, the constitutional tests are different.'[127] He thus posited the distinction between the purely jurisdictional question and that relating to legislative interference in the broader sense. Herein lay the significance of his thesis. He went on to state, citing Klein, that '…if Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the Court how to decide it.'[128] Hart's thesis represented a moderately expansive view of Klein, which, whilst establishing a limitation on Congress, it also allowed Congress a degree of control over pending cases so long as it remained within the limits of legislative power.[129]
To put the position of Hart in perspective, an even broader reading of Klein has been postulated: Congress lacks the authority to dictate decisions in pending cases even when it does amend the relevant substantive law, at least where the government is a party.[130] This would constitute a clear exception, or indeed abrogation, of the Changed Law Rule in certain circumstances. In the United States it remains a controversial proposition. In Australian jurisprudence it has not been considered. The difficulty with the proposition is that it is establishing an exception to the Changed Law Rule without articulating a clear rationale as to how such an exception can be maintained. The mere fact that the government is a party is insufficient justification. Such a view clearly challenges the primary legislative function of the legislature under the separation doctrine. Moreover, it is an interpretation which is not open on the reasoning in Klein, particularly in light of the Court's distinguishing of the Wheeling Bridge legislation on the basis that it created 'new circumstances'. Were this broader principle the ratio of Klein, it would constitute an overruling of the Changed Law Rule. Given that the separation doctrine seeks to protect the power of the legislature to amend the law,[131] it cannot be sustained.
The moderate view of Hart therefore remains preferable. The most comprehensive academic review of Klein since Hart's was carried out by Young.[132] Whilst exploring in detail the various possible interpretations of Klein, he too adopted Hart's middle course: The two main threads of authority from Klein he identified thus:
The first is what will be called a flat withdrawal or withholding of jurisdiction over defined classes of cases or appeals. The result of such a withholding, where effective, is that the trial or appellate court renders no judgment except the narrow one that the trial or appeal is dismissed on jurisdictional grounds. The second sort of regulation permits the court to entertain the suit or hear the appeal but requires it to decide the case in a certain way. This sort of regulation, which will be called 'regulating the decision,' involves an attempt to use jurisdictional powers to limit how a court may decide a case over which it generally has jurisdiction.[133]
Young concurred with Hart that one clear constitutional limitation with respect to this second type of legislative regulation was that such regulation was prohibited if 'the effect of…legislation is to require a decision which would otherwise be unconstitutional.'[134] However, Young, further concurring with Hart, argued that the constitutional limitation also extended to limit Congress from directing a court how to decide a case, not only in relation to final outcome, but also in relation to legal issues which may arise therein.[135] 'What is prohibited,' wrote Young, 'is regulating the decision.'[136] Any broader interpretation of Klein Young rejected. The outer limits of Klein were clearly set up by the Changed Law Rule, to which no exceptions were permissible consistent with the separation doctrine. Expressing himself with caution, he stated that
[d]espite some language in Klein which suggests a general repudiation of the Changed Law Rule, that Rule was well established at the time Klein was decided. Consequently it is unlikely that the Changed Law Rule was rejected in Klein.[137]
Thus, for Young, the relevant authorities prior to Klein all pointed to his final position that, even taking into account the uncertainties of the opinion of Chase CJ, the Supreme Court did hold in Klein that Congress cannot direct the outcome of a pending case. Hart and Young thus reinforced the prior observations of Cooley, and in light of the very significant distinguishing of the Wheeling Bridge Case in Klein, this is the position on Klein which will be adopted in this article.
When the Court of Appeals for the Ninth Circuit decided Seattle Audubon Society v Robertson in 1990,[138] the Direction Rule was applied rigorously to invalidate the impugned legislation. The Court impliedly endorsed Hart's thesis, doing so against the backdrop of the Changed Law Rule and appreciating that rule's significant protection of legislative power:
Congress exists to write and change our laws, and the courts are bound to apply the law extant at the time of decision … Congress can amend or repeal any law, even for the purpose of ending pending litigation.[139]
Manifest in this statement, however, was the underlying tension between the Changed Law Rule and the Direction Rule; the former a bulwark of legislative power in the face of pending litigation and the latter operating prophylactically to ensure that the legislature does not impinge on the courts' decisional independence. The delicate balance between the two rules was struck appropriately by the Ninth Circuit. The significance of the case, however, lay rather in the fact that the Supreme Court on appeal[140] not only overruled the Ninth Circuit, but did so in such a way as to undermine seriously this balance, adopting a very dismissive attitude toward the Direction Rule. The method by which it applied it reduced it to a mere formality which any deft legislature, intent on directing the outcome of a pending case, might avoid.
In two separate proceedings in the lower federal courts, environmental advocates challenged government land management plans on the basis that they breached a battery of environmental statutes. The key factual issue was whether the implementation of these plans would result in the (prohibited) killing of an endangered bird species. While these suits were pending appeal, Congress purported to amend the law applicable to the relevant land areas in such a way as to ensure the survival of the relevant plans from the legal challenge, yet without repealing or amending the pre-existing regime of environmental statutes. The legislation, 'the Northwest Timber Compromise' ('NTC'),[141] sought to facilitate the sale of timber from the relevant forests, yet also maintain the protection of the endangered birds.
The central provision, s 318(b)(6)(A) of the NTC provided:
Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests [which are named individually] ... is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audobon Society et al, v F Dale Robertson ... and the case Portland Audobon Society et al
The critical subsections, (b)(3) and (b)(5), prohibited the sale of timber from specifically designated areas known to be the habitat of the relevant endangered bird species. The legislation expressly named the pending proceedings which the legislation would affect. Thus, Congress sought to achieve all its ends — maintaining absolute protection of endangered species generally, but not on these particular lands — not by repealing the prohibition on the killing of the endangered species but by requiring the federal courts to deem that there would be no breach of existing environmental statutes if the requirements of (b)(3) and (b)(5) were met. This deemed compliance would operate regardless of whether killing had occurred, or might occur — prohibited under the pre-existing legislation — if there were no sales of timber from the designated areas. The circumstances of this case created a classic pending case scenario which clearly warranted a serious consideration of the application of the Direction Rule. Indeed, the legislation was clearly directed at these proceedings, indeed expressly so, mentioning them by name.
The Ninth Circuit immediately recognised a Klein issue and held the NTC to be an unconstitutional direction. Obvious indicia of direction were present. The NTC expressly named the land affected and the pending proceedings, thus exhibiting a high degree of specificity. Moreover, the pre-existing legislative regime was left intact. Congress did not attempt, by force of the statute alone, to exempt the public bodies in those cases from the relevant environmental statutes. Rather, it used express words of direction to deem compliance with the statutory regime if certain conditions were met, which conditions were unrelated to the precise requirements of those earlier statutes. In all the circumstances, the legislation appeared to be almost designed to produce the outcome desired by Congress[142] in the pending case. It clearly deviated from the typical legislative function of making or amending laws of general and prospective application.
The Ninth Circuit thus was able unanimously to find the legislation unconstitutional applying the Direction Rule precisely according to Klein:[143]
the critical distinction, for purposes of deciding the limits to Congress' authority to affect pending litigation through statute, is between the actual repeal or amendment of the law... which is permissible, and the actual direction of a particular decision in a case, without repealing or amending the law underlying the litigation, which is not permissible.[144]
Section 318, despite prima facie introducing new environmental compliance requirements, did not 'by its plain language repeal or amend the environmental laws underlying this litigation.'[145] Rather, because the effect of subsection (b)(6)(A) was 'to direct that' if the government authorities follow the plan set out in subsections (b)(3) and (b)(5) then the government will be deemed to have complied with the environmental statutes, even if otherwise it would be in breach of them:[146]
Subsection (b)(6)(A) here at issue does not establish new law, but directs the court to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court. This is what Klein and subsequent cases argue is constitutionally proscribed[147] ... The language of section 318 is clear: Congress not only legislated a forest management plan...but also directed the courts to find that that plan satisfied the environmental laws underlying the ongoing litigation ... In doing so, Congress did not amend or repeal laws, as it unquestionably could do, but rather prescribed a rule for a decision of a case in a particular way, without changing the underlying law, as it unquestionably cannot do.[148]
Whilst none of the indicia considered were themselves finally determinative of the issue, in combination their overall effect led the court to find unconstitutional direction. The Ninth Circuit paid careful consideration to Wheeling Bridge in relation to which it stated:
[n]o arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein], no new circumstances ha[d] been created by the legislation.[149]
It then aligned the NTC with the 1870 Proviso at issue in Klein. Its sole purpose was to prescribe, under certain precise circumstances, how to determine rights under pre-existing laws, which laws had not been amended. As the Ninth Circuit stated by direct reference to Klein, 'Congress can amend or repeal any law, even for the purpose of ending pending litigation', but it cannot '"prescribe a rule for a decision of a cause in a certain way" where "no new circumstances have been created by legislation."'[150] Thus, the Ninth Circuit created a degree of confidence, albeit short-lived as it turned out, that the Direction Rule would be applied in situations where the legislation, in all the circumstances of the case, exhibited significant and clear indicia of direction.
The reasoning of the Supreme Court[151] was remarkable in that the opposite conclusion was unanimously reached with very little elaboration and explanation, and, indeed, with very little consideration of the obvious separation of powers issues that arose.[152] The Direction Rule, whilst acknowledged, was mentioned almost as if in passing.[153] The Court too easily accepted the legislation at face value as a change in the law, and accepted too easily and without elaboration the argument of the government authorities that subsection (b)(6)(A) 'replaced the legal standards underlying the two original challenges with those set forth in subsections (b)(3) and (b)(5), without directing particular applications under either the old law or new standards.'[154] The Act was held to be valid because it only 'compelled changes in law, [and] not findings or results under old law.'[155]
The Court was faithful to Klein only to the extent that it acknowledged that there would be no breach of the separation doctrine if there were a change in the law. Beyond that, the Klein method — its principles and its rigorous examination of indicia of direction and their subtle interplay — was remarkably ignored in a case which so clearly warranted their serious consideration, as the Ninth Circuit had recognised. The Supreme Court, rather, emphasised the imperatives of the Changed Law Rule without the necessary balance provided by a serious application of the Direction Rule. And, as indicated above, it is an appreciation of this balance which is essential for the maintenance of the decisional independence of the federal courts at this critical crossroads with legislative power.
The Supreme Court appeared to be fixated on one aspect of the legislation which counted against even the 'three textual features of the Compromise' which to the Ninth Circuit were strong indicators of unconstitutional direction.[156] That was the fact that the judiciary in the pending proceedings was left free to determine compliance with the environmental provisions. Subsections (b)(3) and (b)(5) merely introduced new provisions which, if complied with, resulted in a valid management plan.[157] Thus, new statutory criteria for compliance of particular provisions were introduced, 'amending' the previous law despite the fact that the previous law had not actually been repealed. There was no unconstitutional direction as the section did not 'direct any particular findings of fact or application of law, old or new, to fact.'[158] Moreover, '[t]o the extent that [the statute] affected the adjudication of...cases, it did so by effectively modifying the provisions at issue in those cases.'[159]
However, the point was, surely, that by these deeming provisions the legislature removed from judicial consideration an issue which was of critical significance to the outcome of the pending cases expressly mentioned. Indeed it was that very issue which most threatened the success of the government authorities and logging interests in the pending litigation: that relating to the killing of endangered bird species. Of course, it could have done so without breaching the Direction Rule by simply removing the prohibition on killing. This, however, it did not do. It generally maintained the illegality of land management which resulted in the killing of endangered birds.[160] Thus, a federal court, already seized of the matter when the legislation intervened, was now directed to treat, as being in compliance with the law, any such killing which may in fact result from the land management plan if the unrelated condition could be met that no sales of timber from designated areas would occur. It was in fact required to disregard the pre-existing law and adjudge the issue according to criteria which were completely irrelevant to the issue of the killing of endangered species. Congress was in substance engineering a result in the pending proceedings in circumstances where it was highly questionable that substantive amendment to the law has occurred. Such considerations do not seem even to have engaged the Supreme Court.
At best, the Supreme Court's treatment of the indicia of direction is indicative of a 'soft' application of Klein. Thus the words in subsection (b)(6)(A) — 'Congress hereby determines and directs' that compliance with the two new provisions would constitute compliance with five old ones — did not appear to have caused the Court any concern. It was correct, as the Court held, that these words per se did not constitute direction. Nor did it deny, again correctly, that in certain circumstances, they might constitute indicia thereof. What was problematic was its outright dismissal of the suggestion that these words were relevant as indicative of direction in the present case: '…what Congress directed — to agencies and courts alike — was a change in the law, not specific results under old law.'[161] It is very difficult to reconcile this statement with the fact that the pre-existing laws, and indeed the pre-existing illegalities, were left operative. Surely the very point of the application of the Direction Rule, at least in the Klein tradition, was to encourage a rigorous scrutiny of legislation so worded. The Court's easy dismissal of this remains unconvincing.
A similarly dismissive attitude is evident with respect to the other indicia considered highly relevant by the Ninth Circuit. Even their cumulative effect, in all the circumstances, did not seem to engage the Court. The naming of the pending cases, it reasoned, was not for the purpose of directing an outcome. Rather, it 'served only to identify' the five 'statutory requirements that are the basis for' those cases.[162] But why did the legislature not simply name those statutory provisions rather than mention the pending cases by name? The fact that the legislature chose instead to name the cases in lieu of naming the statutory provisions must have raised, at the very least, some suspicion that Congress was seeking to direct an outcome. Indeed, it is arguable that the legislation, in its express naming of the pending litigation, was more extreme in its specificity than the legislation considered in Liyanage,[163] the most egregious factual scenario in Commonwealth jurisdictions. It was this failure even to consider their significance, particularly in relation to the other obvious indicia, which was problematic.
The Supreme Court noted that the Ninth Circuit had emphasised that the mere fact that Congress could have achieved a similar outcome by repealing or amending the pre-existing environmental statutes should not be taken as discounting in any way the element of direction apparent in the legislation actually enacted.[164] However, the Supreme Court not only disagreed with this argument, it did so without acknowledging any merit in it whatsoever. 'We fail to appreciate the significance of this observation.'[165] This statement, in light of the Court's general attitude, inclines one at least to sympathise with the harsh words of one commentator that the Court's explicit refusal 'to address any broad question of Article III jurisprudence proclaims vacuity.'[166] For in order to justify this failure to appreciate the significance of the point, the Court reasoned that there were available to Congress other less constitutionally controversial means of amending the statute, and that this fact should be taken as diminishing significantly any indication of direction. A true appreciation of the Direction Rule would have relegated this consideration to irrelevance. Surely the Court in applying the Direction Rule must decide on the constitutionality of the impugned legislation, not the legislation which might have been enacted. In this very sensitive area of the protection of the integrity of the exercise of judicial functions, the question of means is at least as important as outcome. And it is at this point that the Supreme Court came very close to overruling Klein. As Ronner pointed out:
...in rejecting the environmental groups' contention that certain textual features of the Compromise showed that Congress had improperly intruded upon the judicial domain, the Supreme Court focused not on what Congress actually did, but on what Congress might have done. Stated otherwise, because Congress might have issued a directive without the explicit imperative preface or might have identified the five statutory requirements instead of naming the pending cases, then all is kosher. Thus, at least from this portion of the reasoning in Robertson, emerges the notion that how Congress actually does what it did is virtually meaningless. Consequently, to the extent that Klein required courts to scrutinize 'the statute that Congress in fact enacted' then Robertson invalidates the Klein approach.[167]
As a result of the points made above, academic commentary on the reasoning in this case has been highly adverse.[168] In the view of the writer, it is not unwarranted. If nothing more, the Supreme Court bypassed an ideal opportunity to address and settle the difficult issues arising from Klein. At worst, it appears the Court may have failed to appreciate the critical constitutional issues which arose on these facts. This harsh conclusion appears to have been borne out by the Court's own words in the following extraordinary passage:
We have no occasion to address any broad question of Article III jurisprudence. The Court of Appeals held that subsection (b)(6)(A) was unconstitutional under Klein because it directed decisions in pending cases without amending any law. Because we conclude that subsection (b)(6)(A) did amend applicable law, we need not consider whether this reading of Klein is correct.[169]
As indicated above, surely this was a classic situation involving a 'broad question of Article III jurisprudence'. Moreover, the above statement is quite inconsistent with Klein itself because it suggested that the Klein test need not even be considered when determining whether impugned legislation is an amendment to the law. Yet, the very point of Klein is that the Direction Rule is a threshold test in determining the very question whether the legislation is amending the law. In other words, the Court appears to have suggested that because it has already determined that an amendment to the law has taken place, there is therefore no need to consider Klein at all. This is a further implied repudiation of the rule in Klein.
However, it is the view of the writer that rather than constituting an overruling of Klein, this case revealed a failure to appreciate its significance. For the influence of Klein remained in at least one critical area: the maintenance of the central dichotomy between a constitutional, substantive amendment as opposed to an unconstitutional direction, this being the fundamental tenet of the Direction Rule. Ronner noted that the Supreme Court confronted
…the very question it purports to avoid. The Supreme Court acknowledged that the Ninth Circuit read Klein to hold that a statute is unconstitutional when 'it direct[s] decisions in pending cases without amending any law' but declined to consider whether this reading was correct for the express reason that the Compromise 'did amend the applicable law'. The Court's description of the challenged provision as one that 'affected the adjudication of the cases,' when combined with the Court's validation of the provision for the reason that it amended the law, amounts to the Court putting its imprimatur on the Ninth Circuit's interpretation of the Klein test. If we view it this way, Robertson boils down to the proposition that there can be no separation of powers infirmity as long as Congress can be said to have amended or repealed the law.[170]
It therefore becomes very difficult to state precisely what the legal position on this constitutional point is following Robertson. The position adopted by the Ninth Circuit is clearly preferable in its statement of the law, its fidelity to established authority, its appreciation of the constitutional significance of the Direction Rule and the separation of powers values it seeks to maintain, and its application to the facts. Did the Supreme Court overrule Klein, as Ronner suggested? The writer thinks not, given that it did accept, albeit superficially and without appearing to appreciate it fully, the fundamental dichotomy upon which the Direction Rule is based. Its principal failing was its lack of appreciation of the subtleties, the role of the indicia of direction, and its repudiation of the method of its application. The baleful influence of the Robertson decision on these latter points has nevertheless remained, seriously undermining the efficacy of the Direction Rule.
Promising signs that this influence may be limited was evident from the lack of enthusiasm with which the decision was received by other federal courts, reinforced by the adverse response of the constitutional scholars. In Gray v First Winthrop Corp[171] the Ninth Circuit remarked — the hint of criticism is obvious — that Robertson indicated a 'high degree of judicial tolerance for an Act of Congress that is intended to affect litigation so long as it changes the underlying substantive law in any detectable way.'[172] It stated that the
…statute at issue in Robertson was extremely narrow in scope, directing the courts to deem statutory requirements satisfied in two named and numbered environmental cases. The Court nevertheless held that the challenged statute had modified the underlying substantive law rather than directed results under old law.[173]
Thus it felt compelled to follow the Supreme Court's lead with almost palpable reluctance and its disapproval barely disguised. Given that the impugned provision it was considering was not so obviously as egregious a legislative direction as that in Robertson, it concluded that it '...amply passes whatever is left of the Klein test.'[174]
'….[W]hatever is left of the Klein test'. The words of the Ninth Circuit accurately reflect the quandary that the Supreme Court had left in its wake following Robertson. In the words of one of the harshest critics of Robertson, '[a]lthough I interpret the Robertson decision as the implicit overruling of Klein, I do not believe that Robertson means that there is and can no longer be a point at which legislation impermissibly impinges upon the exercise of judicial power.'[175] For while Klein had not been overruled, it seemed that it would be applicable only in the most egregious circumstances.
The fact that a very high threshold was set for the application of the Direction Rule was borne out in the other two major relevant Supreme Court decisions in the decade of the 1990s, Plaut v Spendthrift Farm Inc[176] and Miller v French.[177] There was evident in those cases an easy willingness to treat legislation as a change in the law in circumstances when it was being impugned for legislative direction. This was despite the fact that the Supreme Court, under the influence of Scalia J in particular,[178] was adopting an increasingly formalist approach to separation of powers analysis and was seemingly less tolerant of even innocuous interbranch interferences.
At issue in Plaut was the constitutional validity of section 27A of the Securities Exchange Act 1934[179] enacted to overcome two Supreme Court decisions, Lampf et al v Gilbertson[180] and James B. Beam Distilling Co. v Georgia,[181] which made the federal statute of limitations exclusively applicable to actions for securities fraud brought under the Act. Hitherto, it had been acceptable to rely on the forum State limitation periods, which were usually longer. As a result of these decisions, a great many civil actions for damages for security fraud became statute-barred; a considerable boon to defendants in pending suits, many of whom successfully moved to dismiss claims filed in reliance upon the more generous State limitation periods.[182] At a time when the financial excesses of the 1980's were beginning spectacularly and publicly to unravel before the courts — many of which involved high profile figures and securities firms — and were the object of very significant public reflection and anger, the spectre of legitimate and meritorious claims failing on a 'technicality' demanded a legislative response. The issue would not tolerate an indifferent Congress.[183]
Section 27A had two limbs. The second limb, contained in s 27A(b) and upon which the Plaut case was decided, purported to require the courts to reopen affected claims which had been judicially declared statute-barred as a result of Lampf. In a highly formalist judgment, delivered by Scalia J for the majority,[184] this was held to be in breach of the separation doctrine in that it amounted to a legislative reopening of finally decided cases. However, whilst the court exhibited a very strict approach to the separation doctrine in its application to final judgments, even despite the fact that the legislation was clearly a manifestation of good public policy, when it came to that aspect of the section applicable to pending cases the Court exhibited a different attitude.
Section 27A(a) provided that, for the specific class of pending case commenced prior to the date of the Lampf and Beam decisions, the courts were directed to disregard the current law and apply the law of a previous period; the point being that it allowed for the operation of the forum State's (longer) limitation period. This raised the possibility of a breach of the Direction Rule because in all the circumstances it was, at the very least, questionable whether the legislature was in fact making a substantive amendment to the law. With little elaboration, as in Robertson, the Court regarded s27A(a) as a change in the law.[185] It was referred to as the 'new statute of limitations' which the courts 'could and would' apply.[186] Revealing its ambivalent attitude to the Klein Direction Rule, although without denying its central dichotomy, the majority remarked that '[w]hatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress "amend[s] applicable law."'[187] It held that s 27A(b) 'indisputably does set out substantive legal standards for the Judiciary to apply, and in that sense changes the law (even if solely retroactively).' [188] Reminiscent of Robertson, the Court dismissed the application of Klein to the present facts almost out of hand: 'When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.'[189] Thus, the Changed Law Rule was applied almost as if the Klein Direction Rule was an insignificant hurdle, no Klein analysis being attempted. The status of the Direction Rule as a threshold test for the application of the Changed Law Rule thus continued to suffer serious reversal.
Although these remarks were obiter, the spectre of Robertson was evident. It was also evident in many of the other federal court decisions which had considered s 27A and found it to be a change in the law. To take but one example, the Court of Appeals for the Fifth Circuit in Pacific Mutual Life Insurance Co. v First Republicbank Corp,[190] in answer to the submission that s 27A(a) 'affects the outcome of cases without changing the law in violation of the rule announced in United States v Klein...'[191] responded, and without much analysis, that it adopted the analysis of the Eleventh Circuit in Henderson v Scientific-Atlanta[192] that s 27A respected Klein by 'changing the law.' It is significant to note that in Henderson, the influence of Robertson was particularly marked.[193] In the words of the Ninth Circuit, Robertson established a 'high degree of judicial tolerance' for acts of Congress that sought to affect the outcome of pending cases.[194] Thus, even though it was accepted that the legislation merely gave instruction as to which limitation period was applicable in specific circumstances, revealing that 'high degree of judicial tolerance' referred to above, this instruction was regarded as having the effect of 'changing' the statute of limitation.[195] The Tenth Circuit in Anixter v Home-Stake Productions Co,[196] the First Circuit in Co-operative de Ahorro v Kidder, Peabody and Co,[197] adopting the reasoning of the former court, and the Eleventh Circuit in Henderson v Scientific-Atlanta Inc[198] clearly revealed the influence of the Robertson decision in that they all likened s 27A to the legislation held constitutional in Robertson. Indeed, it would have been only a defiant lower federal court which would have declared s27A(a) to be unconstitutional.
Such defiance was not entirely absent. A significant minority of the federal courts avoided the soft Robertson approach and applied the Klein rule rigorously. The Sixth Circuit in Plaut itself,[199] in addition to quite a number of federal district courts,[200] had found that s27A breached the Direction Rule because legislation was directed toward a particular result in a specific class of pending cases. These courts were sensitive to the background of the legislation. They noted that s 27A was drafted in the way it was because two bills which sought to effect a change in the statute of limitations to a two year/five year period did not pass through Congress.[201] Therefore, it appears the bill was amended to its final form in order to achieve the dual purpose of maintaining meritorious claims whilst retaining the position with respect to the statute of limitations. For these courts, therefore, s 27A(a) was a congressional direction as to which statute of limitation was applicable, 'even though [Congress] did not enact a substantive or procedural law'.[202] They squarely aligned themselves with the position taken by the Ninth Circuit in Robertson.[203]
On the other hand, those courts which, with the Supreme Court, maintained that s 27A(a) changed the law, emphasised the fact that the section did not direct factual findings on the merits of a particular case. Thus the Tenth Circuit found that the provision 'merely turns back the legal clock to the period just prior to Lampf and then permits the courts independently to adjudicate any reopened actions on the basis of the law.'[204] The courts which resisted Robertson's influence placed great express reliance on Klein itself. Indeed, the extent to which detailed reference was made to Klein was a bellwether of a more general willingness to apply Klein rigorously. Like the 1870 compromise, s 27A did not expressly compel a specific final result. However, only one possible outcome became possible with respect to the particular legal issue in question. As the court in Bank of Denver v Southeastern Capitol Group[205] noted, Congress cannot, as it did here, direct federal courts to ignore Supreme Court precedent in a discrete category of pending cases without violating the separation of powers dcotrine. Section 27A(b), dealing with finally decided cases and which was held by the Plaut court to be in breach of the rule which protects the inviolability of final judgments, also constituted a direction to those courts which had already dismissed cases as a result of Lampf to reinstate claims when plaintiffs filed a notice of motion. Not only was this a breach of the inviolability of final judgments, it was also a congressional instruction to the courts to reverse their judgments and to hear claims.
These cases also challenged the identification of s 27A with the NTC in Robertson upon which so much reliance was placed by those courts maintaining that the section changed the law. Even if one were to accept the Supreme Court's view that the NTC did change the law, s 27A differed from it markedly. Taking the most innocuous view of the NTC, it deemed compliance with particular statutes if certain requirements were met which were unrelated to the conduct prohibited by those statutes. By contrast, s 27A(a) directed specific applications of law to particular parties. As one commentator, Himstreet, noted:
Courts in one universe were to apply one law, i.e., those hearing cases filed prior to Lampf, and courts in another universe were to apply another, i.e., those hearing cases filed after Lampf. Had Section 27A expressly overruled or amended Lampf's limitations period, the statute would be constitutional…Unfortunately, reality dictates that Section 27A does not have the 'effect' of changing the statute of limitations. It simply changes the retroactive application of Lampf and Beam. Thus despite the Tenth Circuit and Eleventh Circuits clinging to Robertson to authenticate Section 27A's constitutionality, Robertson is inapplicable.[206]
Himstreet suggested[207] that the amending provision, to be constitutional, should have expressly provided for a new statute of limitations and abolished the distinction between pre-Lampf and post-Lampf situations; and have the new section apply retroactively. It is worth noting, although Himstreet did not mention this, that his suggested amendments would have exactly the same effect as s 27A in terms of outcome. This is not unimportant. However, the issue here, it should be stressed, is not what Congress might have done, but what it actually did. To dismiss the changes wrought by s 27A as purely cosmetic and of little ultimate consequence is to miss the significant underlying point: Congress may indeed affect the outcome of pending cases; but only by changing the law, not by directing the courts. Given the way the Supreme Court in Plaut decided the issue on the question of final judgments, and the way it uncompromisingly punished even minor technical breaches of the separation of powers when it came to the inviolability of final judgments, it is surprising that it did not yet adopt the same approach with respect to the pending case scenario. It would appear that the soft approach in Robertson was still exercising its influence.
Finally, the position adopted by those courts finding section 27A to be unconstitutional on Klein principles was strongly supported by the constitutional scholars. The views of Himstreet have been noted. McNally stated that '[r]eading parts (a) and (b) of section 27A together…reveals the clear congressional intent to address the outcome of a limited group of cases rather than provide a general statute of limitations for section 10(b) actions.'[208] By examining the congressional consideration of what should be done about Lampf and Beam, he concluded that
Congress had no intention of changing the statute of limitations through section 27A except in the cases of particular litigants. In effect, Congress sought to reach into the proceedings involving those particular litigants and change the outcome of their cases, without changing the underlying law…[S]ection 27A simply reversed cases which had been dismissed and allowed a more liberal statute of limitations in pending cases. The Lampf rule, establishing a stringent and uniform section 10(b) statute of limitations, remains intact. The statute of limitations applying to all other litigants remains as it was prior to the passage of section 27A. There is no practical difference between the congressional action in Klein and the congressional action in passing section 27A…Section 27A only changed the judicial treatment to be given to certain factual circumstances, i.e., the filing dates of claims made under section 10(b).[209]
McCarthy, in agreement, was also quite emphatic:
No language in Section 27A changes the law; the statute merely prohibits the retroactive application of the Lampf decision…[T]here is still no express statute of limitations within Section 10(b). Congress did not enact a uniform statute of limitations, instead, it passed Section 27 (a) which allows plaintiffs to renew claims that would otherwise be dismissed on statute of limitations grounds had Lampf been applied retroactively.[210]
Whilst the Plaut decision thus indicates the continuing influence of Robertson, the Supreme Court — in very stark contrast to the Court of Appeals for the Seventh Circuit — placed additional hurdles in the road to the achievement of this outcome in the final case to be considered.
Miller v French,[211] of all the cases mentioned, had the greatest impact on the orthodox adoption of the Klein Direction Rule in that it introduced novel qualifications and refinements which, if accepted in future cases, would constitute a further significant dilution of the protection afforded decisional independence. It is notable that despite the strong precedents of Robertson and Plaut favouring a very high threshold for the application of the Direction Rule, the lower federal courts in this litigation held that the impugned legislation was a sufficiently clear direction to the judiciary in the pending case so that it constituted a breach of (whatever was left of) the Direction Rule. The Supreme Court disagreed, but could only support its view by introducing novel qualifications to the Rule.
The Prison Litigation Reform Act 1995 ('PLRA')[212] revised the legislative regime relating to the regulation of prison conditions. The impugned provision provided for an 'automatic stay' of prior federal court injunctions (regulating conditions in federal prisons) in circumstances where a motion was brought seeking their removal or modification on the basis that they did not now meet the new requirements.[213] Miller, a prison superintendent, had brought such a motion. The respondent prisoners argued that the provision breached the Direction Rule on the basis that it directed a stay of the pre-existing injunction on no other ground than the expiration of thirty days following the filing of the motion.[214] The Court was thus left with no independent discretion in determining whether the injunction should be lifted. The respondents were originally successful in the lower courts, including the Court of Appeals for the Seventh Circuit,[215] before Miller appealed to the Supreme Court.
The Seventh Circuit affirmed the decision of the District Court that the provision violated the separation doctrine by simply directing the court without amending the law. The terms of s 3626(e)(2), the 'automatic stay' provision, were unequivocal, clearly providing that a motion to terminate prior relief 'shall operate' as a stay during a specified time period.[216] The Seventh Circuit, noting that it did not come lightly to the conclusion that Congress meant to restrict the equitable powers of the federal courts, nevertheless found it 'impossible to read this language as doing anything less than that.'[217] It was 'a self-executing legislative determination that a specific decree of a federal court ... must be set aside at least for a period of time.'[218] As such, it breached both the principle confirmed in Plaut prohibiting the legislative suspension of a final judgment and the principle established in Klein in that it mandated a particular rule of decision.[219]
On the Klein point, the Seventh Circuit followed the Sixth Circuit's consideration of the very same issue in Hadix v Johnson,[220] which held that the provision was clearly and unambiguously 'a legislative command that a stay of prospective relief occurs as a matter of law' purely on the basis of temporal considerations.[221] However, the Sixth Circuit — alone of all the various courts which had considered it[222] — avoided a finding of unconstitutionality by reading down the provision. That is, the provision simply retained the power in the courts to suspend the automatic stay in accordance with general equitable principles. The Seventh Circuit, however, found it impossible so to read down these explicit provisions:[223]
The automatic stay…operates directly on the internal adjudication of a case in federal court. It strips from the court the authority to decide whether the status quo (defined by the earlier decree the court entered that required prospective relief) should be continued or modified pending the court's decision on the immediate termination petition.[224]
And further,
[i]t addresses what should happen during the pendency of the case. For that time period, the statute does mandate a particular rule of decision: the prospective relief must be terminated. In our view, this falls comfortably within the rule of Klein, and as such, it exceeds the power of the legislative branch.[225]
Thus, despite the Robertson influence, the Seventh Circuit and a number of other federal courts regarded the impugned provision as clearly a breach of the Direction Rule.
The Supreme Court, however, held that the provision did not breach the Direction Rule despite the fact that it agreed with the Seventh Circuit in relation to its unequivocal meaning. The PLRA's automatic stay provision was clearly mandatory, precluding the federal courts from exercising their equitable power to enjoin the stay.[226] Its finding, therefore, that the Direction Rule was not breached was very curious; more so because it was based on certain very novel qualifications to the Direction Rule introduced by the majority. This was the case even though the Court explicitly recognised the fundamental tenet of the Rule in which such serious qualifications had not been contemplated.[227] The majority reasoned that the automatic stay provision 'must be read not in isolation, but in the context of § 3626 as a whole'.[228] When so read, the section 'helps to implement the change in the law caused' by the other subsections in that provision.[229] Accordingly, it 'merely reflects the changed legal circumstances — that prospective relief under the existing decree is no longer enforceable, and remains unenforceable unless and until the court makes findings required by § 3626(b)(3).'[230] Because the stay 'operates in conjunction with the new standards'[231] it was somehow incorporated into the change in the underlying law. Thus, it would seem, it lost its status as a mere legislative direction; even though, read alone, it did not change the underlying law. The ratio of the case therefore appeared to be that a provision which is an unconstitutional direction when examined in isolation, can nevertheless be valid when read in light of the Act as a whole if it merely facilitates a change in the law, or even 'merely reflects' the changed legal circumstances which are implemented by other legislative provisions.
One might be tempted to regard this approach as exhibiting functionalist tendencies, standing in stark contrast to the high formalism of the Plaut judgment written by Scalia J. This would not be an accurate assessment, however. The judgment maintains a formalist approach by accepting the definitional core of the Direction Rule and its fundamental tenet that legislation is either a substantive amendment to the law or an unconstitutional direction. It is not suggesting, in the way of the functionalist, that such strict definitional dichotomies be rejected, or that countervailing public policy considerations be taken into account in determining whether there has been an impermissible interbranch intrusion. Rather, exceptions to the application of the Rule are being carved out; and, being exceptions, they are based on the maintenance of the critical dichotomy above-mentioned. They operate by somehow transforming — the basis of such transformation remaining very unconvincing — what otherwise would be a clear legislative direction into a substantive amendment to the law. It is difficult to find any reasoned justification for such a position in separation of powers jurisprudence. For one thing, given the imperatives of the Changed Law Rule, the ready way in which it is implemented by the Court, and the high threshold set for the application of the Direction Rule, it would seem that that is facilitation enough to ensure that impugned legislation will be construed as an amendment to the law in the pending case scenario. The Miller qualifications simply make it easier still to bypass the Direction Rule. Furthermore, as indicated, the Direction Rule sought to protect what to both formalists and functionalists was such a core function of the judicial branch — the independent adjudication of legal disputes — that to accept such an exception seriously undermined this protection. The Supreme Court's unwillingness to adopt a rigorously applied Direction Rule, whether deliberate or based on a misunderstanding of it, nevertheless presents considerable dangers to the decisional independence of the judicial branch. In the respectful view of the writer, the decision should not be followed either in the United States or Australia. At most, the Miller qualifications should be limited to the facts of the case.
This point is reinforced by the fact that even if one were to accept the Miller v French qualifications, it is difficult to see how the automatic stay provision can be salvaged. First, the stay did not assist in the implementation of the new provisions, except in the most perfunctory procedural way by suspending the injunction whilst a motion was being considered as to whether or not the prior injunction met the new standards. This is something that could have been well left to judicial discretion without hindering the operation of the PLRA. Indeed, it is on this very issue that the Court is being moved. As Anderson pointed out:[232]
It is crucial to understand that the automatic stay provision suspends injunctions for prospective relief against official conduct that courts have found to violate the Constitution solely upon the passage of a specified time period after the filing of a motion. The Court's assertion, that the stay operates only if such injunctions are no longer enforceable because they do not meet the new standards for injunctive relief, is simply not true. The unambiguous words of the statute state that it is the motion to terminate prospective relief that operates as a stay, not any ruling by a court that the new standards are not satisfied…Thus, the automatic stay provision will have taken effect even though the required findings were previously made and it has not been shown that the prerequisites for injunctive relief no longer exist.[233]
By allowing such a provision to survive the rigours of the Direction Rule, despite very strong federal court decisions which found that it simply could not so survive, the Supreme Court was in effect establishing an extraordinary principle. It provided for the existence of certain circumstances in a pending case scenario where the legislature could provide for the suspension of injunctive relief, albeit temporarily, without recourse to any independent exercise of judicial discretion. Congress was being given licence to enter directly into the heart of pending proceedings, to influence them pursuant to its direction despite any exercise of judicial power to the contrary.
The Miller majority thus conferred upon Congress a new power to control the way in which the judicial branch exercises existing jurisdiction: a power to suspend prospective injunctive relief whether or not such relief satisfies new legal standards, so long as the suspension can be said to 'merely reflect', or 'assist in the enforcement' of, or 'help to implement' the new legal standards. That this is a new power is demonstrated by the fact that the very case cited to support the holding actually stands for the proposition that prospective relief must be modified or vacated if it does not comply with new legal standards enacted by Congress.[234]
The case which was erroneously applied, and to which Anderson made reference, was Wheeling Bridge.[235] That case did not support the proposition that, whether or not prospective relief complies with new legal standards, Congress can suspend it by establishing an automatic stay triggered when a period expires from the date of filing of a motion to terminate. Rather, it stands for the proposition that prospective, or equitable injunctive, relief can be modified only if the legislature changes the underlying law upon which the relief was based, thus rendering the injunction otiose. Moreover, it is only the judicial branch which could declare that a previous injunction has been so rendered. It is not for the legislature to direct the court to do so. So much Wheeling Bridge stood for, not the qualifications the Miller court was making to the Klein rule.
Given that the automatic stay provision was merely procedural, of limited duration, and only triggered when a motion was made to the court, it is arguable that the decision does not pose such a serious threat to decisional independence and separation of powers values. It might also be argued that a declaration of this relatively innocuous provision as breach of the separation doctrine would be excessively formalistic. The point remains, however, that the provision was an unambiguous legislative direction to the judiciary. The reasoning of the Miller majority does not adequately explain why this is not so. Its qualifications to the Direction Rule — the sole basis on which it salvaged the provision — were vague, easily capable of manipulation and capable of such a broad interpretation as to allow for more serious breaches of the Direction Rule. Thus, at least in this context, the fears of the formalists that such qualifications may result in the gradual erosion of fundamental separation of powers protections appear to be justified. The Supreme Court's validation of this seemingly innocuous automatic stay provision touched on issues fundamental and profound. If there is insistence upon the requirement that the legislature must substantively amend the law before the court is required to apply it in the pending case, the core aspect of judicial power to interpret the law and decide whether on the facts it has been complied with is maintained. It is this core authority of the courts which Miller put at risk. In the words of Anderson:
If the judiciary were to decide that Congress has such power, the Madisonian Compromise would be gutted because judicial independence would be at the mercy of Congress. It would mean that the legislative branch could direct a particular result in pending cases even if the courts' independent evaluation of the existing law would require a different decision. A core function of the judiciary is to apply the law in existence at the time of decision, and Congress would have the ability to deprive the courts of that function. Unthinkable? Miller v French represents a step in that very direction.[236]
This argument is compelling because the automatic stay applied, as indicated, whether or not the standards for injunctive relief were being met. It operated regardless of the effect of any change in the law, indeed without reference to it. This is the point which was perceived by the two dissentients on the Klein point, Souter and Ginsburg JJ. Both held that the Klein rule had in fact been breached. However, to add to the confusion, they based their decision on a functionalist analysis. That is, it was not simply because the automatic stay was triggered by the expiration of a period of time that constituted a breach of the Direction Rule, but rather because it was unclear whether the amount of time allowed for a consideration of the existing injunction pursuant to the new standards was sufficient:
… if determining whether a new rule applies requires time (say, for new factfinding) and if the statute provides insufficient time for a court to make that determination before the statute invalidates an extant remedial order, the application of the statute raises a serious question whether Congress has in practical terms assumed the judicial function. In such a case, the prospective order suddenly turns unenforceable not because a court has made a judgment to terminate it due to changed law or fact, but because no one can tell in the time allowed whether the new rule requires modification of the old order. One way to view this result is to see the Congress as mandating modification of an order that may turn out to be perfectly enforceable under the new rule, depending on judicial factfinding. If the facts are taken this way, the new statute might well be treated as usurping the judicial function of determining the applicability of a general rule in particular factual circumstances. Cf. United States v. Klein. [237]
This approach, however, was certainly not consistent with the Direction Rule's strict application based on direction. In other words, any comfort which may be derived for advocates of the Direction Rule from this minority judgment is limited. Souter and Ginsburg JJ would have found the automatic stay provision constitutional if it could have been shown that there was sufficient time for the court to examine the appropriateness of the existing injunction to the new standards.[238]
In conclusion, therefore, the Miller v French decision eroded further the protections afforded by the Direction Rule to the decisional independence of the judicial branch commenced in Robertson. The Miller qualifications were both novel and unjustifiable in light of the existing authority of Klein and the imperatives of the separation doctrine to protect the judicial branch from incursions by the legislature. The position adopted by the other federal courts were far more consistent with Klein — an authority which the Supreme Court has not overruled — and it is this position which will likely prevail in future Supreme Court decisions. Unless this occurs, the weakening of the protections to decisional independence will remain. This will not be a result of the failure of the separation doctrine as entrenched constitutional principle, but rather the failure of the judicial branch itself, at least its highest court, to appreciate the precise principles which emerge from such entrenchment protective of its decisional independence.
This, however, begs the question: why did the Supreme Court adopt such a dismissive position on the Direction Rule, hemming it about by qualifications which seriously undermined its efficacy without actually repudiating it. To the writer's knowledge, this is an issue which has not received any serious attention in the literature. The two possible explanations apparent to the writer are these. First, the Supreme Court simply failed to appreciate Klein, with all its attendant subtleties, and failed to appreciate the relationship between the Direction Rule and the Changed Law Rule. With respect, it misunderstood the case. The 'delphic' judgment of Chase CJ may have contributed to the perception that this is the case. On the above analysis, this appears to be the most reasonable explanation. However, this proposition fails to come to terms with the fact that the Supreme Court had available to it the reasoning of, for example, the Ninth Circuit in Robertson and the Seventh Circuit in Miller v French, which, as indicated, set out the 'orthodox' position quite clearly. Moreover, by the time these cases were decided, Hart and Young had clearly expounded the position which had emerged from Klein. This does not explain the failure of the Supreme Court in Miller to strike down a provision which was clearly in breach by resorting to the introduction of quite novel qualifications. This leads to the second possible explanation. Could it be the case that the Supreme Court was reluctant to apply the Direction Rule too rigorously out of an excessive deference to Congress, possibly to avoid the impression of self-aggrandizement at the expense of congressional power? Could it be that the Supreme Court was reluctant to add such an unpredictable weapon to the armoury of judicial review; at least not until the Direction Rule had been tamed somewhat by a more precise formulation? Perhaps the Court was concerned that the Direction Rule, at least when rigorously applied, constituted too powerful, and yet too unpredictable, a limitation to the legislative competence of Congress. Perhaps the Court did not want to appear to formulate, and then place in its own hands, such a powerful check on the legislative competence of Congress. This second explanation must, however, remain speculative. There is no apparent explanation in any of the judgments based on such policy considerations. Nevertheless, as far as purely legal scholarship is concerned, constitutional scholars are presently limited to the reasoning in the judgments. These would suggest that the first explanation outlined above is the only one which can be proffered with any degree of confidence.
In light of the significant opinion in the federal courts supportive of a rigorous, unqualified application of the Rule, and the overwhelming concurrence of constitutional scholarship in this regard, it is arguable that the existence of the Direction Rule as an efficacious separation of powers doctrine will survive. Should such views begin to influence the Supreme Court it is possible, particularly in light of that Court's maintenance of the fundamental tenet of the Rule, that the approach adopted by the Supreme Court cases abovementioned will be limited to their facts and not used as the basis for future development. On present indications, both in the United States and in Australia, such a hope may appear to be a vain one.
It is for this reason that an attempt will be made in the remainder of this article to suggest a formulation of principle which provides greater clarity and certainty in application of the constitutional limitations to legislative direction. In so doing, it will attempt to uncover the problems which currently pertain to the Direction Rule as formulated in order to suggest a way forward. To the extent that the judiciary is restraining its hand because of the uncertainties and unpredictability of a Rule — which places in its hands a powerful check on the legislative competence of the legislature — the points made in the remainder of this article may alleviate this concern.
The success of the separation doctrine as a legally entrenched constitutional rule in the precise context of the concerns of this article has been mixed. The efficacy of these principles as currently applied beyond egregious cases such as Liyanage[239] remains doubtful. This is particularly so following Nicholas in Australia.[240] A similar, possibly worse, situation has arisen in the United States following the cases of Robertson, Plaut and Miller. On the other hand, the Direction Rule in the United States has a more solid foundation in certain respects, given that a rigorous application thereof appears to have been maintained consistently in some Court of Appeals decisions and those of the lower federal courts with the general concurrence of the constitutional scholars.
It is not possible to ascertain precisely whether the primary difficulty lies in a lack of judicial appreciation of the underlying principles, or in the very imprecision which results from the definitional imperatives arising from the legal entrenchment of the separation doctrine. It is occasioned by both. Yet, both are capable of remedy. Given the emergence of an almost identical formulation of the Direction Rule in both Australia and the United States — quite independently of each other it would seem — together with the emergence and recognition of common indicia of direction, there remains a sufficient legal basis for the establishment of a principle protective of the decisional independence of the judicial branch. Accordingly, the current uncertain status of the Direction Rule is not a reflection of the failure of the legal entrenchment of the separation doctrine per se, nor is it a reflection of the failure of the transition of the doctrine from the more fluid sphere of political philosophy into the more rigid realm of legal rules. The imperative for a definition of branch functions can be sufficiently met in order to establish a set of legal propositions which do enable the enforcement of limitations on the power of the legislature and which can protect the decisional independence of the court without undermining the legislative competence of Parliament in the pending case scenario. This is confirmed by the writings of the early constitutional scholars, significant judicial exegesis and modern constitutional scholarship in the United States.[241] Moreover, given that the judicial functions which are critical to the decisional independence of the judicial branch can be considered as core, or 'non-transferable' — to use the words of Sawer[242] — branch functions, it is possible to overcome the tensions inherent in the formalism/functionalism divide to achieve a set of principles which can be applied rigorously. The article will therefore proceed, in conclusion, to set out the primary tendencies of the prevailing judicial exegesis of the Direction Rule, examining the weaknesses inherent in the Rule itself, before proceeding to postulate a way forward.
First, there is the tendency in Australia not to appreciate the issue of decisional independence as a discrete separation of powers issue governed by discrete constitutional principles. The issue has often been seen in the same light as those principles relating to the exercise of — as opposed to interference with — the judicial power, the maintenance of the integrity of the judicial process, and the due process concerns.[243] The emphasis has been on testing whether the legislature is exercising or usurping any exclusive, core, or 'typical' element of the judicial power, or is seeking to remove such a core element from the exercise of judicial functions by the judicial branch. In the case of legislative interference, the focus of attention must shift rather to examine whether the legislative branch is exercising a substantively legislative power or something other in its interference with judicial functions. Where it arises as an issue simultaneously with claims of usurpation of judicial functions or of compromising the integrity of the judicial process, even if dealt with separately, it is the latter which receives the bulk of judicial attention. The result is a lack of consolidation of principle governing decisional independence. This was evident in the majority judgments in Nicholas. In the United States, despite the failings of recent Supreme Court decisions, the central distinction on which the Direction Rule is based has been retained and decisional independence continues to be recognised as an issue of profound importance to the whole American constitutional settlement.
Second, there is the lack of a comprehensive statement of principle to which reference may be made in Australia. The judgment of Kirby J in Nicholas, and those of Street CJ and Kirby P (as he then was) in the State BLF case[244] are the only exceptions; but they remain isolated instances, and certainly have not been endorsed unconditionally by the High Court.
Third, even where the Direction Rule has been referred to and recognised, there is only an implied recognition, at best,[245] between the precise relationship of the Direction Rule and the Changed Law Rule, and the delicate balance which needs to be maintained between them. The Robertson case was the worst offender in this regard. Although the position adopted by the High Court is more consistent with a proper understanding of the relationship, the tendency in the Australian cases — with the exception of the State BLF Case and Kirby J in Nicholas — has been to emphasise the imperatives of the Changed Law Rule to apply any change in the law as clearly evidenced in the Nicholas case.[246] Where there is too easy an assumption that the impugned legislation is a change in the law, this does indicate a failure to maintain the correct balance. This undermines the proper operation of both rules.
Fourth, there is lacking a precise articulation of the method that should be adopted in the application of the Direction Rule. In Australia, the position has not really moved much beyond the quandary expressed in Liyanage relating to the difficulty in 'tracing where the line is to be drawn between what will and what will not constitute such an interference'.[247] Similar comments were made by Kirby J in Nicholas[248] although he alone did proceed beyond these difficulties to recognise the existence of a workable set of principles which he proceeded to articulate. It is in relation to the issue of method where it is necessary that there be an explicit recognition that principal scrutiny must be reserved for the very legislative nature of the legislation which is being impugned. That this be recognised more precisely and explicitly is essential in order to prevent the melding of this issue with the more dominant principles emerging from Chapter III. This is of particular significance given the uncompromising nature of the Changed Law Rule. This was the problem in Robertson and Plaut. In Miller, there appeared to be a pointed unwillingness to apply the Rule as evidenced by the introduction of novel qualification to the Rule itself to salvage otherwise clearly unconstitutional provisions.
Nevertheless, it should be recognised that the courts have had to come to terms with principles inherently complex, subtle and uncertain. Moreover, it should be conceded that the imperative for precise definition of branch functions and constitutional limitations can be met only up to a point. As noted, within the Rule itself there is an uneasy combination of both formalist (in the central dichotomy underlying the Rule) and functionalist tendencies underlying the identification of indicia of direction. That is, no closed set of definitive criteria determinative of direction is recognised in all cases; reliance rather being placed on indicia as they might arise on a case by case basis. No one indicator, or indeed combination thereof, is necessarily decisive. Moreover, the existence of unconstitutional direction is a function of the interrelationship and cumulative effect of the various indicia in any particular case.
It is therefore very difficult to predict the outcome where the indicia of direction are not clear. But it should not be as difficult as these more recent cases have made it. Thus, for example, the facts of the State BLF case, Nicholas, and the three American cases — Robertson, Plaut and Miller — all furnish illustrations of circumstances where a breach of the Direction Rule can be made out. That is not to say that it should have been made out in all cases, merely that the issue should have been given more serious consideration than was apparent. Thus, apart from Liyanage, it was only in the State BLF Case that the impugned legislation was held to be in breach of the separation doctrine for breaching the Direction Rule; and would have been declared unconstitutional if the separation doctrine had been legally entrenched in the New South Wales Constitution. Admittedly, in hard cases, the words of Kirby J in Nicholas that 'minds will reasonably differ'[249] certainly do resonate. Nevertheless, it is the easy dismissal of the Direction Rule which is the concern, not the fact that a breach thereof was not made out.
Consideration must be given to the reformulation of the Rule to overcome the inherent weaknesses in its formulation and to prevent its gradual slide to irrelevance in all but the most egregious situations of legislative direction. The formalist core of the Rule — the dichotomy between a substantive change in the law and an unconstitutional direction — remains sound, thus meeting the definitional imperatives resulting from the legal entrenchment of the separation doctrine. The major difficulties, however, reside in that aspect of the Rule which relies on the identification of indicia of unconstitutional direction.
It is submitted, therefore, that a greater formalisation of the status of certain indicia, or combination thereof, is essential. One way to achieve this may involve mandating a finding of unconstitutional legislative interference where certain precise indicia, or combination thereof, are present. To the writer's knowledge, this has only been suggested by one commentator. This is a suggestion to which the writer does not subscribe because of the degree of artificial rigidity which would result. Rather, in order to achieve this greater formalisation, the writer advocates the setting up of rebuttable presumptions of unconstitutional direction where certain key indicia, or combination thereof, are present.
The mandatory approach to the determination of the issues was advocated by the American scholar Ronner following her scathing evaluation of the reasoning of the Supreme Court in Robertson.[250] Where the following elements in the legislation are found to exist, according to Ronner's theory, there must be a finding of unconstitutional direction.[251] First, the legislation must purport to amend the law, or introduce new law, which affects the outcome of pending litigation; but does so in such as way as to be 'so precisely tailored to address the issues in the pending matter that it can be said to fit glove-like around a living case or controversy'.[252] Second, either one of the following factors must be found to exist in the circumstances of any particular pending case:
(a) the government is a party and the impugned legislation has the effect of favouring it in the litigation; or,
(b) the legislation infiltrates a domain that can be regarded as traditionally a judicial one (such as in Lim where it related to the issue of penal detention, or in Nicholas, where it related to the exercise of the critical judicial discretion whether to admit illegally obtained evidence).
In relation to the first factor, it could be said without difficulty that the facts of, for example, Liyanage, State BLF and Nicholas, would meet this requirement. Further, as the government was a party in the pending proceedings in each of those cases, and the legislation favoured it in its effect on the pending litigation, there would be a straightforward application of the Ronner test to mandate a finding that unconstitutional legislative direction existed in each of those cases. As the writer has maintained, to mandate a finding of unconstitutionality in such a fluid scenario might lead to an artificial result, particularly if there existed circumstances indicating that there was in substance a change in the law and the legislative interference was incidental. For this reason, the writer would find greater merit in the precise Ronner formulation if it went no further than establishing a rebuttable presumption of unconstitutional interference based on these criteria. The application of such a test would certainly require that legislation such as that in Nicholas and Robertson be at least scrutinised far more rigorously. Applying this test, either in its mandatory form, or in the rebuttable presumption form, it is clear that the dissentient judgment of Kirby J in Nicholas would be vindicated. In the United States, the Robertson and Miller cases would clearly be decided differently and the view of the lower federal courts would prevail. Even in situations where the government was not a party, the existence of the two alternatives in the second compulsory element would ensure that the provision was nevertheless applicable.
It cannot be doubted that this formalisation of the test would enable a more straightforward resolution of hard cases. That is not to say, of course, that all difficulties would be overcome. For example, the first requirement that the legislation be tailored to fit 'glove-like' around the issues in the pending proceedings may be both difficult to determine precisely and also a difficult requirement to meet. For Ronner it would appear to be sufficient that the legislation did affect the court's consideration of critical issues in the pending litigation and did so in such a way that it is relatively specific to that litigation, as opposed to being a more general change to the law. However, this too would require a difficult balancing act in hard cases and uncertainties would still result. It is in relation to this point that the ad hominem element becomes critical, as would be the element of retrospectivity. It would not be necessary to establish that the legislature expressly dictated a particular final outcome, it being sufficient if the legislation addressed particular legal issues that the court was required to address which nevertheless had a significant effect on the outcome. Thus, applying this rule it would still be possible to hold as constitutional, for example, the legislation in the Commonwealth BLF Case which completely bypassed the legal issues in the pending case to deregister the BLF by an exercise of legislative power within its competence. On the other hand, as indicated, it would also be far more difficult for legislation such as that in Nicholas or the NTC in Roberston to be considered a substantively legislative change in the law. Thus, the Ronner formula can accommodate the Direction Rule and the Changed Law Rule in a way that maintains an efficacious separation of powers doctrine, whilst also maintaining the balance between these two fundamental rules. In light of the uncertain reception of the Direction Rule, and its uncertain current status in both the United States and Australia, such a formalisation of the indicia of direction in the overall scheme of the Direction Rule would certainly remove many of the difficulties which lie in the way of establishing the rule as a discrete separation of powers doctrine.
Whilst Ronner's work must be acknowledged as constituting the first serious attempt to resolve the difficulties inherent in the current formulation of the Direction Rule, the degree of formalisation advocated by her is excessive. Nevertheless, that some form of formalisation is necessary cannot be denied. Whilst it is true that bald legislative direction is uncommon, it remains the case that where a matter of great political moment comes before the courts demanding of a legislative response, the temptation for legislatures to direct the courts to secure their will must be acknowledged. Especially in such circumstances, the need for well-defined constitutional limitations remains an imperative. The spectre of the Burmah Oil Case in the United Kingdom, in which the final decision of the House of Lords in the specific case was overruled by Parliament, still hovers.[253] In Australia, in particular, the recent jousting between court and parliament in relation to immigration and refugee matters does throw up a situation where the temptations to which legislatures have been prone in the past, especially in the United States, come to the fore. In Lim, it was with a pending refugee case in mind that Parliament directed that '[a] court is not to order the release from custody of a designated person'.[254] One need only refer to the high political drama arising from the Tampa incident.[255] It is precisely in these circumstances that a strong Direction Rule is needed.
Therefore, the question remains, what degree of formalisation of the Direction Rule is appropriate without going to the length of mandated results based on rigid formulas? In addressing this question, care needs to be taken so as not to make a finding of unconstitutional direction too easy, thus undermining the protection of legislative power afforded by the Changed Law Rule. If, instead, use is made of principles akin to rebuttable presumptions of unconstitutional direction a solution may be achieved which will be sympathetic to the symmetry which currently exists in the Rule, combining a functionalist overlay to a formalist core. The Rule would still be able to achieve that rigorous examination of each case on its merits, without itself rigidly mandating a solution such as to compromise the Changed Law Rule.
As a preliminary point, it must be accepted that once the separation of powers is entrenched in a written constitution, the imperative toward some definition of functions must be met. As discussed above, the elements of branch function involved in the issue of decisional independence are so fundamental that, even pursuant to a functionalist analysis, they must be protected strictly.[256] The central distinction on which the Direction Rule is based remains uncontroversial, and, like the fundamental principle that the judicial power of the Commonwealth cannot be conferred on non-judicial bodies, is a principle which can safely be assumed to be established as a central separation of powers constitutional limitation in the United States. This also appears to be the position which is emerging in Australia, but it has yet to be unequivocally accepted in those terms by the High Court. The other critical preliminary point is that there needs to be maintained a sufficient degree of flexibility with respect to the indicia of direction to enable their accurate application in the myriad of unpredictable circumstances in which they will be relied on. Avoiding excessive and artificial formalisation in these circumstances, but allowing that some is necessary, the following suggestions are made with respect to the indicia of direction.
First, an attempt should be made to identify and catalogue those certain indicia whose nature and recurrence warrant their identification as primary indicia of direction. Where any one of these indicia is present — more so if more than one is present — then this should immediately put the court on notice that unconstitutional legislative direction is a possibility. Thus, it is proposed that if all three indicia listed below are present in the pending case scenario, this should give rise to a rebuttable presumption of unconstitutional direction. These share the critical characteristic of removing the impugned legislation from the norm, or 'typical' nature, of an exercise of legislative power as a prospective change in the law of general applicability. It is emphasised that all three must be present for the presumption to arise. They are:
(a) the specificity of the legislation either as clearly ad hominem legislation or being of sufficient specificity to enable the easy identification of the persons, or class of persons, to which it is applicable. As an indicator of direction it becomes more compelling to the extent that it extends no further than those involved in the pending litigation (or potential identifiable future litigation). The impugned enactments in Liyanage, Robertson and Nicholas serve as excellent illustrations.
(b) the specificity of the legislation with respect to the pending litigation. The timing of the enactment and commencement of operation of the legislation would also be regarded as relevant in this context. The greater the extent to which it can be shown that the legislation is dealing exclusively with the issues which arise in pending litigation — and not beyond those in a more general way — then the greater the likelihood of direction. In other words, the more the legislation is 'tailored' to deal with the issues in the pending litigation, the more it removes itself from the typical legislative function of prospective amendment of the law of general application.
(c) the status of the government as a party to the pending proceedings, or at least as an entity which has a significant interest therein, where the legislation favours its interests in the pending litigation. This would be a particularly relevant indicator where the government had a pecuniary or proprietary interest in the outcome. However, it will also be significant in circumstances where the government has an interest with respect to the implementation of its policy agenda, or various other public policy reasons, meritorious or otherwise. Thus, in Liyanage and Nicholas, the government was keen to secure a conviction; in State BLF to ensure the deregistration of the union; in Lim to ensure the continued detention of asylum seekers and in Plaut — where the government was not a party — to reinstate meritorious civil actions for securities fraud as a matter of good public policy.
If either of the following two indicia are also present, the presumption should be strengthened. These minor indicia are:
(a) the object of the legislation being a traditional judicial discretion, such as, for example, in Nicholas where it interfered with the judicial discretion to admit evidence obtained as a result of illegal conduct, or in Lim where it purported to regulate the discretion of the court with respect to releasing persons from custody. Of course, it may be the case that the legislation is successfully declared invalid on the separate ground that it usurps a core judicial function or that it prevents a court from properly exercising such a function. Nevertheless, with respect to the issue of legislative interference, it still remains an indicator of direction.
(b) the wording of the legislation, and whether it uses the words 'directs' or 'orders' with reference to the judicial branch, or if it contains a deeming provision. Whilst the wording is not determinative of the issue, the existence of such words does constitute an important indicator. Moreover, if the legislation specifically mentions the persons to which it is applicable, or if it refers to the litigation specifically by name (such as in Robertson) then this will reinforce the existence of direction. This particular element can be a very powerful indicator of direction, and can almost stand alone if the language used is sufficiently unequivocal. On the other hand, it must not be assumed that the use of these words automatically results in a finding of direction.
Whilst the above-listed constitute the most obvious indicia of direction, in addition to being the most commonly found in the cases, the writer does not advocate that they should be regarded as a closed set, nor that any of the indicia, or combination thereof, be regarded as determinative per se. That degree of formalisation would clearly not be warranted as discussed above. For one thing, there is always the danger that, even if the conditions of the relevant formula are made out, in all the circumstances there may be present other factors which might indicate that unconstitutional direction is not occurring. As it is not possible to predict what these may be, allowances must be made for them. Also, even if only one or two of the above indicia are present, it may be the case that particular indicia are found in a particular case which are not listed above, and yet clearly may warrant a finding of unconstitutional direction.
This, it is submitted, would be the most appropriate response to the problems facing the Direction Rule in both Australia and the United States. These problems are more in the nature of misunderstandings and minor inaccuracies which are reflected in the tendency to apply the rule without rigour, without emphasising substance over form, to limit the application of the Rule only to the more egregious cases, a failure to appreciate its proper legal relationship with the Changed Law Rule. In other words, these are not blatant doctrinal errors — except perhaps for the novel qualifications in Miller — although, as indicated above, some judgments have been clearly incongruous with existing authority, and indeed first principles. The suggestions made above should help alleviate the weaknesses, and sometimes excessive subtleties within the formulation of the rule itself. They may also prevent the further erosion of the Rule as a protector of the judiciary from those admittedly rare circumstances where Parliament may seek to ensure its will in the face of pending litigation. It is arguable, however, that this is of only limited concern given that the separation doctrine will prevent a legislature from itself exercising judicial power, and also prevent it from obvious and egregious directions to the judiciary in pending cases. One can hardly envisage the High Court of Australia not declaring Liyanage-style legislation as constituting a breach of the Direction Rule; although in light of some of the more recent decisions abovementioned this may not be such a certain proposition. However, as those who adopt a (purposive) formalist approach to separation of powers analysis realise, the concern is that if the Rule is not maintained in the less obvious cases, or those cases where the legislature is interfering with judicial functions for good public policy reasons — as in Plaut for example — the maintenance of the limitation on legislative interference with judicial functions will be eroded over time even in the more egregious cases. The consequences of Robertson in particular have borne this out. This, it is submitted, would not be a desirable outcome in Australian constitutional jurisprudence.
The underlying assumption of the above conclusions is that the Direction Rule must operate in juxtaposition to the Changed Law Rule. Given that the separation doctrine seeks to defend also the integrity of the proper exercise of legislative functions by Parliament, this is both undisputed and, indeed, appropriate. However, an appreciation of the principles governing the pending case scenario would be incomplete without mentioning the more speculative propositions which have been canvassed in the United States. These will be addressed for the sake of completeness and also to reinforce the need for some degree of formalisation and explicit restatement of the Direction Rule. For, as will be seen, these propositions seek to carve out exceptions to the Changed Law Rule, thus undermining the Direction Rule further, but from a different angle. If such speculative propositions were to be accepted, even a strong Direction Rule would appear a meek constitutional limitation by comparison.
The Changed Law Rule remains the one significant counterbalance to the Direction Rule which guarantees the integrity of legislative power. A failure to appreciate and maintain this will significantly weaken the former rule also. It is submitted that the cultivation and maintenance of a more rigorous approach to the Direction Rule, as has been advocated above, particularly its 'formalist' core, is essential for the maintenance of a strong Changed Law Rule. By insisting that the legislature is limited to interfering in pending cases by amending the law, which the court must then apply on appeal, the Direction Rule is maintaining the constitutional primacy of the legislative function. Thus, interestingly, whilst it has been the Direction Rule which has been vulnerable in the judicial exegesis of the highest constitutional courts, the Changed Law Rule has, thereby, also become vulnerable.
This vulnerability arises from speculation — it cannot at this stage be put any higher than that — that any principle emanating from the separation doctrine protective of the decisional independence of the judiciary extends, in fact, beyond the confines of the Direction Rule and the imperatives of the Changed Law Rule. It is based on the idea, traced back to Klein, that even where there is a substantive change in the law, there may be circumstances where such a law will nevertheless be in breach of the separation doctrine if made applicable to pending proceedings. It reflects a concern that the Changed Law Rule may be insufficient, at least in certain circumstances, to prevent the domination of the legislature over the judicial branch. In Klein, Chase CJ pondered the consequences of giving effect to the 1870 proviso: 'Can we do so without allowing one party to the controversy to decide it in its own favor?'[257] He was clearly sensitive to the fact that the government was a party in the case and that it had a significant advantage in its ability to amend the law applicable on appeal. The issue is a difficult one because a direct conflict between separation of powers principles arises. What is being postulated is the existence of circumstances which justify a court not applying a substantive change in the law in a pending case, contrary to the Changed Law Rule. The issue is whether there are defined circumstances where the decisional independence of the courts is to take precedence even over the proper legislative competence of the legislature.
Such conjecture emanated from no less a source than Young who postulated that 'Chase might well have extended preexisting constitutional principles in order to rule in Klein that the government cannot change the law to favor itself on appeal.'[258] If this is so, then the position to emerge from Klein is that the Changed Law Rule will not apply in such circumstances — where the law favours the government in the pending case — to require the court to apply the amended law. The difficulty of course is that an outcome favourable to government is the usual result. Clearly the acceptance of such a proposition would seriously undermine the Changed Law Rule; for the mere existence of a pending case in which the government is a party would trump the legislature in its ability to amend the law applicable in that case if the government thereby secured an advantage. Whilst Young did no more than give serious consideration to the proposition, the judicial disquiet evident in Klein cannot be denied.
Just such a submission was put to the Supreme Court in the Robertson case by the Public Citizen amicus:[259] 'Even a change in law, prospectively applied, would be unconstitutional if the change swept no more broadly, or little more broadly, than the range of applications at issue in the pending cases.'[260] This submission was not addressed by the Supreme Court, although it is clear from the judgment that it was not accepted. Young, however, was of the view that there was sufficient merit in it not to dismiss it out of hand. A limited suspension of the Changed Law Rule in circumstances where the government is a party, and where the changed law favours it in on appeal, has the appearance of a very reasonable proposition. Indeed it is arguably quite necessary to establish a more substantial protection to the courts' decisional independence. One of the identified weaknesses of the Direction Rule was its failure to prevent a determined legislature from circumventing it by deft legislative drafting that effectively directs an outcome without appearing to do so in form. Contrast, for example, the legislation at issue in the two BLF cases. Whilst the proposition has some merit, it is unlikely that it will be accepted in the Australian context in particular. There is very little to suggest, even by those who support a rigorous approach to the Direction Rule, that such an exception to the Changed Law Rule will be allowed. There is certainly no indication that such exceptions to the Rule were even considered in the detailed judgments of Kirby J (and Street CJ) in the State BLF Case or in Nicholas. Even in the United States, these suggestions remain speculative at best and have not been seriously entertained by the Supreme Court.
Nevertheless, an exploration of the consequences of this novel proposition may be used, at least, to justify the type of formalisation of the Direction Rule advocated above. The first consequence is the extension of the constitutional limitation on Parliament beyond the Direction Rule and the limits which that rule sets upon itself, that is, the existence of a substantive change in the law. The second is its suspension of the operation of the Changed Law Rule in certain circumstances. Such circumstances might exist where the government is a party and the legislation favours it in the pending litigation, regardless of the sweep of the legislation beyond the matters in issue in the pending case. This is probably too broad a proposition. A more likely circumstance is the situation where the government is a party, the legislation favours it in the pending litigation, but the effect of the legislation beyond the matters in issue is limited. A further issue is whether it makes any difference whether the government's interest in the proceedings is a pecuniary or proprietary one, on the one hand, or merely one which facilitates its role as regulator. Is the government's interest sufficient in both circumstances to warrant the suspension of the Changed Law Rule? An affirmative answer would be more likely in the former circumstance. Speculating further, the proposition might be put that if the legislation is precisely designed to address issues in the pending proceedings, and no others more generally, the Changed Law Rule should be suspended regardless of whether or not the government is a party. As this is the most broadly stated of the speculative propositions, its chances of ever receiving authoritative acceptance are slim. Nevertheless, from the perspective of the separation of powers, the issue remains a nagging one: does the dominant configuration of Direction Rule and Changed Law Rule create sufficient protection to decisional independence so as not to require at least some exceptions to the Changed Law Rule?
The above possibilities have been raised because of the concern that the Changed Law Rule permits, albeit indirectly, the revision of a judicial decision on appeal by non-judicial means. In a sense, this has the tendency to render the decision of a court merely an advisory opinion. In both the United States,[261] and in Australia, this would constituted a breach of the separation doctrine.[262] However, even though parallels may be drawn with an advisory opinion, the circumstances of the pending case scenario are different. For one thing, these parallels only arise if a decision is appealed, as otherwise the decision retains the characteristics of a final judgment. To that extent, there can be no breach of the separation doctrine in the mere existence of the Changed Law Rule. Nevertheless, where an appeal occurs, and given the imperatives of the Changed Law Rule, the similarities with an advisory opinion are sufficient to raise separation of powers concerns. As Young pointed out, '[t]hey are members of a common class — opinions which prove to have been unnecessary.'[263]
Whilst recognising that it is not feasible entirely to avoid unnecessary opinions, whether advisory or not, Young argued that those which are 'dangerous' — one assumes to separation of powers values — and 'easily avoidable' should be prohibited.[264] Young categorised such a situation to arise where 'by means of a new law, the government changes a [judicial] decision that is unfavourable to its interests.'[265] It is at this point that Young expressly raised concerns with the Changed Law Rule in circumstances where the government is a party. Given that the separation doctrine was expressly entrenched to protect the judicial branch from legislative encroachment and to subject the legislature to some degree of judicial scrutiny, the existence of the Changed Law Rule does compromise the accountability of government to law, and thus, to a certain extent, undermines the rule of law.
Therefore, the proposition that some qualification needs to be made to the Changed Law Rule to accommodate these concerns is a respectable proposition. Young states that it should be taken as a given that the government and its actions be subject to some degree of judicial scrutiny in the pending case scenario.[266] It is at this point that Young indicates that he favours the distinction between the government as property owner and the government as regulator, suggesting that the suspensions to the Changed Law Rule should be considered in the former instance.
When Congress acts as a regulator of public rights, it may need to change the rules governing a pending case on a rationale similar to that relied on by the Court in the Wheeling Bridge case. On the other hand, when the contest involves claims to money or property, such justification may not be present. Particularly in cases like Klein, where, arguably, the government has a sovereign immunity privilege that allows it to avoid a constitutional attack, to permit the government to change the law because of some dissatisfaction with the result in pending cases would be to allow the government to hedge its bets from the start. Congress can open its courts to claims against the government hoping for a favourable resolution. If it wins, it wins twice; once with the favorable verdict, and second by the fact that the government appears to have subjected itself to the rule of law. If the government loses, it loses once; it can change the law on appeal. Indeed, it may not even lose an appearance of accountability if its refusals to abide by judgments are few. Perhaps a prohibition against Congress' changing the law on appeal, to favor the government, rests on a judgment that the judicial branch ought not to participate in Congress' giving the false impression that it has opened the government to judicial scrutiny. If so, a prohibition against changing the law on appeal to favor the government is one which increases legislative accountability, by requiring that Congress either clearly open or clearly close the courts to certain claims.[267]
Thus, according to Young, a strong case can be made to suspend the operation of the Changed Law Rule in circumstances where the government's interest in the pending case do not exceed the purely proprietary or pecuniary — that is, its interest resembles that belonging to a private litigant — as opposed to situations where its interest is that of a regulator of public rights.[268] Young noted that 'we can see that Chase's apparent concern with the government's power to change the law to favor itself is an intelligible constitutional argument that does not call into question the general validity of the Changed Law Rule.'[269] Moreover,
one could concede to the legislature the power to change the law governing an appeal in cases where the legislature acts as a regulator, i.e., where it is seeking prospective relief, but deny the legislature that power where the case involves a contest over property. While this distinction between two government roles may collapse if put under pressure, Chase might well have entertained it.[270]
There is much to be said for this proposition, but Young cannot support it with any authority beyond the proposition that it may have been a point which emerged from Klein.[271] He noted the difficulty in identifying the source for such an exception to the Changed Law Rule except in the 'earliest separation of powers principle which prohibits or at least discourages non-judicial revision of federal courts' judgments.'[272] If such a proposition were to be accepted and established as a particular exception to the Changed Law Rule, many of the inherent instabilities in the application of the Direction Rule could be avoided, at least in situations where the government's interests were purely pecuniary or proprietary and where there was no issue of the government being involved in the case in a regulatory sense. The prohibition would be straightforward and indeed limited to the pending case. However, as indicated, whilst consistent with separation of powers values, the proposition must remain speculative.
[*] Senior Lecturer, Faculty of Law, University of Sydney. The writer wishes to thank Sir Anthony Mason in particular for taking the time to read an earlier draft of this article, for his comments and his invaluable insights. Particular thanks are also due to Dr Fiona Wheeler of the Faculty of Law, Australian National University, and Professor George Winterton of Sydney Law School, together with the anonymous referees, for their very helpful comments and suggestions. The inadequacies in the article remain, of course, the writer's own.
[1] Article III, s 1 of the Constitution of the United States provides: 'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.' Unlike Chapter III of the Australian Constitution, however, no provision is made for the vesting of federal jurisdiction in State courts. This difference is not presently relevant It will be a relevant consideration when determining whether any defined constitutional limitations will extend to State Parliaments as a possible extension of the principles arising from the decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
[2] For ease of reference, 'separation doctrine' will be used to refer to 'the doctrine of the separation of powers'. See Gordon Wood, The Creation of the American Republic 1776–1787 (1996) 154–155; Mary P Clarke, Parliamentary Privilege in the American Colonies (1943) 49–51; Edward S Corwin, The Doctrine of Judicial Review (1914) 37; 'Judicial Action by the Provincial Legislature of Massachusetts' (1908) 15 Harvard Law Review 208. For contemporary accounts of such interferences and their influence on leading figures in the drafting of the Constitution, see, eg, The Federalist No 48 in Jacob E Cooke (ed), The Federalist (1961) 336–7 in which is also cited, at 336, Thomas Jefferson, 'Notes on the State of Virginia' (1787) 196. See also Edward S Corwin, 'The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadeplphia Convention' (1925) 30 American Historical Review 511, 514–517. For a collection of examples, see Peter A Gerangelos, 'The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases' [2002] FedLawRw 1; (2002) 30 Federal Law Review 1, 3.
[3] Held now to be unconstitutional as a usurpation of judicial power in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.
[4] Wilson v Minister for Aboriginal and Torres Islander Affairs [1996] HCA 18; [1996] 189 CLR 1,17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
[5] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ('Lim') (Brennan, Deane and Dawson JJ).
[6] [1967] 1 AC 259 ('Liyanage').
[7] Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372; Builders Labourers Federation v Commonwealth [1986] HCA 47; (1986) 161 CLR 88 ('BLF Cases').
[9] [1998] HCA 9; (1998) 193 CLR 173 ('Nicholas').
[10] Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491. For detailed coverage of the various constitutional and legal issues to which this incident gave rise, see the special edition of the Public Law Review 'The Tampa Issue' (2002) 13 Public Law Review.
[11] See Gerangelos, above n 2.
[12] Fiona Wheeler, 'The rise and rise of Judicial Power under Chapter III of the Constitution: a decade in overview' (2001) 20 Australian Bar Review 283, 285, n 18.
[13] George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey J Lindell (ed), Future Directions in Australian Constitutional Law (1994) 189, 197–203.
[14] Although not expressly mentioned in the Constitution, this entrenchment was inferred by the High Court from its structure, and its structural resemblance to the United States Constitution in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 275–6 ('Boilermakers'); affirmed sub nom Attorney-General for Australia v The Queen [1957] AC 88, 311–12.
[15] Ibid.
[16] G Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177, 178.
[17] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.
[18] (1973) 129 CLR 231, 250.
[19] The term was originally used by Gordon C Young, 'Congressional Regulation of Federal Courts Jurisdiction and Processes: United States v Klein Revisited' (1981) 6 Wisconsin Law Review 1189, 1240.
[20] These are the elements contained in the oft-quoted classic definition of judicial power in the judgment of Griffith CJ in Huddart Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357.
[21] In the words of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 394, 'The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis.'
[22] In the joint judgment in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188, reference was made to the 'difficulty, if not impossibility of framing a definition of judicial power that is at once exclusive and exhaustive.'
[23] See above n 20 and accompanying text. See also Fencott v Muller (1983) 152 CLR 570, 608: 'The unique and essential function of the judicial power is the quelling of such [legal] controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion' (Mason, Brennan, Murphy and Deane JJ); and R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374: 'the process to be followed must generally be inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of the law to facts has shown to exist' ( Kitto J).
[24] Martin H Redish, 'Federal Judicial Independence: Constitutional and Political Perspectives' (1995) 46 Mercer Law Review 697, 699 (emphasis added).
[25] Ibid (emphasis added).
[26] Contained in s 72.
[27] [1977] HCA 62; [1977] 138 CLR 1, 11.
[28] Ibid.
[29] [1967] 1AC 259.
[30] [1986] HCA 47; (1986) 7 NSWLR 372, (1986) 161 CLR 88.
[32] [1998] HCA 54; (1998) 195 CLR 547.
[33] Above n 9.
[34] Migration Act 1958 (Cth) s 54R.
[35] Lim (1992) 1716 CLR 1, 35 (Brennan, Deane and Dawson JJ, with whom Gaudron J agreed).
[36] Ibid 36–7 (emphasis added). Gaudron J agreed in a separate judgment.
[37] Parliament may legislate to limit the jurisdiction of the federal courts in relation to all matters, excepting of course the original jurisdiction of the High Court in s 75 of the Constitution.
[38] [1967] 1 AC 259.
[39] As a preliminary step, the Privy Council held that the separation principle was incorporated in the Constitution of Ceylon. Ibid 283 ff.
[40] Ibid, 289–90.
[41] Ibid 290.
[42] Ibid (emphasis added).
[43] Ibid.
[44] Ibid.
[45] Ibid.
[46] Ibid.
[47] Ibid.
[48] Ibid (emphasis added).
[50] This was decided prior to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 88 and accordingly there was no issue arising as to whether Chapter III imposed limitations on State Parliaments.
[51] [1986] HCA 47; (1986) 161 CLR 88.
[52] [1998] HCA 9; (1998) 193 CLR 173. See also Gerangelos, above n 2, 22.
[53] [1995] HCA 66; (1995) 184 CLR 19.
[54] The case has been subjected to more detailed analysis in Gerangelos, above n 2, 22.
[55] Cases often cited as classic examples of a formalist approach to separation of powers jurisprudence are Bowsher v Synar [1986] USSC 181; 478 US 714 (1986) and INS v Chadha [1983] USSC 143; 462 US 919 (1983). Cases often cited as examples of a functionalist approach are Morrison v Olson [1988] USSC 155; 487 US 654 (1988) and Mistretta v United States [1989] USSC 9; 488 US 361 (1989). See also below n 57
and accompanying text.
[56] For a more detailed discussion of the concept of a 'purposive formalism' in separation of powers jurisprudence see Peter A Gerangelos, 'The Separation of Powers and Legislative Interference with Judicial Functions: A Comparative Analysis' (PhD Thesis, University of New South Wales, 2004) 21–7, 43–53. Whilst the term might appear prima facie oxymoronic, the term attempts to indicate that there is purpose to the strict maintenance of the boundaries of branch power beyond mere conceptual categorisation.
[57] [1995] USSC 32; 514 US 211, 239–40 (1995) ('Plaut').
[58] Redish, above n 24, 699.
[59] Ibid 711. For a detailed examination and definition of the formalism/functionalist debate in the United States, and for an excellent exposition of the varieties of each, see Redish, above n 24; Martin Redish and Elizabeth Cisar, ' "If Angels were to Govern", the Need for Pragmatic Formalism in Separation of Powers Theory' (1991) 41 Duke Law Journal 449; and Martin Redish, The Constitution as Political Structure (1995) 99–134.
[60] Anthony Mason, 'A New Perspective on Separation of Powers' (1996) Canberra Bulletin of Public Administration, No 82, 1, 2.
[61] See, for example, Victorian Stevedoring & General Contracting Co Pty Ltd [1931] HCA 34; (1931) 46 CLR 73; Leslie Zines, The High Court and the Constitution (4th ed, 1997), 154–61 and George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey J Lindell (ed), Future Directions in Constitutional Law (1994) 189, 197–203.
[62] See above n 14.
[63] Re Wakim; Ex parte McNally (1999) 198 CLR 511.
[64] George Winterton, 'The Relationship Between Commonwealth and Legislative and Executive Power', [2004] AdelLawRw 3; (2004) 25 Adelaide Law Review 21, 39.
[65] See above n 20 and accompanying text.
[66] For a more detailed discussion of the position of Australian scholars on these matters see Gerangelos, above n 56, 21–7. Professor Winterton also tends to favour this approach although it would be quite inaccurate to place Zines and Winterton clearly within any 'school' on this matter. See George Winterton, Parliament, the Executive and the Governor-General (1983) 60.
[67] Zines, above n 61, 171.
[68] Ibid (emphasis added).
[69] Sawer, above n 16, 180.
[70] Ibid (emphasis added).
[71] Zines, above n 61, 172 (emphasis added).
[72] J Doigt, 'Is Purely Retroactive Legislation Limited by the Separation of Powers? Rethinking United States v Klein' (1994) 79 Cornell Law Review 911, 942.
[73] Ibid 941.
[74] Amy D Ronner, 'Judicial Self-Demise: The Test of When Congress Impermissibly Intrudes on Judicial Power After Robertson v Seattle Audubon Society' (1993) 35 Arizona Law Review 1037, 1070.
[75] Robertson v Seattle Audubon Society [1992] USSC 38; 503 US 429 (1992), Plaut v Spendthrift Farm Inc [1995] USSC 32; 514 US 211 (1995) and Miller v French [2000] USSC 55; 530 US 327 (2000). All these cases will be examined in detail below.
[76] 80 US [1871] USSC 137; (13 Wall) 128 (1871).
[77] Ibid 146.
[78] Ibid 147.
[79] Originally published in 1868 and influential in Australia also.
[80] Thomas M Cooley, Constitutional Limitations (7th ed 1903) 137.
[81] Ibid (emphasis added).
[82] See above n 2. See also Lynn S Branham, 'Keeping the "Wolf out of the Fold": Separation of Powers and Congressional Termination of Equitable Relief' (2000) 26 Journal of Legislation 185.
[83] 5 US [1801] USSC 9; (1 Cranch) 103 (1801). The term to give expression to this principle was originally used by Young, above n 19. See also Doigt, above n 72, 918.
[84] Richard H Fallon, Daniel J Meltzer, and David L Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (4th ed, 1996) 368. For other examples of the application of the rule see Carpenter v Wabash Railway Co [1940] USSC 32; 309 US 23 (1940), Vandenbark v Owens-Illinois Glass Co 311 US 538 (1941), Cort v Ash [1975] USSC 119; 422 US 66 (1975).
[85] 5 US [1801] USSC 9; (1 Cranch) 103, 110 (1801) (emphasis added).
[86] Ibid.
[87] Ibid.
[88] For subsequent applications of the Changed Law Rule, see United States v Preston 28 US [1830] USSC 51; (3 Peters) 57, 66–7 (1830) and Fairfax's Devisee v Hunter's Lessee, 11 US [1812] USSC 17; (7 Cranch) 603, 612 (1813).
[89] Abandoned Property Collection Act 12 Stat. 1820 1863, Ch 120 par 3. See Klein 80 US [1871] USSC 137; (13 Wall) 128, 131 (1871).
[90] Proclamation No. 11 of Dec 8, 1863 13 Stat 737, 737–8. See Klein 80 US [1871] USSC 137; (13 Wall) 128, 131 (1871).
[91] For a very detailed account of the facts of the case set in the political context, see Young, above n 19.
[92] 76 US [1869] USSC 160; (9 Wall) 531 (1870).
[93] Ibid 543.
[94] Act of July 12 1870, ch 251 12 Stat 230, 235. For a comprehensive account of congressional efforts to have Padelford overruled, and Congress' purpose in defeating its consequences in pending litigation, see Young, above n 19, 1201–13.
[95] Klein, 80 US [1871] USSC 137; (13 Wall) 128, 129 (1871).
[96] Ibid 146.
[97] Ibid 147.
[98] Ibid 145.
[99] Ibid (emphasis added).
[100] Ibid, 146.
[101] Ibid 146 (emphasis added).
[102] Ibid.
[103] Young, above n 19, 1195. 'Hardly a model of clarity' opine the authors of Hart and Wechsler's The Federal Courts and the Federal System, above n 84, 368.
[104] 'Whether Klein can be understood as establishing an independent [from the jurisdictional question] separation-of-powers restraint which limits Congress' power, is uncertain,' noted Martin H Redish in Federal Jurisdiction: Tensions in the Allocation of Judicial Power (1980) 31.
[105] Henry M Hart, 'The Power of Congress to Limit the Jurisdiction of the Federal Courts: an Exercise in Dialectic' (1953) 66 Harvard Law Review 1362, especially 1373. In the writer's view, the most comprehensive and detailed examination of Klein following Hart is the article by Young, above n 19. For an excellent review of the various interpretations of Klein, see L Anderson, 'Congressional Control over the Jurisdiction of the Federal Courts: A New Threat to James Madison's Compromise' (2000) 39 Brandeis Law Journal 417. For a comprehensive pre-1981 review of the literature see Young, above n 19, 1194. For a review of the more recent literature on Klein see Ronner, above n 74.
[106] Hart, above n 105, 1373.
[107] The precise scope of the decision in Klein in relation to purely jurisdictional issues has been the subject of some uncertainty, and quite some degree of both judicial and academic scrutiny. For an excellent review thereof see Anderson, above n 105.
[108] Article III s 2 confers appellate jurisdiction on the Supreme Court with such exceptions as Congress shall make.
[109] Hart, above n 105, 1364–5.
[110] Ibid 1370–73.
[111] Ibid 1373.
[112] Young, above n 19, 1196.
[113] Fallon, Meltzer and Shapiro, above n 84, 368.
[114] This is apparent in the three significant Supreme Court cases which will be examined in detail below: Robertson v Seattle Audubon Society, Miller v French and Plaut v Spendthrift Farm (above n 75). As for the academic commentary, see also, for example, Young, above n 19, 1233-44; Ronner, above n 74, 1046; Akhil Reed Amar, 'Of Sovereignty and Federalism' (1987) 96 Yale Law Journal 1425, 1474; Stephen L Carter, 'The Morgan "Power" and the Forced Reconsideration of Constitutional Decision' (1986) 53 University of Chicago Law Review 819, 857; Theodore Eisenberg, 'Congressional Authority to Restrict Lower Federal Court Jurisdiction' (1974) 83 Yale Law Journal 498, 526–7; Archie Parnell, 'Congressional Interference in Agency Enforcement: The IRS Experience' (1980) 89 Yale Law Journal 1360, 1379 n 116; Leonard G Ratner, 'Congressional Power Over the Appellate Jurisdiction of the Supreme Court, (1960) 109 University of Pennsylvania Law Review 157, 158.
[115] 59 US (18 How) 421 (1855).
[116] This case was decided on the issue of whether the legislation unconstitutionally amended a previous court order as between the parties.
[117] 80 US [1871] USSC 137; (13 Wall) 128 (1871) 146–7 (emphasis added).
[118] Ibid 147.
[119] Gerangelos, above n 2, 12.
[120] Fallon, Meltzer and Shapiro, above n 84, 368 n 21, referring to the relevant passages above from Klein, note: 'Given the context, such language should surely not be read as casting general doubt on the principle, clear since [Schooner Peggy] that the courts are obligated to apply law (otherwise valid) as they find it at the time of their decision, including, when a case is on review, the time of the appellate judgement.'
[121] 80 US [1871] USSC 137; (13 Wall) 128, 145 (1871).
[122] Ibid 129 (emphasis added).
[123] Ibid 145–6.
[124] Ibid 147.
[125] There was no decision which directly referred to Klein in the pending case scenario prior to this. Pope v United States 100 Ct Cl 375, 375–6 (1944), reversed by the Supreme Court[1944] USSC 119; , 323 US 1 (1944)) alone made mention of the case but only in dicta referring to the interference with final judgments.
[126] Anderson, above n 105, 425–6.
[127] Hart, above n 105, 1372 (emphasis added).
[128] Ibid.
[129] Anderson, above n 105, 438. See also Linda Mullenix et al, Understanding Federal Courts and Jurisdiction (1998) 30; Erwin Chemerinsky, Federal Jurisdiction (3rd ed, 1999) 1813–85.
[130] These broader interpretations of Klein have been identified and examined in the important article of Young, above n 19.
[131] Anderson, above n 105, 438.
[132] Young, above n 19.
[133] Ibid 1217 (emphasis in original).
[134] Ibid 1219.
[135] Ibid 1223.
[136] Ibid 1219 (emphasis added).
[137] Ibid 1240.
[138] [1990] USCA9 1016; 914 F2d 1311 (9th Cir 1990).
[139] Ibid 1315 (emphasis in original).
[140] Robertson v Seattle Audubon Society [1992] USSC 38; 503 US 429 (1992).
[141] The Interior and Related Agencies Appropriation Act 1990.
[142] See [1990] USCA9 1016; 914 F 2d 1311, 1312 (9th Cir 1990) for detailed background to the enactment.
[143] Ibid, 1315.
[144] Ibid. In this regard see also the Supreme Court decision of United States v Sioux Nation of Indians [1980] USSC 149; 448 US 371, 405 (1980).
[145] [1990] USCA9 1016; 914 F 2d 1311, 1316 (9th Cir 1990).
[146] Ibid.
[147] Ibid.
[148] Ibid 1316–17 (emphasis added).
[149] Ibid 1315, citing Klein 80 US [1871] USSC 137; (13 Wall) 128, 146–7.
[150] Ibid.
[151] Robertson v Seattle Audubon Society [1992] USSC 38; 503 US 429 (1992).
[152] The opinion was delivered by Thomas J.
[153] [1992] USSC 38; 503 US 429, 436 (1992).
[154] Ibid 437.
[155] Ibid 438.
[156] Ibid 437–8.
[157] Ibid 437–8.
[158] Ibid 438.
[159] Ibid 440.
[160] An analogy can be drawn here with the legislation considered in the Nicholas case (above n 9). That case maintained the illegality of the importation of heroin but directed the courts to disregard that illegality when conducted by law enforcement agencies in exercising its discretion whether to admit evidence of importation of the illegal substance. See Gerangelos, above n 2, 22.
[161] [1992] USSC 38; 503 US 429, 438–9 (1992).
[162] Ibid 440.
[163] Above, n 6.
[164] [1992] USSC 38; 503 US 429, 439–40 (1992).
[165] Ibid 439.
[166] Ronner, above n 74, 1054.
[167] Ibid 1054-5.
[168] See particular Ronner, above n 74, and Anderson above n 105.
[169] [1992] USSC 38; 503 US 429, 439–40, 441 (1992) (emphasis added).
[170] Ronner, above n 74, 1054.
[171] [1993] USCA9 1076; 989 F 2d 1564 (9th Cir. 1990).
[172] Ibid 1569–70 (emphasis added).
[173] Ibid 1569.
[174] Ibid 1570 (emphasis added).
[175] Ronner, above n 74, 1041.
[176] [1995] USSC 32; 514 US 211 (1995).
[177] [2000] USSC 55; 530 US 327 (2000).
[178] See above n 57.
[179] Now codified at 15 USC s 78aa–1. It came into force on 19 December 1991.
[180] [1991] USSC 130; 501 US 350 (1991).
[181] [1991] USSC 110; 501 US 529 (1991).
[182] See Doigt, above n 72, 914–915. See also Charles H Sturdy, 'Section 27A Confronts Lampf and the Constitution' (1994) 74 Boston University Law Review 645. At n 7, 646 of the Sturdy article, the many federal court decisions which examined s 27A are catalogued.
[183] The pressures on Congress to intervene and the Congressional debates are amply set out in the Sturdy article, ibid, n 188.
[184] Rehnquist CJ, O'Connor, Kennedy, Souter and Thomas JJ; Breyer J concurring in the result with Stevens and Ginsburg JJ dissenting.
[185] [1995] USSC 32; 514 US 211, 217 (1995). This view was shared by the minority judgment of Stevens J, in which Ginsburg J joined (at 247).
[186] Ibid.
[187] Ibid 218.
[188] Ibid 218.
[189] Ibid 226.
[190] 997 F.2d 39 (5th Cir. 1993).
[191] Ibid 53.
[192] [1992] USCA11 1430; 971 F.2d 1567, 1572 (11th Cir 1992).
[193] Ibid 1572–3. Other significant Court of Appeals decisions which found that s 27A changed the law were: Anixter v Home-Stake Production Co. [1992] USCA9 3212; 977 F.2d 1533, 1544–6 (10th Cir. 1992); Gray v First Winthrop Corp [1993] USCA9 1076; 989 F.2d 1564, 1568–79 (9th Cir. 1993); Berning v A.G. Edwards & Sons [1993] USCA7 303; 990 F.2d 272, 278–9 (7th Cir. 1993); and Cooke v Manufactured Homes, Inc. 998 F.2d 1256, 1264–65 (4th Cir. 1993).
[194] Gray v First Winthrop Corp., [1993] USCA9 1076; 989 F.2d 1564, 1569–70 (9th Cir. 1993). See Sturdy, above n 182 for academic comment to the same effect.
[195] See Rabin v Fivzar Associates 801 F. Supp 1045, 1054 (SDNY 1992).
[196] Anixter v Home-Stake Productions Co [1992] USCA9 3212; 977 F 2d 1533, 1546 (10th Cir. 1992).
[197] 993 F. 2d 269, 273 (1st Cir. 1992).
[198] [1992] USCA11 1430; 971 F. 2d 1567 (11th Cir. 1962).
[199] [1993] USCA6 1708; 1 F.3d 1487 (6th Cir. 1993).
[200] All these district court cases have been catalogued in J O Himstreet, 'Section 27A and the Statute of Limitations in 10b-5 Claims', (1994) 30 Williametter Law Review 151, 177 nn 172-3.
[201] See In re Brichard 788 F. Supp. 1098, 1104 (N.D. Cal 1992).
[202] Ibid.
[203] Seattle Audubon Society v Robertson [1990] USCA9 1016; 914 F. 2d 1311 (9th Cir. 1990).
[204] Anixter v Home-Stake Productions Co [1992] USCA9 3212; 977 F 2d 1533, 1545 (10th Cir. 1992).
[205] 789 F. Supp. 1092, 1097 (D. Colo. 1992).
[206] Above n 200, 185-6.
[207] Ibid.
[208] J D McNally, 'Constitutional Law: Did Congress Overreach in its Reaction to Lampf?' (1994) 16 Western New England Law Review 397, 420.
[209] Ibid 421 (emphasis added).
[210] P J McCarthy, 'The Constitutionality of Section 27A of the Securities and Exchange Act of 1934: Congressional Response to the Upheaval of the Lampf Decision' (1994) 20 Journal of Legislation 236, 247.
[211] [2000] USSC 55; 530 US 327 (2000).
[212] 110 Stat. 1321-66 to 1321–77 which is codified at 18 USC § 3626. References to the relevant sections hereafter shall be from the United States Code.
[213] Ibid § 3626 (b)(2).
[214] Ibid § 3626(e)(2).
[215] French v Duckworth [1999] USCA7 259; 178 F.3d 437. (7th Cir. 1999).
[216] Ibid 443 (emphasis added).
[217] Ibid.
[218] Ibid 446.
[219] Ibid.
[220] [1998] USCA6 141; 144 F.3d 925 (6th Cir. 1998).
[221] Ibid 937.
[222] United States v Michigan, 989 F.Supp 853 (W.D. Mich 1996); Glover v Johnson, 957 F. Supp. 110 (E.D. Mich (1997); Hadix v Johnson 933 F. Supp 1362 (W.D.Mich 1996); Hadix v Johnson 933 F.Supp 1360 (E.D.Mich 1996).
[223] French v Duckworth [1999] USCA7 259; 178 F.3d 437, 443 (7th Cir. 1999).
[224] Ibid 444 (emphasis added).
[225] Ibid 446 (emphasis added).
[226] [2000] USSC 55; 530 US 327, 336 (2000). The Supreme Court majority opinion was delivered by O'Connor J. The majority consisted of Rehnquist CJ, Scalia, Kennedy and Thomas JJ. Souter J filed an opinion concurring in part, and dissenting in part, in which Ginsburg J joined. It is significant that they dissented on whether the Klein Direction Rule had been breached, finding that it had been. The points of concurrence and dissent will be discussed in the text which follows. Breyer J filed a dissenting opinion in which Stevens J joined.
[227] Ibid 349.
[228] Ibid.
[229] Ibid 348.
[230] Ibid.
[231] Ibid 349.
[232] Anderson, above n 105, 442–3.
[233] Ibid 443–4 (emphasis added). Anderson noted, ibid 443 n 136, that the complex and protracted nature of prison conditions litigation made it very likely that judges would, in particular cases, have inadequate time in which to allow discovery, conduct evidentiary hearings and make the findings of fact and conclusions of law required by Fed. R. Civ. P. 52. (See, eg, Madrid v Gomez 889 F. Supp. 1146, 1156 (N.D. Cal. 1995) — a case tried over a two and a half month period — and Canterino v Wilson, 546 F. Supp. 174, 179 (W.D. Ky. 1982) in which the pre-trial proceedings lasted for eighteen months and the trial four months).
[234] Ibid 443.
[235] Pennsylvania v The Wheeling and Belmont Bridge Co 59 US (18 How.) 421 (1855). In the earlier Wheeling Bridge case, the Court had held that a bridge was an unlawful obstruction to navigation and must be raised or removed (Pennsylvania v The Wheeling and Belmont Bridge Co 54 US (13 How.) 518 (1851)). Congress then passed legislation declaring the bridge a lawful structure. In the second Wheeling Bridge Case, the Court held that the decree from the earlier case could no longer be enforced because the bridge was no longer an unlawful structure (at 431–2). In the hypothetical situation mentioned and in Miller itself by contrast, it had not yet been determined that the new prerequisites for injunctive relief did not exist.
[236] Anderson, above n 105, 447.
[237] Miller v French [2000] USSC 55; 530 US 327, 351–2 (2000) (emphasis added).
[238] The dissent of Breyer J, in which Stevens J concurred, is not relevant for present purposes in that that they construed the stay provision not to be mandatory, thus avoiding the issue of whether Congress was directing the courts.
[239] Above n 6.
[240] Above n 9.
[241] See Gerangelos, above n 2, 5, where detailed reference is made to the writings of the early Australian constitutional scholars on this point.
[242] Sawer, above n 16.
[243] This point is examined in detail in Gerangelos, above n 2.
[244] Above, n 7.
[245] Even in the minority judgments of Nicholas, above n 6.
[246] The decision of the United States Supreme Court, Robertson v Seattle Audubon Society [1992] USSC 38; 503 US 429 (1992), is also illustrative of this.
[247] [1967] 1 AC 259, 289–90.
[248] [1998] HCA 9; (1998) 193 CLR 173, 256.
[249] Ibid.
[250] Ronner, above n 74.
[251] Ibid 1071.
[252] Ibid.
[253] Burmah Oil Company (Burma Trading) Ltd, et al v Lord Advocate [1964] UKHL 6; [1965] AC 75.
[254] Above n 5.
[255] See above n 10.
[256] See above p 12.
[257] 80 US [1871] USSC 137; (13 Wall) 128, 146 (1871).
[258] Young, above n 19, 1244.
[259] Robertson v Seattle Audobon [1992] USSC 38; 503 US 429, 441 (1992). See Ronner, above n 74, 1055.
[260] [1992] USSC 38; 503 US 429, 441 (1992).
[261] Hayburn's Case 2 US 408 (2 Dall. 409) (1792).
[262] For a more complete discussion in the American context see Young, above n 19, 1247; and for the Australian position see Zines, above n 61, 165 and 168.
[263] Young, above n 19, 1247.
[264] Ibid.
[265] Ibid.
[266] Ibid 1248.
[267] Ibid 1248–49.
[268] Ibid 1249.
[269] Ibid.
[270] Ibid 1241.
[271] Ibid.
[272] Ibid 1244.
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