Keywords: Federal Judges appointed under Chapter III of the Constitution cannot att as mediators – a mediator does not exercise the judicial power of the Commonwealth and mediation is not incidental to judicial power either generally or under s.51(xxxix) of the Constitution – accordingly r.45.13B(2)(a) of the Federal Circuit Court Rules 2001 (Cth) which purportedly authorises the appointment of a Judge of this Court to be a mediator is incompatible with Chapter III of the Constitution and hence invalid – further as a matter of discretion a Judge of this Court should not act as mediator.

Cases/Legislation referenced: Charter of Human Rights and Responsibilities Act 2006 (Vic), s.36 Civil Procedure Act 2005 (NSW), s.25 Commonwealth Conciliation and Arbitration Act 1904 – 1956 (Cth), s.2 Fair Work Act 2009 (Cth), ss.45, 546, 566 Federal Circuit Court of Australia Act 1999 (Cth), ss.34, 81 Federal Circuit Court Rules 2001 (Cth)

Abriel v Australian Guarantee Corporation Ltd [2000] FCA 1198 Attorney-General (Cth) v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542 Attorney-General (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529 British Imperial Oil Company Limited v Commissioner of Taxation (Cth); Commissioner of Taxation (Cth) v Munro [1926] HCA 58; (1926) 38 CLR 153 Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 D’emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 Fencott v Muller (1983) 152 CLR 570 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 Matsen v Superannuation Complaints Tribunal [2017] FCA 765 Momcilovic v The Queen (2011) 245 CLR 1 Monard v H. M. Leggo & Co. Ltd. [1923] HCA 53; (1923) 33 CLR 155 Mulqueen v Minister for Labour and Industry and Zinc Corporation Ltd [1938] NSWStRp 44; (1938) 38 SR (NSW) 583 Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501 Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144 R v Tait & Bartley (1979) 24 ALR 473 State Bank of New South Wales v Freeman (1996) BC9607062 The Duke Group Ltd (In Liq) v Alamain Investments Ltd [2003] SASC 272 The Queen v Bain; Ex Parte Cadbury Schweppes Australia Ltd [1984] HCA 9; (1984) 159 CLR 163 The Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 The Queen v Kirby; Ex Parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 von Schulz v Attorney-General Qld [2000] QCA 406 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Judgment of

Judge Dowdy

Judgment Delivered

Sydney, 10 April 2019

Introduction

The Applicants sought relief against the Respondent, Macquarie Bank Limited (the Bank), in relation to alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act), namely that they had not been paid entitlements arising out of their employment by the Bank.

The parties sent proposed consent orders to the Judge’s Chambers which included (at proposed order 6) to refer the proceeding to a mediator for a mediation under s.34 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), proposed order 6 provided as follows:

• 6. Pursuant to Rule 45.13B of the Federal Circuit Court Rules, the proceedings be referred for mediation to be conducted by a Judge, by no later than Friday 15 March 2019.

(emphasis added)

• Rule 45.13B of the Federal Circuit Court Rules 2001 (Cth) (r.45.13B) provides relevantly as follows:
  • (1) This rule applies if the Court refers for mediation under section 34 of the Act a proceeding, or a part of a proceeding, or a matter arising out of a proceeding, to which this Part applies.
    • §  Note 1: Section 34 of the Act does not apply to family law proceedings. For dispute resolution in family law proceedings, see Part III of the Family Law Act.
    • Note 2: The Court may refer a proceeding for mediation under section 34 of the Act with or without the consent of the parties.
  • o    (2) The mediator for the mediation must be:
    • §  (a) a Judge; or
    • (b) a Registrar; or
    • (c) another person appointed by the Court for the purpose; or
    • (d) an FWC member nominated by the President of the Fair Work Commission.

(emphasis added)

(3) Unless the Court or a Registrar otherwise orders:

• (a) the parties to the proceeding must attend the mediation in person; and
• (b) the lawyer or lawyers representing the parties to the proceeding must attend the mediation.

(4) Unless the Court otherwise orders, if an order for mediation is made, the proceeding is adjourned until the earlier of the following:

• (a) the day the mediator reports to the Court; or
• (b) the day fixed by the Court on which the mediator must report to the Court about progress in the mediation.

(5) The parties must make a genuine effort to reach agreement on relevant matters in issue.

(6) If the mediator considers that the mediation should not continue, the mediator must, subject to any order of the Court:

• (a) end the mediation; and
• (b) advise the Court of the outcome.

(7) If an issue between the parties remains unresolved at the end of the mediation, the Judge or Registrar may:

• (a) give further directions; and
• (b) make any other order, including an order for costs.

…

The Judge’s Associate advised the solicitors for the parties that the Judge was of the view that the Judge should not order that the mediator at the proposed mediation be a Judge of the Court because first, he was of the view that it would be unconstitutional for a Judge to act in that role and second, that it would be inappropriate as a matter of discretion for a Judge to act in the role of mediator, but that he would be prepared to order that the proposed mediation be conducted before a registrar of the Court acting as mediator, and he so ordered.

His reasons for declining the role of mediator and not purporting to appoint another Judge of the Court to be mediator, even assuming he had such a power are set out below (taken from the reasons for Judgement).

Difference Between a Mediator Conducting a Mediation and a Judge Exercising Judicial Power

Preamble – Judicial Power in the State and Federal Spheres

10.First, it is to be noted that as confirmed by The Queen v Kirby; Ex Parte Boilermakers’ Society of Australia^[1]the Commonwealth Parliament may not confer upon a Federal Court functions which are non-judicial and which are not incidental to the execution of the exercise of the judicial power of the Commonwealth under s.51(xxxix) of the Constitution.

11. Nevertheless, it is also well established that, subject to the principle of Kable v Director of Public Prosecutions (NSW)^[2], State legislatures may confer non-judicial functions on their courts in respect of non-federal matters and that hence there has for a very long time been a distinction between judicial power and the judicial power of the Commonwealth. As French CJ stated in Momcilovic v The Queen^[3] (Momcilovic) at 66 [92]:

[92] …The distinction between non-judicial functions which are incidental to the exercise of judicial power and those which are not is relevant in relation to federal courts and courts exercising federal jurisdiction because of the separation of judicial from legislative and executive powers mandated by the Constitution of the Commonwealth. The distinction does not have the same relevance in relation to State courts exercising jurisdiction conferred on them by State laws. In the joint judgment in Mellifont, their Honours said^[4]: ‘in the absence of a constitutional separation of powers, there has existed the possibility that the Supreme Courts of the States might be entrusted with a jurisdiction that did not involve the exercise of judicial power.’ Callinan and Heydon JJ made a similar point in Fardon^[5]: ‘Not everything by way of decision-making denied to a federal judge is denied to a judge of a State.’”…

12. Accordingly, these reasons pre-eminently focus on the position and role of Judges of this Court appointed under Chapter III of the Constitutionwho exercise the judicial power of the Commonwealth under s.71, and matters incidental to the execution of that power.

Role of Mediator

13. The website of the Federal Court of Australia says of mediation:

What is Mediation?

Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.

14. To similar effect, s.25 of the Civil Procedure Act 2005 (NSW) defines mediation to mean:

“mediation” means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.

15. Mediation is typically conducted as a private, confidential and informal meeting between the relevant disputants in a more or less non-adversarial forum which does not result in any determination by the mediator, let alone in a written determination.

16. Mediation is a synonym for conciliation which, together with arbitration, is a power granted to the Commonwealth Parliament under s.51(xxxv) of the Constitution “for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. In its form first assented to in December 1904 the Commonwealth Conciliation and Arbitration Act 1904 – 1956 (Cth)(CCA Act) relevantly provided by s.2(ii), (iii) and (iv) that its chief objects were:

(ii) To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdiction for the prevention and settlement of industrial disputes;

(iii) To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties;

(iv) In default of amicable agreement between the parties to provide for the exercise of the jurisdiction of the Court by equitable award.

See the summary of the substantially similar terms of the chief objects of the CCA Act in s.2 as at 1952 in Boilermakers No 2^[6] at 532 – 533.

17. In Monard v H. M. Leggo & Co. Ltd.^[7] Isaacs J said of the CCA Act:

By sec. 2 conciliation is placed in the forefront as the desirable method of ending industrial disputes, and compulsive award is only “in default of amicable agreement between the parties.”… Conciliation is the primary object sought, and at that stage by agreement as the foundation of an award. If no agreement whatever is arrived at, the Court proceeds to a compulsive award, which operates with statutory force and without any question binds mutually and reciprocally all the parties and persons as mentioned in sec. 29.

18. In The Queen v Bain; Ex Parte Cadbury Schweppes Australia Ltd^[8] Brennan and Deane JJ said of conciliation and arbitration, in the context of the Australian Conciliation and Arbitration Commission created after Boilermakers, as follows:

That distinction reflects the difference in nature between conciliation and arbitration. The Commission’s conciliation functions involve and are directed to assisting the prevention or settlement of industrial disputes by “amicable agreement” between the prospective or actual parties to the particular dispute. Its arbitration functions are directed to preventing and settling industrial disputes not resolved by amicable agreement and involve the making of binding awards which are not consensual in their nature (see, generally, per Isaacs J., Monard v. H M Leggo & Co. Ltd.)^[9].

19. The relevance of this reference to the conciliation power will become evident later in these reasons.

Role of Judge

• 20.Under s.71 of the Constitution a Judge of a Federal Court, such as this Court, exercises the judicial power of the Commonwealth.
• 21. The concept and content of judicial power is protean in nature and not susceptible of any one single and exhaustive definition, as Mason CJ stated in Polyukhovich v The Commonwealth^[10] (Polyukhovich) at 532:

The judicial power of the Commonwealth is vested by s.71 of the Constitution in Ch. III courts comprising this Court, federal courts created by Parliament and State courts exercising federal jurisdiction. Judicial power is an elusive concept; “it has never been found possible to frame a definition that is at once exclusive and exhaustive“, to repeat the comment of Dixon C.J. and McTiernan J. in Reg. v. Davison^[11]. According to the widely accepted statement of Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead^[12], judicial power in s. 71 means “the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property“.

• 22. In Mulqueen v Minister for Labour and Industry and Zinc Corporation Ltd^[13] Sir Frederick Jordan CJ said that the characteristics of a Judge and a court exercising judicial power are as follows:
  • If, however, the person in question is invested with the duty or power to determine, as between contesting parties, whether persons are entitled to already existing legal rights to which they may claim to be entitled, or are subject to already existing legal duties or liabilities to which it may be contended that they are subject, so that his determination is legally binding upon the persons involved, either conclusively or subject to appeal, it follows that he is invested with the duty or power as a Court

(citations omitted)

• 23. Finally, in Polyukhovich Deane J said as follows^[14]:
  • The ordinary object of the exercise of judicial power is the ascertainment of rights and liabilities or of guilt or innocence under the law. The point was made by the United States Supreme Court in Prentis v. Atlantic Coast Line Co.^[15], in a passage which has been quoted with approval on a number of occasions in this Court (see, e.g., Rola Co. (Australia) Pty. Ltd. v. The Commonwealth^[16]; Reg. v. Davison^[17]):
    • “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end…”
• 24. Courts of law must administer justice in public and statutory authority is required for a court to sit in camera: R v Tait & Bartley^[18] (Tait) at 487 – 490 per Brennan, Deane and Gallop JJ. Further, even the hearing of a case by a court in public is not enough because, as stated in Tait^[19]:
  • As Sir Frank Kitto wrote in his essay “Why Write Judgments?” (Judicial Essays, Law Foundation of New South Wales and Victorian Law Foundation 1975, p 9): “It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides on the one hand a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and on the other hand an effective stimulant to judicial high performance.”
• 25. Comparison of the above descriptions of the content and nature of judicial power with the process of mediation immediately highlights their fundamentally different nature and content.

Can a Chapter III Judge Act as a Mediator? (paragraphs 26 -38)

• In my view it is incompatible with Chapter III of the Constitution for a Federal Judge to act as a mediator in any accepted meaning of that term.
• First, judicial power is to be exercised in accordance with what is called “the judicial process” by way, subject to limited exceptions, of open and public enquiry, the application of the rules of natural justice and the ascertainment of the law as it is and the facts as they are, followed by an application of the law to the facts as determined: Harris v Caladine^[20].
• On the other hand a mediator meets in private, often without all of the parties present at the same time, makes no decision and publishes no judgment. The mediator is not exercising the unique and essential function of judicial power of quelling controversies by the ascertainment of the facts, by the application of the law and by the exercise, where appropriate, of judicial discretion: see Fencott v Muller^[21]. The mediation process does not lead to the mediator giving a public, binding and authoritative decision “as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and, in making binding adjustments of rights and interests in accordance with legal standards^[22]”: Nicholas v The Queen^[23], and which decision is enforceable by execution as a function of judicial power: British Imperial Oil Company Limited v Commissioner of Taxation (Cth); Commissioner of Taxation (Cth) v Munro^[24].
• Second, a Judge cannot perform any function which is incompatible with his or her discharge of judicial power. As the plurality comprised of Brennan CJ, Deane, Dawson and Toohey JJ stated in Grollo v Palmer^[25]:
  • … no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (“the incompatibility condition”)…
  • The incompatibility condition may arise in a number of different ways… It might consist in the performance of nonjudicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired… Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power.
• I note at this point that r.45.13B suffers from the striking omission of not precluding a Judge who has presided over a mediation from subsequently hearing or determining the case. However, that is an implication to which r.45.13B must be subject because I take it as inconceivable that a Chapter III Judge could preside at a mediation in a case to which he or she had been docketed, and then if that mediation fails, to subsequently hear and determine that case. The principle that justice must manifestly be seen to be done would require that the case be heard by another Judge. Certainly in those State Courts in Australia which do allow a Judge to mediate there are provisions precluding that Judge from hearing and determining the case in which the earlier mediation had failed. As Debelle J said in The Duke Group Ltd (In Liq) v Alamain Investments Ltd^[26]:
  • [23] When a judge acts as a mediator, the judge sheds, as it were, the judicial mantle for the duration of the mediation and acts in a manner inconsistent with the role of a judge by seeing the parties in private. In doing so, the judge acts in a manner contrary to the fundamental principle of natural justice that a judge must not hear representations from one party in the absence of the other. It is for that reason that the judge will not in any respect adjudicate in that action except with the consent of the parties. It is for that reason that Rule 56A.05 of the Supreme Court Rules provided:
    • “56A.05 A judicial officer who has presided over a mediation in an action shall, ipso facto, be disqualified from thereafter hearing or determining the action or any issue arising in the course thereof which is directed to be tried separately.”
  • The principle is based upon the need for public confidence in the administration of justice. The judge is disqualified because a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33]. The fair-minded observer might apprehend that the judge has been told something by one party in the absence of the other and that information may affect his reasoning.
• If I had acted as mediator in this case as requested by the parties I would have sterilized and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as Judge to hear and determine a matter which in the regular course had been docketed to me by the registry of the Court.
• Third, Chapter III Courts and Judges cannot and do not provide advisory opinions: Plaintiff M68/2015 v Minister for Immigration and Border Protection^[27]. However, parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.
• It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morling QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.
• Fourth, the process of mediation cannot be supported as a category or manifestation of judicial power not involving the adjudication of rights, on the basis of having been traditionally or historically a feature of the range of powers exercised by courts. Examples of this type of power include a court administering the assets of a trust or the winding up of companies, the maintenance and guardianship of infants, grants of probate or letters of administration, the making of rules of court and the curial examination of witnesses in relation to the affairs of bankrupts and insolvent companies, or otherwise actions of a kind “which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system [as to be]… within the concept of judicial power as the framers of the Constitution must be taken to have understood it”: The Queen v Davison^[28].
• Fifth, Boilermakers establishes that notwithstanding “…The judicial power of which s.71 speaks is not to be defined or limited in any narrow or pedantic manner”^[29], a power to prevent and settle disputes by conciliation and arbitration “is completely outside the realm of judicial power and is of a different order”^[30].
• In giving the opinion of the Judicial Committee in Boilermakers No 2 Viscount Simonds repeated the statement of the majority judgment in the High Court that “the function of an industrial arbitrator is completely outside the realm of judicial power and is of a different order”^[31] and also referred with evident approval to the statement of Taylor J in his dissenting judgment in the High Court that “It is, of course, much too late in the day to contend that ‘arbitral’ functions of the nature created by the Conciliation and Arbitration Act can ever constitute any part of the judicial power of the Commonwealth”^[32].
• Further, in rejecting Taylor J’s dissenting view in the High Court, which was based on arbitral functions bearing a number of features which were characteristic of judicial functions, Viscount Simonds observed pertinently to this case^[33]:
  • In their Lordships’ opinion this approach to the question cannot be supported. The conferment of judicial power is limited by the express enactment of Chap. III aided by s. 51 (xxxix.): it is not to be regarded as unlimited except so far as it is expressly prohibited. It is not only functions “essentially” legislative or executive in character which cannot be conferred upon a court: only those judicial functions can be so conferred which fall within Chap. III and s. 51 (xxxix.). This does not mean that there may not be room for controversy what are “powers incidental to the execution of any power vested by this Constitution … in the Federal Judicature” within s. 51 (xxxix.) (as may be seen from the judgments in Lowenstein’s Case) nor even (despite the classic and widely accepted definition given by Griffith C.J., in Huddart, Parker & Co. Pty. Ltd. v. Moorehead) what is the precise scope and meaning of judicial power. But whatever latitude may be given in either of these directions, it does not appear to their Lordships that the appellant’s case is advanced. They must wholly dissent from the view that arbitral functions (as that expression is here used) have any relevant similarity to judicial functions. The essential difference has already been pointed out. Such facts as that the same qualities of fairness patience and courtesy should be exhibited by conciliator arbitrator or judge alike and that none of them should act without hearing both sides of the case do not weigh against the fact that the exercise of the judicial function is concerned, as the arbitral function is not, with the determination of a justiciable issue.

(citations omitted and emphasis added)

As is in any event clear from the above quotation, I note that Viscount Simonds was using the expression “arbitral functions” to describe compendiously the functions of conciliation and arbitration exercisable by the Commonwealth Court of Conciliation and Arbitration: Boilermakers No 2^[34].

• In my view Boilermakers establishes that the power to conciliate is outside the concept of judicial power and accordingly, subject to consideration of the incidental power, neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator. As Deane J said in Polyukhovich^[35]:
  • Common sense and the provisions of Ch. III, based as they are on the assumption of traditional judicial procedures, remedies and methodology (see below), compel the conclusion that, in insisting that the judicial power of the Commonwealth be vested only in the courts designated by Ch. III, the Constitution’s intent and meaning were that judicial power would be exercised by those courts acting as courts with all that notion essentially requires. Accordingly, the Parliament cannot, consistently with Ch. III of the Constitution, usurp the judicial power of the Commonwealth by itself purporting to exercise judicial power in the form of legislation. Nor can it infringe the vesting of that judicial power in the judicature by requiring that it be exercised in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power. It would, for example, be beyond legislative competence to vest jurisdiction to deal with a particular class of matter in a Ch. III court and to provide that, in the exercise of that jurisdiction, the judge or judges constituting the court should disregard both the law and the essential function of a court of law and do whatever they considered to be desirable in the public interest.

(emphasis added)

Implied Incidental Powers and Express Incidental Powers (Paragraphs 39 – 46)

Under s.51(xxxix)

• The classic statement of the nature of an incidental power attached to the express grant of a power in the Constitution is that of Griffiths CJ in D’Emden v Pedder^[36] (D’Emden) at 110:
  • [W]here any power or control is expressly granted, there is included in the grant … without special mention every power and every control the denial of which would render the grant itself ineffective. This is, in truth, not a doctrine of any special system of law, but a statement of a necessary role of construction for all grants of power … and applies from the necessity of the case.
• In Cunliffe v The Commonwealth^[37] Dawson J said of implied incidental power, with reference to the passage in D’Emden above, as follows:
  • That implication is based upon the principle that a grant of power carries with it all that it required to make the grant effective.^[38] It has never been clear exactly what matters are incidental to the execution of the power vested by the Constitution in the Parliament so as to distinguish that aspect of s.51(xxxix) from the implied incidental power.
• Accordingly, it might be argued that the process of mediation is impliedly authorized by the grant of judicial power itself under s.71 or that grant together with s.51(xxxix), such that a Chapter III Judge can act as a mediator.
• However, “… the grants of legislative power in s.51 of the Constitution do not extend to making laws inconsistent with the essential character of a court exercising federal jurisdiction or with the nature of judicial power”: Graham v Minister for Immigration and Border Protection^[39]. In my view mediation is not incidental to the exercise of judicial power. Of course it is the case that “…Settlements are encouraged by the courts in the public, as well as the parties’, interests”: CSR Limited v Eddy^[40]. Nevertheless, in this connection it is appropriate to have regard to the fact that while courts and Judges in the Anglo-Australian legal tradition have regularly encouraged settlement and adjourned hearings for periods of time to allow settlement negotiations between the parties to take place, they have never regarded it as appropriate to take part in such settlement negotiations themselves.
• Further, there is certainly no inherent connection between mediation, conciliation and legal proceedings. Not all mediators have a legal background or are lawyers. People in the ordinary course of human life every day seek to mediate and conciliate disputes in all forms of human association, including within families, and such attempts to resolve human conflict take place outside the context of legal process.
• In my view mediation “does not enable nor support nor facilitate the exercise by the Court of its judicial function”: Momcilovic^[41], in which case the High Court held that it was not incidental to the exercise of judicial power for the Victorian Supreme Court under s.36(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to make a declaration that a statutory provision could not be interpreted consistently with a human right.
• The process of mediation is extraneous to, stands outside of and is not incidental to the execution of judicial power. It is anterior to and seeks to avoid the need for the exercise of judicial power. Judicial power is not rendered ineffective by denying to a Chapter III Judge the power to preside at a mediation. Whilst Parliament may commit to a court functions which are not themselves exclusively judicial, those functions must form “incidents in the exercise of strictly judicial powers”: Queen Victoria Memorial Hospital v Thornton^[42]. In my view mediation is not such an incident. Mediation is not “an integral part of the process of determining the rights and obligations of the parties” to a legal proceeding: Momcilovic^[43]. Mediation is of its nature “directed to a non-judicial purpose”: Momcilovic^[44]. Simply because mediation is beneficial, as it is, “convenient” and “efficient”: Wong v The Queen ^[45], does not make it incidental to the judicial power of the Commonwealth.
• In my view a power to mediate is not incidental to the judicial power of the Commonwealth and it consequently follows that in my view it was beyond the rule-making powers of the Judges of this Court granted to them by s.81 of the FCCA Act in relation to practice and procedure to make r.45.13B(2)(a) because it is incompatible with Chapter III of the Constitution and is therefore invalid.

Inappropriateness as an Exercise of Discretion to Appoint Judge as Mediator under r.45.13B(2)(a) (paragraphs 47 ff)

• 47.As indicated above, even if I had been of the view that it was constitutionally permissible for a Judge of this Court to be appointed as a mediator, I would not have made such an order in the exercise of my discretion.
• I am not an accredited mediator. Mediation is a craft in which education and training are regarded as appropriate and invaluable and accreditation usually entails training, competency assessment and ongoing annual professional development requirements. Parties who are to invest time, effort and cost into mediation are entitled to an accredited mediator. The characteristics required of a Judge are of quite a different order from those required of a mediator and it is well known and accepted in the profession that eminence and ability in the judicial role do not necessarily translate into the assumption by a former Judge of the role of a private mediator. As Gleeson CJ said in Attorney-General (Cth) v Alinta Limited^[46]:
  • [5] …Judges are appointed on the basis of their legal knowledge and experience. Individual judges may have other talents or interests, but what these might be is usually unknown, and is not the subject of any process of assessment, formal or informal.
• Whilst there is not necessarily any correlation between formal training and accreditation and competence as a mediator, I was of the view that it would appear unseemly and inappropriate to appoint a Judge who is unaccredited as a mediator to act as mediator between the parties in this case. This is more particularly so because of the availability of registrars of the Federal Court of Australia and this Court who are accredited mediators to conduct the proposed mediation and who I appointed to do so when I made the orders on 9 November 2018.
• Judges of this Court are able to appoint, for a modest fee payable by the parties, trained Judicial Registrars in accordance with the following passage from the website of the Federal Court of Australia:
  • Who will be the mediator?
  • The majority of court ordered mediations are conducted by Judicial Registrars who are trained and accredited by the Court under the Federal Court Mediator Accreditation Scheme (FCMAS).
  • In recognition of the Court’s unique model of mediation and commitment to a quality professional development program, the Court became a Recognised Mediator Accreditation Body in September 2015 and implemented the FCMAS which incorporates the National Mediator Accreditation Standards…
  • Parties may agree to use an external mediator at their own expense.
• It seemed to me a far preferable course to appoint a registrar of this Court, who is a trained and accredited mediator, to conduct the mediation between the parties, rather than to appoint a Judge who is untrained and unaccredited. Further, I was conscious that there are some 4,000 accredited private mediators in Australia who would have been available to conduct the proposed mediation and the cost of whom could easily have been borne between the 16 parties to this proceeding. That being the case, the only justification for appointing a Judge to be mediator appeared to be the illegitimate one of utilising the habitual deference and respect accorded to Judges in our legal system to induce or extract a settlement and “by drawing on the legitimacy and moral force that courts have developed through the performance of their inherent function, adjudication according to the traditional conception”^[47].
• I also took the view that I should give exclusive primacy to the judicial role rather than acting as a mediator. The proposed mediation involved disputation between 16 parties and I considered that it had the potential to extend over two or more days, with the possibility of adjourned mediation sessions, which are common to mediations involving either claims for substantial amounts or family disputes. I regarded it as unjustifiable to sacrifice time available for the hearing and determination of cases in favour of mediating, particularly when I am listed with hearings until mid-2020 and would have needed to vacate the hearing of at least one or two cases to make time to conduct the mediation. If the mediation had been unsuccessful I would have had to return the matter to the registry for re-allocation to another Judge of the Court who is under similar pressure and I did not consider that such a course would be conducive to collegiality because, with appropriate recognition of the stress of mediating, it does not compare with the rigour of hearing and determining cases by written judgments.
• Mediation is not for the faint-hearted and there is often little of “the majesty of the law” in evidence at them, as typically exampled by the most recent report of a mediation given to me by a Judicial Registrar of the Federal Court in a matter docketed to me, anonymised to protect the privacy of the parties:
  • Hi Judge Dowdy,
  • This Fair Work matter proceeded by way of mediation earlier today. You may recall that the applicant claims he was terminated for exercising his work place rights after complaining of bullying. The respondent denied this and said that his employment was terminated for misconduct. The applicant represented himself at the mediation, while the respondent was represented by a lawyer and its general manager.
  • Regrettably, the parties were unable to resolve their dispute as they were too polarised in their expectations. Without disclosing anything confidential, I can indicate that there was a deep animosity and distrust between the parties, which was evinced by what was a very heated group session (thereafter all negotiations were conducted by way of ‘shuttle diplomacy’ by myself)
  • However, I managed to steer the parties to resolving the logistics of the return of the applicant’s personal property that is currently stored at the respondent’s offices (many boxes of items and some furniture)…

In my view this sort of activity is far removed from the judicial role expected of a Judge in this country, and a Federal Judge should avoid it.

• Further, it is not uncommon for disputes to arise in relation to the conduct of mediations, including the conduct of the mediator at the mediation and whether or not a party to the mediation has been subject to pressure or coercion into settlement. In State Bank of New South Wales v Freeman^[48] the defendants repudiated a mediated settlement agreement on the basis that the mediator had misconducted himself by placing them under “‛sustained and unconscionable duress’ during the afternoon session of the mediation”. In von Schulz v Attorney-General Qld^[49] the applicants alleged that the relevant mediator had misconducted herself, including by falsely signing the mediator’s certificate to the effect that settlement had been reached between the parties. In Abriel v Australian Guarantee Corporation Ltd^[50] the applicants complained of the conduct and course of a mediation which led to a former Federal Court Judge, a future Federal Court Judge and a Judge of this Court giving evidence before Dowsett J in the Federal Court of Australia as to the conduct of the mediation. Finally, in Matsen v Superannuation Complaints Tribunal^[51] the applicant sought to set aside final consent orders following a court-ordered mediation on the basis that the registrar of the Federal Court who had conducted the mediation had applied pressure and duress to have the applicant enter into the mediation agreement. Although these complaints were found to be groundless, I did not consider it to be appropriate or right that as a Federal Judge I should place myself into a position susceptible to such complaints by accepting the role of mediator, or where I could otherwise be called as a witness to events at the mediation in such a case.
• Further, if I had accepted the role of mediator I would not have been prepared to evaluate for the parties their respective prospects of success because to do so would have run the risk that if the mediation failed and the matter did proceed to hearing a different Judge of the Court might take an entirely different view of the case. The prediction of the likely result of legal proceedings is fraught with uncertainty and to have a Judge of this Court at a mediation give one view of the likely or possible result of the case, and then to have another Judge of the Court subsequently determine the case in a quite different manner, had in my view a clear tendency to diminish the standing of the Court and its Judges. Nevertheless, by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.
• The final basis for not accepting appointment as a mediator was that, consistent with the above reasons, I generally agree with the views expressed by Chief Justice Warren when she said as follows^[52]:
  • The primary arguments against judges acting as mediators are also three-fold.
  • First, mediation involves an abuse of the judicial function. Judges should judge and avoid engaging in political and administrative pragmatism. Fundamentally, the judicial role is a pure one; it should not be diluted. Furthermore, there is no shortage of highly skilled mediators at the Bars, in practice, and, not to be overlooked, amongst the senior retired judiciary, a group who have been extraordinarily successful in settling some of the most difficult and contentious civil litigation in the country.
  • Secondly, it is improper for judges to engage in closed and private justice by participating in mediations. Judges are intended to conduct their work publicly. They are required to be transparent in what they do and to account for their decisions through their statements in court and their reasons for judgment. If judges participate in mediations behind closed doors, justice is closed and the community is ignorant of judicial activities.
  • Thirdly, participating in mediation involves relocating a precious judicial resource – judges – away from trials and appeals…

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^[1] [1956] HCA 10; (1956) 94 CLR 254 (Boilermakers No 1); affirmed (PC) Attorney-General (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529 (Boilermakers No 2) or jointly Boilermakers where applicable.

^[2] [1996] HCA 24; (1996) 189 CLR 51.

^[3] (2011) 245 CLR 1.

^[4] [1991] HCA 53; (1991) 173 CLR 289 at 300 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.

^[5] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at 656 [219]. See also Thomas v Mowbray[2007] HCA 33; (2007) 233 CLR 307 at 424 [336] per Kirby J; South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1at 66 [145] per Gummow J. 

^[6] Boilermakers No 2 at 532 – 533. 

^[7] [1923] HCA 53; (1923) 33 CLR 155 at 163 – 164.

^[8] [1984] HCA 9; (1984) 159 CLR 163 at 176.

^[9] [1923] HCA 53; (1923) 33 CLR 155 at 164.

^[10] [1991] HCA 32; (1991) 172 CLR 501.

^[11] [1954] HCA 46; (1954) 90 CLR 353 at 366.

^[12] [1909] HCA 36; (1909) 8 CLR 330 at 357.

^[13] [1938] NSWStRp 44; (1938) 38 SR (NSW) 583 at 591 – 592.

^[14] Polyukhovich at 607.

^[15] [1908] USSC 160; (1908) 211 US 210 at 226.

^[16] [1944] HCA 17; (1944) 69 CLR 185 at 211.

^[17] [1954] HCA 46; (1954) 90 CLR 353 at 370.

^[18] (1979) 24 ALR 473.

^[19] Tait at 492.

^[20] [1991] HCA 9; (1991) 172 CLR 84 at 150 per Gaudron J.

^[21] (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ.

^[22] See Gould v Brown (1998) 193 CLR 346 at 393 – 394 per Gaudron J and the references there cited.

^[23] [1998] HCA 9; (1998) 193 CLR 173 at 207 [70] per Gaudron J.

^[24] [1926] HCA 58; (1926) 38 CLR 153 at 176 per Isaacs J.

^[25] [1995] HCA 26; (1995) 184 CLR 348 at 365.

^[26] [2003] SASC 272 at 7 – 8 [23].

^[27] [2016] HCA 1; (2016) 257 CLR 42 at 169 [416] per Gordon J and cases there cited.

^[28] [1954] HCA 46; (1954) 90 CLR 353 at 382 per Kitto J; see also Dixon CJ and McTiernan J at 368.

^[29] Boilermakers No 1 at 278 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; see also French CJ in Momcilovic at 61 [82]: “A statute may confer upon a court a novel function which is judicial in character”. 

^[30] Boilermakers No 1 at 281 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

^[31] Boilermakers No 2 at 535

^[32] Boilermakers No 2 at 535 – 536. 

^[33] Boilermakers No 2 at 543 – 544.

^[34] Boilermakers No 2 at 536.

^[35] Polyukhovich at 607. 

^[36] [1904] HCA 1; (1904) 1 CLR 91.

^[37] [1994] HCA 44; (1994) 182 CLR 272 at 351.

^[38] D’Emden at 109 – 110. 

^[39] [2017] HCA 33; (2017) 347 ALR 350 at 357 [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.

^[40] [2005] HCA 64; (2005) 226 CLR 1 at 50 [126] per Callinan J.

^[41] (2011) 245 CLR 1 at 66 [91] per French CJ.

^[42] [1953] HCA 11; (1953) 87 CLR 144 at 151 per the Court.

^[43] Momcilovic at 97 [187] per Gummow J.

^[44] Momcilovic at 160 [401] per Heydon J.

^[45] [2001] HCA 64; (2001) 207 CLR 584 at 600 [38] per Gaudron, Gummow and Hayne JJ.

^[46] [2008] HCA 2; (2008) 233 CLR 542 at 551 [5].

^[47] Professor Lon Fuller quoted by Ipp J in Reforms to the Adversarial Process in Civil Litigation – Part 1 (1995) 69ALJ 705 at 718.

^[48] (1996) BC9607062 (Badgery-Parker J, 31 January 1996) at 7.

^[49] [2000] QCA 406.

^[50] [2000] FCA 1198.

^[51] [2017] FCA 765 at [22] – [23].

^[52] Should Judges be Mediators? Paper delivered on 27 January 2010 at the Supreme and Federal Court Judges Conference, Canberra at p.17, where the arguments for and against are helpfully explored.