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This is kind of the nub of the judicial power problem. When confronted with novel powers that impinge on common law freedoms, the policy view that it is better that courts or judges perform those functions seems to trump any reasoning about the essential nature of judicial power.
For example, issuing telephone intercept warrants — a process that is necessarily kept secret from the adversely affected party, and remains secret well after the warrant is issued and executed — plainly does not sit well with our usual conceptions of “the judicial process”.
I am not sure whether it’s something we should be concerned about, but the reality is that judges exercise lots of executive functions (or “judicial functions” that resemble executive functions), including through processes that are not “judicial” in the ordinary sense.
Eg, much time was spent in preparation in Thomas v Mowbray considering how the legislation might be justified as a “double function” law of the kind referred to by Dixon J in Barrett (see http://classic.austlii.edu.au/au/journals/FedLawRw/1990/2.pdf), but in the end the Court did not even attempt such analysis.
Over time (culminating with Thomas — but foundations were laid earlier) the Court seems to have come to accept that creating new rights is just an ordinary function within the judicial power. This is also evident in McHugh J’s reasons in Fardon (now largely accepted in Benbrika).
In contrast, in the Tasmanian Breweries case ( https://jade.io/article/66241 ), it was said that a function that did not apply law to facts to determine existing rights must “possess some special compelling feature if its inclusion in the category of judicial power is to be justified”.
It sometimes seems that this may be an area where analogical reasoning from exceptional cases may have eaten up (or may eat up) the general rule. The problem is that the exceptions are often themselves not based on clear principles, so analogical reasoning is difficult.
Should we be concerned by the creep of the accepted scope of judicial functions? It doesn’t really seem consistent with a strict separation of judicial power, but is it nevertheless consistent with the policy concerns that underlie the idea of the separation of powers?
Some contrary arguments were expressed by the dissenting judges in Vella.
As is probably apparent, I’m not sure what to think about all this, but I have a sense of unease. There are no clear or bright lines, but I have a sense that we have, at some point, crossed a threshold and it’s not clear what principles are available on this side, to grab onto.
If courts/judges should not do this (either as a matter policy or const law), do we need a 4th branch to exercise functions that are not traditionally judicial but which impinge on freedoms and which policy considerations demand should be exercised independently of the exec govt?
Discussion welcome!
