Speeches
| Judges as Mediators: a Chapter III Prohibition or Accommodation? |
Justice Michael Moore |
| 14 March 2003 |
The O 72 rr 1 - 4, together with s 53A of the , contemplate that a judge of the Federal Court might act as a mediator. This paper
discusses the constitutional issues that may arise in the context of a judge acting as a mediator. The author suggests that while
a federal judge acting as a mediator is not exercising the judicial power of the commonwealth, the judge is exercising a function
not incompatible with the exercise of judicial power of the Constitution. In 2000 Phillip Tucker published in this journal an article entitled "Judges as Mediators: A Chapter III Prohibition?" (). He developed
an argument that because of the nature of mediation and the constraints on judges deriving from Chapter III of the Constitution, there were real doubts about whether judges could act as mediators. He went further and raised issues about whether there could
be court annexed mediation undertaken by officers of a court. As far as I am aware, there has been no further consideration, at least
in a published form, of the issues he raised. The issues are important having regard to contemporary demands on our legal system
and the ongoing public debate about the role of the courts and the judiciary. The purpose of this article is to consider further
whether there are constitutional constraints on judges acting as mediators and to provide something of a counterpoint to the argument
he advanced. I will confine my analysis to federal judges and, for practical purposes, judges of the Federal Court of Australia.
I am content to accept Tucker's description of the process of mediation and the role of a mediator. It is an orthodox one. It may
be summarised this way. Mediation is usually conducted in private, is confidential, flexible and informal. The mediation process
ordinarily begins with opening statements from the mediator and the parties to the dispute. The task of the mediator is to draw out
the issues raised in each of the party's opening statements. The mediator will often also spend 'private time' with each party to
draw out any further issues a party may, for one reason or another, fail to disclose in the group mediation sessions. Any sensitive
information disclosed to the mediator in a private session may well be withheld from the other party. At some point in the process
the mediator may engage the parties in 'reality testing' and 'doubt creation'. For example the mediator may raise hypothetical situations,
intended to create doubt in the minds of the parties about the viability of alternatives to settlement. The general framework of
mediation, and the corresponding function of the mediator, is designed to shift the attention of the parties from the immediate legal
problem to the resolution of the dispute between the parties on an agreed basis.
Having regard to existing authority it is difficult to contend that a judge, in performing this role of a mediator, is exercising
the judicial power of the Commonwealth. Why this is so will, I trust, be apparent shortly. However the critical issue is whether
judicial mediation (a shorthand description of a federal judge acting as a mediator) is prohibited or precluded by Ch III. The thesis
of this paper is that Ch III does not prevent a judge acting as mediator. It is probably unnecessary to refer throughout this paper
to the operation of Ch III on laws which might confer power on judges. It is the constitutional validity of those laws which is often,
though not always, the context in which the effect of Ch III is considered by the High Court in particular. For present purposes,
it is sufficient for issues to be discussed as if there was always a direct link between Ch III and the conduct or functions of federal
judges.
Tucker's conclusion was essentially that there was an impermissible incompatibility between a judge acting as mediator and the judicial
function. His conclusion was substantially based on the following observations of the majority of the High Court in [1995] HCA 26; (1995) 184 CLR 348 Brennan CJ, Deane, Dawson and Toohey JJ said (in a passage quoted by Tucker):
The incompatibility condition may arise in a number of ways. Incompatibility might consist in so permanent and complete commitment
to performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge
is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge
to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial
functions of such a nature that public confidence in the integrity of the judiciary as an institution or on the capacity of the individual
judge to perform his or her judicial functions with integrity is diminished. ()
In summary, Tucker developed his argument this way. Mediation involves processes quite different to the judicial process. Accordingly,
acting as mediator cannot involve the exercise of judicial power. For a judge to act as a mediator it could only be as a persona
designata. In the above passage from Grollo, four of the members of the court who constituted the majority identify three ways incompatibility could occur. The third concerns
performance of non-judicial functions of a nature which would undermine confidence in the integrity of the judiciary either individually
or institutionally. Tucker's reasoning concerning why there may be incompatibility arising from a judge acting as a mediator, is
probably encapsulated in the following passage from his article:
Judges' conduct of mediations would, it is submitted, pose a very real threat to the "bubble of impartiality" that surrounds the judiciary
and which is essential in maintaining the legitimacy of its decisions. The potential for placing judges in an invidious position
in terms of conflicts in the face of the obligation of confidence, and judges' openness to attack upon their conduct of mediations
owing to a lack of transparency of the process, too seriously threatens public confidence in the judiciary for judges undertaking
mediations to be constitutionally acceptable in the face of the High Court's recent pronouncements concerning the need for judges'
functions and roles to be restricted to proper exercises of judicial power. ()
It will be appropriate to discuss, in due course, some of the specific matters of apparent concern referred to by Tucker. However
it is convenient first to discuss more generally what the exercise of judicial power entails and the reach of what might be described
as the doctrine of incompatibility.
The High Court has never sought to define or describe judicial power in an exhaustive or exclusive way. () This is so notwithstanding
the numerous authorities in which the content and characteristics of judicial power for the purposes of Ch III have been considered
and the variety of contexts in which the issue has arisen. At the heart of the judicial function is the resolution of disputes or
controversies. Tucker does not expressly refer to this aspect of the judicial function. It is likely that he accepts it as a given
because the focus of his analysis is on process. That is, the process by which disputes or controversies are resolved by mediation
compared to the process by which they are resolved by the exercise of judicial power. As will be discussed shortly, it cannot be
doubted that process is, in a sense, defining of the judicial function. But it is process engrafted onto the function of resolving
disputes and controversies.
In Huddart, Parker & Co Pty Ltd v Moorehead (1909) CLR 330 at 357 Griffith CJ gave what might be described as the classic definition of judicial power ():
I am of the opinion that the words 'judicial power' as used in sec. 71 of the Constitution mean 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. The exercise of this power does not begin until some tribunal
which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
Griffith CJ's description of judicial power ascribes a functional role to the courts.
That courts function to decide controversies, points, at the most fundamental level, to compatibility rather than incompatibility
between the judicial function and other functions or procedures, such as mediation, directed to a similar end. Mediation is directed
to the resolution of disputes or controversies though by agreement and not decision. The manner in which disputes are resolved and
attendant process are, of course, important. Judicial power is a controlled power as opposed to an arbitrary power, and is controlled because judicial power is tied to pre-existing law. () Often descriptions
of judicial power also refer to process. In (1983) 152 CLR 570 judicial power was described as the power to decide controversies by judicial process (that is, by the ascertainment of facts, by
application of law, and by exercise of judicial discretion if appropriate ). ()
Judicial process is a method and procedure with which to resolve disputes protected under Ch III. It is a protection immunising the
judicial process from inappropriate legislative or executive control or direction and a protection preserving the integrity of the
judicial function by requiring adherence by a judge to the judicial process when exercising judicial power. Tucker appears to go
further by suggesting that judicial process is protected by the Constitution in the sense that a judge cannot engage in a dispute resolution function which will not involve adherence to judicial process.
There is considerable support for the proposition that judicial process is protected, in the first sense just discussed, under the
Constitution. In (1992) 174 CLR 455 at 470 Mason CJ, McHugh and Dawson JJ noted that any attempt by the legislature to cause a Ch III court to act in a way contrary
to natural justice may impose a non-judicial requirement inconsistent with the exercise of judicial power. To similar effect, Brennan,
Deane and Dawson JJ in (1992) 176 CLR 1 at 27 said that Commonwealth legislative powers do not extend to the making of laws which would require a Ch III court to act in
a manner inconsistent with the essential nature of the court or the nature of judicial power.
Not only does the Constitution insulate judicial power from the reach of inappropriate use of legislative and executive power, it may also provide protection in
the second way discussed earlier. That is, judicial power must be exercised in accordance with judicial process. McHugh J in an article
"Does Chapter III protect substantial as well as procedural rights?" suggests that Ch III arguably 'dictates' and 'controls' the
manner of the exercise of judicial power. () In [1996] HCA 18; (1996) 189 CLR 1 at 22 () Gaudron J indicated that judicial process is so central to the exercise of judicial power that it forms part of that power.
Her Honour also said that judicial power is not simply a power to settle justiciable controversies, but a power which must be and
must be seen to be exercised in accordance with judicial process.
The full scope of the procedural protections afforded by Ch III has not been explored exhaustively in decisions of the High Court.
However there has been some judicial consideration of the possible range of protections. For example, in [1991] HCA 29; (1991) 172 CLR 460 at 496 Gaudron J included, within the scope of judicial process, open and public inquiry, natural justice, and proper process or
procedure (the finding of facts, the application of law and the application of the law to facts). Furthermore, there have been indications
that the fundamentals of the adversarial system may be protected under Ch III. In [2002] HCA 16; (2001) 188 ALR 1 at 4 Gleeson CJ saw the adversarial context as imposing practical limitations upon the way in which the judiciary can resolve legal
questions.
In a reference to the more active case management strategies adopted by Australian courts, such as the Federal Court, Creighton argues
that any further modification of the adversarial system to a more interventionalist system may be prohibited by the Constitution. () In (1997) 189 CLR 146 the High Court identified limits in the application of any system of case management. Dawson, Gaudron and McHugh JJ cautioned against
regarding case management as an end in itself. () As they saw it, the ultimate aim of a court is the attainment of justice and principles
of case management could not supplant that aim. ()
Creighton suggests that the result in Queensland v J L Holdings Pty Limited raises the question of whether case management, in any of its many manifestations, offends the guarantee of procedural fairness.
() Kirby J, who agreed with the majority, saw an ongoing relation between the modern imperative for changes in case management and
the older traditions at the heart of judicial power. His Honour said:
Although "some form of case management has always existed", the role of judges in Australia has increased greatly in recent years.
Such functions are now regarded as a necessary and orthodox part of the judicial function. The view has been expressed by experienced
Australian judges that, without more effective management of litigation, the system would be likely to collapse…[However]
obviously in respect of federal courts, and possibly State courts, constitutional considerations establish the outer limits of permissible
managerial practices. ()
Even though it appears Ch III ensures that judicial power must be exercised by deploying judicial process, cases like Queensland v J L Holdings Pty Limited illustrate the tension between tradition and change. Judicial process, even viewed as an essential element of judicial power, cannot
be viewed as static. In [1995] HCA 10; (1995) 183 CLR 245 at 267 the majority of the High Court rejected the proposition that judicial power can be defined as simply what courts do and the
way in which they do it. The majority said that would place reliance upon the elements of history and policy which, whilst they are
legitimate considerations, cannot be conclusive. ()
The operation of Ch III in a way that accommodates contemporary demands of our legal system can be illustrated by the decision of
the High Court in [1991] HCA 9; (1991) 172 CLR 84 upholding the validity of laws authorising changes to the administration of the Family Court of Australia by the judges of the court.
In issue was the validity of rules made under the Family Law Act 1975 (Cth) and the provision which authorised the court to make them. The rules authorised registrars of the Family Court to exercise
judicial power on delegation. The provisions authorising the delegation of judicial power (subject to review by the judges in a hearing
de novo) significantly changed the structure, at least in a practical sense, of the court and altered how justice was administered
within the court. The impugned provisions impacted on the judicial process in its broadest sense. The High Court accepted that, in
practice, judicial process (in the wider sense which includes the administration of justice) is an evolving and developing process.
Mason and Deane JJ described the provisions as marking a further stage in the process of evolutionary development in the way in which
courts are structured and constituted for purposes connected with the exercise of their jurisdiction. () The High Court held that
the provisions facilitating change to the structure of the Family Court were valid.
Having made these general observations about judicial power and the judicial process it is appropriate to consider, more directly,
the issue of incompatibility between judicial mediation and the judicial function. However I have, to this point, endeavoured to
illustrate two things. The first is that existing authority points to the procedural requirements deriving from Ch III attending
only the exercise of judicial power and not any other function a judge might perform. The second is that the existence of those requirements
is to protect the integrity of judicial power and the judiciary as a third arm of government.
As noted earlier, Tucker suggests that judicial mediation is not the exercise of judicial power and can only be justified on the basis
that a judicial mediator would be acting as a persona designata. Accepting that the first part of this proposition is correct, is
the second part? Even if it is, is that characterisation of the role of any real relevance? The incompatibility doctrine is a recent
and an important development in High Court decisions concerning judicial power. Blackshield and Williams characterise the incompatibility
doctrine as more than an exception to the persona designata doctrine. The incompatibility doctrine has 'emerged' as a further, and
perhaps separate, limitation on the functions validly undertaken by a Chapter III judge. ()
It may be that the incompatibility doctrine has been developed by the High Court, at least in part, to ensure that the legislature
could not use the persona designata exception to undermine the fundamentals of the separation of powers. Mason and Deane JJ point
this out in their dissenting judgment in [1985] HCA 16; (1985) 157 CLR 57. () Their Honours saw the growing practice of Parliament conferring non-judicial power on a judge (as distinct from the court in which
they belong, having the potential to undermine the Boilermaker's Case if not keep within proper and careful confines. It appears to be self-evident that when a judge acts as mediator he or she does not
enter a domain which involves, of its nature, an inappropriate melding of judicial, legislative or executive power.
The incompatibility doctrine includes notions of compatibility as well. The majority in Grollo pointed out:
Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's
continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and
sensitive to the common law's protection of privacy and property (both real and personal), be authorised to control the official
interception of communications. In other words, the professional experience and cast of mind of a judge is a desirable guarantee
that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected
sources of information about crime on the other. It is an eligible judge's function of deciding independently of the applicant agency
whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It
is the recognition of that independent role that preserves public confidence in the judiciary as an institution. ()
The attributes and professional experience ordinarily demanded of a judge and the judicial characteristic of impartiality (both perceived
and real) are attributes and experience often required of a mediator. That the same characteristics are required in both roles may
militate against a conclusion that acting as a judicial mediator is incompatible with the judicial function. Whilst the majority
indicated the "arguments" against the validity of judges granting warrants were "troubling", their Honours said:
as with courts in the United States, the argument can be met by the adoption of an appropriate practice. A judge who has issued a
warrant in particular matter can ensure that he or she does not sit on any case to which the warrant relates. That is the practice
followed when a judge has received information extra-curially which might prove embarrassing to the impartial hearing and determination
of the case. Of course the risk of such a situation arising and, in particular, of a judge discovering later in the day that he or
she has issued a warrant on the basis of which evidence is to be tendered, is increased when there are but few judges appointed to
a court…But that is a matter for individual judges. ()
Similarly it is not difficult to conceive of measures that can be put in place within a court, perhaps underpinned by legislative
provisions and rules of court, to ensure that a judge who has acted as a mediator had no involvement with the further conduct of
the litigation if mediation was unsuccessful. For my part, I doubt that, in the face of such measures, there would be a public perception
that the measures would not be effective. In any event it is difficult to conceive that a judge who had acted as a mediator might
later hear the matter without violating established principles concerning the perception of bias (other than, perhaps, where there
have been waiver by the parties).
While the incompatibility doctrine was discussed by the High Court in Grollo v Palmer, it was not until Wilson that the doctrine was applied to restrain a judge from performing a function which was not judicial. In Wilson the court made it clear that the doctrine was a constitutional one which differed from the common law doctrine of incompatibility.
Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ pointed out that the purpose of the constitutional doctrine is to protect the independence
of Ch III judges from the political branches of government. () The independence of Ch III judges from the other branches of government
acted as a buttress to public confidence in the administration of justice. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ went
so far to suggest that the key to public confidence is to keep the judiciary separate from persons exercising the political functions
of government. ()
What constitutional purpose would be served by an approach that within the existing court system, judges cannot act, even in appropriate
cases, as mediators as part of a system of dispute resolution provided by the State as an adjunct to the courts? The answer might
be found in the observations of the present Chief Justice of New South Wales in an article on open justice:
I repeat, the courts do not provide a public funded dispute resolution service to litigants as consumers. The courts perform a core
function of government: the administration of justice according to law. A dispute resolution "service" can be delivered more economically
in private. Indeed, privacy is frequently cited as a motive for participating in alternative dispute resolution. Although mediation
and arbitration have important role to play, we should not, however, forget the public interest that is served by open justice. ()
It is true there is a risk that by suggesting judges may act as mediators as an adjunct to the traditional and essential role of the
courts of deciding legal controversies according to law, that role and the courts may be diminished, as a matter of public perception,
for the reasons given by the Chief Justice. However whether this occurred, in my view, would substantially depend on the extent to
which and the circumstances in which judges elected to act as mediators. For reasons I am about to discuss, a judge acting as a mediator
will be a subsidiary role both for a particular judge and the judges collectively constituting a court as a whole. If that is so
then the risk just discussed is not, in my opinion, a great one nor a sufficient foundation to conclude, as a matter of constitutional
desirability or necessity, that judges cannot act as mediators.
It is probable that for any particular judge, the time that would be devoted to mediation would be limited. This would be so both
because of the first incompatibility condition identified in the passage from Grollo set out earlier and the pressures within courts to resolve, by traditional determination, the ordinarily lengthy list of cases which
are not settled (whether by mediation or otherwise). In addition, there will be judges who do not wish to act as mediators because
they consider it is inappropriate or they may consider they do not have the requisite skills. This is recognised in the Guidelines to Judicial Conduct recently promulgated on behalf of the Council of Chief Justices of Australia. Those guidelines say:
4.7 The judge as mediator
Many judges consider that the role of a mediator is so different from that of a judge that it is undesirable for a serving judge to
act as mediator. The difference lies in the interaction of a mediator with counsel and parties, often in private-ie in the absence
of opposing counsel or parties, which is seen to be incompatible with the way in which judicial duties should be performed, with
the risk that public confidence in the judiciary may thereby be impaired. Many judges would see this as a matter of Court policy.
In some courts, the Rules of Court with respect to mediation specifically recognise the appointment of a serving judge as a mediator.
The success of judicial mediation in those jurisdiction appears to justify the practice. The statutory obligation of confidentiality
binding upon a mediator, and the withdrawal of the judge from the trial or an appeal, if mediation fails, should enable a qualified
judge to act as a mediator without detriment to public expectations of the judiciary. ()
In developing the doctrine of incompatibility, the High Court drew on United States authority and in particular Mistretta v United States [1989] USSC 9; 488 US 361 (1989) which was the first occasion on which the Supreme Court of the United States had been called on to decide the constitutionality
of extra judicial service (in that matter, the establishment of a Sentencing Commission located in the Judicial Branch comprising
judges and non-judges formulating sentencing guidelines was held to be constitutional cf [2001] HCA 64; (2001) 207 CLR 584).
In the United States the role of judges acting as mediators has expanded significantly and particularly in the last two decades. ()
There has been no suggestion, as far as I am aware, in either authority or academic commentaries that there is incompatibility, for
the purposes of Art III of the United States Constitution, arising when judges act as mediators. Indeed I have not seen it suggested (in litigation or academic writing or otherwise) in the
research I have undertaken that a judge acting as a mediator might be viewed in the United States as not exercising a power that
falls within the Judicial Branch.
It is true that the role of juries in civil trials in the United States has meant that trial judges, as part of case management of
cases in their docket, have been able to develop a fairly robust approach to settlement discussions in pre-trial hearings even though
they will be the trial judge if the matter does not settle. Indeed, at least some academic commentators are suggesting that restraint
by judges is necessary when engaging in pre-trial processes, including mediation, to ensure that power is not abused. () Nonetheless,
Rules 16 of the Federal Rules of Civil Procedure makes it comparatively clear that mediation by judges is an accepted part of the judicial process in the United States. Rule 16(c)(9)
authorises the use of "special procedures…..when authorised by statute or local rule". The advisory notes to this rule list
several special procedures which a court may utilise to prompt "consensual resolution of the dispute without trial merits". These
procedures include; "mini trials, summary jury trials, mediation, neutral evaluation, and non binding arbitration". () It is also
comparatively clear that in conducting mediation some judges feel able to speak to the parties separately during mediation even though
they will be the trial judge if no settlement occurs. ()
I do not suggest the American model is appropriate for Australia. Nonetheless in one common law jurisdiction in which a doctrine of
incompatibility operates, judges engage in mediation without the role of the judiciary being diminished. In a court in which a docket
system operates, such as the Federal Court of Australia, situations are likely to arise when a docket judge believes that a particular
case might be settled for the benefit of all parties if it is sensitively and carefully mediated. The belief may be based on observations
of the parties, their legal representatives and an understanding of the issues arising from the case management of the matter. The
judge might also believe the prospects of settlement are likely, in mediation, to be sufficiently high to justify a decision that
he or she engage in mediation as a mediator. () Such cases may well be infrequent. But, in my experience, they do arise. Indeed I
suspect that the parties might often welcome the opportunity of having the docket judge act as mediator.
There is the always the risk that if mediation fails then, consistent with what I believe ought to happen which is reflected in the
Guide to Judicial Conduct, the judge will no longer have any involvement with the case. But the assessment of that risk would be
for the judge to make aided by the submissions of the parties. It may be that, in an appropriate case, the docket judge might consider
judicial mediation was warranted but should be undertaken by another judge even though that other judge would not have the benefit
derived from having case managed the matter. If that occurred the docket judge could maintain involvement with the case if it did
not settle, and hear the trial. It should be said, that the cases in which mediation might be appropriate are not only commercial
cases. In the fields of human rights, industrial relations and native title, to mention but some, judicial mediation could bear fruit
notwithstanding that in each instance there is a statutory body with a conciliation/mediation role. Often the dynamics of a case
alter when it reaches a court.
I conclude by saying that even if, as I believe is the case, there is no constitutional impediment to judges acting as mediators,
there will not be a wholesale assumption of that role by the judiciary. It is a role that is likely to be taken up sparingly. There
will remain a significant, and almost certainly increasing, role for mediators drawn from the profession and elsewhere as the legal
system and the courts focus more on alternative dispute resolution, including mediation, as a means of resolving legal disputes.
Notes
Federal Court of Australia. The views expressed in this paper are mine. They are not advanced as the views of the Federal Court.
I express my thanks to my research assistant Fleur Ramsay for her contribution to the preparation of this paper.
. Tucker P, 'Judges as mediators: A Cpapter III Prohibition? (2000) 11 ADJR 84
. Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 356
. Tucker, n 1, 94.
. See for example Re Nolan; Ex Parte Young [1991] HCA 29; (1991) 172 CLR 460 at 497 per Gaudron J, 'It may not yet be possible to define "judicial power" in a way that is "at once exclusive and exhaustive".'
. See Love v Attorney-General (NSW) (1990) 169 CLR at 319
. See also Blackshied Y and Williams G, Australian Constitutional Law & Theory (Federation Press, 2002) at 621. Blacksheid refers to judicial power as a controlled power 'in a sense that its exercise must be
based on authoritative legal materials; the rules, principles, conceptions and standards applied must be drawn from existing law'.
. Fencott v Muller (1983) 152 CLR 570, 608 per Mason, Murphy, Brennan and Deane JJ. This quote was also used by Tucker, n 1, 86. See also Brennan CJ who wrote in 1996
the 'settlement of disputes by legal process is the fundamental function of government in a society under the rule of law' in 'Key
Issues in Administration' (1996-1997) 6 JJA 140.
. (2001) @! ABR 235.
. See also Deane J in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 607 who observed Chap III is based 'on the assumption of tranditional judicial procedures, remedies and methodology'.
. Creighton A, An Adversarial System: A Constitutional Requirement" (1991) 74 Reform 65.
. Queensland v J L Holdings Pty Limited (1997) 189 CLR 146, 154.
. Queensland v J L Holdings Pty Limited, n 11 at 154.
Creighton, n 10, 66
. Queensland v J L Holdings Pty Limited (1997) 189 CLR 146, 168-169.
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 267.
. Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 92.
Blackshield and Williams, n 6, 629-630.
. Their Honours said, 'The ability of Parliament to confer non-judicial power on a judge of a Chapter III court, as distinct from
the Court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers Case.
. Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 376.
. Grollo v Palmer, n 19, 366.
. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 15.
. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, 15.
. Spigelman CJ, 'Seen to be Done: the Principle of Open Justice" (2000) 74 ALJ 381.
. Council of Chief Justices of Australia, Guide to Judicial Conduct (Australian Institute of Judicial Administration, Victoria, 2002), 16-17
. Galanter M, 'The Emergence of the Judge as a Mediator in Civil Cases' (1996) 69 (5) Judicature 257
. Peterson T, 'Restoring the Structural Checks on Judicial Power in the Era of Managerial Judging' (1995) 29 UC Davis Law Review 41.
. Richey J, 'Rule 16 Revised, and Related Rules: Analysis of Recent Developments for the Benefit of Bench and Bar' 157 FRD 69.
. Peterseon, n 26, at 18. Provine M, 'Settlement Strategies for Federal District Judges' (Federal Judicial Center 1986) 26.
. DeGaris AH, 'The Role of Federal Court Judges in the Settlement of Disputes' [1994] UTasLawRw 12; (1994) 13 University of Tasmania Law Review 217.
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