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Persona designata

The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court. The doctrine in the more general sense has been recognised throughout the common law countries (including the United States). Persona designata, according to Black's Law Dictionary, means "A person considered as an individual rather than as a member of a class", thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group.[1] While it has its origin in Montesquieu's doctrine of the separation of powers, it can be traced back as far as Aristotle's Politics. In Australia the doctrine is considered to be an exception to the Boilermakers' doctrine of separation of powers, which holds that conferral of non-judicial power on a Chapter III court (a federal court) is unconstitutional

While the Australian system of government is parliamentary, with a "fusion of powers" between the executive and the legislature, the separation of powers with respect to the judiciary has long been accepted as an important aspect of the Constitution of Australia.[3] The importance of the principle is traditionally said to have reached its high point in 1956 with the Boilermakers' case,[3] in which the High Court of Australia held that non-judicial power could not be conferred on a court established under Chapter III of the Australian Constitution.[4] However, Australia also has a long history of judges being appointed to non-judicial positions.[3] The idea that some non-judicial functions can be conferred on judges in their personal capacity had been present in Australian law for some time; some trace it to cases such as Medical Board of Victoria v Meyer[5] in 1937,[2] while others regard the doctrine as settled law since at least 1906,[3] and the case of Holmes v Angwin.[6] The first clear expression of the doctrine in the post-Boilermakers context was in the 1979 Federal Court of Australia case of Drake v Minister for Immigration & Ethnic Affairs, which concerned a challenge to the appointment of Justice John Davies, of the Federal Court, to the position of Deputy President of the Administrative Appeals Tribunal. In their joint judgment, Chief Justice Bowen and Justice Deane said: "There is nothing in the Constitution which precludes a justice [of a Chapter III court] from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Chapter III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."[7] The doctrine was first clearly applied by the High Court of Australia in the 1985 case of Hilton v Wells, which involved a challenge to the constitutional validity of certain telecommunications legislation which permitted telephone tapping by way of a warrant, which had to be issued by "a judge".[2] The word "judge" in that piece of legislation was defined to mean a judge of the Federal Court or of the Supreme Court of the Australian Capital Territory, or, in certain circumstances, a judge of the Supreme Court of the Northern Territory or any of the State Supreme Courts.[2] In their majority judgment, Chief Justice Gibbs and Justices Wilson and Dawson acknowledged the difficulty of determining whether a function has been conferred on a court or on a judge of that court, saying that: "It is a question which involves fine distinctions, which some may regard as unsatisfactory... the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it."[8] The Justices continued, and considered the significance of the nature of the function being conferred to the question of whether the function is to be exercised by the judge in their capacity as a judge, or in their capacity as a regular person: "If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person." [8] The High Court rejected the challenge to the constitutional validity of the legislation in a three to two decision.[2]

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