[7] 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 Daryl Davies, of the Federal Court, to the position of Deputy President of the Administrative Appeals Tribunal.
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.
"[8]The doctrine was first clearly applied by the High Court of Australia in the 1985 case of Hilton v Wells,[9] 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".
Mason and Deane JJ were of the opinion that conferring non-judicial functions could not be granted to a Chapter III court without undermining the doctrine in Boilermaker's Case and the separation of powers prescribed by the Constitution as 'a safeguard of individual liberty'.
[10] Two broad limits to the doctrine have been identified, which essentially act as preconditions to the conferral of a non-judicial function: The issue of incompatibility was expounded in the 1995 case of Grollo v Palmer,[11] which concerned new provisions in the same telecommunications legislation that had been considered in Hilton v Wells.
[3] In a joint majority judgment, Chief Justice Brennan and Justices Deane, Dawson and Toohey, discussed what situations might enliven the incompatibility condition: "Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable.
"[11]The majority held that, although the function of issuing warrants was closely connected with the purely executive process of law enforcement, it did not amount to judicial participation in a criminal investigation (which would be incompatible) and that the participation of impartial, independent judicial officers in the process would actually reinforce public confidence in the judiciary.
[3] In 1996, the High Court applied the incompatibility condition in the case of Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[12] which concerned the appointment of Justice Jane Mathews of the Federal Court to prepare an Indigenous heritage report in relation to the Hindmarsh Island bridge development.The court held that legislation authorising the appointment was invalid, because the functions conferred, which included forming opinions and giving advice about areas which should be protected under heritage legislation, were incompatible with judicial office.
"[14] and affirmed in Minister of Indian Affairs & Northern Development v. Ranville (1982) where Dickson J. held: " I was rather of the opinion that this troublesome notion of persona designata had been given its quietus in the recent Herman decision.