Talk:Persona designata

Court of disputed returns material

I've moved from the article to the talk page some material which seems to be about persona designata in relation to the High Court in its capacity as the Court of Disputed Returns. The material seems to be original research to me, and it doesn't really fit in with the rest of the article, so I think some sources need to be found and the material reworked before it should go back in the article. The material is in the blue box below. --bainer (talk) 03:02, 30 April 2007 (UTC)

The following extracts may underline that not judges of the High Court of Australia but any federal court judge could be appointed as "Persona designata", however, as the Framers of the Constitution warned that care should be taken that no conflict arises between the funtion of a judge to act as a Persona designata and that of his judicial office. As such, the Court of Disputed Returns, where judges are acting in the capacity of representing parliamentarians, such as in Sue v Hill could not make judicial decisions of a Court of law. But, this it precisely purported to do with the Australia Act 1986 as to seek to validate this. Likewise, the issue of any warrant by a judge in the capacity of Persona designata ought to be resisted, as it would portray a judge to act in a capacity to enforce or purportedly enforce a law of the relevant government and subsequently this judge may be faced having to hear the case in the first instance or upon appeal as to the validity of the warrant issued. This the Framers of the Constitution debated being a problem where a judge, for example, was exercising the temporary position of a governor, who might have given royal assent to legislation and then subsequently as judge of the Court having to give judgment of the validity of the very legislation that this judge in the capacity of (temporary) Governor had enacted.

While Daryl Williams Attorney-General for Australia 1996 – 2003 in his document “Judicial Power and Good Government” stated; “7. Only courts mentioned in section 71 of the Constitution may exercise that power. Federal courts cannot, generally speaking, undertake non-judicial functions.” This clearly is not supported by what the Framers of the Constitution themselves stated in regard of judges of any federal court to act in the capacity of Persona designata such as on behalf of the Parliament as a Court of Disputed Returns.

HANSARD records the following Constitutional Convention 22 April 1897 [page 1150]

  Mr. BARTON: I have to propose a new clause to follow clause 48 in this form: 
 Until the Parliament otherwise provides all questions of disputed elections arising in the Senate or House of Representatives shall be determined by a Court exercising federal jurisdiction. 
We have not said "the High Court" here, because there is power in the Constitution to invest any court with federal jurisdiction, so that this clause will work in this convenient way that the Court of a State invested with federal jurisdiction may determine such a matter in any States 

HANSARD records the following Constitutional Convention 22 April 1897 [page 1150]

  Mr. BARTON: I have to propose a new clause to follow clause 48 in this form: 
 Until the Parliament otherwise provides all questions of disputed elections arising in the Senate or House of Representatives shall be determined by a Court exercising federal jurisdiction. 
We have not said "the High Court" here, because there is power in the Constitution to invest any court with federal jurisdiction, so that this clause will work in this convenient way that the Court of a State invested with federal jurisdiction may determine such a matter in any States 

The Hon. N.J. BROWN (Tasmania)[10.27 stated, HANSARD Constitutional Convention 13 September 1897 [pages 464-466] A certain interval must elapse before the federal court is established to deal with a disputed election, and the only object of this provision is that the House itself shall deal with the matter until the federal court is established.

Australian law?

This seems to be misleading, persona designata is a well established principle in law (not just Australian Law), in relation to powers conferred by statute versus a judge acting in a normal judicial function, for instance under the authority of Judicature Acts or their equivalent. e.g. Ministry of National Revenue v. Coopers and Lybrand [1978] 1 SCR 496 (Canada) --Mgoodyear (talk) 20:06, 12 December 2007 (UTC)

Indeed, the Australian jurisprudence is almost silent and ignorant of the significant jurisprudence on the manner of operation of persona designata, particularly in the Canadian jurisprudence. The Australian jurisprudence is almost entirely focussed on the scope of permissibility with Australian constitutional constrains and does not address the questions of how the persona designata must operate in accordance with such constrains. Suastiastu (talk) 13:03, 7 November 2022 (UTC)