Cook, A.G.H. v The Administration of Norfolk Island

Re: ADRIAN GEORGE HINGSTON COOK
And: THE ADMINISTRATION OF NORFOLK ISLAND
No. N G427 of 1991
FED No. 923
Number of pages - 99
Legal Practitioners - Territories
(1992) 111 ALR 453
(1992) 39 FCR 297

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Beaumont(1) and Lee(1) JJ.

CATCHWORDS

Legal Practitioners - Barristers - admission to practise in Norfolk Island - Norfolk Island Supreme Court - whether power to admit - whether discretion to refuse to exercise power properly exercised - observations on the history and development of Bars in the UK and colonial and post-federation Australia, and the Court's role therein.

Territories - Constitutional, judicial and legal history of Norfolk Island examined.

The Commonwealth Constitution 1901.

The Judiciary Act (Cth) 1903.

The Norfolk Island Act (Cth) 1913.

The Norfolk Island Act (Cth) 1935.

The Norfolk Island Act (Cth) 1957.

The Norfolk Island Act (Cth) 1963.

The Norfolk Island Act (Cth) 1979.

The Australian Capital Territory Supreme Court Act (Cth) 1933

The Barristers Admissions Act (NSW) 1882.

The Legal Practitioners Act (NSW) 1898.

The Legal Profession Act (NSW) 1987.

The Administration Law (Norfolk Island) 1913.

The Administration Ordinance (Norfolk Island) 1936.

The Judiciary Ordinance (Norfolk Island) 1936.

The Supreme Court Ordinance (Norfolk Island) 1960.

The Judicature Ordinance (Norfolk Island) 1960.

The Norfolk Island Act (Imp) 1794.

The Third Charter of Justice for New South Wales (Imp) 1823.

The New South Wales Act (Imp) 1823.

The Australian Courts Act (Imp) 1828.

The Australian Waste Lands Act (Imp) 1855.

Wentworth v. NSW Bar Association (1992) 66 ALJR 360.

HEARING

SYDNEY

#DATE 4:12:1992

Counsel and Solicitors : Sir Maurice Byers QC with
for Appellant: Phillip Esler and Phillip Durack

instructed by W.G. McNally and Co.

Counsel and Solicitors : Christopher Gee QC with
for Respondent: Gary Gregg instructed by the Crown

Solicitor for Norfolk Island

ORDER

The Court orders:

That the appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

INTRODUCTION

BLACK C.J., BEAUMONT AND LEE JJ. Adrian George Hingston Cook, a member of the New South Wales Bar, applied to the Supreme Court of Norfolk Island for an order that he be "admitted to practise as a Barrister in the Supreme Court of Norfolk Island and in all other Courts in the Territory of Norfolk Island". The application was dismissed by Morling C.J. on discretionary grounds (see (1991) 102 ALR 281), although we should state at the outset that no question arises as to Mr. Cook's fitness or qualifications to practise as a barrister. Mr. Cook now appeals from this order.

The application was the first of its kind, no person having previously sought admission to practise, either as a barrister or as a solicitor, in Norfolk Island.
Mr. Cook was admitted to the Bar in New South Wales in May 1953. He resides in New South Wales. On 12 November 1990, as a barrister and solicitor of the Supreme Court of the Australian Capital Territory, Mr. Cook was appointed to be one of Her Majesty's Counsel for that Territory.
In November 1953, Mr. Cook's name was entered as a barrister in the Register of Practitioners now maintained at the Registry of the High Court of Australia pursuant to the provisions of s.55C of the Judiciary Act 1903.
By s.55D(1) of the Judiciary Act, a person whose name is on (a) the roll of barristers and solicitors of the High Court, or (b) the roll of barristers, solicitors, barristers and solicitors or legal practitioners of the Supreme Court of a State or Territory, is entitled to practise as a barrister and solicitor in any Territory. Section 3A of the Judiciary Act, inserted by the Judiciary Amendment Act 1976 s.3, now provides that the Act extends to all the Territories. The precursor of this provision, inserted in the Judiciary Act in 1959 (by Act No. 50 of 1959), was in the following terms:

"3A (1) Without prejudice to the application of this Act in a Territory forming part of the Commonwealth, section... forty-nine... of this Act extend(s) to all the Territories.

(2) A reference in this Act to the Supreme Court of a Territory shall, in relation to Norfolk Island, be read as including a reference to the Court of Norfolk Island sitting in its Full Jurisdiction".

By s.49(1) of the Judiciary Act 1903, as it then stood, it was provided that any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any federal court. It will be necessary to return to these provisions later.
However, the effect of the Judiciary Act is that Mr. Cook is entitled, irrespective of any question of his admission by the Supreme Court of Norfolk Island, to practise as a barrister in Norfolk Island.

THE REASONING AT FIRST INSTANCE
8. In dismissing the application, Morling C.J. proceeded in several stages as follows:
(a) Did the Supreme Court have power to grant the application?
Morling C.J. held (at 284) that the Supreme Court had "jurisdiction to admit persons to practise as barristers in the Territory of Norfolk Island and to grant the present application" for the following reasons:

(i) The Supreme Court was established by the Norfolk Island Act 1957. Although that Act was repealed by the Norfolk Island Act 1979 ("the 1979 Act"), by s.52(1) of the 1979 Act, the Court continued in existence as "the Superior Court of Record of the Territory". By s.59 of the 1979 Act, the jurisdiction, practice and procedure of the Supreme Court shall be as provided by or under "enactment", a term which includes any "Ordinance continued in force by (the 1979) Act" (s.4(1)). This, in turn, includes the Supreme Court Ordinance 1960, s.5 of which provides that the Supreme Court has the same jurisdiction in and in relation to the Territory as the Supreme Court of the ACT has in and in relation to the ACT

(ii) By s.11 of the Australian Capital Territory Supreme Court Act 1933, that Court has the same original jurisdiction, civil and criminal, as the Supreme Court of New South Wales had in relation to that State immediately before 1 January 1911.

(iii) The Supreme Court of New South Wales at that date had jurisdiction, originally conferred under the Third Charter of Justice for New South Wales 1823 ("the Charter of Justice") to admit persons to practise as barristers.

(b) Did Mr. Cook have a right to be admitted in Norfolk Island?
9. Having referred to the position in New South Wales and, in particular, to the power granted under the Charter of Justice to the Supreme Court in New South Wales to admit practitioners, his Honour held that, although Mr. Cook had the right to apply for admission, an order for admission in that State, and hence in the Territory, was a matter of judicial discretion, and not of right.

Morling C.J. also rejected an argument put by Mr. Cook that he had a statutory right to admission in Norfolk Island by virtue of s.55D of the Judiciary Act, the text of which is, relevantly, as follows:

"55D(1) Subject to this section, a person whose name is on:

(a) the roll of barristers and solicitors of the High Court kept under the Rules of Court; or

(b) the roll of barristers, solicitors, barristers and solicitors or legal practitioners of the Supreme Court of a State or Territory;

is entitled to practise as a barrister and solicitor in any Territory unless the entitlement to practise is suspended under the Rules of Court, the law of the State or the law in force in the firstmentioned Territory (including this Act), as the case may be.

55D(2) ...

55D(3) ...

55D(4) A person who is entitled under sub-section (1) to practise as a barrister and solicitor in a Territory is entitled so to practise in any court of the Territory...

55D(5) This section does not affect the operation of a law of a Territory (whether made before or after the commencement of this section) in so far as that law provides for the admission by the Supreme Court of the Territory of persons to practise as barristers or solicitors, or as both, in the Territory and for the suspension or discontinuance of their entitlement to practise. 55D(6) Where:

(a) a law of a Territory contains provisions of the kind referred to in subsection (5); and

(b) under the provisions, a person who:

(i) would, but for this sub-section, be entitled under subsection (1) to practise as a barrister and solicitor in the Territory;

(ii) duly applies to the Supreme Court of the Territory to be admitted to practise as a barrister and solicitor in the Territory; and

(iii) satisfies the Supreme Court that he or she is of good fame and character;

is entitled, even though the person resides or practises in a State or another Territory:

(iv) to be admitted to practise as a barrister and solicitor in the Territory; and

(v) on being admitted to practise, to practise in the Territory, subject only to the same conditions and restrictions as apply in relation to other persons admitted to practise in the Territory;

sub-sections (1), (3) and (4) do not apply in relation to practice in the Territory..."

Mr. Cook submitted that, as it was common ground that he was of good fame and character, he was entitled under s.55D(6) to be admitted to practise as a barrister in Norfolk Island. In this connection, Mr. Cook contended that there were two laws of the Territory of the kind described in s.55D(5):

(a) Section 5 of the Supreme Court Ordinance 1960. As has been seen, this gives to the Norfolk Island Supreme Court the same jurisdiction as the ACT Supreme Court; and

(b) Sections 3 and 10 of the Judicature Ordinance 1960. By s.3 of the Judicature Ordinance, subject to any Act, Imperial Acts and Ordinances in force in the Territory, all statutes and laws made under statutes in force in England on 25 July 1828 (being the date of the passing of Imperial Statute 9 Geo.IV, c.83 ("the Australian Courts Act")) are, so far as they are applicable, in force in the Territory. By s.10, the Court shall give effect to all claims and rights created by, inter alia, any Imperial Act in force in the Territory.

Mr Cook argued that, since provision had been made by the Charter of Justice (being the Letters Patent dated 13 October 1823, authorised by the New South Wales Act 1823, 4 Geo.IV, c.96) for the admission of practitioners in New South Wales, there was in force in the Territory, as at 25 July 1828, a law containing provisions of the kind referred to in s.55D(5).
Morling C.J. rejected this submission (at 286):

"In my opinion, neither s 5 of the Supreme Court Ordinance nor s 3 of the Judicature Ordinance is a law of the Territory containing provisions of the kind referred to in s 55D(5). I think it is reasonably plain that the Territory law referred to in s 55D(5) is a law which makes specific provision for the admission by the Supreme Court of persons to practise as barristers or solicitors, or as both, in the Territory: cf the Legal Practitioners Ordinance 1970 (ACT) and the Legal Practitioners Act 1974 (NT). Even if I am wrong in this opinion, I do not think it can be said that 'under the provisions' of the laws referred to by Mr Cook he would be entitled under s 55D(1) to practise as a barrister in the Territory.

In any event, I think the submission that s 55D(6) gives a legal right to admission is misconceived. The reference in s 55D(6)(b) to a person being 'entitled' is not a reference to an entitlement granted by the sub-section. It is a reference to an entitlement under the provisions of a law of the Territory. There is no such entitlement under any law of the Territory.

Accordingly, I do not think Mr Cook has shown that the court has no discretion to refuse his application because he has a legal right to be admitted as a barrister of the court."

(c) Should the Court establish its own roll of barristers?
14. In exercising the Court's discretion against Mr. Cook, Morling C.J. referred to several circumstances.
First, his Honour mentioned that by virtue of s.55D(2) of the Judiciary Act, Mr. Cook presently had the right to practise in the Territory. His Honour also referred to s.14 of the Judicature Ordinance 1960:

"14. The parties to any suit or matter before the Supreme Court or the Court of Petty Sessions may appear personally, by such barristers or solicitors as have the right to practise in any federal court or, with leave of the Supreme Court or the Court of

Petty Sessions, as the case may be, by any other person."

Morling C.J. went on to say (at 287):

"It has not been suggested that this section and s 55D(1) of the Judiciary Act do not make adequate provision for litigants in this court and in the Court of Petty Sessions to be represented by legal practitioners of their choice. There is presently no law of the Territory equivalent to the Legal Practitioners Ordinance 1960 (sic 1970) (ACT) or the Legal Practitioners Act 1974 (NT). Because the population of the Territory of Norfolk Island is so small it is quite unlikely that a need will ever arise for the enactment of legislation prescribing qualifications for admission of barristers and solicitors or providing for the governance of the legal profession in the Territory. Nor are there legal professional associations such as invariably exist in the States and Territories where large numbers of legal practitioners are in practice. Such associations commonly perform, under statutory or other powers, an essential role in the regulation of professional conduct. This is particularly the case with respect to the inspection of solicitors' trust accounts."

THE ARGUMENTS ADVANCED IN SUPPORT OF THE APPEAL
15. On behalf of Mr. Cook it is now submitted, in summary, that:

(a) The Norfolk Island Supreme Court has an express power to admit barristers or solicitors because s.5 of the Supreme Court Ordinance 1960 picks up an original jurisdiction co-extensive with that given by s.11 of the ACT Supreme Court Act; or, alternatively, the Court has the power to admit by implication because the proper functioning of a Court depends on the proper discharge by advocates of their duties;

(b) The power to admit, and the related powers to suspend or remove those admitted, must be exercised once the conditions apt for their exercise are shown to exist;

(c) Conditions apt for admission exist when the candidate is qualified and fit for the duties of a barrister or solicitor, and there is no question of Mr. Cook's possession of those qualities; and

(d) The Chief Justice was in error in holding that there were sound policy and practical reasons for refusing the application.

THE BACKGROUND
16. Both parties relied strongly on the constitutional and legal history of New South Wales and of Norfolk Island. The history of admission to the Bar in New South Wales since early colonial times was relied on by the appellant. In order to place the submissions advanced on behalf of the parties in their proper context, it will be necessary to refer to the legal history of the colony of New South Wales and of Norfolk Island, as the appellant strongly relies not only upon the Charter of Justice, but also upon the fact that the laws of Norfolk Island include the laws of England in force as at 25 July 1828, so far as those laws are applicable to Norfolk Island. There have been major constitutional and legal changes in Norfolk Island over the past two hundred years and an appreciation of the significance of these changes is required for present purposes.

(a) The early history of the administration of justice at Norfolk Island
17. Captain Phillip's instructions, dated 25 April 1787, appointing him Governor of the territory known as New South Wales "including all the islands adjacent in the Pacific Ocean", included a direction that he "send a small establishment (to Norfolk Island) to secure the same to (the Crown), and prevent it being occupied by the subjects of any other European power...". In February 1788, Phillip dispatched a party, including 15 convicts, to the Island under the command of Lieutenant King (see Dr. C.H. Currey, Sir Francis Forbes (1968), Ch. XLVIII - "Judges of the Supreme Court and the Administration of Justice at Norfolk Island, 1833-5" at 472). The Norfolk Island Act 1794 (34 Geo.III, c.45) authorised the King to empower the person at that time administering the government of the Island to convene there, as occasion required, a "court of judicature for the trial and punishment" of certain offences. The Court was to "consist of the judge advocate, to be appointed in and for (the) settlement in Norfolk Island, together with four officers...". It was further provided that the Court "shall be a court of record; and shall have all such powers as, by the laws of England, are incident and belonging to a court of record." On 12 July 1794, a Deputy Judge Advocate was appointed (see Historical Records of Australia, ser.4, sec.A vol 1 (1786-1827) p 26). He was directed to observe and follow orders received from the Governor of New South Wales, the Lieutenant Governor of the Island or other superior officer, "according to the Rules and Discipline of War".

In December 1806, the British Government decided to remove the convicts on the Island to Van Diemen's Land and to abandon the settlement, although this was not achieved until 1814. However, in 1824, Earl Bathurst instructed Sir Thomas Brisbane to reoccupy the Island, which was done in 1826. The British Government vested control of the Island in the Colony of New South Wales until 1844 when control was transferred to the Colony of Van Diemen's Land. From 1826 to 1855 it was "in effect a convict prison" (see H.E. Renfree, The Federal Judicial System of Australia (1984) at 754; M.H. McLelland, "Colonial and State Boundaries in Australia" (1971) 45 ALJ 671 at 673).
The New South Wales Act 1823 (4 Geo.IV, c.96) was enacted to provide for "the better Administration of Justice in New South Wales and Van Diemen's Land". As Sir Victor Windeyer said ("A History of the New South Wales Bar" (J.M. Bennett, ed.) (1969) at 31), the Act was "of outstanding importance in the legal and constitutional history of Australia". For our immediate purposes, it will suffice to note that the King was thereby authorised to establish, inter alia, "The Supreme Court of New South Wales" (s.1) as a Court of Record with civil and criminal jurisdiction in all cases in New South Wales and "all and every the Islands and Territories...dependant upon...the Government (of New South Wales)" (s.2). This authority would thus appear to have extended to Norfolk Island, although, as has been noted, the Island was then virtually deserted.
Two further provisions of the New South Wales Act should be noted. First, s.5 enabled the King to appoint a special court for Norfolk Island (being a "dependency" of New South Wales) similar to that established under the Act of 1794. However, as Dr. Currey pointed out (at 472), this power and a similar power granted by the Australian Courts Act 1828 (9 Geo.IV, c.83) were never exercised. When such a tribunal was created in 1835, it was by a local ordinance enacted pursuant to the authority conferred by 4 and 5 Will.IV, c.65 (see below). Secondly, s.17 of the New South Wales Act enabled the King to authorise the judges of the Supreme Courts in New South Wales and Van Diemen's Land to make rules of Court dealing with, inter alia, "the Admission of Attornies, Solicitors and Barristers".

(b) The admission of barristers by the Supreme Court of New South Wales under cl.X of the Charter of Justice
21. As has been noted, the Charter of Justice was granted by Letters Patent dated 13 October 1823. Clause X of the Charter dealt with the admission of practitioners as follows:

"X. And we do hereby authorize and empower the said Supreme Court of New South Wales to approve, admit, and enrol such and so many persons, having been admitted Barristers-at-Law or Advocates in Great Britain or Ireland, or having been admitted Writers, Attorneys, or Solicitors, in one of our Courts at Westminster, Dublin, or Edinburgh, or having been admitted as Proctors in any Ecclesiastical Court in England, to act as well in the character of Barristers and Advocates, as of Proctors, Attorneys, and Solicitors in the said Court; and which persons, so approved, admitted, and enrolled, as aforesaid, shall be, and are hereby authorized to appear, and plead, and act for the suitors of the said Court, subject always to be removed by the said Court from their station therein, upon reasonable cause: ...no other person or persons whatsoever shall be allowed to appear and plead, or act in the said Supreme Court of New South Wales for or on behalf of such suitors, or any of them: Provided always, ... that in case there shall not be a sufficient number of such Barristers-at-Law, Advocates, Writers, Attorneys, Solicitors, and Proctors, within the said Colony, competent and willing to appear and act for the suitors of the said Court, then and in that case the said Supreme Court of New South Wales shall and is hereby authorized to admit so many other fit and proper persons to appear and act as Barristers, Advocates, Proctors, Attorneys, and Solicitors as may be necessary, according to such general rules and qualifications as the said Court shall for that purpose make and establish: Provided that the said Court shall not admit any person to act in any or either of the characters aforesaid, who hath been, by due course of law, convicted of any crime which, according to any law now in force in England, would disqualify him from appearing and acting in any of our Courts of Record at Westminster." (Emphasis added)

In 1825 the roll of "Barristers and Advocates Sworn Admitted and Inrolled to Practise in His Majesty's Supreme Court of New South Wales" was established (see Windeyer, op cit, at 3). As soon as the new Supreme Court had been formally opened in May 1824 with Forbes as Chief Justice, Saxe Bannister, a member of the English Bar, was admitted as a barrister. His name was first on the roll of the Bar of New South Wales. He appeared in a civil action in July 1824. According to the Sydney Gazette, this was the first time "a Barrister has pleaded in the Law Courts of this Colony" (see Windeyer, op cit at 34).
This admission may be contrasted with the earlier practice of ad hoc admission of "law agents" who appeared in proceedings before the Court. For instance, when Field J. took the Supreme Court, as then constituted, to Hobart Town in 1819, he admitted one Brodribb, who had been an English solicitor, to practise before the Supreme Court "pro tempore" (see Alex C. Castles, An Australian Legal History at 117).
The considerable significance of the system of judicial administration established under the New South Wales Act and the Charter of Justice is well explained by David Neal in his work The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) (at 87-8):

"In fact, an independent judiciary signified a cluster of ideas which might better be caught by substituting 'court system' for judiciary. This would emphasise the important point that power has to be rationally justified to an independent system of which judges form only a part, albeit a very significant one. The focus on courts, rather than on judges alone, permits an examination of the different elements of the courts (lawyers, juries, etc.), as well as the relationship of the courts to other parts of the legal and political system (e.g. the governors and the magistrates).

The independence of the judiciary - to concentrate just on the judges at first - meant that judges in England had life tenure. The Act of Settlement in 1701 put an end to the power of the king to dismiss judges who displeased him. The appointment of judges only from the ranks of practising barristers - also a product of the seventeenth century - further emphasised the notion of independence: only those with technical expertise and long experience in the specialised knowledge of the law could determine the outcome of a case based on the apolitical logic of the law. Recruitment of judges from a professional group, barristers, whose training, practice and prestige depended on adherence to the logic of the law, seemed to guarantee the rule of law, not of men. The ideology required that judges decide cases by reference to

legal rules rather than the dictates of the sovereign, personal whim or political expediency.

...

The superior courts occupied a central place in the grid of power relations in New South Wales and held the key to the development of the rule of law in the colony. The judges and the legal profession served as the traditional bearers of the full-blown rule of law conception, as well as the possessors of the technical expertise and prestige necessary to make the model work. In early New South Wales, where litigation was often politics carried on under another name, the courts, judges and lawyers played a major part in the transition from penal colony to free society."

The provisions of the New South Wales Act were revised and re-enacted by the Australian Courts Act 1828. By s.16 of that Act, the Judges of the Supreme Courts were authorised to make rules regulating such Courts, including rules "touching and concerning...the Admission of Attornies, Solicitors, and Barristers..." . Pursuant to this provision, a rule was made by the Supreme Court of New South Wales in September 1829 that only those who had been admitted as advocates or barristers in one of the King's Courts in Great Britain or Ireland were to be admitted to practise as barristers, and that the business of the profession of the law was to be divided in the same manner as in England "provided that this Rule shall not take effect until His Majesty's pleasure shall first be made known". Royal approval was given in June 1834 (see Dr. Currey, op.cit. at 445-6). The rule read:

"It is ordered that from and after the first day of next Term the Gentlemen who were admitted and enrolled to practise in the said Court under and by virtue of His Majesty's Charter bearing date at Westminster the Thirteenth day of October in the fourth year of His Majesty's reign as Barristers Attorneys Solicitors Proctors and Practitioners shall be considered as readmitted from the First day of March in the tenth year of His Majesty's reign to practise in the said Court as Barristers Attorneys and Solicitors only. Subject however to this limitation that in future there shall be the like severance as to the mode of conducting the business and practice of the said Court as prevails in the Supreme Courts of Record in England that is to say that Barristers of the Superior Court shall act and practise in the conduct of business for the suitors of the said Court in like manner as Barristers of the Superior Courts of Record in England and not otherwise. And that Attorneys and Solicitors of the Supreme Court shall confine themselves solely to the business and practise of attorneys and solicitors of the Supreme Courts of Record in England saving and always excepting that this last mentioned limitation shall not be construed to extend to the four senior attorneys now on the roll of attorneys of the said Court who may if they think fit continue to practise as Barristers solely and not otherwise. Provided always that such members of the profession already admitted on the rolls of the said Court as are not Barristers Advocates Attorneys Solicitors or Writers respectively of any of the Superior Courts of Record in the United Kingdom of Great Britain and Ireland but who have been duly admitted members of any of the Societies of Lincoln's Inn Middle Temple, Inner Temple, Gray's Inn, London and King's Inn, Dublin shall be considered as admitted and shall have power and authority to practise as Barristers of the said Supreme Court and not otherwise.

It is further ordered that in future any person applying to be admitted as Barrister of the Supreme Court must be a Barrister or Advocate, of some Superior Court of Record in the United Kingdom of Great Britain and Ireland or shall have duly kept twelve Terms in some one of the four principal Inns of Court in London or in the King's Inn Dublin..."

(See K.G. Allars, unpublished thesis in the NSW Law Society Library, "The Development of the Legal Profession in NSW until 1850" (1969) at 181-2.)

(c) The legal history of Norfolk Island 1833-5
26. As has been noted, although s.7 of the Australian Courts Act empowered the King to authorise the Governor of New South Wales to convene a special Court for trial of crimes committed "within any Place...in New South Wales...or the Dependencies thereof", this power was not exercised in respect of Norfolk Island. Instead, the ordinary jurisdiction of the Supreme Court was invoked and, in some instances, capital offences committed on Norfolk Island were tried in Sydney (see Dr. Currey, op.cit., at 473-4).

In 1833, Governor Bourke "deemed it advisable...to send one of the Judges of the Supreme Court" to Norfolk Island "to try the offenders at that place." Dowling J. volunteered for the service and left Sydney accompanied by the Crown Solicitor, two attorneys and five military jurors. The criminals were tried and convicted on Norfolk Island (see Dr. Currey, op.cit., at 474).
However, in 1834, the Judges of the Supreme Court informed the Governor that "the present arrangement" would "not be considered as a precedent for the future" and that it would not be deemed part of their duty to proceed to Norfolk Island whenever a criminal court was necessary there. They submitted that the desirable objective of trying offences on the Island might be achieved by giving effect to the clause in the Australian Courts Act previously mentioned, or by Parliament enacting a separate Act for the trial of offences committed there (see Dr. Currey, op.cit., at 475-6).
Such an enactment was passed as 4 and 5 Will.IV, c.65 (1834) - an Act "for the more effectual Administration of Justice at Norfolk Island." By this Act, the Governor was authorised to institute a Court of Criminal Jurisdiction in Norfolk Island "to adjudge and punish respectively according to the Laws in force in New South Wales in like Cases" (s.2). The Court was to "consist of One Judge, who shall be a Barrister duly admitted in England or Ireland, of not less than Three Years standing" and five commissioned officers to be appointed by the Governor (s.3). The Court was to have "such ministerial Officers as shall be necessary for conducting the Proceedings and executing the Processes, Judgments, and Orders thereof" (s.3). The Court was to be a Court of Record and its records were to be deposited in the Office of the Supreme Court of New South Wales (s.5). The power conferred by 4 and 5 Will.IV, c.65 was exercised by Governor Bourke on 10 June 1835 when 5 Will.IV, No. 23 was enacted and the Court established (see Dr. Currey, op.cit., at 476).

(d) The formation of local Bars at Port Phillip and Moreton Bay
30. There were developments in the formation of local Bars, in areas outside Sydney and Hobart, which should be noted. By 4 Vic. No. 22 (1840) - an Act "to provide for the more effectual Administration of Justice in New South Wales and its Dependencies" - provision was made for the appointment of additional Judges of the Supreme Court of New South Wales to be resident at Port Phillip. The Judges were authorised to make rules, inter alia, to regulate practice, to fix fees to be allowed to practitioners and to carry out the objects of the Act. In 1841, Willis J. was appointed Resident Judge (Windeyer, op.cit., p 3). A rule of Court of the Supreme Court of New South Wales for the District of Port Phillip, 1841 reads:

"'Admission of Barristers'. That no person be admitted as a barrister in the said Court unless he shall have been duly admitted as an Advocate or Barrister in some one or other of the Queen's Superior Courts of Record in Great Britain or Ireland or of the Supreme Court of New South Wales in Sydney and any person already enrolled as a Barrister in the Supreme Court of New South Wales in Sydney may for the present continue to practise in this Court subject to admission on the first day of the ensuing term."

(See A. Dean, A Multitude of Counsellors: a History of the Bar of Victoria (1968), at 14).

In April 1841, Willis J. admitted five barristers (see Forde, The Story of the Bar in Victoria at 57).
A similar development later took place at Moreton Bay (see Sir Harry Gibbs, Some Aspects of the History of the Queensland Bar (1979) 53 ALJ 63 at 63-4; B.H. McPherson, The Supreme Court of Queensland at 80-1).
Thereafter, measures were taken to promote reciprocity in the admission of barristers in the Colonies of New South Wales, Victoria and Queensland. For instance, the Barristers' Admission Act 1882 (NSW) (46 Vic. No. 2) recited that it was expedient to promote reciprocity, and provided that any person "admitted to practice as a Barrister in the Supreme Court of Victoria or of Queensland shall be entitled to be admitted to practice as a Barrister in the Supreme Court of New South Wales upon such terms and conditions and payment of such fees as may from time to time be regulated by a rule of the said Court." (s.1).
The position in Queensland was explained in In re Owen (1865) 1 QSCR 139; see also Re Sweeney (1976) Qd R 296; Street v Queensland Bar Association (1989) 168 CLR 461 per Brennan J. at 496-9.

(e) The legal history of Norfolk Island up to modern times
35. By Letters Patent dated 24 October 1843, issued pursuant to s.1 of Act 6 and 7 Vict, c.35, Norfolk Island was severed from New South Wales and annexed to the Colony of Van Diemen's Land from 29 September 1844 (see McLelland, op.cit. at 676). From that date until 1855, the Island was controlled by Van Diemen's Land authorities. From 1825 to 1855, the Island served as a penal station. In early 1856, the last of the convicts was removed to make way for the relocation of settlers from Pitcairn Island. Approximately 200 settlers arrived on Norfolk Island in June 1856. These people and their descendants have since been the principal inhabitants of the Island, which now has a population of some 2,000 people, mostly permanent residents.

The transfer of the settlers from Pitcairn Island required some revision of Norfolk Island's status and government. Pursuant to the Australian Waste Lands Act 1855 (which empowered the Crown to separate Norfolk Island from the Colony of Van Diemen's Land, and to make such provision for the Government of Norfolk Island as may seem expedient (s.5)), an Order in Council was proclaimed on 31 October 1856, pursuant to an Order in Council dated 24 June 1856, creating the Island as "a distinct and separate settlement". The Governor, who was also the Governor of New South Wales, was given "full power and authority... to make laws for the order, peace, and good government" of the Island. In 1857, Sir William Denison, Governor of New South Wales and Norfolk Island, issued by Proclamation a set of 39 simple laws referred to as "Laws and Regulations for Norfolk Island".
This Proclamation marks the commencement of the "modern" legal history of Norfolk Island. It has been said that no present legal rights are traceable to the convict era (see F.C. Hutley, "Sources of the Law of Norfolk Island" (1950) 24 ALJ at 108). A Chief Magistrate elected by the people presided over the courts and dispensed a simple form of justice. Public matters were controlled by a Council of Elders, also elected (see the Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Islands in the Sun - The Legal Regimes of Australia's External Territories and the Jervis Bay Territory" at 132-3; H.E. Renfree, The Federal Judicial System of Australia at 754-5; Newbery v The Queen (1965) 7 FLR 34 at 35-7).
By the terms of Denison's Proclamation dated 31 October 1856, it was provided that "all power, authority, and jurisdiction of the Governor, Legislature, Courts of Justice, and Magistrates of Tasmania, over ... (Norfolk Island), should cease and determine...". Amongst other things, the Governor proclaimed that he would "exercise and employ the full power and authority (vested in him), to constitute and appoint Judges, Justices of the Peace, and other necessary Officers and Magistrates in the said Island, for the administration of justice".
The Governor's "Laws and Regulations for Norfolk Island", enacted on 14 October 1857 ("the Thirty-nine laws") and subsequently amended (for instance a 40th Law was enacted on 28 October 1858 - see Newbery's case at 36; Renfree, op.cit. at 755), relevantly provided:

"1. All laws, ordinances, and regulations, which have been and are in force within the island called Norfolk Island, are hereby repealed and annulled, so far as the Governor is competent to repeal them.

2. The executive Government of Norfolk Island, during the absence of the Governor, shall be vested in a chief magistrate and two assistants or councillors, to be elected annually by the community as hereinafter directed.

3. The chief magistrate must be a resident on the island; he must be in possession of a landed estate therein; and he must have attained the age of twenty-eight years.

4. The councillors must be resident on the island, and must have attained the age of twenty-five years. ...

6. Every person who may have resided upon the island for six months, who has attained the age of 20 years, and who can read and write, shall be entitled to vote at the election of the chief magistrate and councillors. ...

10. The chief magistrate will see that all the laws and regulations of the island are properly carried out; he will carry into effect all the instructions he may receive from the Governor; he will convene and preside at all public meetings, with the exception of that for the election of magistrates; he will receive and account for all fines that are imposed; he will superintend the execution of all public works; he will correspond with the Governor during the absence of the latter from the island; and he will be the medium through which all the public business of the colony will be conducted. All purchases on account of the public will be made by him, and he will keep an accurate account of the receipts and expenditure of the public funds.

...

17. The chief magistrate will have primary jurisdiction in all matters of dispute, whether between the inhabitants of the island themselves, or between them and such persons as may visit the island, and whether such dispute should have reference to offences against the person, or to questions of property, he will adjudicate between the parties to the best of his judgment, and strive to induce them to come to an understanding.

18. Should his efforts be unavailing, he will call for the assistance of his councillors, and the whole case will be gone into before the three magistrates, a record of their proceedings being kept. The decision of the magistrates shall be final, in all cases where the property at issue does not exceed 50 s. in value, or in cases of common assault, when they are empowered to inflict a fine not exceeding 10 s.

19. Should the case be of a more serious character, and should the parties be unwilling to submit to the adjudication of the magistrates, a jury consisting of seven elders will be summoned, and the whole case having been submitted to them, their decision will be final.

20. The power of the jury will extend to the decision of all questions of disputed property, of all cases of theft, and of aggravated assault, if not accompanied with danger to life or limb; but all offences of a more serious character will be reserved for the consideration of the Governor, a full statement of such cases, as investigated by the magistrates, will be forwarded to the Governor, with as little delay as possible, who will give

the necessary directions with reference to them. ...

23. The punishment which a jury is competent to award will be limited to a fine, the amount of which will not in any case exceed 10 (pounds). The offender will have the amount of the fine recorded against him, and will be called upon to liquidate it, either by a direct payment in money or produce, or by so many days labour upon any public work.

24. In all cases of dispute between individuals, the jury will decide which party is to pay costs. ...

40. All offences not determinable by the magistrates, or by a jury of seven elders, as prescribed by the laws and regulations made by the Governor on the 14th October 1857 shall, until otherwise provided for by proper enactment, be dealt with in accordance with the laws now in force in New South Wales, so far as these may be applicable. The persons committing such offences shall be tried on Norfolk Island, by a court constituted, and a jury composed and summoned as the Governor shall appoint, and with such forms of procedure as he shall establish."

(See the Supplement to the NSW Government Gazette 30 October 1857; British Parliamentary Papers (Colonies - Australia) Vol. 24 (1862-63) at 483-5.)

In 1895, a Chief Magistrate from New South Wales was given charge, with an Executive Council of six members, two being elective and the others, including the President, being nominees of the Governor (see Renfree, op.cit., at 755).
A Proclamation of Viscount Hampden, Governor of Norfolk Island, dated 14 November 1896, recited as follows:

"And whereas in the interests of the community inhabiting Norfolk Island, and for the better promoting the advancement and welfare of the said island and its inhabitants, and the better and more certain administration of justice therein, it has been considered wise and expedient to repeal all existing laws and regulations respecting the said island and now in force therein, and to appoint an officer for the administration of justice therein, and to pass other laws for the better management of the affairs of the said island..."

The Proclamation went on to vest the executive government of the Island in a Chief Magistrate. Provisions were made with respect to the magistrate's court and the grand jury as follows:

"3. (I) There shall be a court presided over by the chief magistrate (herein called the 'magistrate's court'), which shall be a court of record, and shall have jurisdiction -

(a) to punish all crimes and offences (except crimes punishable by death); and the jurisdiction may be exercised summarily or on indictment as hereinafter provided;

(b) to adjudge on all civil pleas whatsoever, irrespective of the amount claimed or in issue; and

(c) to grant probates and letters of administration of and orders to collect the estates of persons dying possessed of real or personal property in the island.

(II) The jurisdiction of the magistrate's court shall extend to crimes and offences committed, and causes of action accrued before or after the day on which these laws take effect, and to the estates of persons dying after the making of these laws.

4. (I) Subject to these laws, and so far as applicable, the provisions of the Imperial Acts, eleven and twelve Victoria, chapter forty-two, and eleven and twelve Victoria, chapter forty-three, and the Acts of the Parliament of New South Wales, thirty-two Victoria number six, forty-six Victoria number three, forty-six Victoria number seventeen, fifty-two Victoria number six, fifty-five Victoria number five, and fifty-seven Victoria number twenty-three, shall have force and effect within Norfolk Island, and the jurisdiction and powers conferred by the said Acts on judges and justices of the peace shall be exercised by the chief magistrate. Provided that all criminal proceedings before the chief magistrate and a jury shall be commenced by a bill of indictment preferred to and found by a grand jury, to be constituted as hereinafter provided:

Provided also that the jury to try criminal issues shall be a jury of seven elders:

Provided further that where a bill of indictment charging a capital offence is found by a grand jury, the magistrate may inquire into the same in a summary way, and shall forward the evidence produced before him, with a report thereon, to the Governor, to be dealt with by him as he may think fit.

(II) In the exercise of civil jurisdiction the provisions of the Acts of the Parliament of New South Wales, ten Victoria number ten, and forty-five Victoria number twenty-seven, relating to courts of petty sessions in the Colony of New South Wales, and of such enactments as amend or are in that Colony ancillary to the exercise of the jurisdiction and powers conferred by those Acts shall, subject to these laws and so far as applicable in the circumstances of the island, and without any limitation as to the amount claimed or in issue, be followed by the chief magistrate and apply to the magistrates' court. Provided that the chief magistrate shall have no jurisdiction in any case where title to land is in question; but he may in any such case, or on the petition of any person, make inquiry in a summary way into the facts of any disputed title to land, and shall thereupon forward the evidence and his report thereon for the consideration of the Governor, who may adjudicate thereon, and whose orders in the premises shall be enforced by the chief magistrate.

(III) In granting probate and letters of administration and orders to collect the magistrate shall follow the law and practice of the Supreme Court of New South Wales in its probate jurisdiction so far as they are applicable.

(IV) The chief magistrate shall be sole judge whether any of the enactments abovementioned are applicable in the circumstances of the island.

5. Upon the application of any person, supported by an affidavit disclosing an indictable offence, it shall be lawful for the chief magistrate to order the registrar to summon a grand jury, and the registrar shall thereupon summon thirteen elders to be named by the chief magistrate to appear at a court to be holden at a time and place to be mentioned in the summons to inquire, present, do, and execute all things which on the part of the Queen or her successors may then and there be commanded of them, and every finding of a grand jury shall be by not less than seven jurors.

6. The chief magistrate may, with the approval of the Governor, make, amend, and repeal rules providing for the exemption of certain of the elders from being liable to serve on juries, for the summoning, impannelling, and swearing of grand and petit juries, for the conduct of trials, the summoning of witnesses, and regulating the practice and procedure of the magistrate's court and the grand jury, the forms of oaths to be taken by jurors and witnesses, and the forms of all proceedings, the compensation to be allowed to jurors and witnesses, and the costs of the parties, and for applying the Acts incorporated herewith to the circumstances of the island. He may also impose a fine not exceeding ten shillings on any person who fails to attend the magistrate's court or the grand jury in pursuance of a summons, or refuses to serve on a jury."

(11 and 12 Vict, c. 43, (Imp) (1848) referred to in cl.4(1) above, provided for the performance of the duties of Justices of the Peace with respect to summary matters. Relevantly, s.12 provided that parties could be represented by counsel or an attorney on their behalf. By s.470 of 46 Vic No.17 (the Criminal Law Amendment Act 1883 (NSW)), every accused person could, if so advised by counsel, make admissions and, inter alia, address the jury personally or by counsel.)
Crimes punishable by death were dealt with by cl.7 of Hampden's Proclamation as follows:

"7. Crimes punishable by death shall, until otherwise provided by laws made by the Governor, be dealt with in accordance with the laws now in force in the Colony of New South Wales. The trial of such crimes as aforesaid shall be held in Norfolk Island."

Provision was made for the election of a Council of Elders with certain powers of local government administration.
Clause 22 dealt with the repeal of existing laws as follows:

"22. All laws, ordinances, and regulations in force within Norfolk Island when these laws take effect are hereby repealed and annulled, and the offices of chief magistrate and assistants or councillors established under those repealed laws, ordinances and regulations are hereby abolished.

Provided that such repeal shall not -

(a) affect the previous operation of any law, ordinance, or regulation so repealed, or anything duly done, suffered, or commenced to be done under them; or

(b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any law, ordinance, or regulation so repealed; or

(c) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any law, ordinance, or regulation so repealed; or

(d) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed and enforced, as if these laws had not been made."

An Order in Council dated 15 January 1897, made in pursuance of the Australian Waste Lands Act, relevantly recited and provided that:

"WHEREAS by the Australian Waste Lands Act, 1855 (18 and 19 Vic cap.56), it is among other things provided that it shall be lawful for Her Majesty at any time by Order in Council to make such provision for the government of Norfolk Island as may seem expedient.

And whereas by an Order of Her Majesty in Council dated the 24th of June, 1856, it was amongst other things ordered that Norfolk Island should be a distinct and separate settlement, the affairs of which, until further order is made in that behalf by Her Majesty, should be administered by a Governor to be appointed by Her Majesty, with the advice and consent of Her Privy Council. And it was thereby further ordered that the Governor and Commander-in-Chief for the time being in and over the colony of New South Wales should be, and he was thereby constituted Governor of Norfolk Island with the powers and authorities in the said order mentioned.

And whereas it is expedient that other provision should be made for the Government of Norfolk Island, and that, in prospect of the future annexation of that island to the Colony of New South Wales, or to any federal body of which that Colony may hereafter form part, in the meantime the affairs of the island

should be administered by the Governor of New South Wales as herein provided.

Now, therefore, Her Majesty, by virtue and in exercise of the power in this behalf by the Australian Waste Lands Act, 1855, or otherwise in Her Majesty vested, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered as follows:-

1. The affairs of Norfolk Island shall henceforth and until further order is made in that behalf by Her Majesty be administered by the Governor and Commander-in-Chief for the time-being of the Colony of New South Wales and its dependencies. The said Governor and Commander-in-Chief is hereinafter called the Governor, and the title the Governor shall include the Officer for the time-being administering the Government of New South Wales.

...

3. The Governor may constitute and appoint all necessary judges, justices of the peace, and other public officers for the said island.

4. The Governor may, by proclamation published in the New South Wales Government Gazette, make laws for the peace, order, and good government of Norfolk Island, subject nevertheless to any instructions that may be given to him by Her Majesty under Her Sign Manual and Signet, or through one of Her Principal Secretaries of State.

...

6. All laws, ordinances and regulations in force in Norfolk Island at the time when this order takes effect shall continue in force until repealed or altered by competent authority.

7. The said order of the 24th day of June, 1856, is hereby revoked, but without prejudice to anything lawfully done thereunder.

..."

(See the NSW Government Gazette dated 19 March 1897 at 1969.)

On 9 July 1900, the Commonwealth of Australia Constitution Act 1900 (Imp.) was passed, to take effect on 1 January 1901. In the meantime, in order to provide for the replacement of the Colony of New South Wales by the State of New South Wales, an Order in Council was made at Balmoral on 18 October 1900, revoking the Order in Council of 15 January 1897, and substituting, until further order, similar provisions referring to the Governor of the State of New South Wales and its Dependencies.
Section 122 of the Constitution provides, so far as material for present purposes, that the Parliament "may make laws for the government...of any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit." The Norfolk Island Act 1913 (Cth) (No. 15 of 1913) ("the 1913 Act") passed by the Commonwealth Parliament and assented to on 19 December 1913, provided that Norfolk Island was "declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth by the name of Norfolk Island" (s.3). However, it also provided that the Act should not come into operation until the King had placed Norfolk Island under the authority of the Commonwealth, and the Governor-General had proclaimed a day for the commencement of the Act (s.2). Various other provisions were contained in the Act, the most important for present purposes being s.8, which empowered the Governor-General to make ordinances for the peace, order and good government of Norfolk Island.
On 30 March 1914, an Order in Council was made revoking the Order in Council of 18 October 1900, and placing Norfolk Island under the authority of the Commonwealth of Australia. This was expressed to be done "by virtue and in exercise of the power in this behalf by the Australian Waste Lands Act 1855 (Imp.), or otherwise in His Majesty vested". The Order was to take effect from the date proclaimed for the commencement of the 1913 Act. Both the Order in Council and a Proclamation, dated 17 June 1914, fixing Wednesday 1 July 1914 as the date for commencement of the 1913 Act, were published in the Commonwealth of Australia Gazette on 17 June 1914. (See Newbery's case at 38; Berwick Ltd. v Gray (1976) 133 CLR 603 per Mason J. at 608-9).
In Newbery's case, Eggleston J. held that the Australian Waste Lands Act empowered the Crown to make provision for the control of Norfolk Island by a representative or non-representative form of government and from time to time to revoke any provision so made, and enabled the Crown to place Norfolk Island under the authority of the Commonwealth within the meaning of s.122 of the Constitution. This conclusion was accepted as correct by the High Court in Berwick v. Gray (per Mason J. at 608), where it was also held that Norfolk Island forms part of the Commonwealth of Australia (at 608-9).
(In Newbery's case, Eggleston J. (at 39-40) considered English authorities such as Sammut v Strickland (1938) AC 678 and Campbell v Hall (1774) 98 ER 1045, dealing with the different position of settled colonies and conquered or ceded colonies. These authorities were further considered recently by the High Court in Mabo v Queensland (1992) 66 ALJR 408 per Brennan J. at 419-20, without, it seems, casting any doubt upon the correctness of the decisions in Newbery's or Berwick's cases.)
By Proclamation made on 24 December 1913, shortly after the enactment of the 1913 Act (assented to on 19 December 1913 but not then in force), Sir Gerard Strickland, the Governor of New South Wales and Norfolk Island, declared that all laws then in force in the Island were repealed, and other laws then specified came into force in the Island, with the proviso that appointments made and other things done under the repealed laws were validated (cl.1). The laws then enacted (cl.2) included the Administration Law 1913 (to which further reference will be made). By cl.3 of the Proclamation, it was provided:

"3. Subject to the laws hereby enacted and to any laws which may hereafter be made for Norfolk Island, and to any Order of His Majesty in Council, all laws and statutes in force in the realm of England on the 25th day of July, 1828, the date of the passing of the Act 9 Geo. IV, c.83, shall be applied in the administration of justice in Norfolk Island, so far as the same can be applied within the said Island."

It seems that the laws in force in England as at 25 July 1828 only apply within the Island insofar as they could be applied in 1913, the year in which the Proclamation applying them was made (see Hutley, op.cit., at 109; Renfree, op.cit., at 757). And, of course, the laws in force in England only applied subject to the Administration Law itself and any subsequent laws made for Norfolk Island.
The Administration Law 1913 dealt with "Administrative and Judicial functions" (Part 1), "Crimes and Offences" (Part 2), "Civil Proceedings" (Part III) and "Practice" (Part IV). Part 1 vested the executive government of the Island in the administrator, to be appointed by the Governor, and who might also be chief magistrate (s.3(1)). The chief magistrate was to preside at the magistrate's court and administer justice (s.6). A special magistrate could be appointed (s.7). The person so appointed "may, without fee, admit any person to practise before him, whether such person is or is not entitled under the laws of Norfolk Island to be admitted to practise as an advocate in the magistrate's court" (s.9). The magistrate's court had a full criminal and civil jurisdiction and was a court of record (s.10(1)). The chief magistrate was to keep a register of "the elders" (s.14). So far as applicable, the Crimes Act 1900 (NSW) and the other Imperial and New South Wales Acts specified in cl.22 of Hampden's Proclamation dated 14 November 1896 (mentioned above) had force and effect within the Island (s.15(1)). Professional costs could be recovered (ss.19,20). The attorney's costs referred to in the Schedule included amounts "for an advocate's fee". Part IV dealt with "advocates" as follows:

"31. The chief magistrate may admit any person to practise as an advocate in the magistrate's court on the production to the chief magistrate of satisfactory evidence that such person has been actually admitted and is qualified to practise as a barrister, solicitor, attorney, or proctor of any court of any part of His Majesty's dominions, or as a writer to the signet of Scotland, and that such person is of good character.

32. Every person admitted to practise as aforesaid shall on admission pay to the registrar a fee of two pounds two shillings, and shall in every year succeeding the time of his admission pay to the registrar a further fee of two pounds two shillings; and no such person admitted to practise as aforesaid shall practise or attempt to practise as aforesaid until he has paid the fees prescribed herein.

33. On the application of any person admitted to practise as aforesaid, the chief magistrate may cancel the admission of any other such person: Provided that nothing herein contained shall prevent such other person from being again admitted under the provisions of these laws to practise as aforesaid on payment of the fee herein prescribed.

34. On satisfactory evidence that any person admitted to practise as aforesaid was not at the time of his admission possessed of the qualifications for admission aforesaid, the chief magistrate shall cancel such admission.

35. If any person admitted to practise as aforesaid is after the time of such admission guilty of any misconduct which in the opinion of the chief magistrate makes it desirable that such person should not continue to so practise, the chief magistrate may either cancel such admission, or may suspend the advocate from practice for a certain period or during pleasure.

36. Any person other than a person admitted to practise as aforesaid who practises or attempts to practise, or any person admitted to practise as aforesaid who practises or attempts to practise before he has paid the fees prescribed herein, or after his admission has been cancelled and before his re-admission or during the time he is suspended, shall be liable to a penalty not exceeding ten pounds: Provided that nothing herein shall affect the right of any person admitted by the special magistrate to practise before him."

The 1913 Act relevantly provided:

"4. (1) Subject to this Act, the laws, rules and regulations in force in Norfolk Island at the commencement of this Act shall continue in force, but may be altered or repealed by Ordinance made in pursuance of this Act.

(2) Where in any law, rule, or regulation in force in Norfolk Island at the commencement of this Act, any reference is made to the Governor, the reference shall be deemed to be made to the Governor-General.

5. The Acts of the Parliament (except this Act) shall not be in force in Norfolk Island unless expressed to extend thereto.

...

7. Judges, Magistrates, and other public officers for Norfolk Island shall continue in office as if appointed under this Act.

...

9. (1) The Governor-General may constitute and appoint such Judges, Magistrates, and Officers as he thinks necessary for the good government of Norfolk Island.

(2) Judges, Magistrates, and officers appointed under this section shall hold office during the pleasure of the Governor-General.

(3) This section shall not affect any power of appointment vested in the Chief Magistrate or other person under the law for the time being in force in Norfolk Island.

...

11. (1) The High Court shall have jurisdiction, with such exceptions, and subject to such conditions as are prescribed by Ordinance made by the Governor-General, to hear and determine appeals from all judgments, decrees, orders, and sentences of any Judge or of the Chief Magistrate acting judicially in Norfolk Island, and the judgment of the High Court shall be final and conclusive.

(2) The Governor-General may by Ordinance provide that an appeal to the High Court, in pursuance of this section, may, inter alia, be by case stated with the legal argument attached thereto in writing, and that it shall not be necessary for the parties to appear either personally or by counsel.

..."

(f) The modern legal system of Norfolk Island
57. The Norfolk Island Act (Cth) 1935 ("the 1935 Act") amended the 1913 Act. Provision was made for an advisory council for Norfolk Island (s.6).

The Administration Ordinance 1936 repealed the Administration Law 1913 and subsequent Administration Ordinances. It also updated certain other Ordinances and provided for the appointment by the Governor-General of an administrator to exercise a general supervision over the Island's affairs.
The Judiciary Ordinance 1936 established a Court of Norfolk Island. Any matter then pending in the magistrate's court was transferred to the new Court (s.3). The Court was to be a court of record (s.5). The Governor-General was empowered to appoint any person who was, or had been, a barrister or solicitor of the High Court of Australia, or of the Supreme Court of a State of the Commonwealth of not less than five years' standing, to be a Judge of the Court (s.6). The Governor-General was also empowered to appoint a Chief Magistrate and a Special Magistrate (s.7). The jurisdiction of the Court was divided into two parts, a "Full" and a "Limited" jurisdiction (ss.9, 10, 11 and 12). In the exercise of its civil jurisdiction, the provisions of the Small Debts Recovery Act 1899 (NSW), so far as applicable, applied (s.13(1)). The Court could award costs (s.14(1)). By s.17, it was provided as follows:

"17. The parties to any proceeding before the Court may appear personally, or by such barristers or solicitors as have the right to practise in the Court or in any Federal Court, or, with the leave of the Court, by any other person."

In the Ordinance, "Federal Court" meant "a Federal Court or Court exercising federal jurisdiction" (s.4(1)).
An appeal lay to the High Court from a judgment or order of the Court in its full jurisdiction (s.21).
The Minister administering the Commonwealth Act was empowered, by s.29(1), to make regulations or rules of Court, inter alia, regulating and prescribing the practice and procedure of the Court, including:

"(m) ...the admission of persons to practise as barristers or solicitors of the Court, and prescribing the conditions of and qualifications and fees payable for, that admission or the continuation of the right so to practise".

However, nothing was prescribed under s.29(1)(m).
Under the Norfolk Island Act 1957 ("the 1957 Act") the 1913 and 1935 Acts were repealed (s.3(1)). Notwithstanding this repeal, all other laws then in force in or in relation to the Territory continued in force (s.12(1)). Under the 1957 Act, an administrator, to be appointed by the Governor-General, was to administer the government of the Territory on behalf of the Commonwealth (s.6). A Norfolk Island Council was established (s.11).
Part V of the 1957 Act dealt with the "Judicial System". The Supreme Court of Norfolk Island, to consist of a single Judge, was established as a Superior Court of Record (s.18). A person was not to be appointed to be the Judge unless: (a) he was or had been a judge of a Federal Court or of a State or Territory Supreme Court; or (b) he was a barrister or solicitor of the High Court or of a State or Territory Supreme Court of not less than five years' standing (s.21). Courts and tribunals for the Territory could be established by Ordinance (s.23). Appeals lay from the Supreme Court to the High Court (s.24).
By s.3 of the Judicature Ordinance 1960, it was provided as follows:

"3. Subject to any Acts, Imperial Acts and Ordinances in force in the Territory and to any laws made under such an Act, Imperial Act or Ordinance -

(a) all statutes, and laws made under statutes, in force in England on the twenty-fifth day of July, One thousand eight hundred and twenty-eight, being the date of the passing of the Imperial Act 9 Geo. IV, c.83; and

(b) subject to the statutes and laws referred to in the last preceding paragraph, all the principles and rules of common law and equity, are, by force of this Ordinance, so far as they are applicable and mutatis mutandis, in force in the Territory as laws of the Territory."

As Morling C.J. noted, s.14 of the Judicature Ordinance, provided that:

"The parties to any suit or matter before the Supreme Court or the Court of Petty Sessions may appear personally, by such barristers or solicitors as have the right to practise in any federal court or, with leave of the Supreme Court or the Court of Petty Sessions, as the case may be, by any other person."

No special definition of "federal court" was given in the Ordinance.
As Morling C.J. noted, s.5 of the Supreme Court Ordinance 1960 states:

"5. (1) Subject to this Ordinance, the Supreme Court has the same jurisdiction in and in relation to the Territory as the Supreme Court of the Australian Capital Territory has in and in relation to the Australian Capital Territory.

(2) Without limiting the generality of subsection (1), the jurisdiction of the Supreme Court includes jurisdiction -

(a) to hear and determine all causes and matters arising under any law;

(b) to deal with and impose punishments in respect of contempt of the Court;

(c) to grant probates of wills, and letters of administration of the estates, of persons dying seised or possessed of real or personal property in the Territory;

(d) to impose punishments and penalties as provided by any law;

(e) on sufficient grounds, to order a new trial; and

(f) with such exceptions and subject to such conditions as are provided by any law, to hear and determine appeals from the judgments of inferior courts and tribunals for the Territory.

(3) The jurisdiction of the Supreme Court includes jurisdiction conferred on it by a law other than this Ordinance.

(4) In subsections (2) and (3), 'law' means law in force in the Territory.

(5) Where, in a law of the State of New South Wales in its application to the Territory, a power or function is expressed to be vested in the Supreme Court of New South Wales, or a Judge of that Court, that power or function shall, in relation to the Territory, be vested in the Supreme Court or the Judge, as the case may be."

By s.11(a) of the Australian Capital Territory Supreme Court Act 1933, as Morling C.J. said, the ACT Supreme Court, in addition to the specific jurisdiction mentioned in s.11(b) and (c):

"(a) has, subject to this or any other Act or to any Ordinance or enactment, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before 1 January 1911;").

Under the Supreme Court Ordinance, the Norfolk Island Supreme Court and a Judge are empowered to award costs (s.6). The practice and procedure of the Court is to be governed by rules of court (s.18). Section 19 deals with rules of court as follows:

"19. (1) The Judge may make rules of court, not inconsistent with this Ordinance, regulating the practice and procedure of the Court, and prescribing all matters and things necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance or for the conduct of the business of the Court and, in particular, prescribing fees payable in respect of proceedings in the Court or of the execution of the process of the Court.

(2) Notice of the making of a rule of court made under subsection (1), shall be published in the Gazette and a copy of the rule shall be forwarded to the Minister within 14 days after the making of the rule.

(3) The Minister may, by notice published in the Gazette, disallow any rule of court and a rule so disallowed ceases to have effect from and including the date of publication of the notice.

(4) Until, in relation to a matter or class of matters, rules of court are made by the Judge, in pursuance of subsection (1), the rules of court of the Supreme Court of the Australian Capital Territory in relation to that matter or class of matters shall, so far as applicable and mutatis mutandis, be the rules of court of the Supreme Court.

(5) Where provision in respect of a question of practice or procedure is not made by this Ordinance, by rules of court or by any other law in force in the Territory, the practice or procedure to be followed is the practice or procedure followed by the High Court of Australia in its original jurisdiction.

(6) In this section, 'practice and procedure' includes matters relating to -

(a) the attendance of witnesses;

(b) the custody or bail of accused or convicted persons; and

(c) the enforcement and execution of judgments."

Under amendments to the 1957 Act made by the Norfolk Island Act 1963 ("the 1963 Act"), the Administrator was made ex officio Chairman of an elected Norfolk Island Council.
Sections 19, 20 and 21 of the 1957 Act were replaced by the 1963 Act with the following:

"19. The Governor-General may, by commission, appoint a person who, or persons each of whom, is a Judge of another court created by the Parliament to be a Judge or Judges of the Supreme Court.

"20. The Judges have seniority as Judges of the Supreme Court according to the dates of their commissions. "21. A person may be a Judge of the Supreme Court notwithstanding that he is also a Judge of another court created by the Parliament, or is also the holder of a judicial office in relation to a Territory of the Commonwealth other than Norfolk Island, by virtue of an appointment made either before or after his appointment as a Judge of the Supreme Court."

The Norfolk Island Act 1979 ("the 1979 Act") recited that Parliament recognised the special relationship of the descendants of the settlers from Pitcairn Island with Norfolk Island; and that Parliament "consider(ed) it to be desirable and to be the wish of the people of Norfolk Island that Norfolk Island achieve, over a period of time, internal self-government as a Territory under the authority of the Commonwealth and, to that end, to provide, among other things, for the establishment of a representative Legislative Assembly and of other separate political and administrative institutions on Norfolk Island".
The 1979 Act repealed the 1957 and 1963 Acts (s.3). Part II of the 1979 Act ("Administration") provided for the appointment by the Governor-General of an Administrator (ss.5,6) and for the establishment of the Administration of Norfolk Island as a body politic (s.5(2)). An Executive Council was established to advise the Administrator (s.11). The Administrator may, on the advice of the Legislative Assembly, appoint a member of the Legislative Assembly to executive office (s.13, and see generally Brown v Administration of Norfolk Island (1991) 29 FCR 511).
The subject "Legislation" is dealt with in Part IV of the 1979 Act. Continuance of existing laws is provided for by s.l6 as follows:

"16. (1) Notwithstanding the repeal of the (1957 Act) and the [1963 Act), but subject to this Act, all other laws in force immediately before the date of commencement of this section in or in relation to the Territory continue in force.

(2) In this section, 'laws' means Ordinances made under, and laws continued in force by, the (1957 Act) and laws made under such an Ordinance or law."

The Legislative Assembly has power (with exceptions not presently relevant) to make laws for the peace, order and good government of the Territory (s.19) with the assent of the Administrator or the Governor-General. The Governor-General also has legislative powers (ss.26, 27).
The "Judicial System" is dealt with in Part VII of the 1979 Act. The Supreme Court established by the 1957 Act continues in existence, notwithstanding the repeal of that Act (s.52(1)). The Governor-General may appoint a person who, or persons each of whom, is a Judge of another court created by the Parliament to be a Judge or Judges of the Supreme Court (s.53). Subject to any regulation made by the Governor-General under s.67(1)(a) (see below), the jurisdiction, practice and procedure of the Supreme Court shall be "as provided by or under enactment" (s.59). An "enactment" is defined by s.4(1) as follows:

"'enactment' means -

(a) a law (however described or entitled) passed by the Legislative Assembly and assented to under this Act;

(b) an Ordinance made by the Governor-General under section 27 or in pursuance of section 69; or

(c) an Ordinance continued in force by this Act."

Other courts and tribunals for the Territory may be established by or under enactment (s.60).
Section 67(1) empowers the Governor-General to make regulations, in particular to (s.67(1)(a)):

"(a) (make) provision for and in relation to sittings of the Supreme Court in a State or in a Territory other than Norfolk Island for the purpose of hearing and determining a matter, otherwise than in the exercise of its criminal jurisdiction, if a Judge is satisfied that the hearing of the matter outside the Territory is not contrary to the interests of justice..."

Under the Norfolk Island (Supreme Court Sittings) Regulations (SR 150/1979) the Supreme Court may, if appropriate, sit in civil cases in New South Wales, Victoria or the ACT as well as in the Territory, but criminal cases must be dealt with in the Territory (reg. 3(1)).
An appeal lies from the Supreme Court to the Federal Court under the provisions of the Federal Court of Australia Act 1976.
(g) The history of the relevant provisions of the Judiciary Act
When the Judiciary Act was enacted in 1903, it included s.49 which, relevantly, provided that:

"(1) Any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any federal Court.

(2) Provided that before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and the Principal Registrar shall thereupon enter his name

in a Register of Practitioners to be kept at the Principal Registry.

(3) ...

(4) The High Court may direct the name of any person to be struck off the Register upon proof that he has been guilty of conduct which renders him unfit to be allowed to continue to practise as a barrister or solicitor, or that he has been deprived by the Supreme Court of the State, by virtue of his right to practise wherein he was registered, of the right to practise in that State as a barrister or solicitor."

Section 49 was amended in 1927 by adding at the end of sub-section (1) the words "or in any Court of a Territory under the control of the Commonwealth".
Part VIIIA of the Judiciary Act, dealing with "Legal Practitioners", was introduced in 1966. That amendment repealed s.49 and enacted ss.55A and 55B(1) to (3) in terms which remain virtually unaltered. Section 55A provides as follows:

152. By this time, as has been noted, Norfolk Island was first administered as a Territory of, and as part of, the Commonwealth of Australia. Another, and very different, legal regime was instituted. Two significant matters should be noticed in this connection.

First, under cl.3 of Strickland's Proclamation in 1913, subject to the laws thereby enacted, and to any later laws, "all laws and statutes in force in the realm of England on the 25th day of July, 1828, the date of the passing of the Act 9 Geo. IV, c. 83, shall be applied in the administration of justice in Norfolk Island, so far as the same can be applied within the said Island."
The question thus arises whether cl. X of the Charter of Justice was applicable to Norfolk Island.
Secondly, provision was made in Part IV of the Administration Law 1913 for the chief magistrate to admit any person to practise as an advocate in the magistrate's court on the production of satisfactory evidence that such person had actually been admitted and was qualified to practise as a barrister, solicitor, or proctor of any court of any part of the Dominions, or as a writer to the signet of Scotland, and that such person was of good character (s.31). A fee was payable by the practitioner on admission and thereafter annually (s.32). The chief magistrate was also empowered to suspend or cancel the admission of an advocate (s.35). These provisions did not affect the right of any person admitted by the special magistrate to practise before him (s.36). In Part I, a special magistrate was empowered, without fee, to admit any person to practise before him, regardless of whether such person was entitled under the laws of Norfolk Island to be admitted to practice as an advocate in the magistrate's court (s.9).
Did the Charter of Justice or any other relevant English law apply in Norfolk Island during this period so as then to provide a facility for admission to the Bar of Norfolk Island? Alternatively, did such a facility exist at that time by virtue of any local legislation, for instance, the Administration Law 1913 or the Norfolk Island Act 1913?
Taking the last of this legislation first, little of significance in this area was provided for by the brief provisions of the 1913 Act. The existing laws then in force in Norfolk Island continued (s.4(1)), but Acts of Parliament were not to be in force in Norfolk Island "unless expressed to extend thereto" (s.5). "Judges, Magistrates, and other public officers for Norfolk Island" were to continue in office (s.7), but the Governor-General could constitute and appoint Judges, Magistrates and Officers necessary for the good government of the Island (s.9(1)). Provision was made for appeals to the High Court (s.11(1)). There is nothing express in these provisions, and, in our view, no basis for any relevant implication, concerning the creation of a facility for the admission of barristers to the "Bar" of Norfolk Island.
So far as the Administration Law is concerned, two special kinds of "admission" were provided. First was the special magistrate's power to grant, in effect, a right of audience which was, in form and substance, more akin to casual, "ad hoc" or "pro tempore" admission than the traditional form of admission. Secondly, and more important here, there could be admission as an "advocate" in the magistrate's court. Although this provision would have permitted, for instance, a solicitor to be admitted to practise as an "advocate", it may be said that this facility was intended to be the local counterpart of the Westminster-style of admission contemplated by cl. X of the Charter of Justice. It follows, we think, that even if it be assumed for the moment that cl. X of the Charter of Justice was a law in force in England as at 25 July 1828 within the meaning of cl. 3 of Strickland's Proclamation, its provisions would not be applicable to the special local conditions on Norfolk Island at the time, i.e. 1913 (see Hutley, op cit, and H.T. Gibbs, unpublished thesis, in the High Court of Australia Library, The Laws of the Territory of New Guinea - Their Constitutional Source and Basic Content (1945) at 50). Clause X of the Charter of Justice picks up and adapts to the local conditions in New South Wales and Van Diemen's Land the ancient usages of the Bars of Great Britain and Ireland. However, looking at the matter in 1913, the structure and nature of the institutional Bar in mainland Australia bore no relation at that time to the position of the legal profession of Norfolk Island. In our opinion, the provisions of cl. X of the Charter were not applicable to Norfolk Island in 1913. It appears that no other English legislation was relevantly applicable to the conditions on the Island for our purposes.
In any event, cl.3 of Strickland's Proclamation of 1913 made it clear that the application of the laws and statutes in force in England was subject to the Administration Law 1913 itself, and to any later laws. In our opinion, the provisions made by Part IV of the Administration Law for admission to practise were wholly inconsistent with cl.X of the Charter of Justice and must be taken to have excluded it, even if cl.X were otherwise capable of application to Norfolk Island at that time. It will be recalled that the Charter of Justice empowered the admission of those who were admitted in Great Britain or Ireland and that, if there were not a sufficient number of such persons, the NSW Supreme Court had authority to admit so many others as might be necessary, according to such general rules and qualifications as the Court should make for that purpose. Section 31 of the Administration Law not only dealt specifically with admission to practise before the court established by that law, but it empowered the admission of a wider class of persons. There was no limitation by reference to Great Britain or Ireland. For example, a person actually admitted and qualified to practise as a barrister in any court of any part of His Majesty's Dominions could be admitted to practise as an advocate in the magistrates' court, and without any further requirement such as that imposed by the proviso to cl.X. Nor was there any need for general rules and qualifications to be established, such as were contemplated by cl.X. Admission depended upon the satisfaction of simpler and wider criteria, relevant to the conditions of that time.
The Administration Law 1913 may also be seen as a code, regulating admission to practise before the magistrates' court it established, however that court might be constituted. Viewed as a code, according to the terms of cl.3 of Strickland's Proclamation, it necessarily excluded any operation of cl.X.
This position did not change when the Norfolk Island Act 1913 came into force in 1914. That Act made provision for a more comprehensive judicial system but the previous law was continued in force by s.4(1) and the more comprehensive system was not established until 1936, when substantial changes were made.
Moreover, in our view, the common law power inherent in superior courts to admit barristers had no application to Norfolk Island then. Even if it be assumed, for the purposes of the argument, that the magistrate's court was a "superior" court for this purpose, any such implied or inherent power was displaced, and thus negatived, by the express provisions of Part IV of the Administration Law. As has been noted, the regime contemplated by those provisions differed from the traditional institution of the Westminster-style Bar in many significant respects so that this new regime was incompatible with the traditional system.
Reference should also be made, in the present context, to the relevant provisions of the Judiciary Act. When originally enacted in 1903, s.49(1) provided that any person entitled to practise as a barrister or solicitor, or both, in any State should have the like right to practise in any federal court. In 1927, s.49(1) was amended by adding the similar right to practise in any court of a Territory under the control of the Commonwealth (i.e., inter alia, Norfolk Island). This is, in our view, a further indication that the laws in force in England in 1828, including cl. X of the Charter of Justice, were not applicable to Norfolk Island so far as concerns admission to a local "Bar".
The special provisions of Part IV of the Administration Law with respect to the admission as "advocates" in the magistrate's court, of, inter alia, barristers and solicitors admitted in any Dominion, stood alone as the only facility for admission to an institution which in any way resembled the traditional "Bar". That is to say, there was no other facility for admission to a traditional "Bar" of Norfolk Island.

(vii) The period 1937 - 1957
165. By an amendment made in 1935 to the Norfolk Island Act, an "Advisory Council" to advise the Administrator was established. The Administration Law 1913 was repealed by Act No. 14 of 1936. More significantly for present purposes, a new and different judicial system was set up by the Judiciary Ordinance 1936. The Court for Norfolk Island was established (s.5(1)) with a "Full" and "Limited" jurisdiction (s.9). By amendments made to the Judiciary Act in 1959, it was made clear that s.49 of that Act applied to the Court for Norfolk Island. Parties could appear before the Court, personally or by such barristers or solicitors as had the right to practise in the Court or in any "Federal Court", or, with the leave of the Court, by any other person (s.17). The Minister was empowered to make Regulations or Rules of Court providing for the admission of persons to practise as barristers or solicitors of the Court (s.29(1)(m)).

Although no administrative action was taken under s.29(1)(m), it is plain that a local Bar was contemplated by this provision and could have been established if the Minister had decided to act. Again there was no room for the operation of cl.X of the Charter of Justice.
On the other hand, whilst the Court was a court of record (s.5(2)), it was not constituted as a superior court (cf. the Norfolk Island Act 1957, s.18(3)). It seems unlikely, therefore, that the Court possessed an inherent power to admit practitioners.

(viii) The period 1958 - 1978
168. Another judicial system was established under Part V of the Norfolk Island Act 1957. The present Supreme Court was constituted (as from the commencement of the 1957 Act in 1960) as a "Superior Court of Record" (s.18(3)). The jurisdiction, practice and procedure of the Court was to be provided by or under Ordinance (s.22). The Supreme Court Ordinance 1960 conferred the same jurisdiction, in relation to Norfolk Island, as that of the ACT Supreme Court (s.5(1)); and that Court, in turn, picked up the jurisdiction of the NSW Supreme Court as it stood before 1 January 1911. The Judge of the Supreme Court of Norfolk Island was empowered to make rules of court regulating the practice and procedure of the Court; otherwise the practice or procedure of the High Court in its original jurisdiction was to be followed (s.19).

However, in our view, the picking up of the "jurisdiction" of the ACT Supreme Court, and in turn, the "jurisdiction" of the Supreme Court of New South Wales, are not material for present purposes. What we are here concerned with is the power of a court to admit barristers as the authorities previously mentioned indicate. This is not "jurisdiction" in any ordinary sense because, as has been seen, admission proceedings are "sui generis" (see, e.g. Wentworth's case at 363).
At the same time, as has been seen, there was a local provision in place in this area. By s.14 of the Judicature Ordinance 1960, the parties to any proceeding before the Supreme Court or the Court of Petty Sessions could appear personally, by such barristers or solicitors as have the right to practise in any federal court, or, with leave, by any other person.
It will be recalled that s.3 of the Judicature Ordinance again picked up the laws in force in England as at 25 July 1828, so far as applicable. But s.3 was expressed to be subject to any Acts or Ordinances in force in the Territory and these included, of course, the Judicature Ordinance itself. Section 14 made provision for appearance before either of the courts of Norfolk Island. This provision was again quite inconsistent with cl.X of the Charter of Justice and excluded it from any application. Section 14 conferred a right to be represented by barristers or solicitors who had the right to practise in any federal court. There was obviously no requirement of admission to practise in Great Britain or Ireland and no requirement for admission under anything like the proviso to cl.X as applied, mutatis mutandis, to the Territory. Moreover, the power to permit "any other person" to appear, conferred by s.14, was inconsistent with cl.X.
It may be noted too that s.9 of the Administration Law permitted the special magistrate to admit "any person" to appear before him, a power that extended well beyond that conferred by cl.X of the Charter of Justice.
New provisions in the present area, in particular s.55D, were introduced into the Judiciary Act in 1966, giving mainland practitioners the entitlement to practise in any Territory, including, it seems, Norfolk Island. These too, were inconsistent with the Charter of Justice.
In our view, unless displaced by other legislative provision, expressly or by necessary implication, the Supreme Court of Norfolk Island would have had at this time the inherent power of a superior court to admit practitioners.

(ix) The period 1979 to the present
175. The Norfolk Island Act 1979 brought about fundamental changes in the constitutional and administrative framework of the Territory. However, the 1979 Act introduced no changes to the judicial system which are significant for our purposes. No mention was made in the 1979 Act or in the regulations made under the Act of any facility whereby the Supreme Court might admit practitioners. The Charter of Justice, even if otherwise capable of application, remained excluded by the Judicature Ordinance and by the equally inconsistent provisions of the Judiciary Act in their application to the Territory.

It seems to us that the position at the present time is the same as that in the previous period, that is, unless displaced by other legislative provision, expressly or by necessary implication, the Supreme Court of Norfolk Island, as a Superior Court of Record, has an inherent power to admit practitioners upon such terms and conditions as are appropriate at the time. In this connection, it should be noted that, on 16 July 1992, after the argument in this appeal, there was laid before the Legislative Assembly of Norfolk Island a proposed Legal Profession Bill 1992. By cl. 10 of the Bill, provision is made for the admission of practitioners by the Supreme Court of Norfolk Island. By cl. 11 of the Bill, provision is made for the keeping by the Registrar of a roll, to be known as the Roll of Practitioners of the Supreme Court of Norfolk Island.
In formally introducing the Bill on 29 July 1992, Mr Brown, the Minister for Health and Education said:

"The general aims of this Bill are to replace the inadequate provisions of the Federal Judiciary Act 1903 with respect to legal practitioners with adequate local legislation. Members will of course know that in the last round of transfers of powers under the Norfolk Island Act, the matter of (the) legal profession was transferred to the executive authority of the Norfolk Island Government, that being the case it is appropriate that this measure be introduced. The present law relating to legal practitioners in Norfolk Island is to be found in section 55D of the Judiciary Act of the Commonwealth. That section deals with the legal practitioners right to practise as a barrister or solicitor in the Territories. It is a simple enough piece of legislation, but it certainly has its inadequacies ... The aim of this Act is to rectify those inadequacies, and bring the Island into line with mainland jurisdictions. In doing so, however, some special features of Norfolk Island need to be taken into consideration. First there is no Norfolk Island Law Society, nor, given the size of the Island and of its legal profession is there ever likely to be. Therefore the Act makes provision for practitioners to be attached to a relevant mainland professional body for oversight and disciplinary purposes. ... The other main change made from the sort of arrangements that one would expect on the mainland is that the Island would not be what is known as a primary admission jurisdiction, that is a newly qualified person or a person from another country would first need to be admitted into a mainland Australian jurisdiction, before being eligible for admission in Norfolk Island. The reason for this approach is that the scrutiny of overseas qualifications and for that matter Australian qualifications is a matter undertaken elsewhere by such bodies as barristers and solicitors admission boards. It would be impracticable to set up such a board in Norfolk Island, and so the legislation is framed in such a way that a person must be currently admitted to practise in a mainland jurisdiction before the person is eligible to practise in Norfolk Island.

(The reference by the Minister to the last round of transfers of powers is a reference to regulations made by the Governor-General on 18 June 1992 being the Norfolk Island (Exercise of Powers) Regulations (Amendment) (SR 164/1992). By this regulation, inter alia, there was added as an item in Schedule 2 to the 1979 Act the subject "The Legal Profession".)
The Court's inherent power to admit practitioners was not, in our view, removed or displaced by legislative provisions which may have had the effect of reducing, or even eliminating, the need for its exercise. By s. 14 of the Judicature Ordinance 1960, parties could appear by practitioners having the right to practise in any federal court and by s. 55D(1) of the Judiciary Act a practitioner whose name was on the roll of a State or Territory Supreme Court was entitled to practise in Norfolk Island. These provisions enabled the Supreme Court of Norfolk Island to receive from counsel the assistance required in the proper administration of the justice system and may have been sufficient for that purpose. But the omission from the legislative framework, territorial and federal, of a provision similar to s. 29(1)(m) of the Judiciary Ordinance 1936 did not mean that the inherent power was incapable of exercise. As was observed in Wentworth, the power carried with it power to adopt whatever procedures were considered appropriate. Nor, in our opinion, did the omission demonstrate a clear legislative intent to remove the inherent power.
Of the inherent power of a superior Court to admit practitioners, the majority said in Wentworth, 363-4:

"There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication ...

In Cameron v Cole Rich J. said ... :

'in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.' Given that superior courts are possessed of inherent jurisdiction and inherent powers because they are necessary in the interests of justice ... that statement necessarily applies to every aspect of that jurisdiction and those powers."

There are no clear words removing the inherent power of the Supreme Court of Norfolk Island to admit practitioners and the removal of that power is not, we think, a necessary implication arising out of the legislative framework. The power could not of course be exercised inconsistently with the rights of appearance given by the Judicature Ordinance 1960 or the rights to practise given by the Judiciary Act in its application to the Territory.

B. Assuming power exists, did the discretion of Morling C.J. miscarry?
182. It follows that, albeit for reasons which differ from those of Morling C.J., there was, in our view, a power available to the Court to be exercised in the Court's discretion. Mr Cook had a right to have the discretion exercised but not a right to be admitted other than in the Court's discretion.

This conclusion supports that already reached about the effect of the Supreme Court Ordinance 1960, because it is unlikely to have been contemplated that cl.X of the Charter, inconsistent as it is with the relevant provisions of the Judicature Ordinance and the Judiciary Act, should emerge in Norfolk Island from a different path created by another ordinance in the same scheme.
It remained a matter for the Supreme Court to determine whether, at the relevant time, the exercise of the power was necessary in the interests of justice and its administration. In the absence of such a need it is likely that the Court would exercise its discretion against admitting a practitioner, until either appropriate legislative procedures or rules of court had been established.
The exercise of the Court's discretion by Morling C.J. followed, we think, a consideration of all relevant matters. Mr Cook's admitted fitness for admission was but one of a number of matters to be considered. In our opinion, the other matters adverted to by his Honour, which went to the fundamental question of whether in the absence of an appropriate legislative framework, a local institution in the form of a Norfolk Island Bar should then be established, were most relevant considerations to be taken into account by his Honour.
We emphasise the unusual aspects of Mr. Cook's application, to which Morling C.J. referred. By virtue of s.55D(1) of the Judiciary Act, Mr. Cook has the right to practise as a barrister in the Territory and a separate right of appearance under the Judicature Ordinance of the Territory. None of these rights would have been enlarged if his application for admission had been granted and, moreover, it was not suggested that s.14 of the Judicature Ordinance and s.55D(1) of the Judiciary Act do not make adequate provision for litigants in the Supreme Court and in the Court of Petty Sessions of Norfolk Island to be represented by legal practitioners of their choice. These considerations placed Mr. Cook's application in a wholly different category to cases in which admission to practise by a court confers a right, otherwise absent, to practise before that court and before the other courts of the State or Territory in which admission is sought.
Morling C.J. said that if there were already in existence a roll of barristers in the Territory he would have had no hesitation in granting Mr. Cook's application, but as it was the first for admission as a barrister in the Territory, his Honour had to consider whether the court should establish its own roll of barristers. He observed too that if Mr. Cook's application were to succeed, it was difficult to see how an application for admission by a solicitor could be refused. If the court were to establish its own roll of barristers there would be no sound reason why it should not also establish its own roll of solicitors. It was in that context, and in the context of existing rights to practise in the Territory, that his Honour's discretion was exercised, there being no suggestion that the Judiciary Act and the Judicature Ordidnance did not make adequate provision for litigants to be represented by legal practitioners of their choice in the courts of Norfolk Island.
The manner of exercise by Morling C.J. of the Court's discretion was, we think, unexceptionable. It did not involve the application of a wrong principle and should not, in our opinion, be disturbed (see, e.g. House v. The King (1936) 55 CLR 499).

Result of the appeal
189. The appeal should be dismissed but, in the special circumstances which involved a question of public interest for the Territory, no order for costs should be made (cf. In re Davis per Dixon J. at 426.)

[1992] FCA 923

04 DECEMBER 1992