Crawford v State of Western Australia
[2024] FCA 222
•12 March 2024
FEDERAL COURT OF AUSTRALIA
Crawford v State of Western Australia [2024] FCA 222
File number: WAD 261 of 2022 Judgment of: PERRAM J Date of judgment: 12 March 2024 Catchwords: CONSTITUTIONAL LAW – validity of provisions of the Children’s Court of Western Australia Act 1988 (WA) (‘CCWA Act’) and the Magistrates Court Act 2004 (WA) (‘MC Act’) concerning allocation of responsibilities to dually appointed magistrates – whether those provisions undermine judicial independence – whether those provisions substantially impair the institutional integrity of the Magistrates Court and Children’s Court
STATUTORY INTERPRETATION – proper construction of impugned provisions of the CCWA Act and MC Act – whether s 25(1) of the MC Act impliedly amended by amendments to the CCWA Act – scope of permitted considerations under ss 11 and 12A of the CCWA Act
Legislation: Constitution ss 75, 76, 77(iii)
Judiciary Act 1903 (Cth) ss 39(2), 44(1)
Federal Court Rules 2011 (Cth)
High Court Rules 2004 (Cth) r 1.05
Children's Court of Western Australia Act 1988 (WA) ss 5(1), 6, 7, 10, 11, 12A, 13(5)
Courts Legislation Amendment (Magistrates) Act 2022 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA) ss 4, 6, 7, 10, 11, 24, 25, 37(1), Sch 1 cll 2, 3, 5, 6, 11-15,
Salaries and Allowances Act 1975 (WA) ss 7, 18, 50(1)
Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
Attorney-General (NT) vEmmerson [2014] HCA 13; 254 CLR 393
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265
Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; 205 CLR 399
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Marbury v Madison 5 US (1 Cranch) 137 (1803)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386
Rees v Crane [1994] 2 AC 173
Telstra v Commonwealth [2008] HCA 7; 234 CLR 210
Nettle G, ‘Removal of Judges from Office’ 45(1) Melbourne University Law Review 241
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 112 Date of last submissions: 14 November 2023 Date of hearing: 17 October 2023 Counsel for the Applicant: P Cahill SC and R Young SC Solicitor for the Applicant: Fiona Low Counsel for the Respondent: J Thomson SC and G Stockton Solicitor for the Respondent: State Solicitor’s Office ORDERS
WAD 261 of 2022 BETWEEN: HER HONOUR CATHERINE PATRICIA CRAWFORD
Applicant
AND: THE STATE OF WESTERN AUSTRALIA
Respondent
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS THAT:
1.The Applicant’s writ of summons be dismissed.
2.The Applicant pay the Respondent’s costs as taxed, assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
Introduction
On 20 June 2006, the Applicant was appointed by the Governor of Western Australia as a magistrate of the Magistrates Court of Western Australia and simultaneously as a magistrate of the Children’s Court of Western Australia. It is lawful to hold a commission as a magistrate of both Courts simultaneously: s 10(4) Children's Court of Western Australia Act 1988 (WA) (‘the CCWA Act’); s 6(3) Magistrates Court Act 2004 (WA) (‘the MC Act’).
The Applicant at first served principally only in the Magistrates Court which she did on a full-time basis having answered an advertisement for that position. From time to time, she also performed ad hoc work as a magistrate of the Children’s Court. Ad hoc work of this kind arises from the fact that the Children’s Court does not maintain a registry or courthouse in many regional areas where, nevertheless, there is often a need for a child to be brought before the Court. The ad hoc work of dually appointed magistrates addresses this problem.
The Applicant worked full-time as a magistrate in the Magistrates Court between July 2006 and February 2012. At some time prior to 16 January 2012 the Applicant, the President of the Children’s Court and the Chief Magistrate agreed to an arrangement by which the Applicant would temporarily serve full-time in the Children’s Court to fill in for another magistrate and she did this from 6 February 2012. There then became available a permanent vacancy on the Children’s Court. The Applicant was successful in securing that position and so continued to serve full-time as a magistrate of the Children’s Court, now on a permanent basis. She nevertheless remained a commissioned magistrate of the Magistrates Court.
During 2020 the President and the Applicant fell into disagreement. In January 2021 the Applicant sued the President in the Supreme Court of Western Australia. The nature of the dispute and the suit are not before this Court. On 13 October 2021 the Supreme Court proceeding was settled. The terms of settlement record a common understanding (relevantly) between the President and the Applicant that:
1. Magistrate Crawford will sit as a magistrate in the Children’s Court that sits from time to time at the Fremantle Courthouse (“the Fremantle Children’s Court”).
2.Magistrate Crawford’s chambers will be in the Fremantle Children’s Court, and Magistrate Crawford will move to those chambers by no later than Friday 12 November 2021.
3.The President will use his best endeavours to ensure Fremantle Children’s Court will be allocated sufficient resources, including judicial support staff, to enable the proper disposition of the business of the Children’s Court.
4.The matters set out in this document relate only to Judge Quail while he is the President of the Children’s Court and have no effect on any successor.
5.Judge Quail and Magistrate Crawford proceed on the understanding that the work to be allocated to the Fremantle Children’s Court will require Magistrate Crawford to be engaged full time.
…
13.The Children’s Court will make available to Judge Quail, all magistrates of the court and all staff of the court support by way of counselling and mediation services as may be sought to enable the matters that have arisen in CIV 1037 of 2021 to be resolved and ameliorated and to restore proper working relationships of all members and staff of the Children’s Court.
On 1 March 2022 the relevant provisions of the Courts Legislation Amendment (Magistrates) Act 2022 (WA) came into force (‘the Amending Act’). The Attorney-General's second reading speech for the Amending Act said this about the purpose of the amendments:
Despite the breadth of the 2004 reform package, it did not address the way in which the President of the Children’s Court and the Chief Magistrate interact for the purposes of dealing with the workload of the Children’s Court. [This] bill will address this by clarifying for future purposes the respective powers of the President of the Children’s Court and the Chief Magistrate in respect of the administration and workload allocation of the Children’s Court. In particular, the bill will provide the President of the Children’s Court with the discretion about the best way to operate a specialist court and to maximise the utilisation of judicial resources, recognising that the Children’s Court is a separate court to the Magistrates Court and the president is the head of jurisdiction.
The second reading speech also included this statement:
Before I turn to the detail of the bill, I note that there is a proceeding on foot before the Supreme Court of Western Australia commenced by the plaintiff, Magistrate Catherine Crawford, against Judge Hylton Quail, President of the Children’s Court. The parties to this proceeding raised issues related to whether the president had the power to make certain directions to the plaintiff. The State of Western Australia intervened in the proceeding with the primary purpose of addressing the proper construction of the president’s powers. The power under new section 12A will not be retrospective and will apply from commencement. The passage of the bill will resolve, for future purposes, issues about the scope of the president’s powers. The future conduct of the proceeding will be a matter for the parties and the court.
Amongst other amendments, the Amending Act inserted two new provisions into the CCWA Act. These are ss 11 and 12A:
11.Work of magistrates appointed to both Magistrates Court and Children’s Court
(1) In this section —
Children’s Court functions means functions of a magistrate of the Court;
dually appointed magistrate means a person who holds office both as a magistrate of the Magistrates Court and as a magistrate of the Court.
(2) The President may, by written notice, inform the Chief Magistrate that the President considers that, to deal with the workload of the Court, it is necessary or desirable for a particular dually appointed magistrate for the time being to perform Children’s Court functions —
(a) on a full-time basis; or
(b) on a part-time basis as specified in the notice.
(3) If the President gives a notice under subsection (2) in relation to a dually appointed magistrate —
(a)the Chief Magistrate may consent, or refuse to consent, to the magistrate for the time being performing Children’s Court functions on the basis specified in the notice; and
(b)if the Chief Magistrate consents — the Chief Magistrate must, in giving any directions to the magistrate under the Magistrates Court Act 2004 section 25, take into account that for the time being the magistrate is required to perform Children’s Court functions on the basis specified in the notice.
(4)If a particular dually appointed magistrate has performed Children’s Court functions on a full-time or part-time basis or has been the subject of a notice under subsection (2), the President may, by written notice, inform the Chief Magistrate —
(a)that the President considers that, to deal with the workload of the Court, it is not necessary or desirable for the magistrate for the time being to perform Children’s Court functions at all; or
(b) that the President considers that, to deal with the workload of the Court —
(i)it is not necessary or desirable for the magistrate for the time being to perform Children’s Court functions on the basis that previously applied; and
(ii)it is necessary or desirable that the magistrate should instead for the time being perform Children’s Court functions on a part-time basis as specified in the notice (which must, in the case of a magistrate who previously performed those functions on a part-time basis or was the subject of a notice under subsection (2)(b), be a reduced part-time basis).
(5)If the President gives a notice under subsection (4) in relation to a dually appointed magistrate, the Chief Magistrate must, in giving directions to the magistrate under the Magistrates Court Act 2004 section 25, take into account —
(a)in the case of a notice under subsection (4)(a) — that for the time being the magistrate is not required to perform Children’s Court functions; or
(b)in the case of a notice under subsection (4)(b) — that for the time being the magistrate is required to perform Children’s Court functions on the specified part-time basis and not otherwise.
(6)In determining whether to give a notice under subsection (2) or (4) in relation to a dually appointed magistrate, the President has absolute discretion and is not required to take into account the seniority or length of service of the magistrate or any other matter.
(7) A notice under this section in relation to a magistrate is subject to any subsequent notice under this section in relation to the magistrate.
…
12A. President may assign duties to magistrates
(1)The President, by directions given from time to time to a person who is a magistrate, may —
(a)specify which case or cases, or class or classes of case, the person is to deal with; and
(b)specify which administrative duties the person is to perform for the time being; and
(c)specify where, when and at what times to deal with those cases or perform those duties.
(2)A direction given under subsection (1) must relate only to the person’s functions as a magistrate of the Court.
(3)A direction given to a magistrate under subsection (1) does not limit the functions of the magistrate.
(4) A magistrate must comply with a direction given under subsection (1).
(5) A contravention of subsection (4) is not an offence.
(6) The Chief Magistrate is not entitled, under the Magistrates Court Act 2004 or any other law, to direct a person to perform functions as a magistrate of the Court or in relation to the performance of those functions.
On 24 March 2022, a few weeks after these provisions became law, the President wrote to the full-time magistrates of the Children’s Court. He explained that since January 2021 the Children’s Court had had an extra full-time magistrate, that he was reviewing the workload of the full-time magistrates of the Children’s Court and that following that review it might become necessary for one of them to be ‘made available’ to sit in the Magistrates Court. The President indicated that he believed that he already knew what the magistrates’ individual positions were but that he was providing an opportunity for them to confirm those positions or to let him know if those positions had changed.
The Applicant responded on 1 April 2022 that she did not wish to sit in the Magistrates Court and did not consent to doing so.
About a month later, on 2 May 2022, the President then issued two notices. The first, which relied on s 11(4), was a written notice addressed to the Chief Magistrate. It was in these terms:
Dear [Chief Magistrate],
Notice pursuant to s 11(4) of the Children’s Court Act of Western Australia 1988
I am pleased to let you know that I have completed my review of the workload of the full-time Children's Court magistrates. I have concluded that the Children's Court has more full-time magistrates than it requires. Accordingly, I have advised the Department of Justice and Government that from 1 June 2022 a dually appointed full time Children's Court magistrate will be required to work part-time in the Children's Court and will be available to work part-time in the Magistrates Court. The division of work will be 0.2 FTE in the Children’s Court and 0.8 FTE available to the Magistrates Court.
I have had regard to the views of the full-time Children's Court magistrates and other considerations and determined that, until further direction, the magistrate to work part time in the Children's Court one day per week from 1 June 2022 will be Magistrate Crawford. Her Honour's Children's Court duties from then and for the time being and not otherwise will be to preside as listed in the Fremantle and Rockingham Children's Courts one day each per fortnight and have chambers in those courts on those days. Enclosed is the suburban Children's Court roster until the end of 2022 showing the days when Magistrate Crawford will be required to sit in the Children's Court (if not on leave).
I am amenable to Magistrate Crawford presiding in other suburban Children's Courts instead if, for example, you direct her to be based in one of those court locations. There are other possibilities we could also discuss if you do decide to direct Magistrate Crawford to sit in the Magistrate's Court.
Yours sincerely
His Honour Judge Hylton Quail
President of the Children’s Court of Western Australiacc.Mr Josh Thomson SC
Solicitor General of Western Australia
The second notice was also dated 2 May 2022 but was addressed to the Applicant. It was in these terms:
Dear Magistrate Crawford,
Direction pursuant to s 11 of the Children’s Court Act of Western Australia 1988
Further to my memorandum dated 24 March 2022, I have completed my workload review and concluded that the Children's Court has more full-time magistrates than it requires. I have advised the Department of Justice and Government that from 1 June 2022 a dually appointed full time Children's Court magistrate will be required to work part-time in the Children's Court and will be available to work part-time in the Magistrates court. The division of work will be 0.2 FTE in the Children's Court and 0.8 FTE available to the Magistrates Court.
I have had regard to the views of all current Children's Court magistrates, including your letter dated 1 April 2022, as well as other considerations, and determined that from 1 June 2022 you should work part-time in the Children's Court one day per week. From then your Children's Court duties for the time being and not otherwise will be to preside as listed in the Fremantle and Rockingham Children's Courts one day each per fortnight and have chambers in those courts on those days. Enclosed is the suburban Children's Court roster until the end of 2022 showing the days when you will be required to sit in the Children's Court (if not on leave).
I am amenable to you presiding in other suburban Children's Courts instead if, for example, the Chief Magistrate directs you to be based in one of those court locations. I will provide you with a further direction if he does.
Yours sincerely
His Honour Judge Hylton Quail
President of the Children’s Court of Western AustraliaLeaving aside whether these notices had any legal effect, it is tolerably clear that they were intended to reduce the workload of the Applicant in the Children’s Court from five days per week to one day per week and to free her up to perform work in the Magistrates Court. This was to take effect from 1 June 2022.
The Applicant complied with these stipulations from 1 June 2022 although I would infer that she did so contrary to her desire to work full-time in the Children’s Court.
After the Applicant had begun working part-time in the Children’s Court, the President and the Chief Magistrate engaged in further correspondence about the resourcing of the two courts. This correspondence began with a letter from the President to the Chief Magistrate dated 17 July 2023. This letter was as follows:
Dear [Chief Magistrate],
ARMADALE CHILDREN’S COURT
For some time, I have been hoping to improve Children’s Court training and experience for new magistrates before they are posted to a regional court. The imminent opening of the new Armadale Court building and workload changes in Armadale and other metropolitan Children’s Courts presents an ideal opportunity to implement a new arrangement to that end.
The workload changes are a consequence of the change in police charge lodgment boundaries, which has resulted in a substantial rise this year in the number of Children’s Court charges in Armadale. Accordingly, from January 2024 at the latest we will increase our Armadale Children’s Court sitting beyond the current one day a fortnight to one day per week (likely Monday).
What I propose is that the current one day a week Children’s Court resource (0.2 FTE magistrate) which is attached to Fremantle and Rockingham Children’s Courts in alternate weeks, and currently serviced by Magistrate Crawford, be moved to Armadale Children’s Court, sitting one day per week. Further, that at least one of the magistrates to be based at Armadale be a new magistrate who is yet to be posted regionally. That magistrate would then preside one day per week in Armadale Children’s Court and the balance of the time as directed by Magistrate Court listings (ie. 0.2 FTE in the Children’s Court and 0.8 FTE in the Magistrates Court).
Magistrates based at Perth Children’s Court would then resume responsibility for Rockingham and Fremantle Children’s Court sittings. Magistrate Crawford would then be released from her current Children’s Court direction to the same direction as applies to all metropolitan based magistrates who do not sit full time in Perth Children’s Court, namely, to preside in the Children’s Court as and when required. Apart from that standing direction, Magistrate Crawford would be available to be listed full time in the Magistrates Court.
This proposal is resource neutral as between the Children’s and Magistrate’s Courts and will be an improvement in many respects on the existing arrangement.
I look forward to hearing whether you are agreeable to implementing these changes, which ideally need to be determined before the next round of magistrate movements and the opening of the new Armadale Court.
Yours sincerely,
Judge Hylton Quail
President of the Children’s Court of Western Australiacc Ms Katrina Peterson
Executive Director
Magistrates Court and Tribunals
On 26 July 2023 the Chief Magistrate responded to the President in these terms:
Dear [President]
Armadale Children’s Court
Thank you for your letter of 17 July 2023.
I am happy to support your proposal to increase the Armadale Children’s Court sittings to once per week by utilising one of the Magistrates at the new Armadale Court Complex. The designated Children’s Court Magistrate would be a new Magistrate who is yet to be posted regionally.
We can continue to work cooperatively to resolve any practical or logistical issues that may arise from time to time.
Yours sincerely
Steven Heath
Chief MagistrateCc: Ms Katrina Peterson
Executive Director
Magistrates Court and Tribunals
On 3 August 2023 the President then wrote to the Applicant with a copy to the Chief Magistrate in these terms:
Dear Magistrate Crawford,
Notice pursuant to s 11 of the Children’s Court of Western Australia Act 1988
Further to my letter of 2 May 2022, I have again reviewed the workload of the Children’s Court and concluded that it is not necessary or desirable for you to perform Children’s Court functions in the Fremantle and Rockingham Children’s Courts on the current basis of one rostered sitting day per week. Your last rostered week in those courts will be the week commencing 6 November 2023.
I have further concluded that it is necessary and desirable that you should perform Children’s Court functions under the same general direction that applies to all dually appointed magistrates who are not the subject of some other specific direction, namely, to preside in the Children’s Court as and when required and directed to do so.
I have advised the Chief Magistrate accordingly and this is the formal written notice pursuant to s 11 of the Children’s Court of Western Australia Act 1988 of those decisions. From the week commencing 13 November 2023 you will be available for direction by the Chief Magistrate, having regard to the general Children’s Court direction which continues to apply to you.
Yours sincerely
His Honour Judge Hylton Quail
President of the Children’s Court of Western Australiacc. Chief Magistrate Steven Heath
Leaving aside whether these letters had any legal effect, it is apparent they contemplated that the Applicant would altogether cease sitting in the Children’s Court from 13 November 2023 (apart from any ad hoc work) and begin instead sitting full-time in the Magistrates Court. As with the correspondence of 2 May 2022, it is evident that the Applicant has complied with these directions although, again, I would infer that she is not content with this state of affairs.
By the present suit, the Applicant challenges the constitutional validity of ss 11 and 12A together with a number of other provisions introduced by the Amending Act into the CCWA Act and the MC Act. Both parties assumed that on their proper construction ss 11 and 12A authorised the President to take the steps that he did.
The basis of the constitutional challenge is the suggestion that ss 11 and 12A undermine the independence of the magistrates of the Children’s Court because s 11(4) empowers the President to suspend a magistrate from the performance of his or her functions by determining that they should do no work in that court. Although the separation of powers has no direct application to the judiciaries of the States, the courts of the States are invested with federal jurisdiction by s 39(2) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable’) it was held that the vesting of a function in the court of a State which had the capacity to undermine public confidence in the impartiality of the courts which exercise federal jurisdiction was inconsistent with Chapter III of the Constitution and invalid. In Kable a law of New South Wales empowered the Supreme Court of that State to order the detention of a single person, Mr Kable, if the Director of Public Prosecutions applied for a preventive detention order. It was not necessary for Mr Kable to have committed an offence for his detention to be ordered and there was no necessity for any form of criminal trial.
The High Court held that this law turned the Supreme Court of New South Wales into an instrument of executive government policy and undermined the reputation of the courts exercising federal jurisdiction for impartiality and independence. The Act was therefore invalid.
In this case the challenge is also based on notions of judicial independence. The Applicant submits that the power of the President to determine that a magistrate of the Children’s Court should do no work in that court is a threat to the independence of its magistrates. On this view, the independence of judges requires not just their independence from the executive and legislative branches of government but also, so it is submitted, from each other. A power in the President to cause a magistrate to cease exercising functions in the Children’s Court means that the Court’s magistrates in practice serve at the pleasure of the President and this is said to be inconsistent with the security of tenure which is at the heart of judicial independence.
The Magistrates Court of Western Australia
The Magistrates Court of Western Australia was established by s 4 of the MC Act in 2004. It is a court of record (s 4(2)). Schedule 1 provides for the appointment of magistrates to the Court by the Governor (Sch 1 cl 3) who have at least five years of legal experience and who have not yet attained the age of 70 years (Sch 1 cl 2). The Governor may appoint as many magistrates as are necessary to deal with the work of the Court (Sch 1 cl 3(3)). The Magistrates Court does not consist of its magistrates but rather is constituted by a single magistrate or, in some circumstances, by two or more justices of the peace: ss 7(1) and (2). The Court has the civil jurisdiction conferred by the Magistrates Court (Civil Proceedings) Act 2004 (WA) (s 10 of the MC Act) and the criminal jurisdiction conferred by s 11 of the MC Act.
Magistrates have the functions conferred on them by laws applying in Western Australia (s 6(1)). With the Governor’s approval a magistrate may hold concurrently another public or judicial office and may perform other public functions concurrently with his or her functions as a magistrate (s 6(3)). A magistrate must not be appointed to an office which does not include judicial functions without their consent (s 6(4)).
The independence of magistrates is secured by provisions regulating their immunity from suit, remuneration, tenure and removal from office. As to immunity, a magistrate has the same protection and immunity as a judge of the Supreme Court of Western Australia (s 37(1)). As to remuneration, cl 5 of Sch 1 provides:
5. Conditions of service
(1) In this clause —
remuneration has the meaning given by the Salaries and Allowances Act 1975.
(2)The remuneration of a magistrate is to be determined under the Salaries and Allowances Act 1975.
…
The application of the Salaries and Allowances Act 1975 (WA) means that the remuneration of magistrates is set by the Salaries and Allowances Tribunal under s 7 of that Act. This mechanism involves the presentation of a report to the Minister and the laying of that report before both houses of Parliament. That Act does not appear to contain provisions preventing the diminution of judicial salaries by a recommendation of the Tribunal but it does put the function of setting remuneration in the hands of an independent tribunal subject only to Parliamentary disallowance.
As to tenure, cl 11 of Sch 1 of the MC Act provides that a magistrate ceases to be a magistrate if he or she turns 70, resigns or is removed from office. Removal from office is the final step following a suspension from duties. Suspension may occur where there is incapacity (Sch 1 cl 13) or misbehaviour (Sch 1 cl 14). In both cases, detailed provision is made for the determination of the issues which may arise. These provisions result both in limitations on how the power of suspension is exercised and in corresponding procedural protections for the magistrate subjected to them.
Because these limitations are relevant to the scope of the Chief Magistrate’s powers to allocate work with the Magistrates Court (to which I will shortly turn), it is useful briefly to summarise them. Where suspension due to incapacity is concerned, it is regulated by Sch 1 cl 13:
13. Suspension and termination due to illness
(1)If the Attorney General is of the opinion that a magistrate is incapable of performing satisfactorily his or her official functions due to physical or mental incapacity, other than due to a temporary illness, he or she may relieve the magistrate from his or her duties.
(2)A magistrate, while relieved from duties, must not perform any of his or her functions as a magistrate, but is entitled to his or her full remuneration.
(3)If the Attorney General relieves a magistrate from duties, the Attorney General must establish a committee of the Chief Justice of Western Australia, or a judge nominated by the Chief Justice, and 2 persons registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession to —
(a)inquire into and report to the Attorney General on whether the magistrate is mentally or physically incapable of carrying out satisfactorily the duties of office; and
(b)make recommendations to the Attorney General about the matter.
(4)The Attorney General may direct the magistrate to attend and be examined by and to cooperate with the reasonable requests of the committee.
(5)The magistrate must comply with such a direction.
(6)The committee is to determine the procedure governing its inquiry to the extent it is not prescribed by the regulations.
(7)In accordance with recommendations made under subclause (3) the Governor may —
(a) reinstate the magistrate to his or her duties; or
(b) terminate the magistrate’s appointment.
(8)If the magistrate’s appointment is terminated, it is deemed to be a retirement on the ground of total and permanent disablement for the purposes of the State Superannuation Act 2000.
It is the Attorney-General who initially suspends the magistrate from the performance of his or her duties but once this step is taken a committee must be established consisting of the Chief Justice of Western Australia (or a judge nominated by the Chief Justice) and two persons with medical qualifications. The magistrate may be required to be examined by the Committee. The Committee then produces a report which is sent to the Attorney-General. The Committee may recommend that the magistrate be reinstated or that the magistrate be ‘terminated’, a nomenclature which appears to proceed on a misunderstanding of the legal relations involved, namely, that there is a relationship of which it is meaningful to speak as having been terminated. The Governor is then empowered to reinstate the magistrate or ‘terminate’ their appointment depending on the recommendation. Under this process, it is not necessary that there be an address to the Governor by both Houses of Parliament prior to ‘termination’ (cf. the position under s 72(ii) of the Constitution for Justices of the High Court and other courts created by the Commonwealth Parliament, as to which see Nettle G, ‘Removal of Judges from Office’ 45(1) Melbourne University Law Review 241). In any event, it is apparent that the Attorney-General’s power of suspension for incapacity is significantly qualified by the committee process which must then be enlivened.
Where suspension due to misbehaviour is concerned, the matter is governed by Sch 1 cl 14. It provides:
14. Suspension from office due to substandard performance
(1)A proper reason for suspending a magistrate from office exists if the magistrate —
(a)has shown incompetence or neglect in performing his or her functions; or
(b)has misbehaved or engaged in any conduct that renders him or her unfit to hold office as a magistrate, whether or not the conduct relates to those functions; or
(c)has contravened section 25(3) or 27(3) or clause 13(5); or
(d)is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws.
(2)The Attorney General may give a magistrate notice to show cause why he or she should not be suspended from office if —
(a)in the case of the Chief Magistrate — the Attorney General, after consulting the Chief Justice of Western Australia, alleges that a proper reason exists for suspending the Chief Magistrate; or
(b)in the case of any other magistrate — the Attorney General, after consulting the Chief Magistrate, alleges that a proper reason exists for suspending the magistrate.
(3)If the Attorney General gives a magistrate such a notice, the Attorney General must give a copy of it to the Chief Justice.
(4)On receiving such a notice a magistrate must not perform any of his or her functions as a magistrate unless reinstated under subclause (7), but is entitled to be remunerated until an order is made under subclause (7).
(5)When the Chief Justice receives a copy of such a notice, the Chief Justice, or a judge nominated by the Chief Justice —
(a)is to inquire into and report to the Attorney General about the truth of the allegation, unless the magistrate, in writing, admits the allegation; and
(b)following such an inquiry or admission, is to make recommendations to the Attorney General about the matter and as to whether and to what extent the magistrate should be remunerated while suspended under any order that may be made under subclause (7)(b).
(6)The person conducting an inquiry is to determine the procedure governing the inquiry to the extent it is not prescribed by the Supreme Court’s rules of court.
(7)In accordance with recommendations made under subclause (5) the Governor may —
(a) reinstate the magistrate to his or her duties; or
(b)suspend the magistrate pending consideration under clause 15 of the removal of the magistrate.
(8)If under subclause (7)(b) the Governor suspends a magistrate, the Governor must determine whether and to what extent the magistrate is to be remunerated during the suspension.
The process of suspension for misbehaviour begins by the Attorney-General consulting with the Chief Magistrate (or if the magistrate is the Chief Magistrate, the Chief Justice of Western Australia) as to whether proper reasons exist for a magistrate’s suspension. Following this meeting the Attorney-General may issue the magistrate with a show cause notice requiring the magistrate to show cause why he or she should not be suspended. On receipt of the notice, the magistrate is suspended from duties but remains on full pay. The show cause notice must also be sent to the Chief Justice of Western Australia. The Chief Justice (or a judge nominated by the Chief Justice) must then inquire into and report upon the alleged misbehaviour, unless the magistrate admits the misbehaviour. The Chief Justice (or nominee judge) must then, following such an inquiry or admission, make recommendations to the Attorney-General about the matter. The recommendations may include the reinstatement of the magistrate to his or her duties or removal from office.
If a recommendation is made that the magistrate be removed from office, the Chief Justice (or the nominee judge) may also recommend that the magistrate not be paid whilst the removal issue is pending. Upon receipt of the Chief Justice's report, the Governor may, depending on the recommendations, reinstate the magistrate to his or her duties or if removal is recommended continue the suspension of the magistrate from the performance of their duties. If a recommendation for removal has been made then it is for both Houses of Parliament to decide whether to petition the Governor for the removal of the magistrate under Sch 1 cl 15. If both Houses petition the Governor to remove the magistrate then the Governor may do so: Sch 1 cl 15.
Turning then to the administration of the Magistrates Court, the Governor is empowered to appoint a magistrate as the Chief Magistrate (Sch 1 cl 6(1)) but this appointment may be cancelled at any time by the Governor (Sch 1 cl 6(3)). The seniority of magistrates is determined by their date of appointment save in the case of the Chief Magistrate and any deputy Chief Magistrates. The Chief Magistrate is the principal judicial officer of the Court (s 24(1)) and may establish and disestablish divisions within the Court whose purpose is to deal with a specific class or classes of case (s 24(2)). Section 25 provides legal authority to the Chief Magistrate to allocate the work of the Court. It provides:
25. Chief Magistrate may assign duties to magistrates
(1)The Chief Magistrate, by directions given from time to time to a person who is a magistrate, may —
(a)specify which case or cases, or class or classes of case, the person is to deal with or in which division of the Court the person is to sit; and
(b)specify which class or classes of the judicial functions that the person has under written laws, whether as a magistrate or otherwise, the person is to perform for the time being; and
(c)specify which administrative duties the person is to perform for the time being; and
(d)specify where, when and at what times to deal with those cases or perform those functions or duties.
(2)Such a direction given to a magistrate does not limit the functions of the magistrate.
(3)A magistrate must comply with such a direction.
(4)A contravention of subsection (3) is not an offence.
(5)In the case of a magistrate who is also the Principal Registrar or a registrar of the Family Court, this section and section 24(4) apply as if the reference to the Chief Magistrate were a reference to the Chief Judge of the Family Court or his or her delegate.
(6)If a person holds office both as a magistrate of the Court and as a magistrate of the Children’s Court, the Chief Magistrate must not give a direction under subsection (1) in relation to the person’s functions as a magistrate of the Children’s Court.
Section 25(6) was added by the Amending Act but ss 25(1)-(5) were in the above form before its passage. As will be seen, one of the effects of the Amending Act was to insert into the CCWA Act a similar although not identical provision to s 25(1) for the President of that Court (s 12A). Having regard to the suspension and removal provisions in Sch 1, it is apparent that s 25 cannot confer authority on the Chief Magistrate to suspend a magistrate from duties on the grounds of incapacity or misbehaviour. The provisions in Sch 1 form a particular regime for suspending a magistrate from duties on the grounds of incapacity or misbehaviour and the general provisions of s 25 cannot be used to outflank limitations inherent in that regime: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 275-278 per Gummow J (Brennan CJ, Dawson, Gaudron and McHugh JJ agreeing in separate judgments).
It is then necessary to say something of dually appointed magistrates. As already noted, s 6(3) of the MC Act permits a magistrate to hold another judicial office and perform that office concurrently with the office of magistrate. It is this provision which authorises the appointment of magistrates of the Magistrates Court as magistrates of the Children’s Court, though it will be seen that s 10(4) of the CCWA Act also does so. The passage of the Amending Act has added two further elements to the situation of dually appointed magistrates. First, s 25(6) now makes clear that the work allocation directions which may be given by the Chief Magistrate under s 25(1) of the MC Act do not extend to directions to a magistrate who also holds office as a magistrate of the Children’s Court in relation to their performance of functions as a Children’s Court magistrate. Secondly, Sch 1 has now been amended to include a new cl 12(6) which has the effect that if a magistrate holds office as a magistrate of both courts then resignation from one office is taken to be a resignation from both. That clause provides:
(6)If a person holds office both as a magistrate of the Court and as a magistrate of the Children’s Court, and the person resigns from only one of those offices, the resignation is taken to be a resignation from both of those offices.
Finally, it is clear that the Magistrates Court is a ‘court of a State’ within the meaning of s 77(iii) of the Constitution. Subject to the exclusive jurisdiction of the High Court, it is therefore invested with the jurisdiction set out in ss 75 and 76 of the Constitution by s 39(2) of the Judiciary Act, which provides:
(2)The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:
(a)A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Special leave to appeal from decisions of State Courts though State law prohibits appeal
(c)The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
Next it is necessary to consider the provisions regulating the Children’s Court of Western Australia.
The Children’s Court of Western Australia
The Children’s Court is established by s 5(1) of the CCWA Act and is a court of record. The Court has a criminal and a limited civil jurisdiction (relating to such matters as care and schooling): Pt 3. Unlike the Magistrates Court, the Children’s Court may have appointed to it both judges and magistrates. Provision for the appointment of judges is made by s 7. A judge of the Children’s Court has the same emoluments as a judge of the District Court of Western Australia (s 7(3)). A judge of the Children’s Court may contemporaneously hold a commission as a District Court judge or some other judicial office: s 7(9). If there is only one judge appointed to the Children’s Court that judge is to be the President (s 7(8)). If there is more than one judge the Governor is to designate one of them as President (s 7(8)).
A person may be appointed to be a magistrate of the Children’s Court by the Governor: s 10. Largely the provisions governing the appointment, suspension and removal of the magistrates of the Children’s Court track in parallel those of the magistrates of the Magistrates Court. In many instances, this is achieved by cross-referencing, with any necessary alteration, provisions of the MC Act to the CCWA Act. Thus by s 10(1) the qualifications to be a magistrate of the Children’s Court are the same as those for magistrates of the Magistrates Court which, it will be recalled, are having at least five years of legal experience and being under 70 years of age. The Governor may appoint as many magistrates as are necessary to do the work of the court: s 10(3). A magistrate of the Children’s Court may be appointed as a magistrate of the Magistrates Court: s 10(4). This last provision appears to be narrower than the corresponding provision in the MC Act (s 6(3)) which authorises appointment of a magistrate to any public or judicial office. However, s 6(3) of the MC Act itself is picked up and applied to the magistrates of the Children’s Court by s 10(5) of the CCWA Act so s 10(4) appears to serve no purpose.
Nevertheless, the effect of s 6(3) of the MC Act and s 10(4) of the CCWA Act is to create a legal environment where it is possible simultaneously to be a magistrate of both courts.
As already noted, the Amending Act has also inserted into Sch 1 of the MC Act a new cl 12(6) (above). The effect of that provision, if valid (which the Applicant challenges), is that where a magistrate holds a commission in both courts resignation from one results in resignation from both. This provision is picked up and applied to the magistrates of the Children’s Court: s 10(5) of the CCWA Act. An additional sting is provided by the insertion of a new cl 12(7) into Sch 1 of the MC Act which provides that a dually appointed magistrate who resigns from one court before the Amending Act commenced is also taken to have resigned from both courts. The effect on the Applicant is that it has prevented her from evading the operation of s 11 (which only applies to dually appointed magistrates) by resigning as a magistrate from the Magistrates Court and thereby ceasing to be a dually appointed magistrate.
The conditions of service of a magistrate of the Children’s Court are set out in Sch 1 cl 5 of the MC Act with necessary changes: s 10(5). There are only two necessary changes being (a) replacing references to the Chief Magistrate with references to the President of the Children’s Court and (b) changing the meaning of the word ‘magistrate’ from ‘magistrate of the Magistrates Court’ to ‘magistrate of the Children’s Court’. So altered, Sch 1 cl 5 as applied to the magistrates of the Children’s Court provides:
5. Conditions of service
(1) In this clause —
remuneration has the meaning given by the Salaries and Allowances Act 1975.
(2)The remuneration of a magistrate is to be determined under the Salaries and Allowances Act 1975.
(3)The Governor may from time to time determine the conditions of service (other than remuneration) of a magistrate, including whether he or she is to work full time or other than full time as a magistrate.
(4)The [President of the Children’s Court] may, in exceptional circumstances, approve the taking by a magistrate of paid sick leave in addition to any paid sick leave that the magistrate’s conditions of service may have entitled the magistrate to take.
(5)Unless the magistrate has consented, the Governor must not determine that a magistrate working full time is to work other than full time, or vice versa.
(6)A magistrate must not work as a legal practitioner (whether for financial reward or not), or engage in other work for financial reward, outside the functions of a magistrate referred to in or approved under section 6, unless permitted to do so by the Governor.
(7)If immediately before being appointed as a magistrate a person is employed in the Public Service then, on being so appointed, he or she does not retain an entitlement to leave of any kind and is entitled to be paid in lieu of any such entitlement to annual or long service leave.
(8)If immediately before being appointed as a magistrate a person is a member of a superannuation scheme under the State Superannuation Act 2000, he or she may continue as such despite his or her appointment.
Thus the provisions governing the remuneration of magistrates of the Children’s Court are the same as those governing the position of the magistrates of the Magistrates Court. As in the case of the Magistrates Court facility exists to permit the Governor to determine that a magistrate of the Children’s Court works full-time or other than full-time (cl 5(3)), but this power may only be exercised with the consent of the magistrate in question: Sch 1 cl 5(5) of the MC Act as applied by s 10(5) of the CCWA Act. The Governor has never exercised this power in relation to the Applicant.
The provisions dealing with tenure, resignation, suspension for illness, suspension for misbehaviour and removal from office are all copied from Sch 1 of the MC Act and are as I have described above: s 10(5) of the CCWA Act. For completeness, magistrates (and judges) of the Children’s Court have the same immunities as a judge of the Supreme Court of Western Australia: s 6A.
Prior to the Amending Act, the power of the President of the Children’s Court to direct the flow of work in the Children’s Court was less extensive than the power of the Chief Magistrate to direct the flow of work in the Magistrates Court (contained in s 25 of the MC Act). This less extensive power was located in s 13(5) which still remains in the CCWA Act:
(5)The President may direct a judge, magistrate or JP to sit at any place where the Court has a registry and may direct concurrent sittings of the Court at the same place for the prompt disposal of the Court’s functions.
This power permitted the President to determine when the Court would sit (s 13(1)(b)) and to direct a magistrate to sit at any place where the Court had a registry (s 13(5)). This power appears to be less extensive than the powers set out in s 25(1) of the MC Act although no firm view need be reached on that question. The effect of the Amending Act was to introduce into the CCWA Act ss 11 and 12A which I have set out above. It will be observed that s 12A(1) is modelled on s 25(1) of the MC Act although it is not identical.
Finally, for completeness it should be observed that s 11(4) of the CCWA Act does not have as a necessary pre-condition that the President should already have issued a notice under s 11(2) to a dually appointed magistrate (although it may be enlivened in such a circumstance). In this case, of course, the Applicant was not notified under s 11(2) that she was required from 2012 to sit full-time in the Children’s Court because s 11(2) was not then in force. However, even though the existence of an earlier notice under s 11(2) is not a necessary precondition to the operation of s 11(4) the Parliament has given some attention to this non-problem. This appears in the transitional provisions inserted into the CCWA Act by the Amending Act. The transitional provision is s 54. By s 54, if (as here and as must necessarily be the case) no notice has been given to a magistrate under ss 11(2) or (4) on the commencement of the Amending Act, then the President is taken to have issued a notice under s 11(2) that the magistrate perform Children’s Court functions on the basis upon which they were working at the time the Amending Act commenced. Since s 11(4) does not require for its enlivenment the existence of a prior notice this provision appears to serve no discernible purpose at least in a case involving s 11(4).
Some facts
Although I do not think that factual matters are particularly relevant to the disposition of this proceeding, I also make the following findings.
The Magistrates Court operates at seven metropolitan locations (including Perth) and at 21 regional locations throughout Western Australia. There are presently 57 persons holding commissions as magistrates of the Magistrates Court. All of these magistrates also hold commissions as magistrates of the Children’s Court.
The Children’s Court has its own courthouse in Perth and conducts lists at a number of other locations throughout Western Australia. A roster attached to the President's letter of 2 May 2022 suggests that it conducts lists at Armadale, Fremantle, Joondalup, Mandurah, Rockingham and Midland. Until the events giving rise to this litigation there appear to have been eight magistrates sitting in the Children’s Court including the Applicant (leaving aside ad hoc work). Two of these magistrates sit on a casual basis. Of those eight magistrates seven hold dual commissions as magistrates of the Magistrates Court.
Combining these two sets of factual findings together, it would appear to follow that there are 58 magistrates in Western Australia, 57 of whom hold commissions in both the Magistrates Court and the Children’s Court (of which seven actually sit in the Children’s Court) and one of whom holds a commission only in the Children’s Court on a casual basis. The parties agree that since approximately 9 April 1996 every full-time magistrate of the Magistrates Court has held a commission in both courts.
Proper construction of ss 11 and 12A
Before turning to whether ss 11(4) and 12A(1) are invalid it is necessary first to determine how these provisions operate. Both parties were united in their view that they empowered the President to issue the four notices and that, subject to the question of the provisions’ validity, the notices had the effect of altering the extent of the work done by the Applicant in the Children’s Court. The debate between them therefore was principally about the Kable doctrine.
I have found the task of determining what ss 11 and 12A mean a more gruelling task than the parties.
The texts of ss 11 and 12A are set out above. The first matter to observe is that s 11 confers on the President the power to issue a written notice to the Chief Magistrate in two circumstances. The first is where the President is of the opinion that the needs of the Children’s Court require ‘a particular magistrate’ to work on a full-time or other basis in the Children’s Court. The second is where the President is of the opinion that the needs of the Children’s Court require ‘a particular magistrate’ not work at all in the Children’s Court or to work on a part-time or less than part-time basis.
Thus ss 11(2) and (4) are not concerned with the distribution of the shared resource which is the magistrates of the two courts who hold commissions in both. It is concerned with the distribution of the shared resource which is the particular dually appointed magistrate whom the President has in mind. This focus on ‘a particular magistrate’ is not reflected in the Attorney-General’s explanation of the Amending Act in his second reading speech.
The second matter to observe is that the provisions operate asymmetrically as between the Magistrates Court and the Children’s Court, which again is contrary to the impression engendered by the Attorney-General’s remarks on the motion to read the bill a second time. It is always the President and never the Chief Magistrate who enlivens this process. The President may, under s 11(2), form the opinion that the Children’s Court needs a particular magistrate on a full-time or part-time basis. The Chief Magistrate may refuse to consent to this opinion (leaving to one side for now what it means not to consent to an opinion): s 11(3). But if the Chief Magistrate consents to the opinion then he is bound, in assigning duties to the magistrate in question under s 25(1) of the MC Act, to take into account that the magistrate is now to perform duties in the Children’s Court.
But there is no equivalent to s 11(2) operating in the opposite direction permitting the Chief Magistrate to form the opinion that the needs of the Magistrates Court require that a particular magistrate (sitting in the Children’s Court on some basis) should now sit in the Magistrates Court on some basis.
The situation is also asymmetrical under s 11(4). There the President may form the opinion that the needs of the Children’s Court require that a particular magistrate no longer perform functions in the Children’s Court at all or do so on a limited basis. In this case, the Chief Magistrate is bound under s 11(5) to take into account the President's opinion in making determinations under s 25(1) of the MC Act. But the Chief Magistrate has no power to refuse consent to the opinion as he or she has in the case of s 11(2). And, as with s 11(2), the Chief Magistrate has no power to instigate a transfer of a particular magistrate to the Children’s Court for there are no provisions in the MC Act which correspond with s 11 of the CCWA Act.
The situation created by s 11 (assuming as the parties do that it authorises more than the mere formation of opinions) is therefore a decidedly lopsided affair.
The third matter to observe is that neither s 11(2) nor s 11(4) empowers the President to form the opinions to which each refers, which would appear to be a drafting oversight. Nevertheless, in my view it is reasonably necessary in order to permit the President to inform the Chief Magistrate of the opinions to which ss 11(2) and (4) refer that the President should have the power to form those opinions. Thus the grants of power in ss 11(2) and (4) are deemed by s 50(1) of the Interpretation Act 1984 (WA) (‘the Interpretation Act’) to include a power to form the opinions to which they refer:
Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.
The fourth matter is whether the formation of an opinion under this implied power in ss 11(2) and (4) and its subsequent notification to the Chief Magistrate has the effect of changing the conditions of service of a dually appointed magistrate in either the Magistrates Court or the Children’s Court.
It is evident that in enacting s 11 of the CCWA Act the Parliament made two assumptions. The first is that the formation of an opinion by the President under either ss 11(2) or (4) would have an actual impact on the workload of the ‘particular’ magistrate sitting in the Children’s Court; increasing it in one case, diminishing it in the other. The presence of this legislative assumption is betrayed by s 11(3)(b) which requires the Chief Magistrate to take into account in making directions under s 25 of the MC Act ‘that for the time being the magistrate is required to perform Children’s Court functions on the basis specified in the notice’. This first assumption may also be discerned in s 11(5).
The second legislative assumption is that the powers of the Chief Magistrate to allocate the work of the Court under s 25(1) would provide sufficient legislative authority to permit the Chief Magistrate to change the ‘particular’ magistrate’s conditions of service in the Magistrates Court.
But for the provisions of s 11 itself, I would regard both of these assumptions as wrong. The formation of an opinion by the President under ss 11(2) and (4) is divorced textually from any consequence flowing from the holding of that opinion. Provisions which empower an official upon the formation of an opinion are very common but ss 11(2) and (4) are singular in providing for what appears to be opinion without textual consequence.
The second legislative assumption is also legally dubious for two reasons. First, as I have explained, I would not read s 25(1) as granting any authority to the Chief Magistrate to suspend a magistrate from the performance of his or her duties since to do so would be inconsistent with the detailed suspension provisions in Sch 1. Secondly, I would not read s 25(1) as permitting an alteration to a magistrate's conditions of services where that power is reposed in the Governor and cannot be exercised without the consent of the magistrate in question: Sch 1 cl 5(5).
Thus, apart from s 11, I do not think that s 25(1) can support what s 11 appears to assume it can. The question then is whether the making of these two assumptions by Parliament alters the content of s 25(1) so that it is now able to do what it previously could not. One problem is that s 25(1) is located in the MC Act whilst ss 11(2) and (4) are located in the CCWA Act. If they formed part of the same statute then there would little difficulty in assuming that Parliament intended them to operate harmoniously: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]-[71] per McHugh, Gummow, Kirby and Hayne JJ. But the situation is complicated by the fact that they are located in different statutes so that one has the situation that ss 11(2) and (4) of the CCWA Act assume that the Chief Magistrate has powers under s 25(1) of the MC Act which, at least viewed in isolation, he or she does not have.
Here it is necessary to attend closely to the Amending Act. Part 2 of the Amending Act makes amendments to the CCWA Act (including the insertion of s 11) and Pt 3 makes amendments to the MC Act, including an amendment to s 25 itself by the insertion of s 25(6). Section 25(6) clarifies that the Chief Magistrate may not make directions under s 25(1) about the performance of a dually appointed magistrate’s functions as a magistrate of the Children’s Court.
From s 25(6) two inconsistent propositions may be deduced.
The first is that when Parliament intended to amend s 25 of the Amending Act it did so explicitly. On this view it would follow that the Amending Act should not be read as implicitly altering the operation of s 25(1).
The second is that when introducing s 11 into the CCWA Act Parliament was aware that that amendment travelled together with the operation of s 25 of the MC Act since s 25(6) shows that the Parliament was aware that s 25 was involved in the process for which ss 11(2) and (4) provide.
If the former view is allowed to hold sway then it will follow that s 25(1) of the MC Act cannot be used to achieve what ss 11(3) and (5) plainly assume it can. If that approach is taken then the Amending Act will fail to achieve the purpose recited in the second reading speech. On this view, ss 11(2) and (4) will permit the President of the Children’s Court to form opinions about the needs of the Children’s Court (through s 50 of the Interpretation Act) but the Chief Magistrate will be powerless to give effect to them. Since s 12A(1) of the CCWA Act is drafted in largely the same way as s 25(1) it will also follow that the President will likewise be unable to give effect to his own opinions. So construed, the Amending Act achieves nothing at all.
If the latter view is embraced then the effect of s 11 will be to have impliedly amended s 25(1) of the MC Act to permit what, in my view, it cannot on its face do, viz, empower the Chief Magistrate to determine whether a magistrate is to sit full-time or on some other basis (including not at all). An advantage of this view is that, given its similarity to s 25(1) of the MC Act, s 12A(1) of the CCWA Act should be read to confer a similar power on the President in respect of Children’s Court magistrates. That gives s 12A(1) a harmonious operation with s 11 which is desirable since both provisions were introduced simultaneously by the Amending Act. But the key advantage of this view is that if s 25(1) of the MC Act and s 12A(1) of the CCWA Act are read so that they respectively authorise the Chief Magistrate and the President to give effect to the opinions formed by the President under ss 11(2) and (4), then the Amending Act produces the outcome which the second reading speech indicates it was intended to have.
Section 18 of the Interpretation Act provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
The effect of s 18 is that the second view should be preferred. It follows that the introduction of s 11 into the CCWA Act impacted on both the simultaneous introduction of s 12A(1) and the pre-existing form of s 25(1) of the MC Act. In order to make s 11 efficacious it therefore follows that both s 25(1) of the MC Act and s 12A(1) of the CCWA Act are sufficiently wide that they can encompass directions to give effect to the opinions formed by the President under s 11(2) and (4). If it were necessary to determine which parts of s 25(1) of the MC Act and s 12A(1) of the CCWA Act should bear this somewhat tortured meaning, I would select respectively s 25(1)(d) and s 12A(1)(c).
My conclusions on construction are therefore as follows:
(a)even though they do not say this, ss 11(2) and (4) include a power in the President to form the opinions to which the provisions refer; and
(b)even though they do not say this, s 25(1) of the MC Act and s 12A(1) of the CCWA Act empower the Chief Magistrate and the President to give effect to the opinions formed by the President under ss 11(2) and (4).
It follows that I agree with the parties that these provisions, if valid, authorised the issue of the four notices. It will be apparent, however, that the route I have found it necessary to pursue is somewhat longer than their agreement implied.
The exercise of the powers in s 25(1) of the MC Act and s 12A(1) of the CCWA Act
One obvious problem with ss 11 and 12A of the CCWA Act is that whilst they empower the President of the Children’s Court to alter the number of days per week that a magistrate is to sit in the Children’s Court (including to set a sitting calendar which includes no work at all), the Chief Magistrate is not bound to take up the slack in the Magistrates Court. This is because the only obligations resting on the Chief Magistrate in relation to such an alteration in the sitting arrangements for a Children’s Court magistrate are those set out in ss 11(3)(b) and (5). These do not require the Chief Magistrate to ensure that there is no diminution in the conditions of service of a magistrate viewed across the two courts considered together. Instead, the Chief Magistrate is merely required to take the President’s actions into account.
On their face, therefore, ss 11(3) and (5) could encompass a situation where, for example, a magistrate working full-time in the Children’s Court had his or her workload reduced to nil without their workload in the Magistrates Court being increased by the Chief Magistrate to any extent.
There is no doubt that ss 11(3) and (5) (together with s 25(1) of the MC Act) cannot be used for the improper purpose of sidelining a magistrate from sitting altogether. However, it is possible to imagine benign uses of these powers to bring about the same result. For example, a magistrate reduced to no work in the Children’s Court may also genuinely be surplus to requirements in the Magistrates Court. In such a case an exercise of the power in s 25(1) by the Chief Magistrate to assign no work to the magistrate in the Magistrates Court because there were already enough magistrates to perform the work would fall within the apparent ambit of a proper exercise of the power and, in particular, would be without any want of good faith.
Even for such a good faith exercise of the power in s 25(1), however, I do not accept that this could be a lawful outcome. The difficulty here is to reconcile such a state of affairs with the apparent confinement to the Governor of the power to alter the conditions of service for a magistrate (including whether they work full-time or other than full-time) which even then can only be exercised with the consent of the magistrate concerned: Sch 1 cl 5(3). The effect of the introduction of s 11 of the CCWA Act, and in particular s 11(5), necessarily must now require the question of whether a magistrate works full-time or other than full-time for the purposes of that clause to be determined across both courts considered together. I would therefore read ss 11(3) and (5) of the CCWA Act and s 25(1) of the MC Act so that the Chief Magistrate can only allocate work to the magistrate in the Magistrates Court in such a way that the basis upon which they work (full-time or other than full-time) considered across both courts is not altered, unless the magistrate consents.
It then becomes necessary to determine what matters the President is entitled to take into account in forming an opinion under s 11(4) and in making a direction under s 12A(1). The determination of what is relevant and irrelevant to the exercise of these powers turns on a consideration of the subject matter, scope and purpose of the CCWA Act and the MC Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (‘Peko-Wallsend’) at 39-40 per Mason J. It is evident that the provisions are concerned only with the efficient allocation of the resource which is the dually appointed magistrates of both courts. Thus it lies outside the powers conferred by ss 11(4) and 12A(1) to move a magistrate from the Children’s Court to the Magistrates Court because of concerns about the competence or behaviour of a magistrate. This is particularly so where Sch 1 as applied by the CCWA Act contains extensive provisions dealing with this topic. Section 11 is therefore exclusively concerned with the efficient management of judicial resources and the presence of any other purpose will be alien to their exercise and ultra vires.
The challenges
The Applicant submitted in writing that on a plain reading of s 12A(1) it was clear that it did not empower the President to change the basis upon which a Children’s Court magistrate discharged their functions without that magistrate’s consent. If this submission were correct, then the Applicant’s constitutional argument could not arise for she has not consented to any change in the basis of her service and it would follow that the determinations were invalid on statutory interpretation grounds alone.
However, as I have explained, I do not agree with the Applicant’s submission that s 12A(1) of the CCWA Act cannot be used to change the basis on which a Children’s Court magistrate discharges his or her functions in that court alone without their consent. Rather, I consider that s 12A(1) cannot be used to bring about a state of affairs where the basis upon which the magistrate works (full-time or other than full-time) is altered when viewed across both courts (unless the magistrate consents to such an alteration).
Turning then to the question of constitutional validity, the Applicant submits that the breadth of the power conferred by s 11(4) coupled with s 12A(1) is sufficient to authorise the President to exercise it where dissatisfied with how a dually appointed Children’s Court magistrate is exercising their adjudicative powers and responsibilities in the Children’s Court. The Applicant draws particular attention to s 11(6) and its statement that in issuing a notice under s 11(2) or (4) ‘the President has absolute discretion and is not required to take into account the seniority or length of service of the magistrate or any other matter’.
Construed literally, s 11(6) would appear to say that there are no mandatory relevant considerations for the formation of the opinions in ss 11(2) or (4). However, that reading of s 11(6) must be reconciled with the subject matter of the opinions in ss 11(2) and (4) which are concerned with the workload of the Children’s Court and what is needed to deal with that workload. I do not see how it can be possible for the President to form an opinion about what is necessary or desirable to deal with the workload of the Court without adverting his or her mind to what that workload is or what judicial resources are needed to meet that workload. Read literally, s 11(6) would appear to permit the formation of the opinions in ss 11(2) and (4) about their subject matter without any necessity of adverting the President’s mind to that subject matter.
The discretion conferred by s 11(4) is not, in terms, expressly subject to limitation. By itself this would not mean, however, that it was not limited by the subject matter, scope and purpose of the CCWA Act: Peko-Wallsend at 40 per Mason J. The question then becomes whether the use of the words ‘absolute discretion’ s 11(6) has the effect of liberating s 11(4) from limitations which would otherwise inhere in s 11(4) from the subject matter, scope and purpose of the CCWA Act.
The task here is similar to that informing the construction of privative clauses. The word ‘absolute’ underscores, no doubt, the breadth of the discretion but I would not read it so that it authorises the exercise of power under s 11(4) which would otherwise lie outside the limits on that power imposed by the subject matter, scope and purpose of the CCWA Act. For example, I do not accept that the power in s 11(4) would permit the President in exercising it to take into account the fact that he did not like the magistrate. There are, therefore, some limits on what s 11(6) permits and those limits are to be discerned from the CCWA Act.
Of course, s 11(6) does not just say that the discretion is absolute. It also says that in exercising the powers in ss 11(2) and (4) the President is not bound to take into account the seniority of the magistrate, length of service or ‘any other matter’. This could be read as having the effect of broadening the discretion conferred by s 11(4) so that there are no mandatory relevant considerations for the exercise of the power.
I would not read it that way for two reasons. First, as I have explained above, such a reading would imply that in forming the opinions referred to in ss 11(2) and (4) the President was not bound to turn his or her mind to the very subject matter of those opinions. This suggests that, like the word ‘absolute’, the expression ‘any other matter’ in s 11(6) must be read down to some extent.
Secondly, the criterion for such a reading down which suggests itself most obviously is supplied by the words ‘and is not required to take into account the seniority or length of service of the magistrate or any other matter’. I would construe the ‘other matters’ as being constrained by the necessity that they should be members of the same genus as the concepts of seniority and length of service.
It then becomes necessary to identify the genus illustrated by the reference to ‘seniority or length of service’. Both of these are examples of legally discernible differences between magistrates. I would therefore read ‘any other matter’ as being confined in its operation to considerations which relate to legally discernible differences between magistrates. So read, the effect of s 11(6) is to make clear that the legally discernible differences between particular magistrates are not mandatory relevant considerations for the exercise of the powers in ss 11(2) or (4).
Although the Respondent relied upon the principle of legality to limit the operation of s 11(6) I do not think that resort to it is necessary. This is, in part, because of the reasons I have just given. It is also because as I have explained above, any purpose of the President’s which does not have a rational connection with the efficient distribution of the resource which is the dually appointed magistrates will be ultra vires s 11(4). As I would read the provisions, no problem of legality emerges to which the application of that principle would be apposite.
Even so, the Applicant submits, for the purposes of her constitutional argument, that these powers could be used to move to the Magistrates Court a magistrate with whom the President had become dissatisfied because of the President’s perception of how the magistrate discharged their adjudicative powers and responsibilities as a Children’s Court magistrate.
In assessing this submission, it is necessary to analyse the concept of the President’s dissatisfaction more closely and to do so perhaps more broadly than the Applicant’s submission implies. There are at least four cases:
(a)the President has become dissatisfied with the magistrate for reasons which are entirely unrelated to the dispatch of the work of the Children’s Court;
(b)the President has become dissatisfied with the magistrate because the magistrate is not getting through the work with sufficient dispatch;
(c)the President has become dissatisfied with the magistrate because the magistrate is perceived by the President not to be performing his or her judicial functions competently; or
(d)the President has become dissatisfied with the magistrate because the magistrate’s personality is disruptive to judicial comity between the magistrates and the President is of the view that the magistrate is having an adverse effect on the functioning of the Children’s Court so as to impact on the due dispatch of its workload.
I do not think that the powers in ss 11(4) and 12A(1) could sustain a decision of the kind in (a). Accepting that (b) and (c) are likely to overlap to an extent, I do not accept that ss 11(4) and 12A(1) could be used to support decisions of those kinds. Both of these fall within the ambit of the disciplinary provisions in Sch 1 and, as I have explained, ss 11(4) and 12A(1) must be read as not trespassing upon the province of those provisions.
On the other hand, I would accept that (d) could in some circumstances fall within the scope of ss 11(4) and 12A(1). The maintenance of a harmonious working environment can be a legitimate input into assessing what is necessary for the due dispatch of the Court’s workload but only so long as there is a rational basis for thinking that the lack of harmony is impacting on that workload. Mere personality conflict without concomitant workplace inefficiency will not suffice.
So understood, I do not think that there is anything objectionable about the powers conferred on the President by ss 11(2), 11(4) and 12A(1). It is well established that the power of a presiding officer legitimately extends to the efficient allocation of judicial resources. Thus Lord Slynn of Hadley, delivering the advice of the Privy Council in Rees v Crane [1994] 2 AC 173, observed at 187-188 after considering the express powers granted to the Chief Justice of Tobago that:
Their Lordships accept that even outside these specific provisions of the rules, the Chief Justice must have the power to organise the procedures and sitting of the courts in such way as is reasonably necessary for the due administration of justice. This may involve allocating a judge to do particular work, to take on administrative tasks, requiring him not to sit if it is necessary because of the backlog of reserved judgments in the particular judge’s list, or because of such matters as illness, accident or family or public obligations. It is anticipated that these administrative arrangements will normally be made amicably and after discussion between the Chief Justice and the judge concerned. It may also be necessary, if allegations are made against the judge, that his work programme should be rearranged so that for example he only does a particular type of work for a period, or does not sit on a particular type of case or even temporarily he does not sit at all. Again this kind of arrangement can be and should be capable of being made by agreement or at least after frank and open discussion between the Chief Justice and the judge concerned.
The exercise of these powers, however, must be seen against the specific provisions of the Constitution relating to the suspension of a judge's activities or the termination of his appointment. It is clear that section 137 of the Constitution provides a procedure and an exclusive procedure for such suspension and termination and, if judicial independence is to mean anything, a judge cannot be suspended nor can his appointment be terminated by others or in other ways. The issue in the present case is thus whether what Bernard C.J. did was merely within his competence as an administrative arrangement or whether it amounted to a purported suspension.
As I have explained, the powers of the President and the Chief Magistrate are asymmetric inasmuch as the Chief Magistrate has no equivalent power to adjust the bench of the Magistrates Court using the Children’s Court either as a source of fresh talent or as a destination for the unwanted. This asymmetry is certainly an unusual feature of the scheme, as are the inaccurate remarks in the Attorney-General’s second reading speech, but neither detracts from the characterisation of the powers in ss 11(2), 11(4) and 12A(1) as being orthodox administrative efficiency provisions although not perhaps drafted with perfect clarity.
As such, I do not accept that these provisions, on their own, pose any threat to judicial independence.
However, that is not the end of the question. At this point, Sch 1 cl 12(6) (set out above) must be reintroduced to the debate. The effect of this provision is that if a dually appointed magistrate resigns from one court ‘the resignation is taken to be a resignation from both offices’. This is a deeming provision. A dually appointed magistrate who resigns only from the Magistrates Court does not, in fact, resign from the Children’s Court and the provision therefore erects a statutory fiction that something which has not happened has, in fact, happened. This fiction then takes effect because Sch 1 cl 11(1)(b) of the MC Act (as applied by s 10(5) of the CCWA Act or, depending on the case, in its own right) provides that a person ceases to be a magistrate ‘if he or she resigns under clause 12’.
Depending on the circumstances, there may be nothing problematic about provisions of this kind. For example, where the holding of one judicial office is a qualification for the holding of another, there will be no particular difficulty in a provision which has the effect of deeming the second office to be vacated on the vacation of the first. So too where it is clear at the time a judge takes a commission in a second court that resignation from the first office will result in resignation from the second, on the basis that the judge in question may be taken to have consented to the arrangement.
The situation in this case is somewhat different. It is not a qualifying feature for appointment to either court that a person should hold a commission as a magistrate in the other. Lapsed qualification may therefore be put to one side. Further, for all those magistrates of the Magistrates Court who accepted a second commission in the Children’s Court on their appointment, it is not the case that they did so knowing and understanding that resignation from the either court would result in their resignation from both offices although this will be the case with all dual appointments after the commencement of the amendments. At the time of the appointments of the present crop of magistrates, each had a right to resign from one court and to remain on the other.
No submission was made in this case that the bundle of rights and obligations of which a commission as a judicial officer may be seen as comprised constitutes a species of property. It has, of course, been said that a judicial commission is a vested legal right: Marbury v Madison 5 US (1 Cranch) 137 (1803) at 162 per Marshall CJ. But even if that is so, the legislative competence of the Parliament of Western Australia extends to the acquisition of property other than on just terms: Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; 205 CLR 399 at [7] per Gaudron, McHugh, Gummow and Hayne JJ.
Had such a restriction on its legislative power existed, it would have been necessary to decide whether what cl 12(6) does constitutes an acquisition of property or, rather, an adjustment to pre-existing statutory rights: cf. Telstra v Commonwealth [2008] HCA 7; 234 CLR 210 at [49] per the Court. However, none of these matters is presently ripe for consideration and none was advanced.
Instead, the present issue is whether any such adjustment to the vested legal right which is the Applicant’s commission as a magistrate is itself inconsistent with notions of judicial independence. I would not go so far as to say that every such adjustment is, in itself, inconsistent with notions of judicial independence. But the context may make it so. There are a number of features of the context which bear upon this issue. First, Sch 1 cl 12(6) is given retrospective effect by cl 12(7). Secondly, the Applicant was explicitly mentioned in the second reading speech and it is plain that the Attorney-General had her in mind at the time the legislation was passed. Thirdly, from this it may be inferred that the Amending Act was, at least in part, intended to operate in relation to the Applicant.
The question then becomes whether cl 12(6), when combined with the powers conferred on the President by ss 11(4) and 12A(1), are such as to undermine the independence of the magistrates of the Children’s Court. I agree with the Applicant that the notion of independence in this context includes independence of the magistrates from each other: Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 at [29] per Gleeson CJ and Gummow J. The question is whether cl 12(6), s 11(4) and s 12A(1) are such that the President (and the Chief Magistrate) may be able to influence magistrates in the performance of their judicial duties.
Although I regard the terms of the Amending Act as highly unusual, particularly cll 12(6) and 12(7), the limitations on the powers in ss 11(4) and 12A(1) are such that the President is not able to use the powers under those sections to influence a magistrate in the exercise of their judicial functions. Within the concept of ‘influence’ I would include notions of punishment or retribution. It is plainly outside the scope of ss 11(4) and 12A(1) for the President to move a magistrate to the Magistrates Court because of perceptions about how that magistrate was discharging his or her office which are unrelated to the efficient allocation of workload.
Once that is accepted, whatever misgivings one might have about cll 12(6) and (7) such misgivings are not about the ability of the magistrates to discharge their offices independently and become, in essence, industrial in nature. Put another way, once one accepts that ss 11(4) and 12A(1) can only be used in ways which are consistent with judicial independence, it is difficult to see how the independence of magistrates is threatened merely because a dually appointed magistrate can only resign both offices together rather than each one separately.
Since I do not accept that the provisions of the Amending Act, properly construed, pose any threat to judicial independence there is no occasion to consider the scope and extent of the Kable doctrine. A useful statement of the Kable doctrine appears in Attorney-General (NT) vEmmerson [2014] HCA 13; 254 CLR 393 at [40] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ):
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
For the reasons I have given I am not satisfied that the impugned provisions substantially impair the institutional integrity of the Magistrates Court or the Children’s Court. If I were wrong in the limitations I would impose upon the exercise of the powers in ss 11(4) and 12A of the CCWA Act and s 25(1) of the MC Act, issues about institutional integrity would arise. The unconfined ability of the President to alter the conditions of service of a magistrate would pose a threat to the institutional integrity of the Children’s Court. This in turn would result in the provisions being invalid. At that point, s 7 of the Interpretation Act would be relevant:
Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.
Thus, whilst I have arrived at the restrictions on the powers in ss 11(4) and 12A of the CCWA Act and s 25(1) of the MC Act by a familiar process of statutory interpretation, if I were wrong in those conclusions, I would arrive at the same constructions by reason of s 7. In either case, the effect is that the constitutional challenge must fail.
Whether, on the facts, the exercises of power by the President in this case can be brought within ss 11(4) and 12A(1) is a different question not posed for determination in this case as it is configured.
The Applicant’s proceeding was commenced in the High Court by a writ of summons and remitted to this Court under s 44(1) of the Judiciary Act. By r 1.05 of the High Court Rules 2004 (Cth) this Court’s rules govern all steps taken following remitter. An originating application is defined in the Dictionary to the Federal Court Rules 2011 (Cth) to include an application starting a proceeding. The writ of summons filed in the High Court meets this description. The appropriate order in that circumstance is that the Applicant’s writ of summons be dismissed. The Applicant must pay the Respondent’s costs as taxed, assessed or agreed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 12 March 2024
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