Forge & Ors v Australian Securities and Investments Commission & Ors; Australian Securities and Investments Commission v Forge & Ors
[2006] HCATrans 25
[2006] HCATrans 025
IN THE HIGH COURT OF AUSTRALIA
Registry No C7 of 2005
B e t w e e n -
WILLIAM ARTHUR FORGE
First Plaintiff
JOZSEF ENDRESZ
Second Plaintiff
DAWN MAY ENDRESZ
Third Plaintiff
ALLAN PAUL ENDRESZ
Fourth Plaintiff
BISOYA PTY LIMITED
Fifth Plaintiff
and
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
First Defendant
THE STATE OF NEW SOUTH WALES
Second Defendant
THE COMMONWEALTH OF AUSTRALIA
Third Defendant
Registry No C12 of 2005
B e t w e e n -
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Plaintiff
and
WILLIAM ARTHUR FORGE
First Defendant
JOZSEF ENDRESZ
Second Defendant
DAWN MAY ENDRESZ
Third Defendant
ALLAN PAUL ENDRESZ
Fourth Defendant
KAMANGA HOLDINGS PTY LIMITED
Fifth Defendant
BISOYA PTY LIMITED
Sixth Defendant
Office of the Registry
Sydney No S301 of 2005
B e t w e e n -
WILLIAM ARTHUR FORGE
First Applicant
JOZSEF ENDRESZ
Second Applicant
DAWN MAY ENDRESZ
Third Applicant
ALLAN PAUL ENDRESZ
Fourth Applicant
BISOYA PTY LIMITED
Fifth Applicant
and
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
First Respondent
KAMANGA HOLDINGS PTY LTD
Second Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 8 FEBRUARY 2006, AT 10.20 AM
(Continued from 7/2/06)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, the agreement amongst those physically and fictionally on my side of the Bar table is that I have one hour to deal with the acting judges point and that we will finish today. There is a point in our written submissions about de facto officers. We do not press that point. I believe it to remain in play in the written submissions and two remain in play in the oral submissions of the Solicitor‑General for South Australia. If your Honours were to accept his submissions, then, to borrow Mr Ellicott’s words, my client is the beneficiary of that.
Your Honours, dealing with the acting judges point, may I focus in the first instance on section 77(iii) of the Constitution, the autochthonous or home‑grown expedient under which jurisdiction was conferred in the present case if it was conferred at all. In respect of the power conferred on the Parliament by section 77(iii) to invest federal jurisdiction synonymous with the judicial power of the Commonwealth in any court of a State, may I say two things by way of introduction and then make three points that matter.
The first point, to say by way of introduction, is that the reference to a court in section 77(iii) is a reference to a court as an institution or entity and not to the individuals who comprise it, so held in the Commonwealth v Hospital Contribution Fund 150 CLR 49, especially at pages 58 and 60, overruling Knight v Knight and Kotsis v Kotsis. There were two views. One has prevailed and the point must now be treated as settled.
Given that holding in Commonwealth v Hospital Contribution Fund, it is very difficult to get anything useful for present purposes out of section 79 or section 80 of the Constitution. Section 79 was mentioned in this context in Harris v Caladine. Your Honours were taken to passages from that yesterday. May I just read two sentences from 172 CLR 84 at the bottom of 93 and the top of 94 where in the same judgement that your Honours were taken to, the judgment of the Chief Justice and in Justice Deane, it was said:
It would not be correct to read into s 79 an implication that the entire federal jurisdiction of a Ch III court must be exercised by a judge. The HCF Case is inconsistent with such an implication.
Indeed, your Honours, by similar reasoning, it would not be correct to read into section 80 an implication that the entire federal jurisdiction of a Chapter III court must be exercised by a judge. Again, the HCF Case is inconsistent with such implication.
But the existence of section 79 cannot be entirely overlooked and what it permits is a provision such as that which has for a very long time been in section 39(2)(d) of the Judiciary Act, which I trust your Honours have to hand. Section 39(2)(d) was upheld in Lorenzo v Carey (1921) 29 CLR 243 at 252 to 253 in particular and your Honours will note that what is says is:
The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorised by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred.
Now, what that illustrates is that the Commonwealth Parliament can restrict the exercise of federal jurisdiction to classes of State judges. So it can, in effect, create two classes of State judge, one capable of exercising federal jurisdiction and another not.
GUMMOW J: The form of 39(d) has changed, has it not, since Lorenzo v Carey?
MR GAGELER: Not in any material respect from Lorenzo v Carey.
GUMMOW J: Did that deal with arbitrators?
MR GAGELER: We looked at it moments ago. We did not bring it down. I am not sure about arbitrators, your Honour. I think it was but we can check on that.
GLEESON CJ: Is 39(2)(d) there because in a lot of parts of Australia Justices of the Peace used to exercise summary jurisdiction?
MR GAGELER: Clearly, your Honour, yes. It was to ensure that a certain quality of court officer would be determining matters in federal jurisdiction.
Your Honours, the second point that I wanted to make by way of introduction was that, subject to section 79 of the Constitution and subject to the principle in Kable, the jurisprudence of the court has always been that the Parliament, in exercising the power conferred by section 77(iii) of the Constitution, takes State courts as it finds them. The language comes from Alexander’s Case, 15 CLR 308 at 313 but it is ‑ ‑ ‑
KIRBY J: I think you point out in your written submissions that it was actually said earlier in 1912.
MR GAGELER: It may have been said then. Alexander’s Case is generally pointed to. It is really a misquotation of Alexander but the principle is that which was established in Le Mesurier v Connor 42 CLR 481 at 496.
KIRBY J: Paragraph 20 of your written submissions refers to the Federated Sawmill Case.
MR GAGELER: Yes. It is probably the origin.
KIRBY J: That was Alexander.
MR GAGELER: That was Alexander. I was right the first time, yes. It was repeated, of course, in a series of ‑ ‑ ‑
KIRBY J: I thought Alexander was later than that.
MR GAGELER: There may have been a few Alexander Cases, your Honour.
KIRBY J: Yes, there might have been.
MR GAGELER: The cases are collected I think in all of the judgments in Kable, majority and minority, and there is nothing in the majority judgments that calls that principle into question. The principle in Kable itself stated at its widest is that which one finds in Bradley 218 CLR 146, to which your Honours were taken yesterday, in particular at paragraph 29. The principle as there interpreted, in our submission, comes down to this. The constitutional reference to a court as an institution capable of being invested with federal jurisdiction or the judicial power of the Commonwealth is to an institution that is and must remain and must be seen to remain an independent and impartial tribunal. Your Honours, the first of the points that matter is that the characteristic of an independent and impartial tribunal – call it the characteristic of institutional integrity – is not based on any freestanding concept. It is either an explication of or an implication into the text of the Constitution, section 71 and section 73, the autochthonous or home‑grown expedient.
The point that I wanted to make here is that the minimum standard of independence and impartiality necessary to meet the constitutional description of a court must be a standard that is capable of application to any court of a State, using the language of section 77(iii), and such other courts as the Parliament may choose to invest with federal jurisdiction, using the language of section 71. So the Supreme Court, because it is a court, must meet the minimum standard but any other institution that a State may create, if it is to answer the constitutional description of a court and to be capable of being invested with federal jurisdiction, must also meet the minimum standard. In our submission, that is not only what one gets from an examination of the text but it is also the essence of the implication or explication in Kable that one has one notion of the judicial power of the Commonwealth, from which it follows, in our submission, that there must be one minimum standard of the nature of the institution that exercises the judicial power of the Commonwealth.
Your Honours, the second of the points that matter is that the minimum standard of independence and impartiality required to answer the constitutional description of a court may well defy precise definition just as the limits of the Melbourne Corporation principle defy precise definition and just as the notion of the judicial power of the Commonwealth itself defies precise definition.
CALLINAN J: Mr Gageler, could I ask you this. Say the Federal Parliament were to legislate to confer upon the Federal Court exclusive jurisdiction in all federal matters, would that mean that the State courts would have to remain in their pure state just in case there were some repeal of that and the restoration of federal jurisdiction in State courts? It would be a constitutional fact, would it not, the conferral of exclusive jurisdiction?
MR GAGELER: Yes. Your Honour is probably asking me whether the implication in Kable turns on the capacity of the Commonwealth Parliament to confer jurisdiction or the fact of conferral of jurisdiction.
CALLINAN J: Yes.
MR GAGELER: As we read the judgments and although they do not necessarily speak with one voice the prevailing view was it turned on the capacity to invest courts with federal jurisdiction.
CALLINAN J: Without any explicit decision to that effect, but that seems to be the effect.
MR GAGELER: Without any explicit decision, yes. Of course, that was concerned with a Supreme Court. As I said, a Supreme Court, of its nature, is and must remain a court. The Kable principle may well work its way out slightly differently in relation to other institutions in that it may well be that those institutions are simply not courts.
CALLINAN J: It may be that the Federal Court will end up exercising federal criminal jurisdiction. I think it is about to exercise some of that for the first time, is it not, later this year?
MR GAGELER: The Federal Magistrates Court I believe is ‑ ‑ ‑
CALLINAN J: Yes, it is already. I think the Federal Court itself is going to take some criminal work soon.
MR GAGELER: Yes. I am not sure about.
CALLINAN J: I think there are some amendments to that effect.
MR GAGELER: Your Honours, dealing with the nature of the minimum standard that is required of a court capable of being invested with the judicial power of the Commonwealth, it is important, in our submission, to recognise that that standard cannot be rooted in some idealised notion of justice. It must be rooted, fundamentally, in the separation of powers. The essence of the minimum standard, in our respectful submission, is that which is captured in Bradley itself, 218 CLR 146 at paragraph 30 where six members of the Court quoted the statement of Justice McHugh in Kable with a slight modification as originally stated. His Honour, of course, was referring to a State court. The principle, or at least the working test, that his Honour stated was that the line, the minimum standard:
“is crossed when the vesting of those functions or duties –
we would add when the nature of the structure of the institution –
might lead ordinary reasonable members of the public to conclude that the -
State –
court as an institution was not free of government influence in administering the judicial functions invested in the court.”
KIRBY J: Can I just say that presents something of a problem in practice because, say, if you take a view that the inclusion of acting judges does endanger judicial independence, where does one get to the point of saying you have crossed the Rubicon? I looked in the front of the New South Wales Law Reports, and I think it is for 1997, at page xi and there were 42 acting judges in the District Court of New South Wales in that year and of them all but eight were barristers appointed for very short periods. I must say that that would cause anxiety to me, that the District Court was then being constituted of so many acting judges that you, in a sense, change the colour.
Now, this may be like the day and night problem and it is far short of the problem involving Justice Foster, but how does one do better than Justice McHugh’s formula? Is there any way one can express it better, or do you just have to say you just have to deal with each case as it comes and apply that principle and this case falls short of that principle? Forty-two acting judges, all of them scurrying backwards and forwards to their barristerial chambers and appointed for short periods as judges, it does concern me I have to say that.
MR GAGELER: Your Honour’s question contains really all of the elements of any answer that I would give. Yes, it is a question of degree. Yes, it is a question of judgment from circumstance to circumstance. The test as stated by Justice McHugh is, in essence, the test that has been adopted in the Supreme Court of Canada.
KIRBY J: Yes, and the Victorian submissions refer helpfully, as the Chief Justice has in earlier cases, I think in Bradley, to Valente, and the attitude of mind which is not really quite the same problem with a retired judge.
MR GAGELER: No, that is right, but the Valente test, as your Honour refers to, is the test that is applied in Canada, of course, in relation to the express requirement of section 11(d) of the Charter that courts be independent and impartial tribunals. The Valente test, which your Honour has referred to, has stated, for example, in Ell v Alberta 227 DLR (4th) 217 at 233, which I hope your Honours have. If your Honours do not, it is just one sentence, or one paragraph, in any event, where the test is stated in general terms in the same way as Justice McHugh stated it and then there is a quotation from Valente that:
The essence of security of tenure for the purposes of s 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.
That is the way in which ‑ ‑ ‑
HAYNE J: What is the reference in Valente that is taken up there?
MR GAGELER: Page 689 in the Supreme Court Reports, about the middle of the page, I think.
HAYNE J: We have the DLR.
MR GAGELER: I am sorry, I do not have the DLR reference in Valente.
GLEESON CJ: One of the difficulties about seeking some ideal is that there are some people who with some reason take the view that judicial promotion casts doubt on judicial independence.
MR GAGELER: Yes, there is that, your Honour, and also judicial retirement. There can be no doubt that some people, and it could be said some people reasonably, could consider that a judge’s behaviour during a period before retirement may be affected by future prospects. One has to take a fairly robust view, a fairly practical view, and a view that is rooted in history and that is what one gets from the Canadian jurisprudence and also equally, we think, from the jurisprudence under Article 6.1 of the European Convention where the test again for the express requirement of an independent and impartial tribunal is stated pretty much as Justice McHugh stated. The leading authority there seems to be Porter v Magill [2002] 2 AC 357.
In both of those jurisdictions, and I hesitate to express the negative because it can always be falsified, but in both of those jurisdictions, so far as we can tell, there has been no case in which it has been decided that the appointment of an acting judge by way of a short, fixed term, renewable commission per se infringes the requirement of independence and impartiality.
KIRBY J: It is the system and the institutional system and there is some mention of a new system in the Victorian submissions about a pool, which is not a question that is before us, but it is that which is, as it were, altering the courts of the States to which the federal jurisdiction may be vested.
MR GAGELER: Your Honours, I was going to say, I do not want to get tied up in the foreign jurisprudence too much but there is a series of Scottish cases that your Honours will have seen referred to in the various written submissions. The high‑water mark of those cases, so far as Mr Ellicott’s argument is concerned, is the case of Starrs v Ruxton [2000] SLT 42 and that was a case in which the Sheriff’s Court was found to comprise nearly half temporary sheriffs who were appointed - and this was an institutionalised system - they were appointed for continuous short‑term appointments during which their employment could be terminated at will by the Executive and they were sort of on probation for permanent appointment. In that case it was held that that system, critically it seems in the judgment, the power during the period of short‑term appointment to terminate that appointment at will was inconsistent with independence and impartiality.
KIRBY J: There was a Canadian case which was similar where there was an Ontario magistrate who could be terminated during office by ‑ ‑ ‑
MR GAGELER: Yes. That, again, I think that was a single judge decision.
KIRBY J: ‑ ‑ ‑ the Chief Judge, I think, plus the Attorney-General of the province.
MR GAGELER: That is right, but again it was said to be the ability arbitrarily to terminate the tenure was that which was critical.
KIRBY J: The tenure is not the only consideration. I mean there is the consideration that – the Queensland submissions seem to deny this but some retired judicial officers like to be called back and then you, as it were, have the question of whether the dependence on the Executive Government to call you back is itself something and to call you back for successive periods is making you beholden to the Executive Government.
MR GAGELER: Well, your Honour, that is a very good illustration. I mean, that is a very interesting and good illustration, because that would be something - if that is a real consideration - that would be exercising the mind of that judicial officer, not during the periods of reappointment at all but during a period ‑ ‑ ‑
HAYNE J: Why not?
KIRBY J: I do not know. What about when it is coming to its close?
MR GAGELER: I am sorry, let me answer again. I was being too rhetorical.
KIRBY J: It is coming to its close and he is just getting a bit nervous. Relevancy deprivation seems to be creeping on.
HAYNE J: You do not have to dig too far into history to observe that in practice.
MR GAGELER: Your Honour, what I was attempting to say is that that would be something ‑ ‑ ‑
KIRBY J: You took a wrong step at that moment.
MR GAGELER: I just said one wrong word.
KIRBY J: We do not let anyone get away with a wrong step, Mr Gageler.
MR GAGELER: I am glad your Honours are bringing a disciplined approach to my submissions. That would be something that would exercise the mind of the judicial officer during the permanent tenure. Really this is the aspect that I mentioned of judges retiring. That sort of consideration could exercise the mind during permanent tenure.
GLEESON CJ: It is an aspect of judicial function, is it not?
MR GAGELER: And the prospect of judicial promotion can do that.
GLEESON CJ: There are some judges who might like to be promoted.
MR GAGELER: Yes. Is it something that arguably could affect the perception of institutional bias? Yes. But does it go far enough? Taking a robust, historical, practical approach, in our submission, no.
GUMMOW J: Are we going to get from you any views on section 37 of the Supreme Court Act, the validity of which Mr Ellicott challenges?
MR GAGELER: I am almost there, your Honour.
GUMMOW J: So the first question I want to know is how you construe section 37.
MR GAGELER: I am almost there. I got distracted. Can I just mention the other two Scottish cases. There were two cases in which the appointments of acting judges have been upheld. The first – and I am not taking your Honours to them – is a case of Clancy v Caird [2000] SLT 546, a civil action in the Court of Session. The second is Kearney v HM Advocate [2005] SLT 74, a criminal case in the High Court, where the statistics referred to in the judgment were that in the criminal business of the High Court in Scotland in the period between 2002 and 2004, nearly 20 per cent of the total number of days spent on criminal business was before temporary judges who were practising barristers. That was found not to be inconsistent with the express requirement of the European Convention.
GUMMOW J: Are those cases on our list?
MR GAGELER: Your Honour has a copy of Kearney. In relation to Kearney can I say this. The Solicitor‑General for South Australia has drawn my attention to the fact that it was argued before the Privy Council in December 2004 and I am afraid I just do not know what the result of that was, and we will continue our researches.
GLEESON CJ: What, if any, relevance to the question we are looking at does practice in other common law jurisdictions have, for example, the recorder system in England or the system of deputy High Court judges in England?
MR GAGELER: It has some utility, although limited utility, because at the end of the day what we are dealing with is, as I said, an implication or an explication of an autochthonous home‑grown provision or provisions of the Constitution. But it does have some utility because ‑ ‑ ‑
HAYNE J: But the utility is limited by considerations of history and also contemporary considerations in which there is overt reference to the use of the system in order to determine suitability of candidates.
MR GAGELER: I agree with that entirely.
GUMMOW J: Is this person sound? So someone from the Lord Chancellor’s office goes and sits in the back of the court for a while. That is what happens.
MR GAGELER: See if he is a chap, that is right.
GUMMOW J: Yes, exactly.
HAYNE J: The chaps principle.
GLEESON CJ: We may have to face up to that. Nobody would suggest that Justice Foster was under probation.
MR GAGELER: No, that is right.
GLEESON CJ: Although people might have been having a look at him for another ‑ ‑ ‑
MR GAGELER: There is some but limited utility.
GUMMOW J: Anyhow, the whole of the British structure is under the cloud of Europe, is it not, not just Scotland?
MR GAGELER: When you say “cloud”, the cloud has not sort of washed away this aspect of the administration.
GUMMOW J: As I understand it, it is extremely apparent that in the Chancery Division you get a deputy judge more often than you get a real one.
MR GAGELER: It may be so, your Honour
GLEESON CJ: As I say, it may be marginal in the present case, but at some stage we may have to face up squarely to the question, is it illegitimate for the Executive Government to look at temporary appointments as a means of determining the suitability of people for permanent appointment?
MR GAGELER: Your Honour, I fully accept that and when and if the Court is required to examine that, in our submission, one would be applying the principle in Kable by reference to something like the test enunciated by Justice McHugh and adopted in Bradley, with a view to history, tradition and practicality, all of those things.
Yours Honours, a third thing that I want to say that I hope matters before I get to section 37 is this, that the minimum standard for an independent and impartial tribunal constituting a court for the purposes of section 71 and 77(iii) of the Constitution may be transgressed by the structure of a State law itself or by a structure that is brought into existence by an act done or a series of acts done pursuant to a State law.
To take up one of your Honour Justice Hayne’s questions to my learned friend yesterday, it may well be that the power conferred by section 37 of the Supreme Court Act in its literal terms could be exercised to appoint all members of the Supreme Court as acting judges and it may well be that the court so constituted would cross the line, particularly if this was an institutionalised practice of short‑term appointments for one year. Now, does that mean that section 37 is invalid? No. What it means is that section 37, conferring the general discretion, is to be read down by looking at the words ‑ ‑ ‑
GUMMOW J: It is power rather than discretion, surely?
MR GAGELER: Power, your Honour. You look at the words and before the words “The Governor may” you insert “Subject to the Commonwealth Constitution”. You do that anyway by reason of section 31 of the Interpretation Act, but it is just a standard reading down exercise of the very sort that was engaged in, for example, in the Industrial Relations Act Case, which I suppose we should now refer to as the first Industrial Relations Act Case, 187 CLR 416 at 503 reading down the powers of the Industrial Relations Commission to make awards so as not to infringe the Melbourne Corporation principle. Your Honours, that is the answer to that legitimate concern.
GUMMOW J: So then, as I understand it, your submission is that at the time of this decision of Acting Justice Foster the power that was conferred by section 37 had not been exercised in such a way that went beyond the constitutional restraint.
MR GAGELER: Yes. Your Honours, what I wanted to do is really two things. One is to examine the nature of the power itself looking purely at the legal structure, and the submission there will be that there is nothing about the legal structure per se that undermines the institutional integrity of the Court, and then secondly, to deal rather briefly with the practice upon which my learned friend relies and to say there is nothing that is caused by the overlay of the way in which section 37 has been exercised in practice at the relevant time.
GUMMOW J: But that submission against you is the structural one, is it not? The submission against you is that no acting judge is possible.
MR GAGELER: That is the extreme submission and I believe there to be – your Honours have been presented with statistics. I believe there to be a further submission that is based somehow on the way in which this power has been used and I need to deal with both.
KIRBY J: If you are looking at the structure at the time, then that reference that I gave you to the District Court in a couple of years before Justice Foster was appointed is part of the history at the time. I think it is probably fair to say that that was, in a sense, a one‑off year for some reason that I do not remember, but it is part of the background against which we have to look at Justice Foster’s appointment, namely that instead of appointing enough full‑time judges, governments are now appointing lots of part‑time judges because it is cheaper.
MR GAGELER: I will put that in the second category, your Honour. I hear what your Honour says, but that is a practice that your Honour points to in 1997, after all of these relevant provisions had been enacted. I will just look at the legal structure. I will come to the practice in a moment, but I will deal with it. Your Honours, if one looks at that structure and applies to it the standards, the indicia that have been developed, particularly in Canada and in Europe, for determining an independent and impartial tribunal, one really strains to see any particular difficulty with it.
GUMMOW J: Where does one get the notion, for example, that a judge of the Supreme Court cannot have another job?
MR GAGELER: It is not expressly there in relation to permanent appointments.
GUMMOW J: I know, but everyone assumes it in relation to permanent appointments.
MR GAGELER: Yes, it may be assumed, but it is not ‑ ‑ ‑
GUMMOW J: Where does it come from?
MR GAGELER: Tradition.
GLEESON CJ: A lot of them do have other jobs. Some of them lecture at universities.
MR GAGELER: A lot of them do, yes.
GLEESON CJ: Some of them serve on Law Reform Commissions.
MR GAGELER: Yes.
GLEESON CJ: It is a question of inconsistency, is it not?
MR GAGELER: It is the Wilson question or ‑ ‑ ‑
GLEESON CJ: It is something repugnant to the commission.
MR GAGELER: Exactly.
CALLINAN J: But the Supreme Court Acts usually provide that a judge cannot hold any office of profit. I do not know whether it is entirely resolved whether that means office of profit under the Crown or office of profit generally. In the Vasta Inquiry three judges, including the former Chief Justice, said, I think, that it referred to office of profit under the Crown. I think that was their preferred interpretation, but I am not sure about that, Mr Gageler. But that provision does exist.
MR GAGELER: Yes, I am not sure there is an equivalent in New South Wales, your Honour.
GLEESON CJ: There is a peculiarity about judges’ commissions in New South Wales that has an historical explanation. I do not know whether they still contain this provision but they used to contain a provision requiring the judge to exercise the office in person. That was because of a practice in former times of judges sending out delegates. But certainly my commission in New South Wales required me to exercise the office in person, even though there was a possibility that I might send along a delegate.
MR GAGELER: Yes. Your Honours, may I just run through the litany of factors I think that bear upon the independence that is, we say, sufficiently ensured by section 37 within its structure.
The first is that in terms of status ‑ this was a point made by your Honour Justice Hayne yesterday ‑ the appointment under section 37(1) is not to a separate office of acting judge, it is an acting appointment or an appointment to act in the office of judge, the word “Judge” being defined in section 19 to mean “a Judge of the Court”. If there is any doubt about the status, then section 37(3) makes clear that the judge appointed so to act has “all the powers, authorities, privileges, and immunities”, et cetera, of a judge or a judge of appeal, as the case may be, and it is not irrelevant. It was incredibly relevant in the decision of the Supreme Court of Fiji a few years ago that judges take oaths and it is precisely the same oath that is taken when the judge is appointed under section 37 as when the judge is appointed permanently, the oath being required by section 8 of the Oaths Act.
The second point is that in terms of qualification section 37(2) in paragraph (a) makes the qualification the same as for appointment of a permanent judge as set out in section 26 or, in paragraphs (b) and (c), the criteria are, of course, more stringent. Paragraph (b), like paragraph (c), captures a person who is a sitting or a retired judge – and your Honours may ask me about sitting judges. Yes, there may be some question in some cases about the incompatibility of the officers, but that is another issue. The point is that a person of the character falling within paragraphs (b) and (c) is a person by reason of their character, that is by reason of fulfilling that statutory description, can generally be taken to be accustomed not only to exercising judicial power but the judicial power of the Commonwealth and can generally be taken to be someone accustomed to acting with the appropriate measure of judicial independence. In relation to someone falling within (b) and (c), they are people who, again, by reason of meeting the statutory description, are simply less likely than others to be seen to be concerned to seek Executive preferment or further Executive preferment.
In terms of tenure, section 37(1) provides for a fixed‑term appointment, that is, that specified at the commencement of the term in the commission. Within that term there is no provision for the revocation of the commission and the provision for suspension or removal set out in the Constitution Act and also set out in the Judicial Officers Act is precisely that which applies to any other judge and at least in the case ‑ ‑ ‑
GUMMOW J: What is the provision of the Judicial Officers Act?
MR GAGELER: Section 40 dealing with suspension, section 41 dealing with removal, read with section 3(3), making clear that the reference to judicial officers included persons acting. At least in the case of people falling within the descriptions in paragraphs (b) and (c) – and at the end of the day we are only concerned with someone falling within the description of paragraph (b) of “a person who . . . has been a judge of the Federal Court” – there is almost a natural limit set on the possibility of continuous reappointments not simply by the physical constraints but by subsections (4) and (4A), which set maximum retiring ages.
GLEESON CJ: What covers judges of other States? Subsection (4A)?
MR GAGELER: Yes. Then, your Honours, in terms of remuneration, section 37(3B) gives an entitlement to remuneration throughout the term. That entitlement is fixed in exactly the same way as the entitlement for other judges is fixed, the reference being in section 29, and it is fixed under the Statutory and Other Offices Remuneration Act 1975 and by virtue of section 21 of that Act cannot be reduced during a term of office.
It was mentioned orally yesterday and mentioned also in our learned friend’s written submissions that, although the remuneration did not change during any acting judge’s term of office, remuneration for acting judges has in fact gone down. Your Honours have been provided with extracts from a fairly recent Remuneration Tribunal determination in our learned friend’s schedule to submissions at tab 5. That extract is not entirely complete and we have provided your Honours with the fuller determination. What emerges from the fuller determination as published in the complete form of the Gazette at paragraphs 21 through to 23 most relevantly is that the reduction was to ensure that there would be a direct pro rata relationship with the salary of a permanent judge and that was in the light of what had become the current practice of appointing judges almost exclusively from the ranks of retired State and Federal Court judges. Before that it appears ‑ ‑ ‑
GLEESON CJ: Who typically had a pension.
MR GAGELER: Yes, and, more significantly, did not have chambers or practices to maintain. There was no loading.
KIRBY J: But that is not entirely what has happened; it is not exclusively what has happened. For example, I can think of at least four or five senior counsel who were appointed as acting judges of the Supreme Court.
MR GAGELER: What period does your Honour have in mind?
KIRBY J: Back in 1996, 1997, which was the only period I looked at.
MR GAGELER: No, that is the point, your Honour.
KIRBY J: Mr Sackville, for example, was appointed before his appointment to the Federal Court.
MR GAGELER: That is the point. Your Honour had referred to a bulge. Maybe it was an aberration. Maybe there are reasons related to court backlogs that gave rise to it but there was a period during the 1990s when the practice was different. There were practising barristers – practising solicitors in the case of the District Court – being appointed.
GLEESON CJ: There was what was called a delay reduction program. One of the consequences of the delay reduction program in the common law division was to increase the workload of the Court of Appeal and one of the consequences in the Court of Appeal was that people like Justice Hope or Justice Samuels when they reached the age of retirement were then appointed acting judges of appeal and sat as acting judges of appeal to deal with the backlog in the Court of Appeal.
MR GAGELER: Yes. Substantially, as I understand it, the backlog has been substantially reduced, although there may still be an ongoing workload for the Court of Appeal.
Your Honours, can I move then, I hope seamlessly in the last 10 minutes or so, from the legal structure which we say has the sufficient hallmarks of judicial independence to the contemporary practice. The contemporary practice with which we are concerned is not the practice in the mid to late 1990s. The contemporary practice is the practice referred to in the Remuneration Tribunal determination. That is the early ‑ ‑ ‑
KIRBY J: Yes, but you have rightly said we have to look at the institutional consequences, and we have material before us now that this is springing up in other parts of the Commonwealth and the question then is, what is the line, how do you define it and how does it apply in this case?
MR GAGELER: Your Honour, I am not shy of you taking into account the short term and now historical circumstances of the mid‑1990s, but wherever one draws the line it has to be applied in this case to an appointment of a person having the qualification referred to in section 37(2)(b), appointed in 2002, relevantly. That is what we are applying.
GLEESON CJ: It is not actually confined to retired judges. There has been at least one example of judges from other State Supreme Courts being appointed acting judges or acting judges of appeal.
MR GAGELER: Your Honour, that is one of the main points I wanted to make because there are two years that our learned friend says are significant here - the year in which these proceedings were filed, 2001, and the year in which they were heard, 2002. Now, if you look at the year in which the proceedings were filed and you look at the statistics that your Honours have been provided with, then eight out of 52 – this is 2001 – about 15 per cent or about one in six judges, just taking raw numbers, were acting judges.
The point about that is if you then actually look at the annual reports or the front page of the law reports where this information comes from, and just analyse the situation just a little more carefully what you see is what is borne out in the Remuneration Tribunal determination that they were almost exclusively in both years sitting or retired judges of other courts. You also see when you put that in a slightly longer perspective that there was a turnover of individuals, no one was there for an extreme long term. But, more significantly, if you look at that year 2001, out of the eight acting judges that made up the 15 per cent or so of the court that were acting judges, you just have to turn to 51 NSWLR 1 - your Honours do not have it ‑to see what three of them were doing. It was the NRMA Case in which the Court of Appeal comprised Acting Justice Malcolm, Acting Justice McPherson and Acting Justice Ormiston.
Now, what that illustrates is really not just the inutility of statistics - my learned friend the Commonwealth Solicitor‑General has said that 85.67 per cent of statistics are made up anyway – but what it shows is that there are reasons other than costs and expediency that in practice justify the appointment of acting judges that are not only entirely consistent with the appearance of impartiality but on occasions are necessary to preserve it.
GLEESON CJ: Justice Priestley, when he was a member of the Court of Appeal of New South Wales regularly went to the Northern Territory where he sat as a judge of appeal there at the request of the Northern Territory Chief Justice because they wanted his experience in establishing their appellate work.
MR GAGELER: Yes. Your Honour, it is the common practice of appellate courts, really, throughout the Pacific to increase the gene pool by bringing in justices from other parts of the world, sometimes for their expertise and sometimes because of their impartiality. When I say throughout the Pacific I am including there the Hong Kong Court of Final Appeal.
GLEESON CJ: It has some non‑permanent judges.
MR GAGELER: It does have some non-permanent judges who are generally perceived to increase and not decrease its qualities, both in terms of jurisprudence and impartiality.
KIRBY J: This is the positive side, and I understand why you put this and it is fair that you do, but there are negative sides. For example, if one keeps an eye on acting judges in Courts of Appeal, I think it is probably fair to say that most of them do not take the same vigorous part that full‑time judges do. It is probably a function in part, and I am trying to be delicate about this, about the facilities that they have and the support structure, but that is not entirely a good thing. I mean, one cannot say that in this case of Justice Foster because he did the trial and he has given full reasons and no one can complain about that aspect of it, but that is a risk in the institutional increase in the use of ‑ ‑ ‑
MR GAGELER: In our respectful submission, it is not – in fact, it is probably a lesser risk in the case of short‑term acting appointments. It is a judicial laziness, if you like, than it is with permanent appointments.
KIRBY J: It is not laziness. It is hard to explain what I am trying to say, but one does see these cases and one just gets a general impression of the greater involvement, participation, judgment writing of the permanent judges.
MR GAGELER: Your Honour, I can only speak anecdotally and it has never been my experience appearing before acting judges in your Honour’s former court or other courts in the Pacific. Your Honours, it is not simply of passing interest that you can do these sort of statistics for other periods in history and if you were to open (1901) 1 SR(NSW) then you see that out of nine judges of the Supreme Court then, one was acting, if you like, 10 percent.
All of that has to be put within the broad sweep of history and, looking sufficiently, in our submission, to New South Wales, it is significant that there was continuously from 1892 until the current enactment of section 37 of the Supreme Court Act in 1970, and then continuously since then, a general provision for the appointment of acting judges without any statutorily imposed constraint and that general provision for the appointment of acting judges formed part of the background to the 1898 Convention Debate that we have extracted in our written submissions, paragraph 15.
Somebody in their written submissions has pointed out that Sir Edmund Barton, who of course was participating in that debate, had himself been an acting judge of the Supreme Court at an earlier time and I think your Honours will find that Mr O’Connor was in the same position. It also formed part of the numerous judicial statements that we have extracted in paragraphs 10 through to 15.
GLEESON CJ: What were you saying about Mr O’Connor?
MR GAGELER: Apparently, I am informed by the New South Wales Solicitor‑General that Mr O’Connor was also an acting judge of the Supreme Court in the mid 1890s.
GLEESON CJ: He was the Solicitor‑General of New South Wales, was he not, at the time of Federation, I thought?
MR GAGELER: I am not sure about that, not sure, but he had a varied career, it seems. Significantly, your Honours were taken yesterday to the second reading speech for the 1892 Act. I will not go back to it, but it is in the plaintiff’s submissions, schedule C, tab 1. Mr Barton, as Attorney‑General then introducing the Bill for the Act gave justifications for introducing it that have a distinctly contemporary flavour, a very mid‑1990s flavour, being stated in the 1890s, and that is that there was a problem with the backlog of judicial work and by appointing acting judges you could deal with that backlog of judicial work at less cost than appointing permanent judges.
Now, there may be different views, room for debate as a matter of public policy, whether that is appropriate. There may be room for debate about how long is temporary and what sort of court delays are acceptable, all of that. But the point that I wanted to make is that those reasons in themselves have nothing at all to say about judicial independence or judicial impartiality. They are simply neutral on the topic.
Your Honour Justice Kirby might say all of that was before the Kable enlightenment, and I accept that. It was, but one has to relate the Kable enlightenment to its origins that I have sought to expound ‑ ‑ ‑
GLEESON CJ: I do no think anybody suggests that the Kable enlightenment erases memory.
MR GAGELER: No, that is the point, but even post‑Kable ‑ ‑ ‑
KIRBY J: It does require us to look with fresh eyes at the Constitution.
MR GAGELER: I accept that. But fresh eyes that are informed by history, informed by an explication of the autochthonous or home grown expedient. I mean, your Honours referred to Kable as a dog that only barked once.
KIRBY J: Guard dog that barked once.
MR GAGELER: Guard dog that barked once, but when it barked it was barking at an intruder. Here it is being asked to turn on the family. It is really quite a different scenario.
KIRBY J: Well, it is said throughout all the Kable cases in this Court that it is a doctrine which applies in truly exceptional cases and one of the points you make is that if you look at the history of acting judges, at least of retired judges or people who were about to take up full‑time office, that has not been exceptional in New South Wales or in Australia.
MR GAGELER: Exactly. Yes. Those are our submissions.
GLEESON CJ: Thank you, Mr Gageler. Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, in our submission, the problems inherent in the plaintiff’s case are indicated and illustrated by asking the question, “What precisely is the case that the plaintiff is putting?” It is presumably not that section 72 of the Constitution requires cases in federal jurisdiction in State courts to be heard by judges with tenure from their appointment until now age 70 and therefore not for any longer period. Mr Ellicott said that he did not embrace this principle, though I do not know that he entirely spurned it.
The case is presumably not, after Eastman, that the judicial power of the Commonwealth cannot be exercised by an acting judge and it is presumably not, although this was of course a case in federal jurisdiction, but it is presumably not that cases in State jurisdiction may not be heard on occasions by acting judges, although the plaintiff seeks, I think, a declaration that no such judges might be appointed at all, but my learned friend, Mr Ellicott, said in the course of argument that it would be very special circumstances where this could be done.
Seemingly, the case is that the number and/or the character of the appointments of acting judges to a State court may make the court unsuitable for the exercise of Commonwealth judicial power although perhaps only when the power is exercised by an acting judge. What if this case had been tried by one of the permanent judges of the court in the context of the number of acting appointments to the court? Does the argument mean that State cases heard by an acting judge are also affected by this unsuitability to receive federal jurisdiction by some kind of extension of the Kable principle. Kable was, of course, a case where - concerned the conferring of a function on the Supreme Court of New South Wales that was held to be incompatible with its role in the integrated court system and as a recipient of federal jurisdiction; somewhat different from the situation here.
Does my learned friend’s argument go so far as to say that the judgments of permanent judges in State matters are affected in the context of acting appointments to the court? These, in our submission, illustrate some of the problems about his case. One might also ask what would be the consequences if any of these arguments were made out? We would say that it would not be a consequence that section 37 of the Supreme Court Act would be invalid for reasons that my learned friend, Mr Gageler, has dealt with. Even my learned friend, Mr Ellicott, concedes, that acting judges can be validly appointed in some circumstances, although, again as I say, he seeks a declaration that that is not so.
My learned friend, Mr Gageler, has dealt with section 31 of the Interpretation Act. If his argument were successful in whole or in part one might ask would the commissions of some or all acting judges be held invalid. There is a declaration sought that Acting Justice Foster was not validly appointed. Would trials presided over by some or all acting judges be nullities, would trials presided over by permanent judges be nullities if the whole court has been affected?
In our submission, my learned friend has not really come to grips with those questions. They illustrate, we would say, the difficulties, both theoretical and practical, with the plaintiff’s case. Given, however, that there is no single ideal model of judicial independence, the model that is before the Court in this case is that of the New South Wales Supreme Court in 2002. I wonder if I could take your Honours – there has been some discussion of statistics, but if I could take your Honours to the annexure to our written submissions?
KIRBY J: That is for a particular time which you call the relevant time, but ‑ ‑ ‑
MR SEXTON: Yes, it is when this case was – I appreciate, your Honour, that – I am not dismissing the background but it is when this case was heard and tried. Your Honours will see there for 2002 that there are a series of retired judges who were appointed, essentially, for 12 months and reappointed in some cases. The table, of course, does not say how often they sat during those periods. It might be assumed that they did not sit with the frequency of permanent judges but the table does not contain that information.
Then, if one goes to the fourth page and the fifth and sixth pages, except for Justice Smart who is at the top of that page 4, the remainder are sitting judges of other courts and it will be seen that in most cases they were appointed for extremely short periods.
GLEESON CJ: Was Justice Ipp a judge of the Supreme Court of Western Australia when he became an acting judge of the Supreme Court of New South Wales?
HEYDON J: Yes.
MR SEXTON: Justice Heydon says the answer is yes. At some stage that status changed and then of course he eventually became a permanent member of the Court of Appeal but in the interim, as I recall, he was an acting judge of appeal and for some of that time ‑ ‑ ‑
GLEESON CJ: That information on page 5, just so we can understand it, what does the black line with the circle on the end of it denote?
MR SEXTON: On page 5 it indicates the period of the appointment. In the case of Judge O’Meally, for example, it was for a period of three and a half weeks.
GLEESON CJ: The same with the Chief Judge of the Land and Environment Court.
MR SEXTON: Yes, that is so.
GLEESON CJ: She was appointed an acting judge of appeal, was she not?
MR SEXTON: Yes, I think that is right, your Honour. Your Honours will see that most of those appointments of the existing sitting judges are in most cases for extremely short periods.
KIRBY J: I am not casting any reflection on individuals, but one could understand how a lay person outside the profession might feel anxious about a judge from another court brought up for a short time to a higher post, then returned, or perhaps sitting in a particular case that had some sensitivity. It has the potential not to look good.
MR SEXTON: It is a matter of impression, your Honour, but the anecdotal evidence perhaps is that most members of the community do not distinguish between judges and courts in terms of their different levels particularly precisely, and nor is there any reason why they would in normal circumstances, but there may be occasional persons who would have a concern about that.
GLEESON CJ: As a matter of court administration, some of the short‑term acting judges from other courts are brought up to permit judges to take leave.
MR SEXTON: As your Honour will see, the periods are quite short in almost all cases of the judges of other courts.
GUMMOW J: What protects them with delivery of reserved judgments after their appointment has expired? Is there a subsection in section 37?
MR SEXTON: Yes, there is a ‑ ‑ ‑
HAYNE J: Section 37(3A).
MR SEXTON: Yes, it is 37(3A), your Honour. It allows the judgment to be delivered after the expiration of the term.
KIRBY J: It is referred to in the Victorian material too because the people in the so‑called pool go back to being barristers and presumably may be writing their reasons in between appearing in court.
MR SEXTON: In the Supreme Court there have not been in recent times barristers who have been appointed as acting judges.
KIRBY J: That seems to have died away if one looks at the appointees.
GUMMOW J: Does the protection of subsection (3) continue to apply in the (3A) period? Not on its face.
MR SEXTON: Say by implication it does, your Honour.
GUMMOW J: You would want to think twice before you took one of those appointments. There is nothing to say you have absolute ‑ ‑ ‑
MR SEXTON: My learned friend Mr Gageler has taken your Honours through the terms and conditions, if I can call them that, in relation to acting judges under the Supreme Court Act. Can I just summarise that by saying that the following list are matters that are essentially the same in the case of permanent and acting judges. That is, their method of appointment, sections 26 and 31 of the Supreme Court Act, the qualifications, sections 26(2) and 37(2), their functions, section 37(3), their conditions, their removal, section 53 of the Constitution Act and section 41 of the Judicial Officers Act, investigations of alleged misconduct or incapacity, sections 15 and following of the Judicial Officers Act 1986, immunity from suit and similar protections, section 37(3) of the Supreme Court Act. The only points of differentiation ‑ ‑ ‑
GUMMOW J: Subject to the point I just made to you.
MR SEXTON: Yes, your Honour, subject to the matter that your Honour has just raised. The only points of difference, in our submission, are the length of term, of course, and the amount of remuneration, although the second of those is really only a difference when one takes the pension entitlements into account because, if one looks at the Remuneration Tribunal material that has been handed up by my learned friend, Mr Gageler, it seems that the daily rate is designed to be the same as the daily salary, if I can call it that, for a permanent judge.
HAYNE J: And is paid in addition to any pension to which the judge is entitled.
MR SEXTON: Yes, your Honour.
HAYNE J: Which I think is different from arrangements in at least some other States where the pension is, in effect, made up to the equivalent of a full‑time salary rather than ending with the result of 150 or 160 percent.
GLEESON CJ: Mr Solicitor, in the writings or the judgments on issues relating to judicial independence has there been any specific reference to or consideration of the matter of judicial promotion?
MR SEXTON: Not that I have seen, your Honour. It is obviously one of a number of factors that might in theory affect the mind of a permanent judge, of course, but ‑ ‑ ‑
KIRBY J: Most of the Justices of the High Court have been promoted.
MR SEXTON: Well, subject to – and there are other matters, for example, appointments to Royal Commissions and ‑ ‑ ‑
GLEESON CJ: Well, there may be a convention that it is a subject that is discreetly not discussed, but if you are talking about psychological influences on people, it may not be in a much different category from a possible desire to want to be appointed for another term as an acting judge.
MR SEXTON: One of the reasons why there may not be a great deal on that subject in literature is because probably until perhaps 20 years ago it was relatively uncommon to think to have promotions between courts. It was not unknown, but it was relatively uncommon. It has now become much more common.
GLEESON CJ: It was very common in relation to this Court.
MR SEXTON: Well, that is so, your Honour. Your Honours, I will not go back to the table, but what it shows is that the number of retired judges over that period of 2002, or the number of appointments, were 13 in number. There were 44 permanent judges of the court and then there were seven judges appointed for short periods from other courts, as your Honours will have seen from the table.
KIRBY J: How did you take this period? What is this period as distinct from taking into account that year?
MR SEXTON: It was when the trial was – 2002 was the year of the trial. Your Honour, I think the proceedings started in May. I think the judgment might have come down in August. So it spanned that year, not the whole of the 12 months but a proportion of it, but naturally the proceedings had been filed earlier. As I say, we do not know the consistency of sitting by the retired judges appointed to acting positions but ‑ ‑ ‑
KIRBY J: It is fair to say from even the figures for 2002 there is a definite cut back in, say, comparison to 1997, that it is very much more than was the position in your early days in the legal profession and mine where it was truly an exception and generally in anticipation of permanent appointment.
MR SEXTON: One reason perhaps for that, your Honour, is that the flows of work in the courts perhaps are subject to greater fluctuations than they were in earlier periods, so that unless one wanted to make a series of permanent appointments who might then not be fully employed on the court the solution is to have a number of acting appointments to deal with that particular fluctuation. In a sense, it is an exercise in the management of the court’s work.
GLEESON CJ: If it is in anticipation of a full‑term appointment, then by hypothesis it is an appointment of a barrister, like Sir Owen Dixon, or Mr Justice Jacobs of this Court or Justices Woodward, Meares and Lee. A possible point of view is that a barrister being appointed in anticipation of a full‑time appointment is a barrister with the L‑plates on and, in terms of perception, it might be a good deal more problematic, as they say, than a District Court judge being appointed to the Supreme Court or a retired judge
MR SEXTON: Your Honour, all of those are factors. Of course, there might be advantages in the appointment of someone to, as it were, test them out.
HAYNE J: But, again, you do not have to go back too far in history to observe persons appointed as acting judges of State Supreme Courts where at least it was commonly anticipated permanent appointment would follow and the person concerned was not appointed. What is to be made of the corporate and historical memory of events of that kind?
MR SEXTON: Your Honour, they have some relevance to the present case before the Court but this case is really in the context of the New South Wales Supreme Court in 2002. I think Justice Dixon was offered an appointment but I think he refused it.
HAYNE J: He is not the example I had in mind, Mr Sexton, at all.
GLEESON CJ: I was going to say what about a person who wanted to try it out? I mean, if all these things are out on the table, they obviously have nothing to do with Justice Foster and they might not have much to do with the Supreme Court in 2002, but would it be illegitimate for a barrister to say to the government, “I don’t know whether I want to be a judge. I would like to be appointed an acting judge for six months”?
MR SEXTON: Your Honour, it raises some of the questions that are before the Court here but, of course, there may be some utility in the exercise, the question of whether it would be seen as affecting the independence of the court. If there is one person, perhaps in a large court – but they are matters to be weighed up. As we have said, and my learned friends on this side of the Bar table have said, that perhaps there is not a sharp dividing line here, although we say this case is rather comfortably on one side of the line, but there may be cases that are more difficult to determine.
KIRBY J: You are rather reluctant to concede such cases but would you accept that if, for example, the District Court was whittled down to one judge and there was an entire number of District Court judges, say 50, who were all acting and on short‑term appointments, would that offend the Kable principle?
MR SEXTON: Your Honour, it might, but it would raise the question that the Chief Justice ‑ ‑ ‑
KIRBY J: Getting a concession out of you is as bad as getting it out of Mr Ellicott.
MR SEXTON: But it would raise the question that the Chief Justice raised yesterday, whether that would be a problem for the State in that there would be a contravention of Chapter III, or whether it would be a problem for the Commonwealth, that the Commonwealth would then not be able to confer federal jurisdiction on the District Court. But, if I may say so, your Honour, it is a very theoretical example.
Now, your Honours, can I just say finally that these are matters that are dealt with by my learned friend, Mr Gageler, but we will just emphasise that subject to Kable that the responsibility for the structure and organisation of a State court lies with the legislature of the relevant State and in conferring federal jurisdiction on that court the Commonwealth Parliament must substantially take the court as it finds it. My learned friend took your Honours to Justice Mason in The Commonwealth v The Hospital Contribution Fund. The Commonwealth can, of course, place conditions or limitations on the vesting of federal jurisdiction on the State court in question but not so as to alter the constitution, the structure, or the organisation of those courts, and your Honours will recall Russell (1976) 134 CLR 495.
GLEESON CJ: Could the Commonwealth place a condition saying this jurisdiction is not to be exercised by acting judges?
MR SEXTON: We would say not, your Honour, that that would affect the structure and organisation of the court. There might be some argument about that.
HAYNE J: Is that answer consistent with Lorenzo?
MR SEXTON: I think so, your Honour.
GLEESON CJ: Well, we know in the Judiciary Act it is said in relation to magistracies this jurisdiction is not to be exercised by Justices of the Peace.
MR SEXTON: Yes. Well, I said there would certainly be argument about it but we would say that it is a matter of structure and organisation. Justice of the Peace was more a class of judicial officers.
GLEESON CJ: But we know that in the United Kingdom about 90 per cent of criminal jurisdiction is exercised by Justices of the Peace who are lay people.
KIRBY J: They do not have the problem of Kable or the enlightenment of Kable, depending on one’s point of view.
GUMMOW J: Or the benefit of a written Constitution, which they seem to be facing up to slowly.
GLEESON CJ: But it means that the issue dealt with by section 39(2)(d) of the Judiciary Act was capable of being an important issue and, indeed, as I recollect it, in some parts of New South Wales until relatively recently a lot of the work of magistrates was done by Justices of the Peace, particularly in outlying areas.
MR SEXTON: Yes. Well, as your Honour has already pointed out, the history of the magistrate service in New South Wales has been quite different to its current structure. I think your Honour Justice Hayne raised yesterday the question of fixed numbers for the courts. There was a fixed number and then in 1912 it was fixed but the Parliament could ask for additional judges. That remained until 1957, when the ceiling was lifted and there has not been one since.
HAYNE J: Can I take you back to Bradley 218 CLR 146, particularly at 164 and what is said in the reasons at paragraph 32. Is the relevant question to be answered in determining either the validity or valid effect of section 37, in the light of what is said in paragraph 32, a question about whether distortion has happened, could happen, may happen?
MR SEXTON: We would say where the distortion exists and whether it has happened in that sense, whether it did exist in 2002.
HAYNE J: Whether the appointment under section 37 which by hypothesis has been made has in all the circumstances of the case, including, for example, the numbers of appointment otherwise made in circumstances in which they have been made, has led to what, damage to the appearance of impartiality?
MR SEXTON: To the court being or, more likely perhaps, being seen to be no longer independent of the Executive.
HAYNE J: That seems to be a proposition which is narrower than the Ebner propositions about appearance. Is that so, or am I misstating the propositions in some way?
MR SEXTON: It is consistent with Kable, we would say, your Honour.
HAYNE J: I understand that is your basic position, but it is to attempt to see it as of a piece with the ideas in Ebner. Now, you may say to me that is an irrelevant consideration, but how would you see the test, or what would you say the test should be if it is relevant to see the test as cohering with what is said in Ebner?
MR SEXTON: I do not have Ebner in front of me. I would have to look at it again but, as your Honour knows, we put it on the basis of Kable and of independence or perceived independence.
GLEESON CJ: You might have to attempt to relate the test in Ebner to the practice of judicial promotion.
MR SEXTON: That may be so, your Honour.
HAYNE J: In turn, if you were to do that, promotion by the one Executive, promotion by different Executives and then the historical march has been such that that has become a realistic possibility, a more significant possibility only in, relatively speaking, recent times.
MR SEXTON: Yes.
GUMMOW J: There is some reference to Ebner in Bradley at paragraph 27, but it is to Justice Gaudron’s judgment, not anything in the joint judgment.
MR SEXTON: Justice Gaudron seems to be taking it as consistent with Kable.
GUMMOW J: Yes, that is right.
MR SEXTON: If the Court pleases, those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for the Commonwealth.
MR BENNETT: May it please the Court. I will deal first with the acting judges point and then briefly with the transitional provisions point. I adopt what has been said by my learned friends, Mr Gageler and the Solicitor for New South Wales, as well of course as what appears in our submissions.
May I start by saying this about acting judges. There is, as my learned friend the Solicitor for New South Wales said, a real question about what the case is. My learned friend, Mr Ellicott, was asked very early in these proceedings by the Chief Justice what the situation would be if the term of an acting judge were not renewable and thus one removed the perceived vice of the acting judge who wishes to curry favour to ensure his or her removal. My learned friend Mr Ellicott answered that by saying that on its own would not cure the problem. The case he puts is wider than that.
He also relies on the fact that there were provisions prior to Federation in the colonies for the appointments of acting judges in particular emergency situations. He says that is different, that is all right. It is all right to appoint an acting judge because a judge is sick or unable to sit or because there is an emergency backlog but it is not all right to do it as a general practice. That creates huge problems. If acting judges are appointed to deal with a particular backlog, is there some point at which the backlog is largely cured at which it can be said the court is no longer a suitable repository for federal jurisdiction? It has lost the independence and impartiality which it had because the justification has gone.
KIRBY J: Night and day, Solicitor; you were urging that on us last week. It is difficult and it is a problem and it is a burden but line drawing is the business we are in.
MR BENNETT: Yes, your Honour, it is, but here one has almost the absence of criteria. The acceptability of the appointment of acting judges cannot depend on how big the backlog is or how many judges are on leave or otherwise unable to sit.
KIRBY J: No, but you may get to a point where, no matter how big the backlog is, the answer is to appoint more permanent judges and not to have 42 barristers scurrying in and out of courts going back and forward to their barristerial chambers. You cannot get away from the principle which is accepted, as I understand it, in Bradley and in Ebner, that there will be a point where it is offensive to the institution of the courts of the State that is envisaged by the Constitution.
MR BENNETT: Your Honour, if there is, we are so far short of it in this case when one looks at the tests in Ebner and in Bradley that there cannot be a problem here. When your Honour says 42 barristers scurrying backwards and forwards ‑ ‑ ‑
KIRBY J: I am referring to a position in the 1997 New South Wales Law Reports.
MR BENNETT: Yes. But, of course, your Honour, they were not all there at the same time.
KIRBY J: No, there were there for short periods and that was part of the offensiveness, I think, of the system.
MR BENNETT: Your Honour, the shorter the period, in a sense, the less ‑ ‑ ‑
GUMMOW J: Why is it in the interest of the Commonwealth to defend what was going on in the District Court in some time past?
MR BENNETT: Your Honour, we are concerned to defend the ability of States to operate their courts efficiently and we are concerned with the validity of decisions which have been made.
HAYNE J: The so-called efficiency of courts to which you refer seems to be a concern of the Executive of the States. The Commonwealth is determined, is it, to weigh‑in on those issues, is it, Mr Solicitor?
MR BENNETT: Your Honour, the decision to intervene in cases can be made for a great many reasons, and in my respectful submission ‑ ‑ ‑
HAYNE J: Yes.
GUMMOW J: I know, but the cogency of what you say when you get here is another.
MR BENNETT: That is so, your Honour, but in my respectful submission, the motive of the Commonwealth Executive for making the decision to seek to intervene under section 78A is not a matter with which this Court would normally be concerned. There are many reasons which may motivate the Commonwealth to intervene or not to intervene in particular cases, but it is, in my respectful submission ‑ ‑ ‑
KIRBY J: But defending the autochthonous expedient and defending the standards has been reflected in the provision of the Judiciary Act, to which we were taken, so that one then questions why the Commonwealth does not defend the higher standards in this case.
MR BENNETT: Your Honour uses the word “higher”. One might use other words to describe the comparison between different standards. In our respectful submission, the standard is not one which is breached by what has been occurring thus far in New South Wales and indeed in the States, generally.
GLEESON CJ: Mr Solicitor, all the people referred to in section 39(2)(b) of the Judiciary Act as people upon whom federal jurisdiction may be conferred were State public servants.
MR BENNETT: Yes, precisely, your Honour. Your Honours, it cannot be the term alone, accepting my learned friend’s answer that having a prohibition on reappointment would not solve his problem, it cannot be the term alone. There is, of course, no difference between an appointment until a birthday and an appointment until a date. It would be open to the Executive of a State to appoint judges who were a few months short of their retirement ages. That would result in short‑term appointments. Short‑term appointments themselves cannot be the vice.
If the vice is the temptation, the fear that judges will say, “Well, I want a reappointment, I want to be continued. Therefore, I will curry favour with the Executive”, one has to look at a large number of comparators in the existing system. One has been referred to and that is judicial promotion. Another, of course, concerns retirement. Now, it is said that when Voltaire was dying he was invited to renounce the devil and all his works, to which Voltaire is said to have replied, “This is no time to be making enemies.” The analogy of that applies in many ways to a judge who is contemplating retirement.
There are many litigants before the court who might be in a position to confer benefits of one kind or another on the judge after retirement. If the judge is going into business, the judge may anticipate borrowing from banks and may not wish to antagonise banks. If the judge is going to earn income, the judge may be in a position of seeking extensions of time from the Commissioner of Taxation and not wish to alienate the Commissioner of Taxation. If the judge is going to the Bar, the judge may not wish to alienate big firms of solicitors or unions or insurance companies or governments who might be sources of briefs. The judge might like the idea of being appointed as a royal commissioner after retirement - hard to imagine why, but the judge might. The judge might covet an ambassadorship, which of course is in the gift of the Executive Government. There are very large numbers of situations which cannot be avoided where one can hypothesise a temptation not to alienate a State or Federal Executive Government or particular groups of people who may be litigating before the judge.
KIRBY J: Yes, but I have just jotted down four items which cut off the permanent judiciary from these temptations, quite apart from the culture. There is long‑term commitment to the judicial function. There is a culture of judicial service and independence. The judge is not beholden to the Executive Government for salary and other benefits and there is no or less possibility of any conflict of interest. They are the problems that are presented to us by this case.
MR BENNETT: Well, your Honour, taking each of those four, an acting judge can be appointed for a long term or a short term.
KIRBY J: Only a year.
MR BENNETT: Well, your Honour, that is fairly long.
KIRBY J: We are talking of decades, or at least many years in the case of most judicial officers.
MR BENNETT: Yes, many, your Honour, as I have said, are appointed and can be appointed very shortly prior to retirement age.
KIRBY J: Does not generally happen, but then they enter into the judicial culture.
MR BENNETT: Well, your Honour, the judicial culture, in my respectful submission, is something which can rub off on an acting judge as much as a full‑time judge and, indeed, one might well expect an acting judge to seek to adopt it even more for a number of psychological reasons. Not being beholden, we accept that there should not be a power of removal or dismissal and, of course, it is clear that the acting judge has security of tenure for the length of the period for which the person is appointed. Your Honours, in my respectful submission ‑ ‑ ‑
KIRBY J: We have seen in the schedule to Mr Solicitor for New South Wales’s submission that some of the appointments are very short.
MR BENNETT: Yes, your Honour, and they may be short for a number of reasons, a number of good reasons. One may be the example given by the Chief Justice of the person who wishes to decide whether or not to embark upon a judicial career and wants to see what it is like.
KIRBY J: I have doubts about that too. I mean, in the past it was such an honour to be appointed a judge who did not take the view, “Well, I will go and see if I really like it”.
MR BENNETT: Well, your Honour, it still is a very great honour, but it is well known that many people decline when offered for a whole range of reasons, some of which may be financial and some of which may involve lifestyle choices and so on. There are all sorts of reasons why a person might desire or not desire a judicial career, and there is nothing surprising in a person who has never sat as an arbitrator or a judge saying, “I would like to see what it is like. I cannot imagine what it is like”. There is nothing surprising or unusual about that.
Another example of course is the situation where one needs to appoint acting judges to deal with a particular case. One obvious example is where a judge of the court is a litigant and one may need to appoint acting judges to avoid a perception of bias, as occurred in one case which has been referred to.
KIRBY J: One gets a feeling that there is a bit of a risk that the question is not what it is like for the appointee; it is what they are like to the Executive Government.
MR BENNETT: And that can have a desirable and an undesirable aspect too of course. It can be what the person is like and whether the person has a judicial temperament, appears to be able to exercise judgment fairly and wisely and run the courtroom well. It may be whether the person decides cases for the government. If it is the latter of course, it is undesirable; if it is the former, it may well be desirable. That may depend upon a whole range of considerations.
Returning to what I was saying about acting judges for particular cases, there is an interesting case reported in the Supreme Court of Texas in 1925 – I will give your Honours the reference – where there was a litigant which was a lodge called Woodmen of the World and every member of the Texas Supreme Court, which was the highest State Court of Appeal, was a member of that lodge and there was an appeal to that court. One of the further problems was that most male lawyers were either members of it or persons who would like to be members of it.
What was done – this was 1925 – was to appoint three women lawyers, who presumably were not eligible to be Woodmen of the World, to sit as the Supreme Court of Texas and hear and determine the appeal, which they did. The case is called Johnson v Darr. I have not given ‑ ‑ ‑
HAYNE J: What exactly is the proposition we are getting out of this, Mr Solicitor, other than a little idle amusement while half the profession of Australia is at the Bar table? What is your proposition?
MR BENNETT: Your Honour, the proposition is that there are occasions, as in the NRMA Case, where it is appropriate to appoint acting judges for a single case because of exigencies such as occurred in those two examples. I will give your Honours the reference. I will not say more about it.
GLEESON CJ: It does sound like an extreme case, that one.
MR BENNETT: Yes, your Honour. It is (1925) 272 SW 1098. There is a footnote which explains how the three ladies were appointed and why they were appointed.
KIRBY J: It is questionable if their Honours were facing the same constitutional questions as we are facing here. More relevant to that would be the South African case which I think you cite.
CALLINAN J: Mr Solicitor, can you assist me with this. I think you were in Harris v Caladine, were you not?
MR BENNETT: Yes, I was, your Honour.
CALLINAN J: Mr Solicitor, how were registrars appointed to the Family Court? Were they appointed by the Executive or were they appointed in some way by the judges?
MR BENNETT: Your Honour, I do not know the answer to that question. That was not an issue that was raised in the case.
CALLINAN J: I know that.
MR BENNETT: I suspect by public service appointment and promotion from counter clerk to ‑ ‑ ‑
CALLINAN J: I would be grateful if at some time you could let me have an answer to that if you can, please.
GLEESON CJ: That is the way the registrars are appointed in State jurisdictions, I think. That is, they are members of the State public service.
MR BENNETT: Yes. They start usually as counter clerks and then they are promoted through the office to more senior positions.
CALLINAN J: I am just not sure that that is the way it is done in the Family Court. It may well be but I do not know.
MR BENNETT: I think, your Honour, more recently, certainly judicial registrars, are appointed from the Bar.
CALLINAN J: No, but how they are appointed, who actually appoints them, or how they are selected perhaps. I am not too sure that the judges may not have a role in that but I am not sure about that.
MR BENNETT: Your Honour, I will have inquiries made and I will produce a document which deals with that.
KIRBY J: Have you sent in those two South African cases that are referred to in your submissions? Do we have copies of those or has it been left to us to get them?
MR BENNETT: We will provide them, your Honour.
KIRBY J: It is Van Rooyen v The State and Certification of the Constitution of the Republic of South Africa, which are decisions of the Constitutional Court of South Africa. I think we do have them.
MR BENNETT: Yes, I will have that. Your Honour, there are other matters, of course, which assist in relation to independence. One is the judicial oath. The importance of that is referred to in a number of cases. In case it be said against me that there are difficulties under the Oaths Act of the effect of taking an oath to do something in the future as opposed to the past, there may be a question as to whether if I swear a statutory declaration saying I will do something tomorrow, fully intending to do it and then change my mind, whether there is any sanction under the Oaths Act.
The importance of the judicial oath has been referred to many times. The only case where I can find where it seems to have had any effect is in the trial of Charles I where the Coronation Oath was certainly treated as a factor. If your Honours want to find that, it is 1649, volume 4 of the State Trials page 990 and the references to the Coronation Oath in the indictment appear at pages 1070 and 1086.
GUMMOW J: That was an illegitimate procedure.
MR BENNETT: Your Honour, the report seems to suggest that.
GUMMOW J: As a matter of law it was an illegitimate procedure, so why are we looking at it? Why are we looking at the trial of King Charles I, apart from some strange curiosity?
MR BENNETT: Your Honour, it is an example of an oath of office ‑ ‑ ‑
GUMMOW J: It is not an example of a trial. It was not according to law. It is according to force.
MR BENNETT: Your Honour, that is what is said by the critics of it.
GUMMOW J: No, it is what is said by the restoration of Parliament.
MR BENNETT: Yes, and it is what is said in the report. The report describes it as an illegitimate court in the State Trials. A contrary view is taken by a recent book on the subject called The Tyrannicide Brief by Geoffrey Robertson.
GUMMOW J: You are not quoting that as a work of authority, are you, or of scholarship?
MR BENNETT: No, your Honour, it is a matter of political controversy as to the – and legal controversy.
KIRBY J: It is a very interesting book.
HAYNE J: What has any of this to do with the appearance of impartiality of the courts, Mr Solicitor, which is what I thought we were here to debate?
MR BENNETT: Your Honour, it was a passing reference to the fact that an oath before taking office is a matter of significance.
GUMMOW J: That is obvious.
MR BENNETT: I will not say more about it. My learned friend was asked the question, “What if all judges of a court were acting judges?” That would again depend on the nature of the persons appointed, the periods for which they were appointed and so on. No one suggests that the court would in some way be invalid or an inappropriate repository if every one of its members was appointed within six months of the retirement age, yet a court of acting judges might have longer security of tenure than such a court which could ‑ ‑ ‑
KIRBY J: To use the words of the Chief Justice, I think that we might then be in a very clear, exceptional case. You say no one suggested. Well, I would suggest it. This is night and day, you see. It is a matter of trying to apply this formula that has been expressed in Bradley and referred to in Ebner and seeing whether this case falls within that category of an extreme case or of the institutional arrangement which is involved in the appointment of Justice Foster takes the Supreme Court into the extreme case, together with the other appointments at and about that time.
MR BENNETT: Your Honour, I have dealt with the statistics. I would only add this in relation to the statistics, that one cannot add the total number of people who have short‑term appointments during a year and look upon that as a percentage of the total and see any meaningful statistic at all, because many of them were appointed for very short periods and thus the total effect on the court may be very small indeed as a matter of available judge days in the course of the year. It is a meaningless statistic put in that form.
CALLINAN J: Mr Solicitor, section 12 of the Supreme Court Act 1867 (Qld) prohibited the:
accepting taking or performing [of] the duties of any other office or place of profit or emolument within the colony –
That does not appear in the current legislation, but I think it was a common provision in all the Supreme Court Acts, was it not?
MR BENNETT: Your Honour, it used to be a rule at the Bar, apart from anything else, but the ‑ ‑ ‑
CALLINAN J: This is a statutory disentitlement ‑ ‑ ‑
MR BENNETT: Yes, but for present purposes ‑ ‑ ‑
CALLINAN J: ‑ ‑ ‑ and it provides that the office is automatically avoided if that happens. There is a question of what “office . . . of profit” means. That remained in force for a long time. I do not know when it was repealed, but there would not be too many acting judges who – or there would be a number of acting judges who would hold offices of profit. Whether ‑ ‑ ‑
MR BENNETT: One example might be a master who was appointed as an acting judge, I suppose, or a registrar.
GLEESON CJ: We have an example of that. Master Macready was appointed an acting judge according to the information we had yesterday.
MR BENNETT: Or a judge of another court.
CALLINAN J: Yes, it is subject to any explicit statutory exceptions of course and there may be statutory exception for a master, but it rather implies that, certainly historically, if not currently, doing anything else apart from being a judge was very much to be discouraged, whether an acting or a permanent judge.
MR BENNETT: Well, your Honour, of course, as with everything else, when one looks at independence, there are a range of factors. The person who on the side is a farmer or investor might be seen as ‑ ‑ ‑
CALLINAN J: But that is different from holding an office of profit, Mr Solicitor.
MR BENNETT: Yes. Again, the office of profit – it might depend who it was under, whether it was under a State or federal government or local government or a corporation.
CALLINAN J: Well, there may be a question of what “office of profit” means, whether it has to be under the Crown or not, as I said before, but it certainly is an historical indication at least, and a longstanding one, of discouragement of judges holding other offices.
CRENNAN J: It goes back, does it not, Dr Bennett, to the Act of Settlement and it was the quid pro quo for salaries?
MR BENNETT: Yes. There is no doubt that one way in which independence can be inhibited is by holding various types of office of profit. There is no doubt of that. That is, again, a type of independence which is not affected in this case.
GUMMOW J: The answer to, I think, a question Justice Callinan put to you about the registrars at the time of Harris v Caladine seems to be that they were appointed by the Attorney-General. That is explained by Justice Toohey in 172 CLR 84 at 128 and 129.
MR BENNETT: Yes, if your Honour pleases. Then my learned friend has adopted from a judgment in this Court the phrase that there are not two grades of justice. That, of course, is an expression which does not assist in resolving a case of this sort. In one sense, the Constitution itself establishes two grades. It imposes requirements on federal judges under section 72 which are not imposed in relation to State judges. States, of course, may in one sense have two grades if they have different qualifications for appointments to courts of different levels. To say that there are not two grades of justice does not mean that there cannot be different rules in relation to the appointment, conditions of tenure or other matters concerning judges.
Now, your Honours, there are a number of cases in Canada which, of course, turn on the Canadian Charter of Rights and Freedoms as well as the cases in Scotland. We can provide your Honours with a detailed analysis of those cases if your Honours would be assisted by ‑ ‑ ‑
GLEESON CJ: Yes, thank you.
MR BENNETT: Yes, I will have that done.
KIRBY J: The South African Constitutional Court seems to have taken an approach quite similar to the Supreme Court of Canada which may be something that is relevant to our consideration of our own Constitution, given that we share the same constitutional heritage.
MR BENNETT: Yes. Your Honours, we do stress that acting judges do have a long history. There are many situations and many reasons why acting judges are appointed and that what has occurred in this case is simply a long way short of anything which would give rise to a problem. Finally, in relation to the de facto officers case, in accordance with the spirit of dividing matters up between Solicitors‑General ‑ ‑ ‑
KIRBY J: You do not have anything in your written submissions on this.
MR BENNETT: No, we do not, your Honour. That is dealt with comprehensively by the Solicitor‑General for South Australia who is going to deal with it and we simply adopt what he says and leave that matter to him. Now, your Honours, in relation to the transitional provisions I can be much briefer. May I just say this, without going through the whole matter again. Might I take your Honours to page 166 of schedule F to the schedule of the appellants’ submissions, the relevant section being section 1401(2). Now, my learned friend’s point ‑ ‑ ‑
GLEESON CJ: We do not need to hear you on this.
MR BENNETT: If your Honours please. For that reason, I do not need to make submissions on the two types of retrospectivity or what constitutes a matter. Those matters are dealt with in ‑ ‑ ‑
GUMMOW J: The present structure of the Family Court is important, I think. Section 38C provides for the appointment of a chief executive officer on the nomination of the Chief Justice and then the chief executive officer then makes appointments of these other people, registrars and so on, under section 38N. So there is a greater measure of, one might say, intramural appointment and control of these officers than there was at the time of Harris v Caladine.
MR BENNETT: Yes. There are two other factors in relation to the Family Court. One is that the Executive Government, as such, would not
normally be a litigant in front of it and, therefore, the factor of the person who wishes to be appointed permanently, that person would not have, I suppose, any way of currying favour, assuming the person was minded to do so. So there are very different considerations in relation to that court, but I am indebted to your Honour.
Your Honours, we have a number of copies of a document entitled “Supplementary submissions of the Commonwealth” in relation to the plaintiffs’ statistics and I hand up 10 copies of that. They are being distributed. If the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for Tasmania.
MR BALE: May it please the Court. The intervention of the Attorneys‑General of Tasmania and of the Northern Territory is limited to the first question reserved. I can say that we adopt generally the submissions, both written and oral, put on behalf of the defendants together with the written submissions of other interveners.
GLEESON CJ: I would have thought this is a very important issue for the Northern Territory.
MR BALE: It is, your Honour, and an important question for Tasmania as well, for reasons that I want to address very briefly in a moment. The submissions that I would seek to make today are limited to the issue of multiple acting appointments to the Benches of a State or of a Territory, an issue which is at least opened in paragraphs 13 and 14 of Tasmania’s written submissions and in paragraphs 18 and following of the written submissions of the Northern Territory.
The first point that we would make, may it please the Court, is that unless Bradley and the authorities upon which it is based are reopened it should be taken as having been established that a law allowing for the appointment of an acting judge to a court other than the High Court or a court created by the Federal Parliament will not, for the reason only that the appointment is an acting one, impinge or give the appearance of impinging upon the institutional integrity of the court so as to attract the Kable principle. So much, in our submission, is apparently accepted by the plaintiffs in the concession which is made in paragraph 37 of their written submissions and which was made orally in the course of the submissions by my learned friend, Mr Ellicott.
If the Court is seeking to establish a principle which can generally govern the appointment, or the validity of the appointment, of acting judges, it must obviously be a principle which applies equally to small jurisdictions as it does to large. Of course, the court structure in smaller jurisdictions is very much different from that.
GUMMOW J: You seem to be worried that all your judges will be taken off by bird flu – paragraph 13.
MR BALE: Or any other unforeseen event, your Honour, for a temporary period and if it were to happen – can I take the Tasmanian situation. We have the position in which by the Supreme Court Act of 1887, the number of judges that might be appointed is limited to seven.
GLEESON CJ: It might also be important to remember that in Tasmania and in the Northern Territory there is no intermediate court in between the Supreme Court and the magistracy.
MR BALE: Exactly, your Honour, there are no District Courts. So we have in the Supreme Court at least the situation that a maximum of seven judges ‑ ‑ ‑
KIRBY J: Yes, but that can be amended and would be amended as the needs of the community require.
MR BALE: If Parliament was sitting or able to sit, your Honour, at the relevant time.
KIRBY J: It does sit from time to time I assume.
MR BALE: From time to time, but with the election coming up there may be a period of six months between sittings of Parliament in the current situation. So there can be a long drawn out process. But currently at least we have the position that you can have a maximum of seven judges, we have a bench comprised of six. I think in figures recently published it is suggested that the backlog in Tasmanian courts is percentage wise as good or better than anything in Australia. So there is really no justification at this point in the public eye for appointing a seventh permanent judge. That would be likely to be seen as a waste of resource. However, because of events that happened last year, a temporary judge was appointed, an acting judge was appointed for a period of six months, the first time such an appointment has been made in over a quarter of a century.
KIRBY J: The events of last year you refer to was the appointment of the Chief Justice as Governor, was that it?
MR BALE: There were judges away on extended leave and there was a perceived need for the business of the court to be maintained in an up‑to‑date condition, as it was. The Bar and the bench, the work that was done by the acting judge, there has been a broad public acclaim. There has certainly been no perception through that appointment, no apparent perception in anyone’s mind that there was anything wrong with an acting judge or that in any way the acting judge or the appointment of an acting judge could be seen as impairing the independence or the impartiality of the court. So we basically say there is nothing inherently wrong in the principle of appointing acting judges.
It is possible that there may be problems, depending on the numbers and the conditions upon which their appointment might be considered and that sort of thing, but as a matter of principle, the concept of the appointment of acting judges which has been current in this country for over a century should not, in our submission, be seen as being at fault.
KIRBY J: Did the acting judge in Tasmania last year come from the Bar or from the magistracy?
MR BALE: He came from the magistracy, your Honour, and has since returned to that Bench and, as his Honour the Chief Justice has pointed out, we have no intermediate bench in Tasmania. Now, the proposition for which we say Bradley stands, and that is that an acting judicial appointment per se does not offend against the Kable principle, must apply equally to every appointment of an acting judicial officer however few or many there might be on a particular court, otherwise the tenet of the rule of law that all persons should be treated equally before the law would be offended.
It follows, in our submission, that the length of tenure of its judges cannot alone be one of the permitted minimum criteria for the appearance of independence and impartiality required for a court to be a proper receptacle of the judicial power of the Commonwealth. It is thus necessary, we would submit, to look beyond mere term fixing provisions for a characteristic or characteristics which, by attracting the operation of the Kable principle, would invalidate legislation providing for the constitution of a court.
Now, the sorts of characteristics that could operate to affect or appear to affect the independence and impartiality of a court are so numerous that one could not attempt to catalogue them but amongst them one might find such things as an acting appointee being answerable to the Executive for their term to be able to be terminated without cause by the Executive, for their workload to be controlled by the Executive instead of by the Chief Justice, for remuneration to be set or to be varied by the Executive rather than being set independent, perhaps for there to be no requirement for them to take the oath of office, perhaps they might have lesser qualifications than a permanent judge or it might be that they were given a right to do contemporaneously with their service as a judge things which were incompatible with their performance of judicial office. Those and countless other characteristics might operate to cast doubt upon the independence or impartiality of a judicial officer.
GLEESON CJ: What if they were appointed in a context where it was frankly avowed that a purpose of the system was to enable the Executive Government to assess suitability for permanent appointment or perhaps to enable the individuals to assess the desirability of permanent appointment?
MR BALE: It would be a matter of judgment, in our contention, as to whether those particular characteristics were such as to deny the court its appearance of independence and impartiality and it might very well be strongly argued that those two characteristics, again with no others that attach to a temporary appointment, were not such as to create the impression or the fact that the court was in any relevant way partial or dependent. Those were the criteria that, as I understand it at least, were established by Justice McHugh in Ebner and followed in the majority judgment in Bradley as being the essential yardstick, if you like, for determining whether or not an acting appointment would be valid.
KIRBY J: Actually, it was the joint reasons because there was no dissent in Bradley. The Court was unanimous.
MR BALE: Yes, but I thought there were two judgments. I thought his Honour the Chief Justice ‑ ‑ ‑
KIRBY J: Yes, but it was not majority in the sense that ‑ ‑ ‑
GUMMOW J: You mean plurality.
MR BALE: Yes, I do, thank you. What is clear, in our submission, is that looking at the Supreme Court Act (NSW), there are no characteristics of the type that I have just described which attach to the appointment of an acting judge. Length of tenure aside, there are simply no material differences, in our submission, between permanent so‑called judges and acting judges either as to methods of appointment, as to qualifications, as to powers, to authorisations, to functions or duties. In each case remuneration is fixed and secure and provisions for removal at the expiry of their appointed terms or prior to the expiry of their appointed terms are the same.
It follows, in our submission, that there is no basis upon which it could properly be held, no matter how many acting appointments might be made to the court, that any provision of the Supreme Court Act (NSW) was invalid as offending the Kable principle or at least the extension of that principle from judicial functions to judicial appointments for which the plaintiff contends. Could it be, then, that by its operation, as distinct from its terms, that the Act allows for the appointment of so many acting judges that the sheer weight in numbers of those appointments has operated or might operate to impair the institutional integrity of the court whereby it could be seen and properly said that the court was no longer a proper receptacle of federal judicial power.
In our submission, the answer to that question must be no. Rather, if the constitutional imperative is that a State or Territory court be a suitable receptacle for federal judicial power the supremacy of the Constitution which derives from covering clause 5, dictates that any action which would deny such a court that characteristic will be invalid, not that the court, by reason of some action, loses the characteristic which the Constitution requires of it, and if State or Territory legislation is valid in its terms then action which would deny the constitutional imperative will be invalid simply because it is not authorised by that legislation. That is, it will be beyond power.
The fact an independent sitting partiality might be compromised in the exercise by a court of its functions if unsuitable ‑ ‑ ‑
GUMMOW J: It is not a question of impartiality. It is a question of institutional integrity. Now, one can think of a situation where a Chief Justice is anxious to have more full‑time appointments to deal with the work of the court and is told “No, you are going to have a whole flood of acting appointments”. Now, could not that attack the institutional integrity of the court?
KIRBY J: This point that Justice Gummow has made is emphasised by the Constitutional Court of South Africa in Van Rooyen at paragraph 31.
MR BALE: Yes, it is, your Honour. That may be a factor. It may be that there were so many acting judges ‑ ‑ ‑
GUMMOW J: In other words, it provides a means of the Executive starving the institution of its necessary blood.
MR BALE: Yes, that may be so, your Honour. It may be that there were simply so many appointments that a court could not be constituted for a particular function of the court from its permanent bench.
GLEESON CJ: Of course, the practical politics of a situation like that might then lead in the direction of the Executive Government deciding to confer on tribunals jurisdiction, or a large part of the jurisdiction that is currently being exercised by the court. Mr Ellicott pointed out, correctly, that appointing acting judges is a way of avoiding appointing permanent judges and with a concomitant expense. Another way of avoiding appointing permanent judges with the concomitant expense is to tribunalise the operation of the justice system.
MR BALE: Yes, your Honour. That may be so and there may be circumstances in which that was so and if it were ‑ ‑ ‑
GUMMOW J: Hence the importance of maintaining the integrity of the Supreme Courts.
MR BALE: As an institution.
GUMMOW J: As spoken of in section 73 of the Constitution.
KIRBY J: Courts might not be bereft of remedies in the event of tribunalisation. They might say that they are really courts but they do not conform to the constitutional standard. Though called a tribunal they are in truth a court.
MR BALE: Indeed, your Honour, that could be so, but at the end of the day impartiality and independence – just to go back to the point made by your Honour Justice Gummow – are two of the characteristics, as I would understand the decision in Bradley.
GUMMOW J: Under the structure of government, it is the task of the Executive or legislature adequately to maintain a judicial structure?
MR BALE: Yes.
GUMMOW J: Covering clause 5 seemed to suggest that.
MR BALE: Yes, I accept that also, your Honour, and we accept that it could be that there would be so many judicial appointments that the character of the court was destroyed.
HAYNE J: The point may not be one purely of numbers. If we are to examine the integrity of the institution, two relevant extremes may be these: one, the substitution whether in case of emergency or even in case of planned long leave or the like of an acting for a full‑time judge. That may be seen as not distorting the character of the institution whose central work of trying matters is done by independent and impartial judges whose independency is secure, but the opposite extreme leaving aside the pure part‑time court – leave that example aside – may perhaps be seen as – to put it in Irish terms – the permanent addition of a core of part‑time judges to the body of full‑time judges performing that central work of the court, and that may distort the institution. The institution has ceased to be an institution whose defining characteristic relevantly is independent and impartial judges whose independence is secured performing the central work of trying matters.
MR BALE: In our submission, in order to determine whether dependence or otherwise exists one must go first to the legislation under which the judges are appointed and some of the characteristics which would tend to guarantee independence have already been identified. I will not go through them but such things as taking the oath, permanency of tenure in the sense that you can only be removed during your term by a motion in both Houses of Parliament, and those sorts of things, they guarantee, both for so‑called permanent judges and for acting appointees, in our submission, the necessary degree of independence to address the sorts of problems that your Honour Justice Hayne is addressing.
GLEESON CJ: There may be a paradox in the idea that the vice, ultimately, is the distortion of the character of the institution because if something happens that distorts the character of the institution and makes the institution an inappropriate receptacle of federal jurisdiction, why is it only the decisions of the acting judge that are affected by that consequence. If the character of the institution has been distorted, then, presumably, the decisions of all the judges are affected because it was only a matter of chance, no doubt, that Acting Justice Foster was the lucky recipient of this case.
MR BALE: That is why we make the point, your Honour, that it is not if something goes wrong with the appointment. If the appointment has a characteristic which coupled with other things affects the characteristic of the court, because the Constitution ‑ ‑ ‑
GUMMOW J: Mr Ellicott’s argument is that section 37 is invalid so you do not get to this situation. It is the appointments of the acting judges that are invalid because if they were valid and allowed to stand that would taint the whole institution. That does not happen because he says one strikes down section 37.
MR BALE: We say, with respect to his argument, that that is wrong. It has to be something more in the Act than mere tenure.
GUMMOW J: That is why I keep trying to attract people’s attention to section 37 with varying degrees of success in the last day and a half.
MR BALE: We would say mere tenure alone, and we would say the plaintiffs accept that mere tenure alone does not have the effect of denying a court the institutional characteristics that it needs to have. You have to look for other characteristics within the legislation. We say they do not exist in the New South Wales Act any more than they exist in any other of the relevant State Supreme Court Acts, and so we say those sorts of corrupting characteristics, if you will, being absent, one has then to look to see whether there is a particular number of appointments, et cetera, which reach the stage that the court would cease to have the necessary characteristics, and if that happens, if the constitutional imperative be that the court maintain those characteristics, it is not that the court loses the characteristics, it is the particular appointment to the court which had that effect must be invalid as being beyond power.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR BALE: Yes, it is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Solicitor for Tasmania.
MR BALE: …..in accordance with the relevant criteria. It cannot be, in our submission, invalidated by subsequent events or the subsequent actions of the appointed judge on the Bench. However, the fact and appearance of independence and impartiality of a court may be compromised if persistent unsuitable allocations of cases were made or if judges persistently fail to disqualify themselves in accordance with the bias principle, should occasion arise. That would be so whether the judges were acting judges or whether they were permanent judges of the court and it would not, in our submission, affect the relevant status of the court as an appropriate institution for the receipt of federal jurisdiction but, rather, it would bear upon the suitability of a particular Bench of the court to deal with a particular case and thus with the validity of the exercise of the judicial powers in that case. In either case, our submission is that clearly the court is its own master in that respect.
The other point that I want to make is this, that for a court to find want of power by reason of the application of some numerical yardstick, whether that be applied to the actual number of acting appointments made, the proportion of those appointments to the total judicial complement of the
court, the amount of the court’s work performed by acting appointees or any similar consideration, would seem to involve so arbitrary an exercise as to be arguably beyond the scope of any legitimate exercise of judicial power.
It is not, in our submission, the number of acting appointments that are significant of themselves. The significant thing rather, we contend, is what effect that particular number of appointments has, having regard to all of the other circumstances relevant to the appointment of an acting judicial officer in terms of whether or not it, together with those other factors, would so impact upon the mind of an independent and fair‑minded lay observer as to persuade that observer that the court was an inappropriate receptacle for federal jurisdiction.
Your Honours, those are my submissions. There is one practice matter if I may. May I seek leave to amend my appearance for Tasmania to include Ms Brownhill in that appearance? It is just to protect against the eventuality that we run beyond the end of the day and the difficulties that that might create.
GLEESON CJ: That will not happen, Mr Solicitor. Yes, Mr Solicitor for Western Australia.
MR MEADOWS: May it please the Court, my learned friend, Mr Mitchell, will present the submissions on behalf of the State.
GLEESON CJ: Yes, Mr Mitchell.
MR MITCHELL: May it please the Court. In our oral submissions I wish to address the relationship between the institutional independence and impartiality of a State court and the requirement for individual independence and impartiality of its judges. Our submission, your Honours, is that the rules of procedural fairness concerning apprehended bias which applied to each of the acting judges of the Supreme Court of New South Wales operate to protect the institutional independence and impartiality of the Supreme Court. That is that the institutional integrity of the court with some acting members may be protected by subjecting all members of the court, including its acting members, to a requirement of actual and perceived impartiality.
KIRBY J: You have had quite a few so‑called auxiliary judges in Western Australia, have you not?
MR MITCHELL: We have, yes, your Honour.
KIRBY J: But I think, if my memory serves me right, they are all currently serving judges of other States – and I can think of a couple of names who came in on that basis – or recently retired judges of other States. I think Justice Olsen was commissioned on one occasion. Is that correct?
MR MITCHELL: That is correct, your Honour.
KIRBY J: Have any of them come from the Bar or from the private profession?
MR MITCHELL: I do not believe any auxiliary justices have come from the Bar, no, your Honour.
GUMMOW J: You have commissioners, though, do you not?
MR MITCHELL: Commissioners we do have and there are occasions where appointments are made of a commissioner from the Bar for usually a very short period of time in order to deal with a case or ‑ ‑ ‑
KIRBY J: Is a commissioner in Western Australia equivalent to an acting judge? I know in the District Court we have seen a number of cases where there has been a commissioner.
MR MITCHELL: Yes. There are provisions for auxiliary judges, acting judges and commissioners. The provision for commissioners has been in substantially the same form since Federation. There may be some differences both in terms of the practice in that it has been the practice on occasion to appoint persons from the Bar to be commissioners and there may be some difference as regards their security of tenure ‑ ‑ ‑
KIRBY J: They would not have any.
MR MITCHELL: ‑ ‑ ‑ there being no express provision protecting the security of that tenure within the term of the appointment.
KIRBY J: They are protected during the appointment, for the period of the appointment and for the purpose of the appointment?
MR MITCHELL: There is nothing that expressly says that. There is a provision which refers to the commission having the same validity as if it were enacted within the Act and there may be a question which has never been necessary to resolve as to whether or not that commission could be brought to a premature end.
KIRBY J: I am sorry to take you off your course. I just wanted to get the factual situation clear.
MR MITCHELL: Certainly we would say that the practice in Western Australia has not been to date to make the use of temporary appointments to cover all categories to the same degree as is alleged in New South Wales whatever intricacies of the debate as to the extent of that use.
HAYNE J: Now, you say that the Ebner rule protects institutional integrity. What content, if any, does that leave for the notion of institutional integrity?
MR MITCHELL: It leaves the content which was referred to by his Honour for the Supreme Court of Canada in Valente v The Queen (1985) 24 DLR (4th) 161. After referring to the requirements for security for tenure, in particular the quote which I will not read because it has been read at the top of page 180, his Honour deals with what he describes as “The third essential condition for judicial independence” for the purposes of the Canadian Charter at 187 and he says it:
is in my opinion the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.
His Honour then goes to refer to a quotation and summarises the matters referred to by Justice Howland at page 188 just below the second quote. He says:
Judicial control over the matters referred to by Howland CJO – assignment of judges, sittings of the court and court lists – as well as the related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or “collective” independence.
His Honour then in about the middle of page 190 accepts that as summing up the:
judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.
He accepts that that is reflective of the requirements of the Canadian Charter and we would say that it may well be that Chapter III, consistently with Kable, imposes some of those requirements of independence and impartiality as to court listing and the other matters to which his Honour refers.
Whereas one is concerned with the questions of partiality, that is whether a judge might be reasonably apprehended as possibly deciding the case other than on its merits, we say that the whole is in a sense equal to the sum of its parts and that if all of the individual judges are required to accord procedural fairness and required to exclude themselves from hearing the case when a reasonable apprehension of bias arises, then the integrity of the court as an institution is protected.
Our submission is that that aspect of the rules of procedural fairness are clearly inherent in the conferral of federal jurisdiction in this case and the plaintiffs have not suggested that there is any provision in New South Wales statute law that would abrogate that aspect of the rules of procedural fairness as they would apply to the court in the exercise of its State jurisdiction. It follows then that if all of the circumstances of the particular case, including but not limited to the nature of the judge’s appointment, gave rise to a reasonable apprehension of bias, the judge would be required to decline to sit whether the court was exercising State or federal jurisdiction.
We accept and indeed submit that the organisational structure of the court and the term of the appointment may be taken into account in determining whether in a particular case a reasonable apprehension of bias arises. One example of a case where structural considerations contributed and indeed led to the decision of a magistrate to decline to sit was a judgment in South Australia of Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530. I will not take your Honours to it.
GUMMOW J: We refer to that in Bradley.
MR MITCHELL: Yes, your Honour. Your Honour the Chief Justice refers to it at page 153 and it is also referred to at page 166 of the joint judgment.
HAYNE J: If institutional independence is referring to this measure of self‑administration that is identified in Valente, what is it that characterises a court and distinguishes it from what in common parlance is called a tribunal if it is not the manner of appointment and security of tenure of its membership?
MR MITCHELL: We would say there may be a range of factors and if I can give your Honours two contrasting examples. As has been noted for the first half of the last century Magistrates Courts were established without any security for tenure. They exercised judicial power, they exercised federal jurisdiction. They were regarded as being a court for the purposes of Chapter III of the Constitution. By the same token, administrative appeals tribunals of the State, including that established recently in Western Australia, are established very much as components of the Executive. Although they might in rare cases exercise what could be classified as judicial power, they are not established as courts and clearly are not independent from the Executive Government.
So in deciding whether something is or is not a court, in my submission, it may be necessary to take into account a range of features. What follows from the practice in relation to Magistrates Courts is that security of tenure is not an essential requirement for a court to which sections 71 and 77(iii) of the Constitution refer. Your Honours, we say it is necessary to take into account all of the circumstances of the case ‑ ‑ ‑
HAYNE J: Just before you depart from that point, it may be then that it becomes necessary to distinguish sharply between inferior courts and superior courts taking to account the supervision and appellate control exercised by a superior court when in the jurisdiction identified as the Supreme Court over the inferior courts within that jurisdiction.
MR MITCHELL: Yes.
HAYNE J: Thus there may be a difficulty about arguing from the position of the magistracy whether at Federation or subsequently.
MR MITCHELL: Yes. One difficulty with taking that approach, your Honour, may be that section 77(iii) does not distinguish between Supreme Courts and other courts of the States. It contemplates, as does section 71, that there are – in fact, all courts of a State that may be characterised as such may be invested with federal jurisdiction.
HAYNE J: What Hospital Contribution Funds identifies is that there are circumstances in which individuals do judicial things when those individuals are not appointed with tenure, but they do so subject to ultimate control by those who are.
MR MITCHELL: Yes.
HAYNE J: Hence, perhaps some analogy imperfect may be drawn between the position of the inferior courts and that particular court identified as the Supreme Court and recognised in the Constitution.
MR MITCHELL: Although, your Honour, it may be necessary, if one were to take that approach, to also find an implication that there must be a right of appeal from all inferior courts to Supreme Courts which is not always the case. There are some courts which may be established, certainly tribunals – one may argue about whether they are really courts – from which an appeal lies only on a question of law and not on matters of fact. Likewise, even Supreme Courts of the States are subject to the review appellate jurisdiction of this Court.
CALLINAN J: Harris v Caladine emphasises that the review or the consideration by the Family Court judge is de novo. It is completely unrestricted. The Family Court judge has the right to hear the whole thing again, or the party has the right to require it.
MR MITCHELL: In the context, however, your Honour, of a Chapter III court exercising federal jurisdiction subject to the requirements of section 72 of the Commonwealth Constitution and that, in my submission, creates a substantial difference between the example of the Federal Court and State courts or State inferior courts which may be subject to varying degrees of scrutiny or review by Supreme Courts.
CALLINAN J: The question may be which is worse, a multiplicity of acting judges or, as was mentioned before, the establishment of a whole lot of tribunals to hear matters that would normally be heard by judges.
MR MITCHELL: In my submission, both would be constitutionally permissible and the question as to which is preferable is ultimately a matter that is left for State and Commonwealth Parliaments to determine.
KIRBY J: Do not get too much encouragement from that question because as far as I am concerned they can be called tribunals but if they are really courts they are courts and they have to conform to the requirement.
MR MITCHELL: Your Honour, I accept that and I accept that deciding whether something is or is not a court for the purposes of section 77(iii) is a matter of substance rather than simply the label that is applied to it. However, it remains open to the States to invest the judicial power of the State in a body that is not a court. If it is able to do that it should be able, then, to create bodies that are not courts that can exercise that power. Obviously, those bodies could not exercise federal jurisdiction.
Your Honours, we say it is relevant to have regard to all of the circumstances of the case in applying the rules of procedural fairness and that would include in this case that Acting Justice Foster was a retired judge in his 70s at the end, not the beginning, of his judicial career. The government that appointed him was not a party to the litigation. There is no evidence that the matter was one with political or other significance for the Government of New South Wales.
Indeed, if one looks at the particular circumstances of Acting Justice Foster and the case which he was trying it is subject to review here. The plaintiffs expressly disclaim any suggestion that “Foster AJ lacked independence or impartiality” in paragraph 33(i) of the plaintiff’s submissions. The answer to the question in Ebner might be different if a young barrister were appointed to act as a judge with no security of tenure or remuneration in a matter of great political significance for the government of the day but it should always, in my submission, be necessary to consider all of the aspects of the case and the mere fact that a judge holds a temporary appointment should not of itself be regarded as necessarily giving rise to an apprehension of bias in all cases.
If the rules of procedural fairness are applied in that manner an acting appointment to a court predominantly composed of permanent members - and I will come back, your Honour, to that qualification “predominantly composed of permanent members” - an acting appointment to such a court will not compromise the institutional integrity of the court if, taking all the circumstances of the particular case into account, a reasonable apprehension of bias arises a judge will not sit and a permanent judge will deal with the matter instead.
Where no such apprehension reasonably arises then the acting judge may determine the case without compromising the institutional integrity of the court and there would be no application of the doctrine of necessity where there were permanent judges available to deal with cases from which acting members of the court were required to excuse themselves.
Your Honour Justice Hayne asked a question as to whether it would be open to the government to constitute the Supreme Court of New South Wales as a court of a Chief Justice, a President of the Court of Appeal and acting judges only and our submission is that that would not be authorised by the Supreme Court Act, as it currently stands, for this reason. The Act taken as a whole would appear to make provision for a court predominantly constituted by permanent judges so that the power conferred by section 37 is conferred for the purpose of making temporary appointments to supplement that predominant body of permanent judges.
The exercise, then, of the power in section 37 for the purpose of constituting the court as a court wholly or predominantly constituted by acting judges would, in our submission, be an exercise of that power for an unauthorised purpose and therefore invalid. I will come to the particular provisions to which I draw that conclusion from in a moment, but that purposive approach to the construction of section 37 is in some respects analogous to that approach taken to the construction of the Magistrates Act in Bradley, in particular at pages 170 to 171 of the joint judgment.
If one construes section 37 in that manner it would not authorise a series of acting appointments which would distort the character of the court as a court predominantly constituted by permanent members with security of tenure and remuneration. Your Honours, we draw that construction of section 37 from a number of provisions of the Act. If I might just refer to them very quickly. Firstly, section 13 of the Supreme Court Act which continues the appointment of permanent judges of the court who held office before the commencement of the Act in 1972. Secondly, section 22 continues the Supreme Court as:
formerly established as the superior court of record in New South Wales -
Those provisions provide for a continuation in what was, in 1972, a court constituted predominantly by permanent members without any evident intention to alter that character of the court. Section 25 provides for a court constituted by judges. “Judge” is defined in section 19(1) to mean
a Judge of the Court but does not include an associate Judge –
It is significant, we say, to note that while section 37 authorises persons appointed under that section to act as judges and to have the powers, privileges, immunities and duties of a judge, it does not provide for them to be judges for the purposes of the New South Wales Act. Rather, sections 26 and 31 of that Act appear to be the primary provisions for the appointment of judges and judges of appeal, and sections 40 and 42 provide for the constitution of the court and the Court of Appeal by a court consisting of judges as defined. Those provisions are enacted against an historical background of the existence of the Supreme Court of New South Wales as a court composed predominantly of permanent judges with supplementary acting appointments.
The submission which I have made as to the rule against apprehended bias might not be a complete answer where a court was not predominantly comprised of permanent members. However, that is simply, we say, not the case for the Supreme Court of New South Wales, either as it in fact existed at the relevant time or as it could validly be constituted under the provisions of the Supreme Court Act as they existed at that time. If one came to a court which was wholly or predominantly constituted by acting judges it may be necessary to consider whether the court could validly be invested with federal jurisdiction or whether the states could validly constitute such a court.
For the reasons of which we have explained in our written submissions we would submit that a State could create such a court in the same manner as the States constituted Magistrates Courts. However, our primary submission is that simply this is not that case because the Supreme Court of New South Wales is and could only be constituted predominantly by permanent judges. If it please the Court, those are my submissions.
GLEESON CJ: Thank you, Mr Mitchell. Mr Solicitor for South Australia.
MR KOURAKIS: If the Court pleases, can I first announce my appearance in matters C12 and S301 of 2005, the latter with leave insofar as that is necessary. Can I next just raise two matters that my learned friend, Mr Gageler, has asked me to inform the Court of. Your Honour Justice Gummow inquired as to when arbitrators were included within section 39(2)(d) and that was by Act No 72 of 1984. Secondly, Mr Gageler referred to the appeal from the decision of the High Court of Scotland in Kearney. Leave to appeal in that matter was given, leave to appeal to the Privy Council, on 17 March last year. It has been heard. It was heard towards the end of this year. The judgment is reserved.
Your Honours, can I deal first with the construction of section 37. It is dealt with in paragraph 16 of our written submissions and it is our submission there that in its context section 37 can be read down and read down in a way that ensures its constitutional validity, that is, read down in its context without any reference to the need to read it down to ensure that validity. Effectively, the submission made there is that the power in 37 must be used to facilitate the discharge of the court’s business by tenured officers, judicial officers appointed pursuant to section 26.
Your Honours, can I reformulate the proposition that is in paragraph 16 a little and put it in this way. The exercise of the power conferred by section 37 is limited to making a temporary appointment calculated to facilitate the just and efficient disposal of the court’s business by its tenured judicial officers appointed pursuant to section 27.
GUMMOW J: Calculated means apt or ‑ ‑ ‑
MR KOURAKIS: Yes, or reasonably appropriate and adapted, to use the longer phrase.
KIRBY J: Do you have to?
MR KOURAKIS: No, well, I did not, your Honour, initially at least.
KIRBY J: Justice Gummow provoked you.
MR KOURAKIS: Your Honours, to put that proposition negatively, the power in section 37 must not be used to transfer work from the tenured judicial officers to short‑term acting judges. That would be an improper use of the power or, to put it another way, to appoint taking into account an extraneous consideration. Now, as a matter of constitutional power, it is my submission that the vice in short‑term appointments is not so qualitatively different than the consequences of having a tenured judiciary appointed by an Executive in any event to make any relevant difference to the minimum standard of independence that is required, but that is an argument submissions have been put about already. I simply make the point that without even going there, section 37 in its context can be sufficiently read down to prevent that sort of abuse.
Similarly, section 37 would not allow the appointment of an acting judge so that the Executive or the appointee might assess that person’s suitability for the job. That too would be an extraneous consideration in the exercise of the power. Now, again, as a question of constitutional validity, if it was that wide, it might depend, for example, on whether the probation reappointment is one that is made and confirmed by an independent body perhaps with input from the judiciary. That might affect the question.
If the probationary appointment and confirmation was purely in the hands of the Executive, given the largely inscrutable process by which it goes about assessing someone, there might be an argument that it exceeds the permissible constitutional power of the State to appoint judges to courts that might receive federal judicial power. But that is not the case here given the way in which section 37, in my submission, can be read and should be read.
GLEESON CJ: What about an appointment in circumstances where it is an acting appointment because the person who is being appointed wants to find out for himself or herself whether that person wants a permanent appointment?
MR KOURAKIS: Your Honour, it is difficult to see how a provision that allows that can be formulated in any other way than simply allows the appointment by the Executive of someone for a probationary period.
GLEESON CJ: Yes, but suppose that appeared as a fact in a particular case.
MR KOURAKIS: Assuming the provision which allows for ‑ ‑ ‑
GLEESON CJ: Suppose there was a public announcement saying the Attorney‑General and Ms Bloggs have agreed that Ms Bloggs will be appointed an acting judge so that she can decide whether she wants to be appointed permanently?
MR KOURAKIS: What happens in that particular case would not affect the validity of course of the section but, assuming that happens under a valid section, it may well be that that is not an extraneous purpose or a purpose that is contrary to the Chapter III implications. In my submission, the difficulty, however, is they are separating out that consideration with the possible abuse by the Executive if such a power existed. In any event, as I have submitted, that is not the case here.
HAYNE J: Is the proposition you advance and the expression “substantial part of the work” a quantitative statement?
MR KOURAKIS: Essentially, yes. I am quite happy to interchange it with the term your Honour used this morning, “central”. I am not sure which of those two expressions would require the largest quantity.
HAYNE J: I was attempting to use the expression “central work of the court” as being a reference to the trial of actions, that is, a reference to the kind of work, not to the volume.
MR KOURAKIS: Your Honour, the proposition that I put in 16 and that I put in the reformulation a moment ago is different to that. It would allow for acting judges to do trial work, for example. Can I turn then to the occasions on which section 37 could be used to appoint acting judges to do trial work. My learned friend, Mr Bale, spoke about the difficulties in small jurisdictions. In large jurisdictions with a large number of judges, they have a large number of judges because they have an enormous volume of work. Case flow management and listing becomes extremely difficult in those large volume courts. The appointment of acting judges can facilitate the disposal of that work. If an urgent case comes along, an acting judge might be appointed to do that so as not to disrupt the orderly listing of trials and the hearing of those matters by the tenured judiciary.
Alternatively, the acting judge might step in and do some of that listed work so that a tenured judge could do the urgent and perhaps complex case that has come along. Similar considerations apply to the hearing and listing of long cases. But if ultimately the appointment of the acting judge under 37 can be seen as a means to facilitate the efficient and just disposal by the tenured judicial officers of their work, it is within power and, in my submission, constitutionally unexceptionable.
Another occasion on which acting judges, in my submission, can validly be appointed under 37, and again without any constitutional objection, is when the tenured judges would, but for the doctrine of necessity, have to disqualify themselves. It might be a trial involving a judicial colleague or a judicial officer from whom they have often heard appeals. There have in fact been appointments of acting judges to hear those cases.
In my submission, there would be a much greater damage to the integrity of the courts and how they are regarded if courts were required by reason of necessity to have the matter heard by a tenured judge who would otherwise be disqualified for bias rather than having available to them, that is the courts, the facility of the Executive appointing an acting judge to deal with it.
GUMMOW J: Do you say there is some restraint upon the States legislating to qualify the bias rules in their courts?
MR KOURAKIS: Your Honour, there might be.
GUMMOW J: What would be the source of the restraint?
MR KOURAKIS: If there is, it must be an implication from Chapter III, and that goes to the interrelationship between those questions that Mr Mitchell has addressed your Honours on. The question of the actual appointments under 37 in New South Wales would only be relevant and only arises if it is accepted that 37 is valid, albeit in the way that I have suggested, by reading it down, but a question arises as to whether it has been improperly used – whether the power has been abused. Then one might look at the number of acting judges.
If one was to do that, as your Honour the Chief Justice suggested yesterday, one would have to look at how much work the acting judges did and to introduce into this area of discourse an expression familiar in other workplaces. One would have to look at full‑time equivalence and whether the acting judges, in terms of the full‑time equivalent judicial officer work that they did were such as to so distort the court as to create some problem about its integrity.
Your Honours, I mentioned earlier that, in my submission, acting appointments, if a power to make them was given even widely, would still allow and provide the minimum amount of independence that is required by Chapter III. The level of tenure provided to the federal judiciary was recognised from the outset as a security that was required to protect the interests of the State. What was referred to as the peculiar stringency of the section 72 requirements was attributed to the fact that courts to which the judicial officers were appointed by the Commonwealth, the federal courts, would determine ultimately the constitutional sharing of power between the Commonwealth and the States.
It is, indeed, that explanation that is put in Alexander’s Case, a passage that I do not think has been read but I take your Honours to in the Waterside Workers’ Federation of Australia v Alexander 25 CLR 434 at 469. It is the paragraph starting at about point 4. Reading down to about point 6, your Honours will see the fourth point that is made and that is a reference to the tenure requirements of 72 being:
the strongest guarantee in the constitution for the security of the States.
Can I make a more general point about the paragraph that I have taken your Honours to. The points listed in that paragraph are answers to the argument that it would be inconvenient to the Commonwealth if justices appointed to inferior courts were required to have the same tenure as is provided for in section 72. One of the answers is, as I have just pointed out, that that tenure was required because of the importance in protecting the States.
But your Honours will see a little above that passage the second point which goes to the question of the extent to which the section 72 tenure requirements can properly be transferred over to State courts. In answer to the contention that the Commonwealth should be free to appoint justices with a lesser tenure to its courts, in answer to that argument as to inconvenience, their Honours Justices Isaacs and Rich say:
there is no real inconvenience, because under the power of investing State Courts with jurisdiction all the existing inferior Courts of Australia can be utilized.
That is, without the inconvenience of having the section 72 tenure arrangements attached to those inferior courts.
With respect, I support and adopt the submission made by my learned friend, Mr Mitchell, that section 77(iii) does not allow for differentiation between courts when it speaks of the investment of federal jurisdiction in any court of the State. Of course, all courts of the State exercising federal jurisdiction have a right of appeal to this Court, subject to the exceptions the Commonwealth might prescribe, so, in my submission, it would be ‑ ‑ ‑
GUMMOW J: Say that again.
MR KOURAKIS: Courts exercising federal jurisdiction have a right of appeal to this Court.
GUMMOW J: Yes.
MR KOURAKIS: In my submission, given that constitutional right, subject to its parliamentary control, it is difficult to differentiate between the level of independence that will be required of State inferior courts based on what the States themselves might allow in terms of intermediate appellate review. Your Honours, can I just say that the explanation for the stringent tenure requirements for the federal judiciary advanced by their Honours Justices Isaacs and Rich was further expanded on by his Honour Justice McHugh, without taking your Honours to it, in Harris v Caladine (1990-1991) 172 CLR 84, but at pages 157 and 158, and his Honour’s discussion was referred to with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs 189 CLR 1, but at page ‑ ‑ ‑
GLEESON CJ: The concluding words on page 469 of Alexander are of interest:
the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life ‑ ‑ ‑
MR KOURAKIS: Yes.
GLEESON CJ: That view seems to have been modified along the line somewhere.
MR KOURAKIS: Yes. Your Honours, can I turn to the issue that has been passed along to me, namely, the question of de facto officers.
KIRBY J: Why do you advance this given that the party with the greatest interest to do so has abandoned it?
MR KOURAKIS: Well, your Honour, it arises on the special leave application and I think I am right in saying only on the special leave application, but pursuant to the leave to make submissions ‑ ‑ ‑
KIRBY J: The United States doctrine, as I understand it from your submissions, is that it only applies – you say here, you quote the case of Glidden Co v Zdanok in the United States Supreme Court where the relevant appointment is invalid on – it is inapplicable where the relevant appointment is invalid on non-frivolous constitutional grounds.
MR KOURAKIS: Yes.
KIRBY J: No one could say that this is a frivolous constitutional issue that is raised.
MR KOURAKIS: Your Honour, the courts of the United States approach it on a slightly different question. They approach it from the point of view of whether they should investigate the question in the first place and generally will not.
KIRBY J: It is a bit late for us to take that point.
MR KOURAKIS: Your Honour, it is not an approach that I advocate. The other point to be made, of course, is that in the United States the doctrine of retroactive invalidity and the principles associated with that have largely obviated the need to have recourse to this doctrine, but it exists as a common law doctrine quite separate from its application and development in the United States and, in my submission, has a place certainly in the common law and more extensively in statutory appointments. It has a place there and, in my submission, can have a place where the invalidity arises from the infringement of a constitutional norm.
Indeed, in the introduction to his article in Jesting Pilate, Sir Owen Dixon observed that the oppressive and unexpected consequences that might result from invalidity are most obviously seen and seen more often where the legislative power of Parliaments is limited by a written Constitution. Sir Owen Dixon clearly saw that the mischief that might be caused by invalidity was likely to be more extensive or arise more often at least where there is a constitutional limitation on power.
But, your Honours, the doctrine that an Act unsupported by legal authority is void and has no effect is in a sense a matter of logic or semantic consistency but ultimately it is a common law doctrine. The de facto officers doctrine is simply an exception to that common law principle.
KIRBY J: You say it is ultimately a common law doctrine and on one view it is an inference from the written Constitution. It talks of courts and judges and if people are not that, then they do not pick up the power that attaches to that office.
GUMMOW J: We have said, have we not, that 75(v) of the Constitution is talking about real officers? We have decided that, have we not, a couple of years ago?
MR KOURAKIS: Yes.
GUMMOW J: Is the proposition that 77(iii), “court of a State”, is a court composed with some pretend people?
MR KOURAKIS: Your Honour, if the court of the State is not properly constituted, then orders in the nature of prohibition and the like will go and will issue. There is no difficulty about that. This question is another question. It is a question of what validity do you give and what is the effect on the legal rights of the litigants once the ‑ ‑ ‑
GUMMOW J: Under federal law in the exercise of federal jurisdiction.
MR KOURAKIS: Yes. Your Honours, as a matter of statutory construction – I will come to the constitutional level in a moment – just dealing with States and statutory construction, it is, in my submission, unexceptionable to say that the validity of the acts of the officer appointed under State legislation must be determined according to the construction of the statute, what the statute intends as to the validity of the acts or the effect of the acts if the appointment was invalid, very similar to ‑ ‑ ‑
KIRBY J: But in federal jurisdiction the State statute only has operation by virtue of federal law, the Judiciary Act, picking it up and applying it to federal jurisdiction.
MR KOURAKIS: Once we are into federal jurisdiction, that is so. I want to progress to that simply by postulating the case of an appointment under a State Act and any proceedings that arise from it being purely in State jurisdiction. The submission I make is simply that the effect of the acts of an invalidly appointed officer under that legislation must be determined by a construction of the statute. The common law doctrine of de facto officers informs how the statute will be construed and that construction will determine what effect, if any, is given to the acts of the invalidly appointed officer.
KIRBY J: But the State Act is picked up by the federal law. The Judiciary Act applied in federal jurisdiction. The Judiciary Act (Cth) cannot give it greater power than the source under which the Judiciary Act is enacted, which is the federal Constitution. So that if it is in conflict with the federal Constitution, it is difficult for me to see logically how it can pick up any greater power than the federal Constitution gives it.
MR KOURAKIS: Your Honour, it all depends on what one means by “conflict” because the Constitution does not expressly provide for the effects of the acts of an officer appointed in breach of a constitutional provision or implication. It does not expressly provide for it. Whether the acts of the officer appointed contrary to a constitutional prescription are to have any effect or not is another question, a further question, after one has decided whether the officer was validly appointed ore not.
GLEESON CJ: Was there not a case in Western Australia a few years ago where a magistrate sat on after the age of compulsory retirement?
MR KOURAKIS: Exactly, your Honour.
GLEESON CJ: Did she exercise federal jurisdiction from time to time?
MR KOURAKIS: Undoubtedly she would have. In terms of State jurisdiction, certain judgments made by her were upheld on the basis of this doctrine I am told by Mr Meadows. Your Honours would have observed that the plaintiffs in this case argue that an appointment of a State judge above the age of 72 is constitutionally bad. If that proposition be accepted, then undoubtedly there are many judgments across the breadth of the country that are void and have had no effect, creating much mischief and inconvenience to the litigants.
KIRBY J: Well, the Canadian Supreme Court in the Manitoba Language Rights Case seems to have contemplated that there might be some special rule that avoids chaos and anarchy, but both the Canadians and the Americans have pitched a very, very high and stringent test for any exceptional rule here. This does not seem to be such a case.
MR KOURAKIS: Your Honour, the Canadian case is important in this respect. The exceptional situation there was to allow for the continued valid operation of clearly invalid laws to prevent lawlessness, in effect, notwithstanding the constitutional mandate that the law be published in both languages if it was to be valid.
KIRBY J: You will understand the argument to the contrary which is that the rule of law is the fundamental grundnorm and that if it does not conform to the Constitution why bother to have the High Court? Why bother that we are passing on these things? It just does not have the logical consequence of that decision.
MR KOURAKIS: Your Honour, the Supreme Court of Canada relied on the principle of the rule of law to give the unconstitutional statute continuing legal effect, precisely to avoid lawlessness. But, your Honours, that was the extreme part of consequence. Their Honours also adverted to the fact that there were administrative acts affecting legal rights made under the legislation and they accepted, although it was not for decision in that case that the de facto officers doctrine would ensure that the legal rights affected by officers, as it turns out, invalidly appointed under the invalid legislation would have, and continue to have, legal effect. So there are two parts of the decision. Well, the ratio dealt with the continued operation of legislation, but their Honours accepted that there was a constitutional place for the de facto officers doctrine.
Your Honours, it arises in this way. The conferral of judicial power, it is the very purpose of the conferral of judicial power, to quell disputes between the State citizens to resolve litigation. The de facto officers doctrine has a place because if there is an invalidity in appointment which, when it was made was made in circumstances that reasonably justified the general assumption by those who came before the court that it was lawfully
and constitutionally constituted, then those rights should continue to be as determined by that court. That is an important function of the conferral of judicial power. If the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. Solicitor‑General for Victoria.
MS TATE: May it please the Court. We accept that the combined effect of section 71 of the Constitution, section 77(iii), section 73 and the integration of the court system within Australia necessarily implies that there be in each State a body answering the constitutional description of the Supreme Court of that State which is susceptible to the investment of federal jurisdiction and for that proposition we rely upon Kable v DPP of New South Wales (1996) 189 CLR 51 at pages 139 and 140.
We further accept that a court capable of exercising the judicial power of the Commonwealth must be, and appear to be, an independent and impartial tribunal. For that proposition we rely upon the joint judgment in NAALAS v Bradley (2004) 218 CLR 146 at 163, paragraph 29. The proposition relied upon by the plaintiffs which we dispute is the proposition articulated by my learned friend, Mr Ellicott, as reported at page 12 of yesterday’s transcript at line 349. If I could take your Honours to the transcript, Mr Ellicott says at 349:
the relevant judiciary should be made up of full‑time, permanent people, whether they are called judges or whatever they are called. If it is truly a court as defined by Chapter III then it has to have that quality because there is no other way of giving to the courts the independence. The emphasis has to be on security of tenure and security of remuneration.
We dispute the proposition that there is no other way of satisfying the requirement that the Supreme Court of a State be, and appear to be, an independent and impartial tribunal than requiring that all the judges of that court be full‑time and permanent. We dispute more generally the assumption that there is one and only one way of satisfying the requirement for an independent and impartial tribunal. We dispute this in two ways.
First, we say that where the judicial independence and impartiality are properly protected is a question of the adequacy of the totality of the safeguards that are present in relation to an appointment. It cannot be inferred from the absence of an appointment until mandatory retirement at age 70 that judicial independence has been compromised without investigating in detail and in context the other safeguards which may be present to determine if they are adequate to protect judicial independence.
Second, it is our submission that the proposition that there is one and only one way of satisfying the requirement for an independent and impartial tribunal is contrary to international authority dealing with Convention rights expressed in similar terms, either as Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, given effect to by the Human Rights Act (UK), or as section 11(d) of the Canadian Charter of Rights and Freedoms, or as section 34 of the Bill of Rights of the Constitution of the Republic of South Africa 1996.
We say that with respect to the guarantees provided in those instruments there has been a consistent rejection of the notion that there is one and only one way of satisfying the requirement for an independent and impartial tribunal and a recognition of the need for an investigation in detail of the variety of safeguards which might otherwise be present.
To return to the first limb of our argument, the safeguards which are intended to protect judicial independence may originate from a variety of sources. They may be an admixture of statutory and common law rules, constitutional conventions and professional practice. They are directed, in our submission, at ensuring in particular that a State court is not called upon to act and decide effectively as the alter ego of the legislature or the Executive, to reflect the test enunciated by your Honours Justice Callinan and Justice Heydon in Fardon v Attorney‑General (Qld) (2004) 210 ALR 50 at paragraph [219].
The identification of the vice in similar terms, that is in terms of the avoidance of a court acting as the alter ego of the legislature or the Executive, is also to be found in the judgment of Justice McHugh in Kable at page 117 and in the judgment of Justice Gummow in Kable at page 133, referring to the decision of the Supreme Court of the United States in Mistrettav United States (1989) 488 US 361 at 407.
KIRBY J: That cannot be the only consideration because in many countries the peril does not come only from the Executive or from the legislature; it comes sometimes from the military, which I suppose could be seen as part of the Executive, but sometimes from the private sector, sometimes from organised bands or disorganised bands. So that there are all sorts of sources of pressure on the judiciary. It cannot just be the Executive or the legislature.
MS TATE: In our submission, your Honour, with respect to the notion of independence, the notion of independence is one largely cast in terms of freedom from interference from the Executive or the legislature or anybody carrying the authority of the State. I think that is the way in which it is expressed.
KIRBY J: It may be because that is what lawyers concentrate on, but in Afghanistan under the former regime it would have been the pressure from the Taliban or from various other non-governmental but very powerful forces that frightened the people. In Nazi Germany it was the party, maybe also in Soviet Russia. It is external pressure; external forces is the peril.
MS TATE: External private pressures, your Honour, have usually been considered more in the context of impartiality, the requirement that the tribunal be impartial rather than the requirement that the tribunal be independent. I accept what your Honour says. Of course there is a need to consider those who might exercise the authority of the State beyond simply the legislature and the Executive.
KIRBY J: I mention that because ours is a country which is in a relatively small number of countries in the world that does truly have an independent judiciary. It is a proud boast. One of the factors in that is the culture of the judiciary inherited from centuries and we just have to be very careful in altering that culture by disturbing the fundamental features of the judiciary which in the past has been of a cadre of professional long‑time appointed judicial officers. That is why we are all here.
MS TATE: Indeed, your Honour.
KIRBY J: It is said that this is the danger of the path that we have entered upon.
MS TATE: It is our submission, your Honour, that an assessment of the independence and impartiality of any court to which acting judges are appointed must consider such safeguards as the qualifications that are prescribed for office, the determination and the protection of remuneration and in particular whether there is a prohibition upon the remuneration of a judge being reduced during term of office. There is also a need for consideration of security of tenure and in relation to fixed term appointments and whether or not those appointments are removable at will.
HAYNE J: That puts the blinkers on and confines the inquiry to what is happening during the time the judge is exercising office. Often enough history reveals questions of partiality and the like. Look to beyond the exercise of office, beyond the term.
MS TATE: Your Honour, I was attempting to advert to what I would describe as structural guarantees about the office of an acting judge, not simply considerations of how any particular judge performed during the term of that office. We would say that in addition to those matters there is also a need to consider whether there is requirement that there be a judicial oath of office, and your Honours have already heard from the Commonwealth and seen in their written submissions that reliance is placed upon that safeguard. There are also considerations about the common law rules in relation to judicial immunity and, further, there is a need for consideration about the safeguards that flow from the judicial control over court administration including the assignment of judges, sittings of the court and court lists.
CALLINAN J: Ms Solicitor, do you know whether in Victoria there was ever a provision like the one to which I drew attention this morning in Queensland, the 1867 provision that Supreme Court judges not hold any other office of profit? You may not be able to answer it now but I would be interested to know the answer to that and whether if there were, it has now disappeared?
MS TATE: We will certainly endeavour to provide a statutory source if there was such a prohibition, your Honour. But it is our submission that in addition to those safeguards which I have enumerated, there is also a need to consider other institutional aspects of the court such as more generally the principle of open justice, the possibility of appeals and the rules of natural justice.
HAYNE J: All of these are important, but once the step has been taken of admitting the relevance of appearance of bias in connection with the work of the superior courts, why are they a sufficient and complete answer to that question of appearance?
MS TATE: Your Honour, we would say that it will depend upon the particular safeguards that are in place with respect to any particular regime in any particular jurisdiction and that there is a need to look beyond simply the length of tenure to determine whether the safeguards in their totality are otherwise adequate to protect judicial independence.
If I could answer Justice Callinan’s question in relation to the prohibition upon full‑time permanent judges of a Supreme Court from holding any other place of profit? In the Constitution Act (Vic), section 84, that prohibition still applies, your Honour. If your Honour was interested in the historical origin of that that is something we could have a note sent to the Court in relation to.
CALLINAN J: Thank you.
MS TATE: As I say, the section is section 84 and clearly with respect to the acting judges’ regime within Victoria there has been a modification of that prohibition.
GLEESON CJ: Would a system of performance review of judges be compatible with the minimum requirements of independence?
MS TATE: Your Honour, the use of the term “performance” would be one which would require investigation. If performance meant strictly whether the judge had been able to arrive at a decision with ‑ ‑ ‑
GLEESON CJ: Timely delivery of judgments, for example?
MS TATE: The delivery of judgments and so on. If there was consideration of those sorts of matters, in our submission, that would not in itself compromise judicial independence.
HAYNE J: Review by whom, Solicitor, with what consequence?
MS TATE: One would have expected, your Honour, that within the institution of the court it would be a matter for the head of jurisdiction to consider at any particular time.
HAYNE J: I can understand internal court examination of those matters, but is some form of external review compatible?
MS TATE: Not an external review, your Honour, but the fact that an acting judge sits within the institution of the court and is subject to its internal administration, including directions from the Chief Justice or the head of jurisdiction as to where to sit, for how long to sit, what particular cases to sit on, it may well be the case that the head of jurisdiction also considers matters relating to delivery of judgments and so on.
GLEESON CJ: Magistrates in New South Wales for a large part of the 20th century were subject to performance review by an officer of the Attorney-General’s Department and on the outcome of that review the level of their salaries depended. How would that stack up against the minimum requirements of independence?
MS TATE: Your Honour, we would not see that form of external review as something which was permissible. But if I could refer the Court to the declaration of principles on judicial independence which were agreed to by the Chief Justices of the States and Territories in 1997, if I could hand that to your Honours.
GLEESON CJ: Thank you.
MS TATE: In that declaration there is an identification of particular safeguards that are applicable to acting judges regimes. If I could refer your Honours to (1996-97) 15 Australian Bar Review 175. At 177 your Honours will see that it is set out there what principles were expressly adopted by the Chief Justices of the Australian States and Territories. The first principle states that:
Persons appointed as Judges of those Courts-
that is the courts of the States and Territories –
should be duly appointed to judicial office with security of tenure until the statutory age of retirement. However, there is no objection in principle to:
(a)the allocation of judicial duties to a retired judge if made by the judicial head of the relevant court in exercise of a statutory power; or
(b)the appointment of an acting judge, whether a retired judge or not, provided that the appointment of an acting judge is made with the approval of the judicial head of the court to which the judge is appointed and provided that the appointment is made only in special circumstances which render it necessary.
HAYNE J: Other than to read up the Chief Justices priors, what are we to make of this, Solicitor?
MS TATE: It is brought to your Honours’ attention to show that there can be many safeguards which may be placed upon the appointment of acting judges to State and Territory courts. I identified a number of matters to which the Court could refer in assessing the independence of the institution to which an acting judge was appointed. I have taken the Court to this to show that there have been other particular safeguards formulated as applicable and as appropriate in relation to the appointment of acting judges.
HAYNE J: If this is the principle you advocate, what are the special circumstances that are contemplated in principle (1)(b)? It is that kind of debate that you then get into, is it not?
MS TATE: Yes, your Honour.
HAYNE J: So what is the underpinning principle that you are advocating?
MS TATE: Your Honour, the special circumstances which might render the appointment of an acting judge necessary will include those circumstances to which reference has already been made in this case. They will include the clearing of a temporary backlog. They will include the need for an additional judicial officer to be appointed to a court when other members of the court are engaged in long and complex trials. It may be, and I believe Justice Sackville has pointed to a special reason, a special circumstance which would render the appointment of an acting judge necessary as those circumstances in which there is a need to import, as he described it, import judges from another jurisdiction, given the problems that lie because of the identity of the parties in a particular case.
I accept, of course, Justice Hayne, that there is no enunciated exhaustive characterisation of special circumstances in this set of principles. No doubt these are the sorts of things that one would expect would be grappled with from time to time. We simply alert your Honours to the fact that it has been acknowledged by heads of jurisdiction that there may be certain safeguards which are sufficient, adequately, to protect judicial independence and yet there be no full‑time permanent tenure.
If I might then turn briefly to the second limb of our argument, that is the proposition that there is one and only one way of satisfying the requirement for an independent and an impartial tribunal has been rejected by courts in foreign jurisdictions in their interpretation of Convention rights. Might I take the Court to the South African case of Re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC). It is a judgment of the Constitutional Court of South Africa and it is a judgment to which my learned friend, the Solicitor‑General for the Commonwealth, referred your Honours earlier today. Is it the case that copies have not been provided to your Honours?
KIRBY J: It has been given to us with – we have Van Rooyen which is another case that you refer to in your submissions.
MS TATE: We have copies and we had copies ready to make available to your Honours, but when the Solicitor‑General for the Commonwealth referred to it I understood that it had already been provided to the Court, but perhaps we can attend to that at the conclusion of the proceeding. I will then just refer your Honours to the page references. This judgment is a judgment of the Constitutional Court of South Africa. The case concerned a referral by the Constitutional Assembly of a new constitutional text that it had passed. The question before the court was whether the new text was compatible with the constitutional principles that had been contained in schedule 4 of the Interim Constitution. The relevant constitutional principle is to be found at page 912 of the report. It is Constitutional Principle VII and it provides that:
The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.
The Constitutional Court had to assess new text provision 165 which was a provision in relation to the appointment of acting judges and they expressly considered whether or not those appointments were compatible with that constitutional principle and held that they were so compatible. The Court considered at page 815, from paragraphs [125] to [132], whether the appointment of acting judges was something which was compatible with constitutional principle and which met the objection that had been made, and this was objection (b) that:
the principle of separation of powers is compromised since political control over these appointments becomes possible –
Now, in dismissing that objection the court said at paragraph [128]:
That acting judges have no security of tenure, and may therefore be perceived to lack an important guarantee of the independence that is a prerequisite for judicial office, is relevant to the requirements of CP VII. If the appointment of acting and permanent judges were to be at the discretion of the Minister there would be concern on this score. But this is not the case. Acting appointments are essentially temporary appointments for temporary purposes. Although judges are appointed by the President in terms of NT 174(6), the President has to act on the advice of the JSC.
That is the Judicial Services Commission.
If there is a vacancy in a court the JSC is under a duty to fill it. It may no doubt delay or defer an appointment until a suitable candidate is identified, but it should not be assumed that it will abdicate its responsibility by allowing permanent vacancies to be filled indefinitely by acting judges. Acting appointments provide it with a valuable opportunity for assessing the qualities of potential judges. The use of part‑time judges has become a feature of the court system in England, which is a country always associated with an independent judiciary. Such appointments are made there for the same reasons as they are made in South Africa: “to assist the work of the courts” and to “give to possible candidates for full‑time appointments the experience of sitting judicially and an opportunity to establish their suitability”.
The court went on to determine that in its view there were ultimately:
adequate safeguards in the NT to meet the requirements of CP VII –
I am alert to the fact that Justice Hayne has already raised the question about the opportunity that might be provided by the appointment of an acting judge for an assessment of that judge’s suitability for office. I think Justice Hayne mentioned that within the system now in the United Kingdom there is express recognition that the appointment of somebody to a position of a recorder will offer both that person the opportunity to determine whether he or she sees himself or herself as suitable for a judicial appointment and also provide the ‑ ‑ ‑
GUMMOW J: It makes the litigants the subject of an experiment really.
GLEESON CJ: We do not have to be shy about it; it is out on the table. Whether it is good or bad, as I understand it, the prospect of anybody in the United Kingdom becoming a permanent judge who has not had experience as a temporary judge is nil.
MS TATE: Indeed, your Honour. In fact, it is a stated public ‑ ‑ ‑
GUMMOW J: The fact that that is so in the United Kingdom I am afraid I find rather abhorrent. The days have long since passed when you can say that what happens there is in some state of perfection.
MS TATE: Indeed, your Honour, and we are not submitting that that is in any sense a state of perfection.
GUMMOW J: You read rather proudly the statement of South Africa.
MS TATE: We are only talking about ‑ ‑ ‑
GUMMOW J: Do you mean to say that in Victoria you are going to have acting judges so you can see what they are like on sentencing and whether they get a tick from talkback radio? If we are going to get real about this, I would be rather shocked.
HAYNE J: So too might the litigant who is the subject of the experiment where the judge is trying to prove himself or herself sufficiently sound to warrant permanent appointment.
MS TATE: Yes, and no doubt, your Honour, that it would be abhorrent if it was thought that an acting appointment might be used for the purpose of determining the propensities that acting judge has in relation to sentencing, for instant sake. One must construe both in the United Kingdom and in the judgment of the Constitutional Court of South Africa that when one is talking about assessing the qualities of potential judges, rather like a presumption of regularity, one must consider that in good faith the qualities that are being assessed ‑ ‑ ‑
GUMMOW J: One has to allow for human weakness.
MS TATE: Your Honour, the public statement in the United Kingdom that one of the purposes of these forms of temporary appointment is that assessment of suitability must suggest, given that they would not publicly voice bad faith, that what is being assessed is no doubt ‑ ‑ ‑
GUMMOW J: But who judges the assessors? By what criterion are they assessing? This is all left in the mysterious realm of soundness, is it not?
MS TATE: In this realm, your Honour, there has obviously been considerations about the decisiveness of the judge, the delivery of judgments, whether the judge is courteous. Those sorts of considerations have been considerations which have been ‑ ‑ ‑
KIRBY J: Would you mention that last one again.
MS TATE: Your Honour, also we ought not to forget that in terms of the question which the Chief Justice has been posing to many counsel about the appointment of an acting judge as providing an opportunity for that person who takes that appointment to determine their own suitability for judicial office, of course Sir Owen Dixon took his position as an acting judge of the Supreme Court for precisely that purpose.
GLEESON CJ: Solicitor‑General, I asked Mr Ellicott this question, but let me ask you. Subject to any necessary constitutional amendment could the Parliament of Victoria legislate for popular election of judges?
MS TATE: It would seem to me not, your Honour, because the concern which was expressed particularly in the written submissions of the Commonwealth that one of the vices here, which we are seeking to avoid, is a vice whereby the appointee attempts to curry favour for either reappointment or some other favour by the Executive, would be a vice that would be large if an acting judge was dependent upon the will of the community as to whether or not there was reappointment or appointment to a permanent position.
CALLINAN J: The big problem in the United States is not from Executive influence but from donations by other lawyers, the campaign funds which are ‑ ‑ ‑
MS TATE: Indeed, your Honour, but it might be that here the community concerned expressed from time to time in the media about the likeness of sentences when there ‑ ‑ ‑
GUMMOW J: Well, expressed in the media. Whether it is community concern is another question.
MS TATE: Well, particularly when there has been perhaps no reading of the judgment and no understanding of the particular circumstances, yet there is a concern voiced by the community. If an acting judge was to be susceptible to the favour of that block of people in order to ensure that they were reappointed another time, one might think that the modification of their judgments to curry favour with that community would be a vice that it would be very difficult to protect against.
GLEESON CJ: I am not suggesting for a moment that your answer to my question is wrong, but is the reason for the answer Chapter III of the Constitution?
MS TATE: It is difficult to see a direct ‑ ‑ ‑
CALLINAN J: If you took an originalist view of the Constitution there would not have been an elected court anywhere in any British colony or in England itself.
KIRBY J: But even if you do not take an originalist view, if you take a Kable view, then the view could well be adopted in the line of the Canadians in Valente and the South Africans in Van Rooyen that this is just incompatible with the kind of judiciary that is set up by the Constitution which does not contemplate election because of the fact that that puts in peril the independence of the judge. The judge is not performing the duty as we have conceived it according to conscience and law but is performing it in accordance with what might be acceptable in the hustings. That is what happens in America. I mean, the judges are able to be recalled in many states and are recalled; in one case because the opponent said the judge was too light on sentencing and that he would be too hard on sentencing and he got elected.
MS TATE: Indeed, your Honour. If the source of the implication recognised in Bradley that courts which exercise federal jurisdiction must be independent and impartial - the source of that implication is ultimately the separation of powers - then a directly elected judge whose independence would not be properly protected would be in violation of that principle and that principle has its source in Chapter III.
GLEESON CJ: Thank you.
MS TATE: If the Court pleases, those are the submissions for Victoria.
GLEESON CJ: Thank you, Solicitor‑General. Mr Solicitor for Queensland.
MR SOFRONOFF: May I deal with two housekeeping matters, your Honours. The first is may I announce my appearance also in matters C12 and S301, with leave, if necessary? The second is my learned friend, the Solicitor‑General for South Australia, has asked me to request leave from the Court for him to provide extracts to the Court of a report of Professor Friedland from the University of Toronto which was commissioned by the Canadian Judicial Council and which discusses the question of elevation of puisne judges and short‑term appointments.
GLEESON CJ: Thank you.
MR SOFRONOFF: Your Honours, may I in, I hope, a brief time address two points. The first is the question, what does section 37 authorise on its construction? The second is the question whether the appointment of a number of acting judges for proper purposes capable of impugning the institutional integrity of the court to which those judges had been appointed.
Could I turn to the statute, your Honours, first, the Supreme Court Act 1970 (NSW). The primary question, your Honours, is whether acting judges, once appointed, would be capable of satisfying the description “judge” when used in section 25. Section 25 provides that:
The Court shall be composed of a Chief Justice, a President of the Court of Appeal and such other Judges of Appeal and Judges as the Governor may from time to time appoint.
If one looks at the next section, section 26:
The Governor may, by commission . . . appoint any qualified person to be . . . a Judge.
Could I ask your Honours to note the words “to be”. When one comes to section 37, however:
The Governor may, by commission . . . appoint any qualified person to act as a Judge ‑ ‑ ‑
GUMMOW J: The Solicitor from South Australia made that point.
MR SOFRONOFF: Yes. I want to just take it a little bit further, your Honour. One can see the distinction between persons qualified and therefore appointed to act as a judge on the one hand and judges strictly so‑called on the other throughout the rest of section 37. One can see, for example, in subsection (3), firstly, the reference is to “A person appointed under this section” rather than a judge and, secondly, one can see the necessity for subsection (3) itself connotes that a person appointed to act as a judge is not to be regarded as a judge strictly so-called, hence the necessity to provide for the conferral of “authorities, privileges and immunities” and the imposition of “duties”. One can see that followed through in the succeeding subsections of 37. Ultimately in subsection (6) where the term “acting Judge” is used in contradistinction to the term “Judge”.
GLEESON CJ: Take section 123(1)(d). Could an acting judge be appointed to the Rule Committee?
MR SOFRONOFF: Yes, because under section 37(3) that person “can fulfil all the duties of a Judge”.
KIRBY J: “Judge” in section 13 appears with a capital letter whereas “judge” in section 123 appears with a small letter.
MR SOFRONOFF: Thank you, your Honour.
KIRBY J: Generic description presumably.
MR SOFRONOFF: However, if one goes back to section 25, which is the pivotal section, in my respectful submission, when one looks at section 37 in its express terms, it can be seen that section 25 assumes a court comprised of permanent judges to which the appointment of acting judges will be ancillary. I will not take up the Court’s time looking at the Queensland statute, which is similar to this, but stronger in this respect. It is a statute which uses the expression, for example, that an acting judge – the statute and other statutes shall apply to an acting judge as if that person were a judge, the fiction to which my learned friend, Mr Gageler, referred.
One then comes to the question for what purpose can an acting judge be appointed if upon a true construction of the statute such a person acting as a judge is not a judge for the purposes of section 25. I adopt the submissions of my learned friend, Mr Mitchell, to the effect that those persons are to be appointed in order to satisfy temporary needs in a pragmatic fashion of the court. That is made express in the Queensland statute where the terms of the statute, section 14, provide for the appointment of acting judges only to fill casual vacancies caused by death or retirement or incapacity and, in addition, where the Chief Justice certifies that there is a necessity by reason of the exigency of the court’s business.
KIRBY J: One gets an impression that in Queensland there have been relatively few acting judges.
MR SOFRONOFF: Very few, except in the District Court where from time to time, and they come in sudden bulges and disappear, four or five barristers have been appointed at a time for a period of four to six months to act as District Court judges. In the Supreme Court Justice Williams was appointed as an acting judge I think in 1978 or1979 for a period and then was appointed a permanent judge.
CALLINAN J: In the 1980s, during the illness of Justice Dunn.
MR SOFRONOFF: And was then appointed a permanent judge.
CALLINAN J: Justice Douglas, I think, illness of Justice Douglas.
MR SOFRONOFF: Justice Helman was appointed, I think, on a number of occasions in the 80s to fill that position. He was a District Court judge. Justice Williams was a barrister.
CALLINAN J: Justice Moynihan’s father was the only acting appointee who was never confirmed as a permanent appointee in the last 50 or so years.
MR SOFRONOFF: So our experience of this is minimal and, having regard to the statute and no doubt the efficiency with the way the courts are run, such persons could only be appointed for those purposes. In our submission, given the historical context of statutes like this in Australia, and relevantly the New South Wales statute, such appointments ought to be made – can only be properly made for the purpose of meeting the needs of the court for temporary purposes. An appointment ‑ ‑ ‑
KIRBY J: Queensland is a State which we constantly hear is growing very rapidly and has a very developed economy and so on. Now, how has Queensland managed to get by without large numbers or annual numbers of acting judges? Can you give any other explanation?
CALLINAN J: Efficient Bar and bench.
MR SOFRONOFF: Your Honour, it depends who you ask. If you ask members of the court they would say they are disposing of the business of the court efficiently, and if you ask the Bar it is because work is being sucked to Sydney.
HAYNE J: Game, set, match, Mr Solicitor, I think. You say the relevant restriction is temporary need. What do you say of what appears at schedule A to the appellant’s original bundles where the temporary need has from at least January 2000 until January 2004 required no less than four acting judges each year? It seems to be a rather persistent temporary need.
MR SOFRONOFF: Your Honour, that is a matter of judgment for those considering the necessity to appoint judges to meet what they consider to be temporary needs at the time. The position that we would advocate is that in Queensland and in New South Wales the only proper purpose of appointment of an acting judge is the purpose that I have submitted. Whether in some circumstances there is evidence to show that the power has been abused, that would be a matter to be demonstrated.
In our submission, if a person is appointed – your Honour Justice Gummow raised the possibility of the Executive seeking to grind the court into some form of submission by declining to appoint permanent judges. That, we would submit, would be an abuse of power. It would be the use of the power to appoint outside its scope. What your Honour raises with me is an indication of appointments of such regularity, it gives rise to a suspicion that what is being sought is merely to save money rather than to meet the needs of the court. So be it.
The next question, your Honours, is this. Assuming that acting judges are in good faith appointed to meet the exigencies of the requirements of the business of the court, can it be said at some point, albeit that the appointments have been of properly qualified persons for proper purposes, that the integrity of the court has been impugned, has been affected.
In our submission, the answer to that is in the negative for these reasons. If one assumes in the first place that an acting judge or a number of acting judges have been appointed for proper purposes, then one asks what test does one apply to determine whether the court as a whole has had its integrity affected so that it no longer answers the character that this Court elucidated in Bradley, that of an impartial and independent court able to receive federal judicial power.
In Valente in Canada the court examined those two expressions, impartiality and independence, and saw a distinction between them. Impartiality, the court said, was the:
state of mind or attitude of the tribunal in relation to the issues . . . in a particular case.
GUMMOW J: What page is that, Mr Solicitor?
MR SOFRONOFF: It is at page 169, your Honour, of the Dominion Law Reports. It should be at the foot of 169 of my computerised copies.
HAYNE J: It is about eight lines up.
MR SOFRONOFF: Yes. If one asks the question of Justice Foster in this case ‑ ‑ ‑
KIRBY J: In fairness their Lordships said, “it connotes not merely a state of mind or attitude”, though that presumably ‑ ‑ ‑
MR SOFRONOFF: Independence, your Honour?
KIRBY J: At the very bottom ‑ ‑ ‑
MR SOFRONOFF: That is a reference to independence. Yes, that is quite right. If one asks of Acting Justice Foster in this case by reason of his position as an acting judge could it be said that he was lacking in impartiality, in our submission, it could not be said that he was lacking impartiality or an appearance of impartiality under the Ebner test. Could it be said that he is lacking in independence? In our submission, it could not be said that he was lacking in independence in conformity with the Ebner test.
The reason why are the reasons that your Honours have heard from a number of my learned friends. In principle the position of an acting judge appointed for proper purposes and properly qualified is no different from that of a permanent judge appointed under similar conditions. The grounds of removal are the same for misbehaviour. The tenure may be short but in that respect the position of an acting judge appointed for six months or a year is no different from the position of a judge who has made up his or her mind to retire or is due to retire by reason of age. But that person is under no pressure inherent in the terms of appointment to decide any particular case in any particular way, no more than any other judge.
Your Honour the Chief Justice has raised the question of what is the significance of promotion being open. One knows from time to time undercurrents of criticism being made of judges who have been promoted from a lower court to a higher court. District Court to the Supreme Court in Queensland has happened from time to time. The same criticisms made of the openness of a person to be promoted in that fashion are being made in this case of a person appointed to a temporary office who may or may not wish to be reappointed to that office or curry favour for some other reason.
HAYNE J: But does not the prospect of reappointment inevitably carry with it that element of appraisal which was mentioned earlier in argument?
MR SOFRONOFF: Your Honour, could I answer that in two ways. The practice in Queensland with respect to temporary appointments to the District Court, which is more common, has not been that persons have been reappointed quickly thereafter or, indeed, appointed to the District Court bench permanently thereafter. It has been, indeed, to meet a pressing need as seen. Secondly, there is no reason to assume that any particular occupant for the position of acting judge would desire reappointment, or not for that matter. I do not mean to say that appointment as an acting judge would not be desired, but why should one assume in any case that it is much desired.
KIRBY J: Because people who take it and take it again and again and the inference there is some people do not, they are happy playing golf, some people do not like that. They have been working as barristers and judges all their lives. They want to keep at it.
MR SOFRONOFF: But, your Honour, it is another step then to say even with respect to those people that they would be false to their oath in seeking to ‑ ‑ ‑
KIRBY J: Well, that is true but we do have some empirical material in Australia that is pertinent to this and it comes out of research by Professor Mary Crock of the University of Sydney concerning the Refugee Review Tribunal. A change was made at a certain point in the reappointment practice of members of that Tribunal and the consequence of that, according to Professor Crock’s research, which is published, is that when the change was made and people were not reappointed, if they were not seen as applying the Act as the government thought it should be applied, the number of applications that were rejected increased significantly. Now, that is the peril that we have to keep our eye on in the courts of law.
MR SOFRONOFF: In my respectful submission, it is not a peril that applies in a court of law with respect to acting judges for this reason. In the Scottish case, Starrs v Ruxton, sheriffs were appointed for a term of a year at a time removable at will but they were in fact tantamount to permanent appointees. That was their living. They were appointed as sheriffs but on terms rather like the servers at McDonald’s, on a casual temporary basis. One can understand then that if you make your living from an appointment, the duration of which is six months or a year but envisaging permanence of employment, having given away some other livelihood, then one is indeed the object of the Executive. One does indeed become the object of the Executive.
CALLINAN J: That can happen with temporary appointments of judges though, or barristers who have the expense of maintaining chambers. It may be very much in their interest to cut the Gordian knot and get rid of the chambers and get reappointed.
MR SOFRONOFF: It may also, your Honour, be in their interest to conclude the period of acting appointment and get back to making money again.
CALLINAN J: That is true.
MR SOFRONOFF: What arises from this kind of debate, in my respectful submission, is that it is speculative. In the case of the Refugee Tribunal with, I take it, quasi-permanent appointments although for a limited period, then of course the mischief is evident as it would be evident in a system of review of judicial performance with consequences, but that is not acting judges and there is no reason, in our submission, why one would look at the position of an acting judge with the assumption that that acting judge is desperate to be reappointed to that position. No doubt there is prestige and no doubt there is satisfaction in that position and other intangible advantages.
HAYNE J: And tangible - financial advantage.
MR SOFRONOFF: Financial advantages?
HAYNE J: Yes.
MR SOFRONOFF: And financial advantages, yes, and for some people important financial advantages. But by the same token, one should not assume and one would, in our respectful submission, be incorrect in assuming that those advantages would be regarded as of such importance to all acting judges as to impugn the whole practice of appointing acting judges for limited periods. It is merely speculative, in our respectful submission.
CALLINAN J: Except the public perception might be that these are very attractive offices. It might not matter, in fact, that they are not, whether they are, in fact, or not ‑ ‑ ‑
MR SOFRONOFF: But, your Honour, one has to regard the question from the perspective of the properly informed reasonable person, not from the point of view of a person who ‑ ‑ ‑
CALLINAN J: Even the reasonably well informed person might think that it is a valuable office, carrying prestige and certainty of income and pensions and the like. It is very attractive to many people, I would think.
MR SOFRONOFF: Well, your Honour, one can go on identifying advantages, but equally, one can see that with respect to any particular candidate an application made - in Acting Justice Foster’s case for example, to cause him to be removed on the grounds of partiality or lack of independence would have been doomed to fail. So what the Court is being asked to do in this case is to find an inchoate lack of impartiality and independence in any appointment as an acting judge institutionally where no such case could successfully be brought in any individual case on these grounds. The mere example that has been given of necessary and laudatory appointments in special cases to hear cases that other judges, permanent judges simply could not hear, demonstrates the fallacy of that, in my submission. The criticism would have to cover those appointments as well.
CALLINAN J: Mr Solicitor, can you run down that provision for me in Queensland that I have already mentioned?
MR SOFRONOFF: Your Honour, the original provision is section 12 of the 1867 Supreme Court Act but the current provision is section 22 of the Supreme Court Act 2001 (Qld).
CALLINAN J: So it is still there.
MR SOFRONOFF: It is different now. It used to say in 1867 that you could not hold any position of profit or emolument not limited to the Crown.
CALLINAN J: Yes, which is different from Victoria which says under the Crown.
MR SOFRONOFF: The Victorian position seems to be an echo of the Act of Settlement which freed judges from being in the pocket of the Crown and so the interest in the late 1600s was to ensure that the ‑ ‑ ‑
CALLINAN J: But anyway it is now section 22.
MR SOFRONOFF: But now there is a provision that allows a judge to take any public office, which is defined, and to inform the Attorney‑General immediately and then to cease occupying that public office if told that it is incompatible after the Attorney‑General has consulted with the Chief Justice. “Public office” is defined to include an office under the Crown of another State or the Commonwealth.
CALLINAN J: Does that apply to an acting judge, that provision?
MR SOFRONOFF: It would apply to an acting judge because there is a section of our statute that says that a reference to a judge shall apply to an acting judge – the provision shall apply.
CALLINAN J: Thank you, Mr Sofronoff.
MR SOFRONOFF: Your Honours, could I move on then briefly. The question is asked whether the appointment of a large number of acting judges would distort the integrity of a court, including the Supreme Court of New South Wales. In our respectful submission, that involves question begging because it assumes some lack of impartiality or independence in acting judges, perhaps not sufficient to impugn the standing of an individual judge but when added together collectively sufficient to impugn the whole court.
The argument, in our respectful submission, fails that inception because if the appointees are properly qualified, have been appointed for a proper purpose and on proper conditions, then whether it is one or two or 22 makes no difference. Whether there is one Acting Justice Foster or 20 Acting Justice Fosters, in our respectful submission, makes no difference whatsoever to the integrity of the court.
HAYNE J: That is necessarily tied to your first proposition that the power to appoint is limited to particular circumstances.
MR SOFRONOFF: Yes, and if that is correct then it would not be proper to appoint a judge on a probationary period. In Queensland it certainly would not be, and in New South Wales on a proper reading, in our submission, it would not be.
Finally, your Honours, could I submit that the relevance of the overseas cases is this. All of those cases that have been cited have been the product of countries in which the rule of law subsists and in all of those countries it has been accepted, subject to exceptions that would also be accepted here, in my submission, the appointment of acting judges for temporary purposes and for temporary periods is not something that would impugn the independence and impartiality of the court to which those judges are appointed.
It is useful to see, in our respectful submission, that that has been the common experience of, I do not say the common law countries, but of the countries which have the same heritage of acceptance of the rule of law. In our respectful submission, there is nothing exceptional in our experience that would take us outside that common experience. Those are our submissions, your Honour.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Ellicott. How long do you expect to require, Mr Ellicott?
MR ELLICOTT: Your Honour, there has been a fairly full debate. I might be 20 to 30 minutes.
GLEESON CJ: We will sit through and finish it.
MR ELLICOTT: If your Honours please. Your Honours, as I was saying, there has been a fairly full debate on this issue and all these various persons, whether parties or intervenors, do not appear to have challenged our basic proposition and that is that Chapter III, in effect, lays down the benchmark for judicial independence and impartiality within the integrated court system and that means, as we have already put and I do not repeat it in details, security of tenure, and security of remuneration.
There has been reference to many, many circumstances. They have all been analysed and various tests have been suggested; temporary needs to facilitate the full‑time judiciary, not to transfer work from judges and the like. I will not go through them all. Your Honours have heard them but all these are attempts to try and get a rule because all of them recognise that the courts basically and, we would say, fundamentally and without exception should be made up of full‑time permanent judges with security of tenure and remuneration.
Once you go into that other field of trying to get a test then one is in the legislative area. If there is any test, and this is a concession we have already made from our argument, but it is not one we readily make, but it is a concession, and that is that in the types of circumstances that are apparent from the past in colonial days and perhaps in later days, which might be called very special or special circumstances then an acting judge may be appointed.
What is absolutely clear here, and there has been no attempt to deny this, there is nothing in section 37. There is nothing in the appointments and you have the commissions of Acting Justice Foster. There is nothing in the commissions about any temporary needs or any purposes. All you have and really at the end of the day the statistics are just thrown up to show that there is a pool of judges in the Supreme Court of New South Wales who are acting judges and who can be called up from time to time.
GLEESON CJ: If your proposition is that State courts that may be invested of federal jurisdiction must be composed exclusively of full‑time judges, what are we to make of the historical fact that they never have been?
MR ELLICOTT: Well, with respect, your Honour, if we have a commission of inquiry into it we may find that up until the late 80s the persons who were appointed as acting judges were indeed appointed for what you might call special circumstances and they could include to clear up a list for a short period ‑ ‑ ‑
GLEESON CJ: But you do not admit that point.
MR ELLICOTT: They could include permanent judges - there may be two judges for instance who get their sabbatical in one year.
GLEESON CJ: But you do not accept that qualification to your proposition, do you?
MR ELLICOTT: I do not accept it in our primary proposition. I simply say that if ‑ ‑ ‑
KIRBY J: Reluctantly you ‑ ‑ ‑
MR ELLICOTT: No, I am not moving away from that in this sense, that the court itself has to be made up of full-time permanent judges. That is what Chapter III demands and there is no exception.
GLEESON CJ: How do you reconcile your primary proposition with the historical fact that the State courts to which you are referring have never in the history of Federation answered that description?
MR ELLICOTT: Whether it is the Kable enlightenment, there has never been focus until this case on the appointment of these people.
KIRBY J: I thought you just said to us that up to the late 1980s it was truly a very exceptional case throughout the Commonwealth.
MR ELLICOTT: Yes, that is what I am suggesting, that you cannot ‑ ‑ ‑
GLEESON CJ: But you do not admit of exceptions in your primary proposition.
MR ELLICOTT: I do not admit of exceptions but the exceptions are not to the basic proposition that the court as an institution must be made up of full‑time permanent judges with security of tenure. If there is any room for the appointment of acting judges, that must be defined by some statement such as “special circumstances”. Those special circumstances can be dealt with from time to time if necessary by this Court. In this case our point is you could not possibly fit the appointments of these judges into special circumstances because there is nothing there to qualify in any way the appointment of all those people who are appointed and reappointed and reappointed and reappointed.
In the case of Justice Foster, I think he was appointed once and he was then reappointed five times. You can find the same with regard to the others. There is a pool there all the time and they have become part of the constitution of the court. You look at the annual review. The acting judges as at so-and-so are such-and-such, appointed for these periods. You look up the law reports, the same thing. There is no suggestion that when they are asked to sit that they are sitting for a special purpose.
If anybody was going to say something about that, one would have expected the Solicitor‑General of New South Wales to come up with some statistics or some document. There is no such document and one assumes there is not any such because on the face of it, on the face of their commissions, these people have been appointed. The principle has nothing to do, in our submission, with the integrity that we believe all those people have. It has nothing to do about individual integrity. It has everything to do with the integrity of the courts. Whether you say it in terms of the statement in Bradley’s Case or whether you think that Eastman’s Case has accepted one acting judge, the matter has to be taken back in this case in judicial determination, in our submission, to Chapter III and to work out, if necessary again, is there a limit and where is it.
My point is that if your Honours are going to entertain a limit, you cannot use tests like temporary needs. Whatever tests you get, you will not find one that is appropriate to this case because there is no test. There is just appointments. In Valente’s Case 24 DLR (4th) 161 at 170 their Honours were wise enough to accept a statement by Sir Guy Green:
The scope of the status or relationship of judicial independence was defined in a very comprehensive manner by Sir Guy Green, Chief Justice of the State of Tasmania, in “The Rationale and Some Aspects of Judicial Independence”, 59 ALJ 135 at p 135 (1985), as follows:
I thus define judicial independence as the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extent that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control.
Now, that is a very full statement of the position. It has been said, I think – I think your Honour Justice Kirby may have said it in that article that your Honour wrote about acting judges – that it is very difficult to prove the difficulties that might arise. Before the Act of Settlement there were actions which were taken which were pretty easy to prove, but when it took place ‑ ‑ ‑
GUMMOW J: One question in the United Kingdom is the extent to which this practice of acting judges and trainee judges subverted the Act of Settlement. No one ever seems to have woken up to that.
MR ELLICOTT: Well, I would submit that one is not going to embrace the practice in Australia. Your Honours have been addressed about propositions in relation to acting judges who have had in mind that they might like to be a judge. Now, putting acting judges there on that basis I submit would be highly dangerous because the subjective easily comes in in two ways. First of all, in the person – when I say “easily” I do not mean that I think that Justice Meares, for instance, whom I knew very well, would for one moment see it that way, but you do not look at it that way. You have to consider it in terms of the possibilities, because we are dealing with an ultimate principle and we dare not give it up to an encroaching Executive. That is the spirit in which this has to be approached. The person who is sitting there may think, “The government is often a party here. What do they do with the government, this Executive that is going to appoint him?”
On the other hand, if you look at it from the Executive’s point of view, they are going to make decisions based upon the way – maybe, maybe not, but maybe, and that is enough, on the basis of how that person performs. Acting judges, for that purpose, we would submit, would be a dangerous thing to embrace. The notion that one finds in England, yes, they do strange things and they make that Constitution work in a sense which is an unwritten constitution. For instance, one always has wondered how the Lord Chancellor can be a member of Cabinet, but he is.
That divide is bridged but an argument here might have been, “Well, that works. Why doesn’t it work in Australia?” We simply have gone a different way. We have separation of powers. Others would applaud the English Constitution and say how wonderful it is. I can think of some Australian lawyers who went there often who might have thought so. One can see advantages, in political terms, of the Lord Chancellor being a member of Cabinet and the great upholder of the judiciary but in Australia we have to keep them separate. There is the notion that has been discussed about performance reviews.
How dangerous would it be – how great a breach of this proposition of the independence would it be for, as has been suggested in the Remuneration Tribunal reports for this Court’s performance or any other Federal Court’s performance being assessed in some way that would be publicly stated in Parliament by a report from public servants.
CALLINAN J: That invokes a dreaded totalitarian notion of re‑education.
MR ELLICOTT: Yes. All sorts of attempts would then be made once one had accepted that. That is a reason why the courts, to some extent – or this Court – has been made independent, but only to some extent. There should be an administrative body for the courts in Australia but that is another issue, like the judicial conference in the United States. If judges are to be reviewed then the judges should do it but even that is a difficult sort of notion to embrace.
GLEESON CJ: I do not think we need go down that path.
MR ELLICOTT: The very thought that the judiciary might be assessed by the Executive is something which is unacceptable in our system but yet, in this time when expenditure seems to rule and efficiency in economic terms becomes some sort of measure that can be applied to every aspect of life, in these times the Executive is more dangerous to the courts, more dangerous to the judicial system than they have ever been.
Your Honours can make your own assessment but I suggest that that - it is not that the – you might have thought the king or the Crown was a great threat in the 16th and 17th century leading to the Act of Settlement but the Executives in modern democracies are becoming much more powerful and much more intrusive and that is a reason why this should be seen as a very special area to protect, this question of independence and the notion of acting judges because it is very easy to say it would not happen. It is very easy to say which of those acting judges is likely to be impugned in some way by the Executive or how likely are they to be corrupt or how likely is the Executive in our time to do anything that might be regarded as corrupting.
Your Honours, a lot has been said about retired judges. I would remind your Honours that each of those retired judges, or numbers of them, were appointed and then reappointed. The anticipation of reappointment is a danger, and that is where the Executive is involved. The times are changing: one day an acting judge, the next day a mediator, perhaps the next day an arbitrator, perhaps the next day giving advice. The multiplicity of actions that the acting judge can get into are numerous, and I have addressed that.
There is a difference, if I may say so, between appearing in a court in front of an acting judge and two judges, say, in the Court of Appeal and then the next day perhaps – it can happen, it does happen – appearing with that acting judge as a mediator. I do not know whether your Honours can see the difference but some of us experience the difference, the difference of attitude. The acting judge is then becoming a mediator, moving from room to room and trying to get the parties together. In a sense, they are not compatible. They are not compatible.
Now, I just wanted to make the point – and I can make these points quickly – Eastman’s Case we say is confined to one acting judge exercising Territory jurisdiction. Acting Justice Carruthers, as I understand it, was appointed for that case in a very special circumstance. It was not exercising Territory jurisdiction. If it was exercising federal jurisdiction at any time, then that issue, I would submit, would have to be revisited.
The Solicitor for New South Wales saw great difficulties in overcoming problems. We would submit the problem is overcome. That is to say, if your Honours accede to our submissions, it is overcome by section 37. Section 37 needs to be looked at just a little more closely, if I can do that quickly:
(3)A person appointed under this section shall, for the time and subject to the conditions or limitations specified in the person’s commission, have all the powers –
Your Honour Justice Gummow referred to that. Let us just have a look at (3A):
The person so appointed may, despite the expiration of the period of the person’s appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period.
That allows this acting judge to obviously continue on in a proceeding even though his commission is terminated.
(3B)The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Offices Remuneration Act 1975. The remuneration payable to an acting Judge is to be paid to the acting Judge so long as his or her commission continues in force.
So in that circumstance the acting judge continues to hear the case. It might be going to take another two weeks but the only remuneration that is…..is finished and, as Justice Gummow has already pointed out, the immunity finished.
There has been reference to the District Court. I only mention it because the Solicitor‑General saw some problems with the Supreme Court. It is difficult on any basis listening to the submissions here that one could justify the District Court. The Commonwealth does not seem to have defended these positions. There is no line drawn by the Commonwealth in defending the Commonwealth judicial power, which is extraordinary. The Attorney-General made some comments in relation to the Victorian matter. Well, surely they demanded some comments in relation to that. I adverted to them. They have only been made recently and no line was drawn.
Your Honour the Chief Justice was kind enough to refer to Alexander’s Case and when your Honour smiled I thought you were referring to that amendment to the Constitution. I can only assume that in 1977 your Honour was a member of that small group that upheld life tenure and they resisted ‑ ‑ ‑
GLEESON CJ: No, I voted yes, Mr Ellicott.
MR ELLICOTT: Well, you were acting consistently with that group, your Honour. It was headed by Mr Rares who has recently been appointed ‑ ‑ ‑
CALLINAN J: It was the second largest yes vote I think in Australia, was it not, in any referendum?
MR ELLICOTT: It was, your Honour.
CALLINAN J: Three to one.
MR ELLICOTT: That is right. Absolutely right, your Honour. It is the only time that I was ever pelted with eggs in the history of a referendum, your Honour. At the foot of page 469:
It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or incapacity. It is not like the case of a unitary Parliament having one interest only to consider, namely, the one territory. It is the case of a Federation, where the central legislative and executive bodies are largely competitive with, and in a sense adverse to, the State authorities. On the whole, the suggested inconvenience sinks into insignificance when the greater considerations are borne in mind.
That is a very perceptive statement. In relation to Chapter III, as it was then constituted, of course, it is for life. If they were to be making that statement today they would have to qualify it by reference to Chapter III as has presently been constituted because that is the law of the people. It would be amended and amended in that way.
Your Honours, those are the submissions that I wanted to make on question 1 except this that certain submissions have been put in relation to the de facto officers doctrine. We have in our authorities referred to Australian cases and United States cases and we rely on those if your Honours are going to consider that in the course of your Honours’ judgments. There is an article by Enid Campbell in (1994) 2 Australian Journal of Administrative Law - that is November 1994, and it is a very good discussion of the principles in relation to this doctrine.
KIRBY J: You do not seem to have any written submissions on de facto officer.
MR ELLICOTT: We did say something in our submissions in reply and the most important thing we said, your Honour, was that your Honour was right in Eastman’s Case, and I did want to put that at the beginning because ‑ ‑ ‑
KIRBY J: That must have been why Mr Gageler just collapsed on that point.
MR ELLICOTT: One of the points your Honour made in that judgment was that there was no office and that is the first thing that Enid Campbell draws attention to, the existence of an office de jure and she refers to the authorities, English and Australian, in relation to that. There is a case of Adams v Adams [1971] P 188, a decision of Sir Jocelyn Simon which ‑ ‑ ‑
GUMMOW J: About Rhodesia, is it not?
MR ELLICOTT: About Rhodesia, yes. They are very special facts but they would support that proposition, in our submission. It would indeed be odd if the office did not exist. The doctrine seems to have been applied in cases where an office exists but the person has not been adequately appointed to it or has remained in the office after the period and I think that may have been what happened in Western Australia, that the magistrate remained in office. I think there has been an argument earlier on. I think Sir Owen Dixon mentioned about a judge who actually gave his birthday as being a day different to that on which he was in fact born which meant he was sitting beyond the period that he was appointed for.
GLEESON CJ: I think that was the problem in Western Australia.
MR ELLICOTT: It could have been, your Honour. But that is a situation where there is an office, but where there is no office then we say the doctrine cannot apply.
In relation to another principle, she deals with it at page 13, “EXCLUSION OF THE DOCTRINE ON GROUNDS OF PUBLIC POLICY”. That would cover the case of Coles & Co Ltd v Retail Trade Industrial Tribunal, a judgment of your Honour Justice Kirby and Justice Hope. Justice McHugh dissented in a sense. He did not dissent but he expressed a contrary view. I have to say that your Honours in R v Cassell that we have given reference to have picked up the statement of Justice McHugh in your Honours’ judgment in that case. In our submission, we do not have to go into the question of whether Coles was rightly decided or not.
In our submission, there is a clear divide between those cases where as a matter of policy the person who was appointed fitted a role which the statute required for the purposes of administering the particular matter in question. For instance, in this case the Industrial Arbitration Act required the Industrial Commission judge to sit with two assessors, and he did not. The point that was made in the majority judgment was that as a matter of policy that was required in order to make sure that the policy would be met, namely that the particular issue would be considered in a proper way appropriate to the industrial relations.
Last year there was a case of World Best Holdings v Sarker. I have to confess it was before Acting Justice Patten. He was the one who delivered the judgment and I have to confess that I was the counsel for the successful party. In that case he agreed with the proposition that as a matter of policy, where it required either a retired Supreme Court or Federal Court judge or some equivalently fitted person to be the chairperson of a rent tribunal in the administrative tribunal in New South Wales, where it required that he said as a matter of policy those persons of that status were required because it was dealing with unconscionable conduct and those were matters which the statute had indicated were appropriate to Supreme Court judges because, as your Honour the Chief Justice said earlier, a lot of these matters have been taken out of the Supreme Court and put into the tribunals. That was an example.
He held that that appointment was invalid. That went on appeal to the Court of Appeal but the Court of Appeal did not deal with that issue. That is the only case in recent times, apart from the case of Coles v Retail Trade Tribunal where there is any consideration of the doctrine, but the point is that it is a matter of policy.
Now, the policy that this Court is dealing with in this very case is the policy that is very important to the people who appear, the litigants, that is that they will appear before judges who are independent and impartial. The basis upon which your Honours would find in our favour would be in fulfilment of that principle. There is no room for that doctrine in that situation. Basically, that has been the approach of the Supreme Court in the United States and we have given your Honours the references to those. It is on the basis of those two propositions that we would submit the de facto officers doctrine does not apply.
KIRBY J: I just do not see any reference to that in your written reply. Were you referring to some cases in a compilation of cases?
MR ELLICOTT: Yes, we have handed up a list of cases in the ordinary course and we have a list which relates to the doctrine if necessary to be argued. It refers to Ryder v United States (1995) 515 US 177, The Glidden Company v Zdanok (1962) 370 US 530 and the case of World Best Holdings Pty Ltd v Sarker [2004] NSWSC 1164. I assume your Honour’s associate would have this list. I have not in the time troubled to take your Honours to those cases but simply to address within that context.
So far as the first question is concerned, your Honours have the reference to Mackin v The Queen in Right of the Province of New Brunswick [2002] 1 SCR 405. There was a restatement of the Canadian principles by Justice Gonthier at pages 427 and 428. They emphasise the difference between individual independence and institutional independence and that, as I understand it, is one of the latest, certainly much later than Valente, but it picks up Valente.
Your Honours, I am a little unsure as to how I should proceed in relation to question 2. I had assumed that your Honours felt that my learned friend, Mr Gageler, had said everything that could be usefully said on that subject. On the other hand, he did make some submissions and that was the reason that your Honours did not call on the Solicitor‑General for the Commonwealth who had put in submissions on behalf of the Commonwealth.
GLEESON CJ: We stopped them but we do not want to stop you, Mr Ellicott.
MR ELLICOTT: If your Honour pleases. I shall be very short. If I can just very shortly take your Honours to 1401. My friend placed great reliance on what he elliptically called a carbon copy. I think Carbon Copy may have been a well‑known racehorse. But he did not go from the words “carbon copy” to the text and I wanted to take your Honours to subsection (2) because it is very important to identify what is the provision under which the right or the liability was acquired, accrued or incurred. Subsection (2)(a) says:
the provision of the old corporations legislation . . . under which the pre‑commencement right or liability was acquired, accrued or incurred -
It is taken to be included as a Commonwealth law, that is the effect of it. Now, there was no right acquired and no liability incurred under sections 232 or 243ZE, none at all. The right that was acquired and the liability that was incurred came about because of the provisions of Part 9.4B. That is a vital step in our argument. If 232 and 243ZE are to be part of the new corporations legislation, then they could only come in under (b). We have put an argument that it does not cover them, but it does not hurt our argument to say that (2)(b) does cover those two provisions. In other words:
the other provisions of the old corporations legislation . . . that applied in relation to the pre‑commencement right or liability.
But the point we make is that if they do come in there they only come in as sections. There is nothing said about retrospectivity. When one comes to (3):
On the commencement, the person acquires, accrues or incurs a right or liability . . . equivalent to the pre‑commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) –
having submitted that (2)(a) only covers Part 9.4B then all that comes in under (2)(a) is Part 9.4B which simply says that ASIC can take proceedings for the contravention of “a civil penalty provision”. That is what it says, but it does not in itself identify that provision and because it is the section under which the right or the liability is acquired or incurred or accrued as the case may be then one then has to give its content and how does it get content?
Apparently – and my friends are saying – as if that provision applied to the conduct or circumstances that gave rise to “the pre‑commencement right or liability” which is in brackets after “(2)(a)” in subsection (3), it is because of that it creates a fiction. Now, the fiction surely has to be that there is somehow as a result of those words brought into existence as federal law as at 1998 when these facts were committed, that is federal law as at 1998, the equivalent provisions 232 and 243ZE, which although they may well have been included under (2)(b), were not adopted in (3) precisely and were never made retrospective.
It is our submission that the fiction, whatever it is, or the factum that is picked up, cannot be extended in a way that makes those provisions retrospective. That is the first point. The second point is that, in our
submission, the Commonwealth Parliament cannot say of a person, “If you did something in 1998, then the facts and circumstances are such that we empower this body, under federal law, to take proceedings against you for the breach of a civil penalty provision and treat it as, in some way, extending those rights into the future unless or make different provisions about those rights”, and that is what Coleman’s Case is referring to and the other cases that my friend referred to.
It cannot do that unless, as part of that, either explicitly or implicitly it is saying that there is taken to be in existence in 1998 a federal law which is a civil penalty provision which, in effect, says you should have behaved in a particular way and if you do not then you will be liable to contravention of this as a civil penalty provision. It does not do that and that is the essence of our argument. If it does do that, and my friend conceded this as I understand his argument, then it falls into the problem raised by Metwally’s Case, that is to say that once you project the federal law into the situation in 1998, section 109 does not assist to get rid of the State law. What gets rid of the State law is that it is repealed on 14 July or, alternatively on 14 March 2000, whichever it is but it is repealed by the time the federal law comes into existence.
The provisions, in our submission, do not add up to the carbon copy, in other words, that my friend has adverted to and we would submit that there is a deficiency in the Commonwealth legislation. It is a lacuna but it may be one that they could not avoid because of the constitutional problem associated with Metwally’s Case. Those are our submissions, your Honours.
GLEESON CJ: Thank you, Mr Ellicott. We will reserve our decision in these matters and we will adjourn until 10.00 am tomorrow.
MR BENNETT: I take it your Honours still do not call on us in reply to what my learned friend just said because we have not been heard in relation to answering ‑ ‑ ‑
GLEESON CJ: You can put any submission in writing you want to put within seven days from today, Mr Solicitor.
MR BENNETT: I take it then that we are called upon in relation to ‑ ‑ ‑
GLEESON CJ: Yes, as you are advised, you may put in any submission in writing, any submission you desire to put. It is not compulsory. We will adjourn until 10.00 am tomorrow.
AT 4.54 PM THE MATTERS WERE ADJOURNED
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