North Australian Aboriginal Legal Aid Service Inc v Bradley (includes summary)
[2001] FCA 1728
•7 December 2001
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728
Courts and Judges - Administrative law - Statutes - Constitutional law
(includes corrigenda dated 10 December 2001)
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, the Court has prepared this summary to accompany the reasons for judgment delivered today. It is intended to assist in understanding the background to the case, the issues that arose to be determined and the conclusions the Court has reached. It must be emphasised that this summary is necessarily incomplete. The only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment.
This proceeding arose out of the appointment by the Northern Territory of Australia, on 27 February 1998, of Mr Hugh Bradley as Chief Magistrate of the Northern Territory.
The North Australian Aboriginal Legal Aid Service Inc ("NAALAS") operates in the "Top End" of the Northern Territory, principally to provide a legal aid service for Aborigines living in the area it services. It seeks a declaration that the appointment of Mr Bradley was invalid.
On 20 April 2000, NAALAS commenced this proceeding in the Supreme Court of the Northern Territory, initially against Mr Bradley alone. The Northern Territory was later joined as a respondent.
On 13 June 2000, following application by both respondents, Justice Olney, sitting as a judge of the Supreme Court of the Northern Territory, gave summary judgment in their favour.
NAALAS appealed against that judgment to the Northern Territory Court of Appeal, which, on 16 November 2000, allowed the appeal.
The respondents sought special leave to appeal to the High Court. On 4 May 2001, special leave was refused. The Court indicated that it was preferable that consideration of the respondents' arguments be postponed until after relevant findings of fact had been made at trial.
On 6 June 2001 Justice Olney ordered that the proceeding be transferred from the Supreme Court to this Court.
The genesis of this proceeding is to be found in the resignation, on 20 November 1997, of Mr Ian Gray, the former Chief Magistrate. Mr Gray's resignation was well publicised, and was said to arise, in part at least, out of the introduction of the mandatory sentencing regime in the Northern Territory.
In the months that followed, Mr Bradley was approached to take the position of Chief Magistrate. After extensive negotiations, he was appointed by the Administrator, on the advice of the Executive Council. A large volume of documents relating to his appointment was produced on discovery by the Northern Territory. It emerged that concurrently with that appointment, the government was considering the introduction of contract or fixed term appointments for magistrates.
The evidence makes it clear that these two processes became conflated during the early stages of negotiation with Mr Bradley over his remuneration and allowances. The proposal to introduce contract or fixed term appointments, and the belief that Mr Bradley would be appointed on that basis, attracted much criticism from within the legal community in Darwin and from other sources.
NAALAS relied upon two grounds in support of its claim that Mr Bradley's appointment was invalid.
The first was that the appointment was made for one or more improper or extraneous purposes. NAALAS alleged that the Northern Territory had, by negotiating a two year Special Determination regarding Mr Bradley's remuneration and allowances, improperly secured what was in effect a fixed term appointment, thereby subverting the requirement in the Magistrates Act 1977 that magistrates be appointed to the age of 65 years. It contended that the appointment defeated an implicit requirement of that Act that judicial independence be protected. This put Mr Bradley in the position of being beholden to the government for his future remuneration. It should be noted that the allegation of improper or extraneous purpose was directed solely against the Northern Territory, and was not directed against Mr Bradley.
Secondly, NAALAS contended that the special remuneration package negotiated with Mr Bradley was ultra vires, or beyond the powers conferred by the Magistrates Act, because it applied for a period of two years only, limited to expire before he reached the age of 65, and made no provision for his remuneration and allowances at the end of that two year period.
There was a third component to NAALAS' argument, which it added only when it amended its statement of claim in this Court. That was that if, contrary to its allegations of improper and extraneous purpose, and its claim of ultra vires, the Act nonetheless authorised Mr Bradley's appointment, a number of sections of the Magistrates Act were unconstitutional. These sections were said to violate the protection afforded by Ch III of the Constitution to the principles of judicial independence.
Mr Bradley and the Northern Territory denied each and every allegation made against them. The Northern Territory challenged NAALAS' standing to bring and maintain this proceeding, and both respondents contended that the allegations of improper or extraneous purpose were not justiciable.
In relation to the question of standing, the general rule is that a person has standing to sue, in a public law case, where the court recognises that that person has an interest in the subject matter of the litigation greater than that of the general public, or what is known as a "special interest".
The evidence disclosed that NAALAS represents approximately 2000 indigenous people each year in courts of summary jurisdiction. It has responsibilities towards Aboriginal people, and the Aboriginal community generally, which extend well beyond those of providing legal representation. It occupies a pivotal role in the administration of justice in the Northern Territory.
If, as NAALAS contended, Mr Bradley was not validly appointed, he could not lawfully exercise judicial power. His decisions, many of which have affected the liberty of NAALAS' clients, would be void, and of no effect.
The Court has concluded that, having regard to NAALAS' status, and to the functions which that body performs, it has a sufficient connection with the subject matter of this litigation to amount to a "special interest". Accordingly, the Court has found NAALAS has standing to bring and maintain the proceeding.
As indicated earlier, both Mr Bradley and the Northern Territory also claimed that the issue of improper or extraneous purpose was not justiciable.
The Court has concluded that, having regard to the nature and gravity of the allegations made, the Court can properly hear and determine NAALAS' claims.
In relation to the allegations of improper or extraneous purpose, NAALAS asked the Court to infer from the large body of documents tendered that Mr Bradley's appointment was made for a purpose or purposes other than that of securing the administration of justice in the Northern Territory.
In addition to the documents tendered, three witnesses gave evidence. The Northern Territory called only Mr Shane Stone, the former Chief Minister and Attorney-General. Many persons who featured significantly in the relevant events were not called.
The Court has concluded that the inference of improper or extraneous purpose for which NAALAS contended was open on the primary facts. That inference could more readily be drawn because of the failure of the Northern Territory to call those other persons with knowledge of the circumstances leading to Mr Bradley's appointment.
Nonetheless, NAALAS carried the onus of proof in relation to the allegations of improper or extraneous purpose. The Court has concluded that NAALAS failed to discharge that onus. The fact that a purpose capable of being so characterised may have driven the government's earlier proposals to introduce contract or fixed term appointments for magistrates, and possibly the initial negotiations regarding Mr Bradley's appointment as well, did not, on the evidence, lead to the conclusion that any such purpose subsisted, or that it operated upon the impugned decision.
In relation to the allegation that Mr Bradley's appointment was ultra vires, the Court has determined that it must fail. The relevant provisions of the Magistrates Act must be given their ordinary and natural meaning. Those provisions do not demonstrate the existence of a legislative intent to secure judicial independence of the kind for which NAALAS contended.
With regard to NAALAS' constitutional argument, the Court has concluded that on the current state of the authorities, the provisions of the Magistrates Act are not unconstitutional. The courts of the Northern Territory are not federal courts. They do not exercise the judicial power of the Commonwealth. The requirements of security of tenure and undiminished remuneration contained in s 72 of the Constitution do not apply to those courts. No implication can be drawn from Ch III of the Constitution, or the Constitution taken as a whole, to support NAALAS' claim that the existence of the Special Determination, if authorised by the Magistrates Act, rendered certain of its provisions constitutionally invalid.
The Court emphasises that its decision is not, and cannot be, concerned with the wisdom of Mr Bradley's actions in accepting the Special Determination, or with the merits of the Northern Territory's proposals for the introduction of contract or fixed term appointments for magistrates. Nor is the Court concerned with what it has found to be the clumsy manner in which the Northern Territory fixed Mr Bradley's remuneration and allowances. Debate surrounding these matters may be conducted in another forum. The questions before the Court are questions of law, and can be determined only in accordance with law.
The result is that the application has been dismissed.
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728
COURTS AND JUDGES - judicial review - appointment of Chief Magistrate of Northern Territory - remuneration and allowances fixed by Special Determination for two years - no provision for further remuneration and allowances - whether appointment invalid as failing to secure judicial independence.
ADMINISTRATIVE LAW - judicial review - application by North Australian Aboriginal Legal Aid Service Inc for declaration that appointment of Chief Magistrate of Northern Territory invalid - standing of applicant - whether its interest in subject matter of litigation greater than that of general public - whether "special interest" - whether incorporated body takes interest of individual members - whether allegations of improper or extraneous purpose justiciable -whether such purpose must subsist at time of making of impugned decision.
STATUTES - legislation conferring unfettered power upon Administrator to fix remuneration and allowances for magistrates - whether section should be read down to ensure that remuneration and allowances cannot be reduced save in specified circumstances - whether Act manifests intention on part of legislature to secure judicial independence - Magistrates Act 1977 (NT).
CONSTITUTIONAL LAW - judicial power of the Commonwealth - whether Ch III of Constitution applicable to Territory courts - whether Territory courts exercise federal jurisdiction - whether implication in Ch III and/or in Constitution that Territory courts be free from executive or legislative interference - whether implication extends to tenure and remuneration of Territory magistrates - scope of s 122 of Constitution - application of principles in Kable v The Director of Public Prosecutions (NSW) to Territory courts.
Magistrates Act 1977 (NT) ss 4, 4(3), 6, 7, 7(1) and 10
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT)
Aboriginal and Torres Strait Islander Commission Act 1986 (Cth) ss 7(1) and 10(1)
The Constitution ss 51(xxxix), 71, 72, 72(iii), 73, 73(ii), 77(iii), 80, 106, 111, 122 and Ch III
Judiciary Act 1908 (Cth) ss 39(2), 68 and 68(2)
Northern Territory (Self Government) Act 1978 (NT)
Stipendiary Magistrates Act 1957 (WA) s 7
Magistrates Court Act 1987 (Tas) s 10
Association Incorporation Ordinance 1963 (NT)
Constitution Act 1902 (NSW) ss 53, 54 and 55
Constitution Act 1975 (Vic) ss 77 and 85
Northern Australian Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia (2000) 10 NTLR 103 at 117 and 119 considered
Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114 referred to
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 530-531, 541, 547 and 548 applied
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36, 41-42 and 74 applied
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 applied
Bateman's Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 267 applied
British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257 referred to
Croome v Tasmania (1997) 191 CLR 119 at 126-127 and 137-138referred to
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 referred to
Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 565applied
Allan v Transurban City Link Ltd [2001] HCA 58 referred to
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 referred to
The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186-187, 193, 202-204, 215, 217 220-222, 233, 261 and 283 applied
South Australia v O'Shea (1987) 163 CLR 378 at 410-411 referred to
Barton v The Queen (1980) 147 CLR 75 referred to
Maxwell v The Queen (1996) 184 CLR 501 at 533-534 referred to
Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 479 referred to
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 398, 407, 411-412 and 418 referred to
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 referred to
Xenophon v South Australia (200) 78 SASR 251 at 253-254 and 263-265 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18, 33-34 and 35-36 considered
Jones v Dunkel (1959) 101 CLR 298 referred to
Municipal Council of Sydney v Campbell [1925] AC 338 referred to
Thompson v Randwick Corporation (1950) 81 CLR 87 referred to
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 67-68, 75 and 83-84 referred to
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 77-78, 87, 98, 101, 102, 103, 106-107, 109, 111, 115, 116-117, 118, 134, 136, 137, 139, 141, 142 and 143 applied
Northern Territory v GPAO (1999) 196 CLR 553 at 576-577, 580-581, 590-591, 592-593, 597, 601, 603, 620 and 650-651 applied
Kruger v The Commonwealth (1997) 190 CLR 1 at 43, 56, 82, 107, 108-109, 141-143, 162-176 and 165-166 applied
The King v Bernasconi (1915) 19 CLR 629 at 635 and 637 considered
Spratt v Hermes (1965) 114 CLR 226 at 242-243, 255-256, 257, 264, 265, 266, 278 and 280-281 applied
Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599, 600-602, 603-604, 606, 613-614, 616 and 626-628 applied
Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 332, 336-341, 340, 348, 353 and 382applied
R v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 referred to
Harris v Caladine (1991) 172 CLR 84 at 135 referred to
Grollo v Palmer (1995) 184 CLR 348 at 365, 376-377 and 392-394 referred to
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16 referred to
Attorney-General (Cth) v R (The Boilermakers' Case) (1957) 95 CLR 529 at 540-541 referred to
Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 referred to
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 referred to
Mitchell v Barker (1918) 24 CLR 365 referred to
Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 527 referred to
Gould v Brown (1998) 193 CLR 346 at 402 and 485-486 referred to
Re Australasian Memory Pty Ltd and Corporations Law; Brien v Australasian Memory Pty Ltd (1997) 149 ALR 393 at 431 referred to
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 698 and 703 applied
Nicholas v The Queen (1998) 193 CLR 173 referred to
Lange v Australian Broadcasting Corp (1997) 189 CLR 520 referred to
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 150 DLR (4th) 577 considered
Ly v Jenkins [2001] FCA 1640 considered
Le Mesurier v Connor (1929) 42 CLR 481 at 496 referred to
Peacock v Newtown Marrickville & General Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37 referred to
Russell v Russell (1976) 134 CLR 495 at 530 referred to
Adams v Chas S Watsons Pty Ltd (1938) 60 CLR 545 at 555 referred to
A Hamilton in The Federalist Nos 78 and 79 "The Judges as Guardians of the Constitution" and "The Position of the Judiciary" (A Hamilton, J Madison and J Jay The Federalist (1961, Harvard University Press pp 495 and 497))
Aronson and Dyer, Judicial Review of Administrative Action 2nd ed, 2000, LBC Information Services, Sydney at 246-251 and 513
E Campbell, "Termination of Appointments to Public Offices"(1996) 24 Federal Law Review 1 at 40
E Campbell, "Constitutional Protection of State Courts and Judges",(1997) 23 Monash University Law Review 397 at 415
P Johnston and R Hardcastle,"State Courts: The Limits of Kable", (1998) 20 Sydney Law Review 216 at 225 and 238
Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (1995)
Declaration of Principles of Judicial Independence issued by the Chief Justices of the Australian States and Territories (1997)
Chief Justice Malcolm, `Judicial Independence' 15th International Conference of the International Society for the Reform of the Criminal Law at p 9
Sir Anthony Mason, `The Appointment and Removal of Judges', in H Cunningham (ed) Judicial Independence in the Nineties and Beyond, 1997, Judicial Commission of New South Wales, Sydney
A Mason, "Judicial Independence and the Separation of Powers-Some Problems Old and New" (1990) 13 University of New South Wales Law Journal 173
R Stevens, The Independence of the Judiciary: The View from the Lord Chancellor's Office, 1993, Clarendon Press, Oxford,at 3
M D Kirby, "Judicial Independence in Australia Reaches a Moment of Truth" (1990) 13 University of New South Wales Law Journal 187
R D Nicholson, "Judicial Independence and Accountability: Can They Co-Exist?" (1993) 67 Australian Law Journal 404
M D Kirby, "Attacks on Judges-A Universal Phenomenon" (1998) 72 Australian Law Journal 599
A M Gleeson, "Legal Oil and Political Vinegar", (1999) 10 Public Law Review 108
NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY and NORTHERN TERRITORY OF AUSTRALIA
D17 of 2001
WEINBERG J
7 DECEMBER 2001
DARWIN (BY VIDEO LINK FROM MELBOURNE)
TABLE OF CONTENTS
Par No
INTRODUCTION 1
The history of these proceedings 3
NAALAS' allegations 11
Mr Bradley's defence to NAALAS' allegations 12
The Northern Territory's defence to NAALAS' allegations 14
The issues 16
DOES NAALAS HAVE STANDING TO BRING THIS PROCEEDING?
NAALAS' submission 17
The Northern Territory's objections to NAALAS' standing 24
The principles which govern standing 28
Conclusion regarding standing 51
IS NAALAS' ALLEGATION OF IMPROPER PURPOSE JUSTICIABLE? 65
NAALAS' FACTUAL CLAIMS IN SUPPORT OF ITS ALLEGATIONS
OF IMPROPER PURPOSE 83
The paper trail
(a) The initial discussions regarding Mr Bradley's appointment 86
(b) Concurrent proposals to allow for magistrates to be
appointed on contract 90
(c) Mr Flynn's letter of 7 January 1998 99
(d) The Ministerial of 12 January 1998 101
(e) Preparation of a draft bill to amend the Magistrates Act 103
(f) Criticism of the proposed amendments 143
(g) Mr Flynn's draft Ministerial of 10 February 1998 145
(h) Mr Flynn's Ministerial of 12 February 1998 154
(i) Concurrent developments regarding the introduction
of fixed term appointments for magistrates 161
(j) Further criticisms of the proposal to introduce fixed
term appointments 165
(k) Mr Stone's response to the criticisms 166
(l) Mr Bradley's appointment by the Administrator 169
(m) The immediate aftermath 172
(n) Later developments 173
NAALAS' witnesses
(a) Mr Flynn 176
(b) Mr Toohey 195
The respondents' witnesses 207
Findings Regarding NAALAS' Factual Allegations 254
NAALAS' IMPROPER PURPOSE CASE 289
Findings regarding NAALAS' improper purpose case 301
NAALAS' ULTRA VIRES CLAIMS 327
The relevant legislative provisions 329
The respondents' submissions 333
Findings regarding NAALAS' ultra vires argument 338
NAALAS' CONSTITUTIONAL ARGUMENT 342
NAALAS' submissions 345
The respondents' submissions 365
CONCLUSIONS REGARDING THE CONSTITUTIONAL ISSUE 375
IS KABLE APPLICABLE TO THE TENURE AND REMUNERATION
OF JUDICIAL OFFICERS? 417
CONCLUSIONS 475
IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 17 OF 2001
BETWEEN: NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC APPLICANT
AND: HUGH BURTON BRADLEY FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA
SECOND RESPONDENT
JUDGE:
WEINBERG J DATE OF ORDER: 7 DECEMBER 2001 WHERE MADE: DARWIN (BY VIDEO LINK FROM MELBOURNE)
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The parties file and serve written submissions as to costs on or before 31 January 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 17 OF 2001
BETWEEN: NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC APPLICANT
AND: HUGH BURTON BRADLEY FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA
SECOND RESPONDENT
JUDGE: WEINBERG J DATE: 7 DECEMBER 2001 PLACE: DARWIN (BY VIDEO LINK FROM MELBOURNE)
REASONS FOR JUDGMENT
INTRODUCTION
1 The North Australian Aboriginal Legal Aid Service Inc ("NAALAS") is an association incorporated under the Associations Incorporation Ordinance 1963 (NT) ("the Ordinance"). Its purposes are set out in its constitution. They include:
• establishing and running a legal aid office for Aborigines;
• bringing matters concerning Aborigines' legal rights to the attention of the public and appropriate authorities;
• promoting knowledge and understanding in the police, judicial, corrective and other services of the special needs of Aborigines;
• promoting measures to improve relations between Aborigines and members of the police, judicial, corrective and other services;
• increasing knowledge among Aborigines of:
(i) their legal rights and obligations; and
(ii) the functions, duties and powers of police, judicial and corrective officers; and
• carrying out any other matters incidental to these purposes and doing all things lawful to achieve them.
2 Membership of NAALAS is confined to Aboriginal communities, organisations, and persons who satisfy the requirements as to race or residence specified in its constitution. NAALAS is wholly funded by the Aboriginal and Torres Strait Islander Commission ("ATSIC"). It employs a number of lawyers whose duties include representing those charged with offences before courts of summary jurisdiction constituted pursuant to the provisions of the Magistrates Act 1977 (NT)("the Act"), and before juvenile courts. It represents approximately 2000 persons each year before those courts in the "Top End" of the Northern Territory. At any given time it handles between 200 and 400 cases.
The history of this proceeding
3 On 20 November 1997, Ian Gray, the then Chief Magistrate of the Northern Territory, tendered his resignation. The circumstances which led to his resignation were widely publicised. They had to do with his views regarding the regime of mandatory sentencing which came into force in the Northern Territory on 8 March 1997.
4 Mr Gray's successor as Chief Magistrate was Hugh Bradley, the first respondent in this proceeding. He was appointed to that office on 27 February 1998. His appointment commenced on 9 March 1998.
5 On 20 April 2000, NAALAS commenced proceedings against Mr Bradley in the Supreme Court of the Northern Territory, by originating motion. Various orders for relief were sought, but as the result of interlocutory proceedings, a number of paragraphs of the originating motion were struck out. That left as the relief sought simply a declaration that the appointment of Mr Bradley to the office of Chief Magistrate of the Northern Territory, made by the Administrator on 27 February 1998, was invalid.
6 Following those interlocutory proceedings, an amended originating motion was filed. So too was an amended statement of claim which joined the second respondent, the Northern Territory of Australia, to the proceeding. Both Mr Bradley and the Northern Territory filed defences claiming that the amended statement of claim disclosed no arguable or justiciable cause of action.
7 On 2 June 2000, the Northern Territory filed a summons seeking summary judgment or, alternatively, that the amended statement of claim be struck out. That application, which was supported by Mr Bradley, came on for hearing before Olney J who, on 13 June 2000, ordered that there be summary judgment for both respondents.
8 NAALAS appealed against that judgment. On 16 November 2000, the Northern Territory Court of Appeal allowed the appeal: see Northern Australian Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia (2000) 10 NTLR 103.
9 On 4 May 2001 the High Court refused the respondents special leave to appeal against that decision. The Court indicated that it would be preferable to postpone consideration of the respondents' arguments until after relevant findings of fact had been made at trial.
10 On 6 June 2001 Olney J, acting pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT), transferred the proceeding from the Supreme Court of the Northern Territory to the Federal Court.
NAALAS' allegations
11 On 3 July 2001 NAALAS filed a further amended statement of claim (the "statement of claim") in which it alleged, inter alia, that:
• the Northern Territory and Mr Bradley had, on or before 27 February 1998, entered into an "agreement or arrangement" pursuant to which Mr Bradley would accept the office of Chief Magistrate limited for a period of two years upon certain terms and conditions.
• those terms and conditions included:
(i) payment of a salary of $193,602 per annum indexed during those two years to increase in line with any increase in the salaries of stipendiary magistrates during that period and;
(ii) other conditions "substantially in excess" of those recommended by the Remuneration Tribunal and determined by the Administrator in his Determination of Remuneration and Allowances for Magistrates dated 30 January 1998 ("the January Determination").
• on 27 February 1998 the Administrator, acting upon the advice of the Executive Council, signed two documents:
(i) one headed "Appointment of Chief Magistrate" which, "under colour of reliance upon s 4(3) of the Magistrates Act", purported to appoint Mr Bradley "to hold the office of Chief Magistrate on and from 9 March 1998";
(ii) the second headed "Determination of Remuneration, Allowances and Terms and Conditions of Chief Magistrate" which revoked the January Determination insofar as it related to the Chief Magistrate and, "under colour of reliance upon s 6 of the Magistrates Act", purported to determine Mr Bradley's salary and other emoluments for a two year period on and from 9 March 1998 to and including 8 March 2000 ("the Special Determination").
• the purported appointment of Mr Bradley was made for improper purposes, that is for purposes other than to secure the administration of justice in the Northern Territory. These improper purposes were set out in par [12] of the statement of claim and included:
(i) defeating the measure of judicial independence implicitly required by the Act;
(ii) giving effect to the agreement or arrangement outlined above;
(iii) securing a short-term special appointment to the office of Chief Magistrate;
(iv) creating what was, in effect, a two year appointment subject to review at the expiration of that time;
(v) securing an appointee who would, at the expiration of two years, be dependent upon the executive government for remuneration and allowances;
(vi) subverting the purpose of s 7 of the Act requiring magistrates' appointments to be to age 65 and;
(vii) defeating a fundamental objective of the Act, namely that magistrates should enjoy secure tenure to the age of 65 free from the influence of, and appearance of influence by, the executive government.
• the purported exercise on 27 February 1998 by the Administrator in Council of the power to appoint Mr Bradley was ultra vires the Act. The particulars of this allegation were provided in par [13] of the statement of claim:
(i) upon the true construction of s 6 of the Act, the Special Determination, insofar as it purported to fix the remuneration and other allowances to be paid to the Chief Magistrate, and to determine the terms and conditions upon which he was to hold office, was beyond power. This was because it determined those matters, or some of them, for a period of two years only, limited to expire before Mr Bradley reached the age of 65 years, and made no provision for his remuneration and allowances at the end of those two years.
(ii) at the time of Mr Bradley's purported appointment, there was no valid and subsisting determination of his remuneration and allowances as required by s 6 of the Act.
(iii) upon the proper construction of ss 4 and 6 of the Act it was beyond the power of the Northern Territory to appoint Mr Bradley to the office of Chief Magistrate at a time when there was no valid and subsisting determination providing for his remuneration and allowances.
• If, contrary to its claims of improper purpose and ultra vires, as pleaded in pars [12] and [13] of the statement of claim, the Act purported to authorise Mr Bradley's appointment, ss 4 and 6 were pro tanto invalid by reason of ss 122, 111, 51(xxxix) and Ch III of the Commonwealth Constitution. Alternatively, ss 4 and 6 must be read down so as to conform with the requirements of the Constitution, with the result, in either case that those sections did not authorise the appointment.
Mr Bradley's defence to NAALAS' allegations
12 By his defence filed on 10 July 2001, Mr Bradley denied that:
• he had entered into an agreement or arrangement with the Northern Territory of the type alleged.
• he had agreed to accept the office of Chief Magistrate for a period of two years as alleged.
• his appointment by the Administrator in Council was ultra vires.
• the claim of constitutional invalidity had any substance.
13 Mr Bradley did not plead to the allegation of improper purpose as it was made clear by NAALAS that this allegation was directed only against the Northern Territory. Mr Bradley did not challenge NAALAS' standing to bring and maintain this proceeding.
The Northern Territory's defence to NAALAS' allegations
14 By its defence filed on 9 July 2001, the Northern Territory deniedthat:
• NAALAS had standing to bring this action.
• the allegation of improper purpose was justiciable.
• the appointment of Mr Bradley was ultra vires.
• the claim of constitutional invalidity had any substance.
15 The Northern Territory pleaded that, if the allegation of improper purpose was justiciable, it was not made out upon the facts. It also pleaded that Mr Bradley's appointment had been made in accordance with the requirements of ss 4 and 6 of the Act, and that upon gazettal, it was presumed to be valid.
The issues
16 In broad terms, the issues raised by the pleadings seem to me to be as follows:
• does NAALAS have standing to bring this proceeding?
• is the allegation of improper purpose justiciable?
• was there an "agreement or arrangement" of the type alleged? If so, did it have the purpose and effect that Mr Bradley could be subjected, during his tenure, to influence by the Northern Territory in the carrying out of his duties?
• was Mr Bradley's appointment made for improper or extraneous purposes? In particular, was he appointed under the Special Determination in order to circumvent the statutory provision for tenure to the age of 65 years?
• was his appointment ultra vires, by reason of the terms of the Special Determination?
• assuming that ss 4 and 6 of the Act allowed for the possibility of the appointment in the circumstances alleged by NAALAS, are those provisions repugnant to Ch III of the Constitution?
DOES NAALAS HAVE STANDING TO BRING THIS PROCEEDING?
NAALAS' submission
17 NAALAS' claim to standing rests upon its status as an association incorporated under the Ordinance. It relied, in support of that claim, upon an affidavit sworn by Michael Rowland Jones, its Principal Solicitor, Crime. He said that NAALAS was governed by a council of elected office bearers, and funded by ATSIC. Its funds were disbursed pursuant to ss 7(1) and 10(1) of the Aboriginal and Torres Strait Islander Commission Act 1986 (Cth).
18 Mr Jones said that NAALAS' objectives were contained in its constitution. Those objectives are set out in par [1]of this judgment.
19 According to Mr Jones, almost all NAALAS' clients were in receipt of some form of social security. Many of them were homeless, financially destitute and very poorly educated.
20 Mr Jones described this proceeding as "a case of the highest public and legal importance". He said that he had spent an enormous amount of time in its preparation. That had included substantial interstate travel which had prevented him from devoting time to his other responsibilities. NAALAS had already spent $111,363 preparing its case, well over the approved budget of $39,500. That expenditure had caused it real difficulties.
21 Mr Jones said that approximately 20% of the cases dealt with by his staff involved juvenile defendants. He said that Mr Bradley was one of three magistrates who heard matters involving juveniles in Darwin. Mr Bradley was also one of nine magistrates based in Darwin, and sat regularly hearing summary matters and committals.
22 According to Mr Jones, during the period 1 June 2001 to 1 August 2001, NAALAS represented 138 Aboriginal persons who had been arrested for various offences, and detained in custody. Throughout that same period it had also represented many more Aboriginal persons who had been released on bail, or summonsed to appear.
23 NAALAS relied upon Mr Jones' affidavit to support its contention it had a "special interest", beyond that of the ordinary public, in whether Mr Bradley had been validly appointed.
The Northern Territory's objections to NAALAS' standing
24 The Northern Territory submitted that none of the matters raised by Mr Jones' affidavit suggested that NAALAS had an interest of the kind that would give it standing. It submitted that describing this case as being "of the highest public and legal importance" did not, of itself, confer a relevant interest. Nor did the fact that because of its involvement in this proceeding NAALAS had diverted a substantial amount of resources (and overspent its budget). If, as the Northern Territory contended, NAALAS was no more than a "busybody", the facts attested to by Mr Jones simply made it "a big-spending busybody".
25 The Northern Territory further submitted that the fact that NAALAS represented a large number of Aboriginal persons who regularly came before the courts of summary jurisdiction did not give it a "special interest" in whether Mr Bradley had been validly appointed. Its interest in that matter was no greater than that which any counsel appearing in a case before this Court would have in the validity of the appointment of the Judge presiding. Although any client that NAALAS represented might have a "special interest" in challenging the validity of the appointment of the magistrate presiding over his or her case, it did not follow that NAALAS itself had such an interest.
26 The Northern Territory also submitted that NAALAS could not be equated with a person whose liberty or property might be at risk, depending upon whether Mr Bradley was validly appointed. It might be that NAALAS was seeking to make an important point regarding the need for judicial independence. However, in doing so, it was still expressing no more than an "intellectual or emotional" concern, which was not sufficient to give it standing.
27 Finally, the Northern Territory challenged NAALAS' reliance upon its so-called "statutory and public function" in support of its claim to standing. NALAAS had no statutory function. Its constitution did not prescribe, as one of its objectives, the supervision of the appointment of magistrates. Even if it did, that could not of itself confer standing upon it. A corporation could not achieve standing simply by adopting, in its instrument of incorporation, a particular object or purpose.
The principles which govern standing
28 In Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) LBC Information Services, Sydney, the learned authors comment, at 513:
"For a topic which has generated so much critical attention from the commentators and law reform agencies, it is remarkable how rarely it [standing] presents the courts with problems."
29 A person has standing to sue (or locus standi) where the court recognises that person's connection with the dispute before it, and regards that connection as sufficient to allow that person to institute and maintain the proceeding.
30 Issues of standing generally arise only within the realm of public law. The traditional test of standing in such cases was that formulated by Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114 where his Lordship said that a person unable to invoke a private right or equity had to be able to show "special damage peculiar to himself from the interference with the [asserted] public right".
31 The "special damage" test was abandoned in Australia in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 ("ACF") because it implied that standing in public law cases was restricted to those who could demonstrate that they were at risk of pecuniary damage. The High Court laid down a new test for parties seeking declaratory or injunctive relief in public law cases. Such a party had to show a "special interest" in the subject matter of the action.
32 In a passage which has been repeatedly cited, Gibbs J said, at 530-531:
"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
33 Stephen J, at 541, considered that the question of standing should be resolved:
"...by the direct route of search for enforceable rights conferred by statute, rather than ... the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage."
34 Mason J said, at 547:
"...apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property of proprietary rights, to his business or economic interest...and perhaps to his social or political interests."
35 His Honour went on to say, at 548:
"...that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi..."
36 The High Court reaffirmed these principles in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. In that case, Gibbs CJ said, at 35-36:
"If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, [i.e. to restrain another private citizen from breaking the criminal law] it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc v. The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation." (footnotes omitted)
37 Stephen J said, at 41-42:
"...I should say that I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests.... As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter."
38 Brennan J said, at 74:
"A litigant's interest in obtaining the relief claimed is not by itself the interest which gives standing to sue; standing to sue is not established by suing. Where a plaintiff seeks to enforce compliance with a public duty, standing is to be found in some affection or threatened affection of the plaintiff's interests by the defendant's breach or apprehended breach of the duty. Conversely, a defendant is liable to be sued because by his breach of duty he had affected, or by his apprehended breach of duty he threatens to affect, the plaintiff's interests.A plaintiff must show that he had been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner." (footnotes omitted)
39 In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 ("SDA"), a trade union, 1200 of whose members were employed as shop assistants in the Central Shopping District in Adelaide, was held to have standing to seek an injunction restraining the Minister from permitting the introduction of general Sunday trading during certain hours. The union's members had a "special interest" in the trading hours of shops in which they were employed which was "different from and greater than that of other members of the public". Significantly, the union was regarded as having the same "special interest" in the subject matter of the dispute as that of its members.
40 In Bateman's Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, the plaintiffs operated a contributory funeral benefit fund and a contributory life insurance business catering for members of the New South Wales Aboriginal community. The defendants were Aboriginal land councils constituted under the Aboriginal Land Rights Act 1983 (NSW). That Act provided for the financing of activities of the defendants from public funds. They proposed to conduct a contributory funeral benefit fund catering for all Aboriginal persons. The plaintiffs brought proceedings claiming that the establishment and operation of the defendants' proposed fund was unlawful on the ground that it was beyond their statutory powers. They sought injunctions restraining the defendants from carrying on the fund business. The defendants contended that the plaintiffs had no standing to maintain the proceedings.
41 The High Court held that the plaintiffs had a sufficient "special interest" to seek equitable relief. It found that it was highly probable that, if not restrained from commencing and conducting their fund activities, the defendants would cause severe detriment to the plaintiffs' business.
42 Although standing was recognised on the basis of the existing "special interest" test, as formulated in ACF, Onus and SDA, Gaudron, Gummow and Kirby JJ indicated in a joint judgment that they were prepared to see that test widened, if necessary. They observed that it gave insufficient attention to the basis upon which equity intervenes in public law matters, particularly to restrain apprehended ultra vires activities of statutory authorities involving recourse to public monies. They also noted that the characteristics of the office of Attorney-General in this country differed from those of that office in England, in particular with respect to the grant of the fiat.
43 Their Honours observed, at 267:
"Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation."
44 Their Honours went on to say that it would be odd if the requirements for standing outside the constitutional sphere were more stringent than the requirements within it. They observed that prejudice to a sufficient material interest, such as that in the practice of a profession or occupation, was sufficient in constitutional cases: British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257; and Croome v Tasmania (1997) 191 CLR 119 at 126-127 and 137-138. The same requirements ought therefore to be sufficient in ordinary public law cases.
45 McHugh J observed that the present law relating to standing was "far from coherent". He accorded particular significance to the Attorney-General's right to speak on behalf of the public in protecting the public interest. Their Honours Gaudron, Gummow and Kirby JJ gave this consideration less weight. However, McHugh J considered that whatever deficiencies there were in the existing law, the Court should do no more than maintain current doctrine, leaving reform to the legislature.
46 Recently, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J commented extensively upon the special interest and role of the Attorney-General in relation to public wrongs. Her Honour observed that the general rule was that only the Attorney-General could institute proceedings with respect to a public wrong. However, that rule was subject to exceptions. These included the "special damage" requirement in Boyce, subsequently extended in ACF to the "special interest" test.
47 Gummow J observed that the term "standing" was little more than a metaphor. His Honour traced the origin of the term to the posture traditionally required of advocates. He commented, tellingly, that metaphors in the law were apt to obscure rather than illuminate. The question to be addressed was that of the competency of a party, other than the Attorney-General, to proceed without the fiat to seek enforcement of a statutory regime or an obligation of a public nature. Here, in his Honour's view, lay the genesis of the modern concept of "standing".
48 Gummow J emphasised that there was no general rule which prescribed the adequacy in any given case of the connection between the instituting party and the subject matter for determination in that case. In matters of public law, there was no single criterion as to the need for, or the content of, the standing requirement.
49 In Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 565, a specially constituted five member Full Court held that the respondent lacked standing. The Court summarised the current law:
"In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases."
50 In dismissing an appeal from that decision, the High Court observed that the issue raised in that case was one of statutory construction. There was little utility therefore in having regard to the general principles governing standing: Allan v Transurban City Link Ltd [2001] HCA 58.
Conclusion regarding standing
51 The starting point in determining whether NAALAS has standing in this proceeding must be to consider its status, and the functions which it performs. As noted earlier, its purposes are set out in its constitution: see par [1] of these reasons for judgment.
52 It is important to note that although NAALAS is an incorporated association under the Ordinance, it is not to be regarded as though it were a private or public company. Its membership includes "Group Members" and "Individual Members" and is confined to Aboriginal communities, organisations and individuals born in, or who have lived in the area for which ATSIC funds the provision by NAALAS of legal services. It has no shareholders, and no directors in the ordinary sense of that term. Its income and property can only be applied towards its purposes, as set out in its constitution. It is governed by a thirteen member Council, including a President and members from specific regions within the Northern Territory.
53 NAALAS also has an Executive which comprises the President and four Council members. It must meet at least six times each year and has responsibility for NAALAS' general governance. It is required to appoint a Director who must comply with Executive and Council directions concerning NAALAS' policy. It may engage appropriately qualified solicitors to act on NAALAS' behalf and on behalf of its clients.
54 As noted earlier, NAALAS is wholly funded by ATSIC. In other words, it receives public funds under a Commonwealth statute in order to enable it to carry out its functions.
55 Mr Jones' affidavit establishes that NAALAS represents the interests of a substantial number of indigenous Australians in the Northern Territory. Many of its clients find themselves facing criminal charges which require them to appear before courts of summary jurisdiction. The evidence does not disclose the percentage of cases before those courts in which NAALAS is involved. However, it can be inferred from the large number of clients that NAALAS represents that it is a significant proportion.
56 NAALAS' clients are among the most disadvantaged members of our community. The primary reason for it's existence is to provide legal representation and advice to those clients. Courts of summary jurisdiction throughout Australia deal with a wide range of criminal matters, some quite minor and others of a serious nature. In the Northern Territory, the mandatory sentencing regime in place until the recent change of government meant that any appearance before a magistrate, even upon a seemingly minor charge, could be fraught with the risk of imprisonment. That fact highlights the importance of NAALAS' role in protecting the rights of Aboriginal people, and in ensuring, so far as possible, their humane and decent treatment.
57 It is true that NAALAS' constitution says nothing about it having a mandate to supervise the appointment of magistrates in the Northern Territory. It would be astonishing if it did.
58 It is also true that a corporation cannot confer standing upon itself merely by adopting a particular purpose or object in its constitution. NAALAS did not argue to the contrary.
59 I accept the submission of the Northern Territory that the fact that NAALAS has diverted a substantial amount of its scarce resources to the conduct of this proceeding does not, of itself, give it standing. If NAALAS is a "mere busybody", the fact that it is prepared to spend large sums in this way does not give it a "special interest" in the subject matter of this litigation.
60 However, I do not accept the submission that NAALAS has no more than an "intellectual or emotional concern" in some abstract principle of judicial independence which is said to underlie this proceeding. The question whether Mr Bradley was validly appointed by the Administrator cannot be characterised in that way.
61 Mr Bradley sits regularly upon cases which involve Aboriginal persons, almost all of whom are NAALAS' clients. He has been asked by at least one such person to disqualify himself on the grounds of bias because of the circumstances in which he was appointed. There is nothing abstract about that issue. If he was not validly appointed, he cannot validly exercise judicial power. His decisions, many of which affect the liberty of NAALAS' clients, will be void, and of no effect.
62 In my view NAALAS' interest in the validity of Mr Bradley's appointment is relevantly a "special interest". It has the same interest in that issue as would any of its clients appearing before Mr Bradley. In SDA it was held that a trade union had the same interest in the subject matter of the dispute as its individual members. That reasoning seems to me to be equally applicable to NAALAS in the present circumstances:see generally Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.
63 I should emphasise that I am not expressing any view as to whether a legal practitioner representing a client before Mr Bradley (as distinct from that individual client) would have standing to challenge the validity of his appointment. Such a practitioner cannot be equated with an incorporated body such as NAALAS, which has particular responsibilities towards Aboriginal persons and the Aboriginal community generally. NAALAS occupies a pivotal role in the administration of criminal justice in the Northern Territory. Had this proceeding been brought by one of its employee solicitors, in his or her capacity as legal representative for a client, there might have been some substance in the Northern Territory's point. As matters stand, there is none.
64 The authorities make it plain that whether or not an applicant in a public law case has standing involves questions of degree. I am satisfied that, having regard to NAALAS' status, and the functions it performs, it has a sufficient connection with the subject matter of this litigation to amount to a "special interest". Accordingly, I find that NAALAS has standing to bring and maintain this proceeding.
IS NAALAS' ALLEGATION OF IMPROPER PURPOSE JUSTICIABLE?
65 Both Mr Bradley and the Northern Territory contended that NAALAS' allegation that the appointment was made for improper or extraneous purposes was not justiciable.
66 Mr Bradley submitted that the appointment of a person as a judicial officer falls into that special category of decision that is not open to review by the courts "as to purpose".
67 The Northern Territory submitted that this Court could not examine what lay behind the Administrator's decision to exercise the power conferred by s 4(3) of the Act to appoint a Chief Magistrate. Nor could it determine that an appointment of a person, qualified for that appointment in accordance with the provisions of the Act, was vitiated by any improper purpose.
68 Both Mr Bradley and the Northern Territory acknowledged that, on the current state of the authorities, decisions of the Administrator, acting upon the advice of the Executive Council, were not immune from judicial review on the grounds of improper or extraneous purposes.
69 That proposition was established in The Queen v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170. Gibbs CJ said, at 193:
"In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize."
70 Aickin J explained the concept of improper purpose in the following terms at 233:
"I use the term "improper purpose" to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. ... A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law."
See also Stephen J at 202-204 and 215.
71 Mr Bradley and the Northern Territory submitted that, notwithstanding the reasoning in Ex Parte Northern Land Council, there were various categories of administrative decision that were immune from judicial review. These included decisions relating to foreign affairs (including the making of treaties), decisions relating to national defence (such as the declaration of war), the exercise of the prerogative of mercy (South Australia v O'Shea (1987) 163 CLR 378 at 410-411), the grant of honours, the power to bring an ex officio indictment (Barton v The Queen (1980) 147 CLR 75), the power to enter a nolle prosequi (Maxwell v The Queen (1996) 184 CLR 501 at 533-534) and the power to appoint Queen's Counsel (Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 479).
72 They referred to various authorities in support of their contention that NAALAS' allegations of improper or extraneous purpose were not justiciable. They cited, in particular, Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 398, 407, 411-412 and 418; Ex Parte Northern Land Council at 220-222, 261 and 283; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 and Xenophon v South Australia (2000) 78 SASR 251 at 253-254 and 263-265. They submitted that the reason why Mr Bradley's appointment could not be challenged upon grounds of improper or extraneous purpose was at least in part because the Court was ill-suited to review or otherwise interfere with the process of judicial appointment. That was a matter of "high policy" entrusted to the executive and legislative branches of government. It was not appropriate to be dealt with by the judiciary.
73 Mr Bradley and the Northern Territory relied heavily upon Attorney-General (NSW) v Quin (1990) 170 CLR 1. That case concerned the abolition, in 1982, of the New South Wales Courts of Petty Sessions, which had been constituted by stipendiary magistrates. They were replaced by Local Courts constituted by magistrates appointed by the Governor. All but five of the one hundred former stipendiary magistrates who applied were appointed to the new courts in accordance with a policy under which they would be appointed unless they were considered unfit for judicial office. One stipendiary magistrate who was overlooked obtained a declaration from the Supreme Court of New South Wales that the Attorney-General's decision not to recommend his appointment was void on the ground that he had not been afforded an opportunity to respond to certain allegations about his suitability. The Attorney-General then indicated that he would treat an application by the former stipendiary magistrate in the same way as that of any other applicant, namely on merit, save that the allegations the subject of the earlier case would not be taken into account unless he was given an opportunity to meet them. Mr Quin commenced another action in which he contended that he was entitled to have his application reconsidered by the Attorney-General without reference to other applications made in the meantime.
74 The High Court held, by majority, that the Attorney-General was not obliged to apply the policy pertaining at the time of the appointments of former stipendiary magistrates.
75 Mason CJ concluded that it was for the Attorney-General and Cabinet to decide what procedures, if any, should be followed and what criteria, if any, should be applied in selecting and recommending magistrates for appointment. His Honour said, at 18:
"Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers...under the constitutional arrangements which prevail in New South Wales and the doctrine of separation of powers, to the extent to which it applies in that State, the function of making appointments to the Judiciary lies within the exclusive province of the Executive. According to tradition, it is not a function over which the courts exercise supervisory control."
76 Brennan J said, at 33-34:
"It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorized by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution...it is the criteria which appeal to the Executive Government, not the criteria which appeal to the courts, which necessarily prevail in the selection of judicial officers."
77 Dawson J regarded the Mr Quin's claim as intruding upon the policy which was otherwise left entirely to those entrusted under the legislation with the responsibility of determining who was to be appointed a magistrate.
78 Both Deane and Toohey JJ dissented. Deane J relied heavily upon the basic tenet of the administration of justice, that there must be a strong and independent judiciary as the primary custodian of individual rights and liberty under the law. Toohey J accepted that in ordinary circumstances the courts have no role to play when it is suggested that a person appointed to judicial office was not appointed on merit or even that the person was wholly unsuitable for judicial appointment. However, Mr Quin's situation was out of the ordinary because he had a "legitimate expectation" that his application to be appointed a magistrate under the new Act would be treated in the same way as those of other stipendiary magistrates.
79 In Northern Australian Aboriginal Legal Aid Service Inc v Bradley and Northern Territory of Australia (supra), the respondents relied upon Quin in support of their contention that NAALAS' allegation of improper purpose was not justiciable. Priestly J, Doyle and Brooking AJJ said at 117:
"As regards justiciability, we regard it as fairly arguable that the Court may investigate the question whether the appointment of the first defendant was made for the purposes alleged, if those purposes are to be given the wide meaning which the pleaders' words on a fair reading may be said to convey. If those purposes were to be established, the case might be said to be a very different one from Quin (supra), which concerned what Brennan J at 34 described as the calibre of appointments to the judiciary and the choice of criteria in the selection of judicial officers. The statements by Brennan J, relied on by the defendants in this Court in support of the non-justiciablity point, were not directed to a case of the kind that is alleged here. Moreover, Mason CJ, at 18, did not express himself in absolute terms (`generally speaking, the judicial branch of government should be extremely reluctant to intervene'). Dawson J said nothing on that point. Toohey J at 64 spoke of the appointment of judicial officers for reasons other than merit. We do not think Quin (supra) may be said clearly to be a binding authority to the effect that matters relating to judicial appointments are never justiciable."
80 It was submitted on behalf of Mr Bradley and the Northern Territory that these observations were directed only to the issue of whether it was "fairly arguable" that the Court could investigate whether Mr Bradley's appointment was made for the purposes alleged, and not whether the argument that the Court could not do so was correct. It was submitted that the Court of Appeal had failed to take account of a number of authorities which had been cited to it in support of the contention that the allegation of improper purpose was not justiciable. It was also submitted, specifically on behalf of Mr Bradley, that the Court had taken an unduly restrictive view of the observations of Mason CJ and Brennan J in Quin.
81 In my view, NAALAS' allegations of improper or extraneous purpose are extremely serious. They would, if proved, tend to bring the administration of justice in the Northern Territory into disrepute. It would be surprising, given this consideration, if the Supreme Court of the Northern Territory could not examine those allegations. Quin is distinguishable from the present case precisely for the reasons given by the Court of Appeal. Moreover, I am not persuaded that that Court misunderstood the scope of the reasoning of Mason CJ and Brennan J in that case.
82 Ex Parte Northern Land Council established that the exercise of a statutory power by the executive government for an improper or extraneous purpose may be the subject of judicial review, and the establishment of such a purpose can vitiate the exercise of the power. I regard that case as being at least highly persuasive authority in support of NAALAS' contention. In my opinion, NAALAS' claim that Mr Bradley's appointment was invalid by reason of its having been made for an improper or extraneous purpose is justiciable.
NAALAS' FACTUAL CLAIMS IN SUPPORT OF ITS ALLEGATIONS OF IMPROPER PURPOSE
83 NAALAS alleged that there was an agreement or arrangement of the type pleaded in its statement of claim between the Mr Bradley and the Northern Territory. It also contended that Mr Bradley's appointment was invalid because the Northern Territory was actuated by one or more of the improper or extraneous purposes alleged.
84 NAALAS' case in support of these allegations was largely circumstantial. It relied heavily upon inferences to be drawn from a series of documents concerning Mr Bradley's appointment which were brought into existence between December 1997 and February 1998. Most of these documents were produced by the Northern Territory as part of its discovery in this proceeding.
85 NAALAS called only two witnesses in support of its allegations of improper or extraneous purpose. These were John Flynn and Martin Toohey. Mr Flynn was the Chief Executive Officer of the Office of Courts Administration throughout the period leading up to 3 March 1998. He played a significant role in the negotiations with Mr Bradley concerning his appointment. Mr Toohey was Mr Flynn's successor, and replaced him on 3 March 1998. I will return to a discussion of the witnesses' evidence
The paper trail
(a) The initial discussions regarding Mr Bradley's appointment
86 After Mr Gray's resignation, Shane Stone, who was at that time the Chief Minister and Attorney-General of the Northern Territory, spoke to Mr Bradley and offered him the position of Chief Magistrate. Mr Bradley was at that time the managing partner of a local firm of solicitors.
87 On 9 December 1997 Mr Bradley wrote to Mr Stone accepting that offer in the following terms:
"I confirm that I have pleasure in accepting your offer to take up the position of Chief Magistrate of the Northern Territory commencing Monday 8 March 1998."I also confirm that my brief is to achieve greater efficiencies in and quality of the services provided by the Magistrate to the people of the Northern Territory. I look forward to working with you and your Government to achieve this end.
I will discuss the terms of my contract with Mr Flynn, who will no doubt seek your advice as necessary." (emphasis added)
88 On 11 December 1997 Mr Bradley wrote to Mr Flynn confirming that he had formally accepted Mr Stone's offer. He said:
"I understand that the terms of my contract are to be sorted out between myself and yourself. I thought therefore I should set out my understanding of the position and those matters which I might ask to be considered but only on the basis that the cost to the Territory is no greater than that which was proposed by you in the summary outlined by yourself last week.I therefore comment as follows:
1. That I am to commence employment as Chief Magistrate commencing on 8 March 1998 for an anticipated term of approximately 2 years. I understand that that term may be extended by mutual consent. While it has not been discussed I consider the Territory would want a minimum of three months notice from me and I suggest that may be mutually an appropriate notice period for both parties ......" (emphasis added)
89 On 15 December 1997 Mr Stone wrote to Mr Bradley acknowledging receipt of his letter to Mr Stone of 9 December. He informed Mr Bradley that he was going on leave that day, and that he had instructed the appropriate officers to "progress the matter" in his absence.
(b) Concurrent proposals to allow for magistrates to be appointed on contract
90 It may be coincidental, but at about the time that Mr Bradley was being offered the position of Chief Magistrate, consideration was being given, within the Attorney-General's Department, to the possibility of appointing magistrates upon contract. Barbara Bradshaw, a Policy Officer within the Department, was asked by David Anderson, the Director, Policy to consider possible amendments to the Act to enable such appointments to be made. She was also asked to advise whether any other jurisdictions appointed magistrates in that way, and whether the government could dispense with the Remuneration Tribunal, with salaries and conditions to be "determined by the Minister". She recorded in a file note that the amendments to the Act could be passed as a matter of "urgency", in the next sittings of the Legislative Assembly.
91 Ms Bradshaw researched these issues and prepared a summary of the legislation in each State that provided for the appointment and removal of magistrates, and how they were remunerated.
92 Several days later, a draft Cabinet Submission was prepared. Its purpose was to consider firstly whether the Northern Territory should introduce legislation to enable magistrates to be appointed "under contract", and secondly whether the Chief Magistrate should be given the power to direct other magistrates in relation to matters other than the performance of their judicial functions. It was recommended that Cabinet authorise the preparation of legislation to bring about these objectives. It was suggested that enabling magistrates to be appointed "under contract" would increase flexibility and better deal with workloads. It was proposed that the necessary legislation be introduced in the February 1998 sittings of the Assembly.
93 On 12 December 1997 Mr Anderson sent Mr Stone a document described as a "Ministerial". In it he noted that Mr Stone had "requested preparation of a draft Cabinet Submission to consider amendments to the Magistrates Act"to enable magistrates to be "appointed by contract with the Attorney-General" (emphasis added). He recommended that Mr Stone approve the preparation and circulation of an attached Cabinet Submission. Mr Stone approved that recommendation.
94 On the same day, Ms Bradshaw wrote to Tom Hurley, Parliamentary Counsel, regarding the proposed Amendment Bill. She said (inter alia):
"The purpose of the amendments is to enable Magistrates (which would include the Chief Magistrate ... and Stipendiary Magistrates) to be appointed by under [sic] a contract with the Attorney-General. This contract would provide for remuneration and other terms and conditions and be for a fixed period ...Accordingly could you prepare a Magistrates Amendment Bill as follows:
1. Short title Magistrates Amendment Bill.
2. Commencement. It is possible that the Attorney-General may be looking to appoint someone under these new provisions in early March 1998 ...
3. Amend section 4 to provide that the Minister may enter into a contract with a person which has the effect of appointing them as a Chief Stipendiary Magistrate ... or Stipendiary Magistrate ... It is envisages [sic] that the contract would cover such matters as the term of office, remuneration, allowances and other terms and conditions." (emphasis added).
95 Ms Bradshaw referred to the Local Courts Act 1982 (NSW) which allowed for "temporary appointments" as magistrates as a possible model for the proposed amendments.
96 On 15 December 1997 Gail Jamieson, of the Office of Parliamentary Counsel, prepared a file note recording a conversation with Ms Bradshaw as follows:
"Barbara advised that the proposed amendments in relation to fixed term appointments for Magistrates is to be enacted alongside the existing arrangements, ie Administrator will appoint Magistrates who are to have indefinite terms and the Attorney-General will appoint Magistrates who are to have fixed terms."
97 On 18 December 1997 Mr Anderson wrote a note across a copy of the draft Cabinet Submission relating to the proposed bill. The note was addressed to Elizabeth Kelly, Senior Policy lawyer in the Attorney-General's Department and was in the following terms:
"We need the contracts issue resolved in time for Hugh Bradley's appointment (he wants one).MPL [Margaret Lyons, the Secretary of the Attorney-General's Department] wants the Cabinet Submission expanded to:
Consider the effect of contracts on judicial independence.
..." (emphasis added)
98 Mr Anderson's note linked Mr Bradley's appointment to the more general proposal under consideration to introduce legislation to allow for magistrates to be appointed on contract.
(c) Mr Flynn's letter of 7 January 1998
99 On 7 January 1998 Mr Flynn wrote to Mr Bradley in the following terms:
"... I have not as yet had your contract terms and conditions approved by the Attorney-General but will be submitting them to him in January on his return from holidays.Following your letter and our discussions I now set out below the terms and conditions that I will be recommending to the Attorney.
1. The contract salary will be $193,602 paid fortnightly in arrears less PAYE tax. If, during the contract period, magistrates salary rises then your salary will increase at the same percentage and from the same date as does the magistrates.
2. The contract be for a period of 2 years and 6 weeks commencing on 9 March 1998 and terminating on 19 April 2000. Either party being able to give 3 months notice to terminate. ...
3. During the contract period you may take a total of 12 weeks leave ...and in the event that the contract be terminated at some earlier period then any pro rata leave accrued not taken by you shall be paid to you at the contract salary level.
...
As soon as the Attorney-General has approved or made any alteration to the proposed conditions I will arrange an appropriate contract. The contract will not be able to be entered into until such time as the Magistrates Act is amended to provide for appointments on a contract basis." (emphasis added)
100 For whatever reason, Mr Bradley did not receive this letter. It was not until early February 1998 that Mr Flynn provided him with a copy.
(d) The Ministerial of 12 January 1998
101 On 12 January 1998 Mr Flynn prepared a Ministerial for Mr Stone regarding Mr Bradley's appointment. The Ministerial was in the following terms:
"ISSUE:To obtain your approval for the terms and conditions to apply to Mr Hugh Bradley's appointment as Chief Magistrate.
427 In his dissenting judgment, Dawson J observed, at 599, that the approach taken by Toohey J:
"...may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act."
428 In a helpful article, P Johnston and R Hardcastle "State Courts: The Limits of Kable", (1998) 20 Sydney Law Review, 216, the authors comment at 225:
"Indeed, the difficulty with Toohey J's reasoning is that in some cases State legislation may not attract the Kable limitation simply because its constitutional validity has not been challenged"
429 See also Re Australasian Memory Pty Ltd and Corporations Law; Brien v Australasian Memory Pty Ltd (1997) 149 ALR 393 at 431 where Santow J expressed similar criticisms of this aspect of Toohey J's reasoning
430 Gaudron and McHugh JJ declined to limit Kable to State courts actually exercising federal jurisdiction. They held that it was sufficient that State courts were capable of exercising the judicial power of the Commonwealth.
431 Gaudron J said, at 103:
"Chapter III requires that the parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth."
432 Her Honour considered that this limitation was founded upon the fact the State courts "exercise the judicial power of the Commonwealth".
433 McHugh J said, at 115, that a State legislature could not undermine the role of State courts as "repositories of federal judicial power". His Honour continued, at 118:
"... [I]t is a necessary implication of the Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts."
434 Gummow J observed, at 136, that the "jurisdiction exercised by the Supreme Court was wholly federal", as indeed it was. However, his Honour too did not limit the Kable constraint to State courts actually exercising federal jurisdiction. He observed, at 142, that the functions of State courts were "intertwined with the exercise of the judicial power of the Commonwealth". This was because decisions of those courts, whether or not given in the exercise of federal jurisdiction, yielded "matters" founding appeals to the High Court under s 73(ii).
435 I assume for present purposes, and contrary to my earlier conclusion, that the limitations upon State legislative power laid down in Kable are applicable to Territorial legislatures as well. The question is, given the construction that I have accorded to ss 4 and 6 of the Act, would Kable lead to the invalidity of those sections?
436 At one level, Kable may be regarded as being of limited scope, applying only to extreme examples of incompatibility, such as those identified in the judgment, and later explored in other cases: see John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 703.
437 Certainly Kable was an extreme case. The New South Wales legislature required the Supreme Court to act in a manner which was directly in conflict with the traditional role performed by judges in sentencing offenders. The majority considered that the function conferred upon the Court by this legislation was a non-judicial function of a kind that would tend to undermine public confidence in the independence of the judiciary.
438 There are other examples which may well fall within the Kable principle. It is clear, as McHugh J observed at 111, that Kable extends to prevent a State legislature from abolishing its court system entirely. A State could not defeat the exercise of the grants of power conferred on the Parliament by s 77 of the Constitution by the simple expedient of abolishing its courts, and setting up tribunals that were not courts. It is important to note, however, that his Honour qualified even that modest proposition. He said that the Constitution prohibited only the abolition of State Supreme Courts, and not lower courts. Gummow J agreed, at 141, that the Supreme Courts were in "a distinct position".
439 In John Fairfax Publications Pty Ltd v Attorney-General (NSW) (supra), the New South Wales Court of Appeal held that certain sections of the Supreme Court Act 1970 (NSW) were invalid. Those sections provided that an appeal on questions of law by the Attorney-General from an acquittal for contempt was to be heard in camera. It further prohibited the publication of any submissions made on the appeal, and concealed the identity of the alleged contemnor.
440 Spigelman CJ noted that the complainant contended that the Court was exercising federal jurisdiction in the proceedings instituted by the Attorney-General. In Kable it had been common ground that the Supreme Court had been exercising federal jurisdiction because constitutional arguments had been agitated during the course of the proceedings. In the instant case, there was no concession that the Court was exercising federal jurisdiction merely because one of the parties wished to agitate a constitutional question. However, his Honour was prepared to determine the matter upon that assumption.
441 Spigelman CJ said, at 698:
"Kable is authority for the proposition that a State legislature may not invest the Supreme Court of the state with a function which is incompatible with the exercise by that court of the judicial power of the Commonwealth. The four judgments of the majority in Kable are not able to be distilled into a single principle...The reasoning of the majority in Kable was not confined to the character of a function or power conferred by a state law. Some of the reasoning encompasses the manner in which a function or power is to be performed. Although Kable was concerned with the compatibility of a specific non-judicial power (to order imprisonment without any finding of criminal guilt) with the exercise by a state Supreme Court of the judicial power of the Commonwealth, the reasoning of the majority did involve principles of broader application..."
442 The learned Chief Justice observed that each of the members of the majority in Kable had referred to the significance of public confidence in the administration of justice and, particularly, the appearance of impartiality and independence of the judiciary from the legislature and the executive. He contrasted this approach with that of Brennan CJ (with whom Hayne J agreed) in Nicholas v The Queen (1998) 193 CLR 173 that to:
"hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power".
443 However, Spigelman CJ also noted that in Grollo v Palmer (supra) at 365, the Court had identified diminishing "public confidence in the integrity of the judiciary as an institution" as a way in which constitutionally impermissible incompatibility may arise. That test had also been applied in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (supra) at 16.
444 The State legislation under challenge in John Fairfax did not confer a particular function or power. It was concerned with a matter of procedure. The issue was whether the principle of open justice was so fundamental an aspect of the judicial process that its modification in the particular circumstances offended the principles derived from Ch III, as identified in the reasoning in Kable.
445 Spigelman CJ concluded that Kable operated only in "quite exceptional" cases. He said, at 703:
"This is manifest in the failure of intermediate courts of appeal to identify any such contravention in the subsequent authorities:• R v Moffatt (the imposition and review of indefinite sentences);
• R v Wynbyne (1997) 99 A Crim R 1 (mandatory sentencing);
• Felman v Law Institute of Victoria [[1998] 4 VR 324 at 352-8] (supervisory jurisdiction over legal profession);
• Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588 at 595-6; 162 ALR 79 (denial of legal professional privilege);
• Lloyd v Snooks [1999] TASSC 117 (mandatory sentencing)."
446 His Honour concluded that some forms of parliamentary modification of the principle of open justice would be struck down by the constitutional principle identified in Kable. For example, a provision requiring the court to sit in camera in all cases involving the State of New South Wales, either generally or in some specific respect in which the interests of the state were involved, would, in his opinion, be invalid. However, the measure under consideration in the instant case did not represent an infringement which impinged upon the "integrity" of the Supreme Court as a repository of federal power. Nor did it impinge upon the independence, or the appearance of independence of that Court. Further, it did not constitute such a distortion of its predominant or essential characteristics as to involve the Court determining the issues of law posed for its consideration, otherwise than by the exercise of the judicial power of the Commonwealth.
447 The Chief Justice went on to hold that the provisions under challenge were invalid because they intruded into the freedom of communication guaranteed by the Constitution in a manner not reasonably appropriate and adapted to achieving the legitimate objective of protecting persons who have been acquitted of criminal contempt: Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
448 Meagher JA agreed with the conclusions reached by Spigelman CJ, and with his reasons in relation to the Kable issue. However, his Honour disagreed with the finding that Lange had any application to the instant case, and rejected the conclusion that the relevant provisions were invalid.
449 Priestly JA concluded that the Kable point should succeed, in effect dissenting on this aspect of the judgment. His Honour agreed with the Chief Justice that John Fairfax should succeed in its application, upon the Lange point.
450 The question whether Kable has any application to the requirements of security of tenure and remuneration in State courts (and, by extension, Territory courts as well) has not yet been resolved in this country. Does Kable operate to require minimum guarantees of tenure, financial security and administrative independence?
451 The principle that there should be such minimum guarantees has been recognised internationally. The 6th Conference of Chief Justices of Asia and the Pacific, held in Beijing in mid 1995, unanimously adopted the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. Article 4 of those principles regards the maintenance of the independence of the judiciary as essential to the attainment of its objectives and the proper performance of its functions in a free society observing the rule of law. It continues:
"...It is essential that such independence be guaranteed by the State and enshrined in the Constitution or the law."
452 Chief Justice Malcolm of the Supreme Court of Western Australia recently delivered a paper, "Judicial Independence" at the 15th International Conference of the International Society for the Reform of the Criminal Law, and in it commented upon the Beijing Principles. His Honour also commented upon the conditions under which judicial service should take place. He said, in relation to judicial remuneration:
"That remuneration should be secure, in the sense that it cannot be altered to the detriment of a judge during the term of office, is also of particular importance. A judge who faces the possibility of financial disadvantage if his or her decisions displease the Executive is not placed in a position from which it is easy to exercise the judicial function with true impartiality.A legitimate exception to this principle may be made where the reduction in remuneration is an across the board, non-discriminatory reduction in the national economic interest, which is agreed to by the Judges concerned. Such a reduction has no adverse implications for judicial independence." (footnote omitted)
453 The Declaration of Principles on Judicial Independence issued in April 1997 by the Chief Justices of the Australian States and Territories took account of the Beijing Principles, promulgating similar principles relating to the appointment of judges of the courts of the States and Territories of Australia.
454 Sir Anthony Mason in his paper, `The Appointment and Removal of Judges', in H Cunningham (ed) Judicial Independence in the Nineties and Beyond, 1997, Judicial Commission of New South Wales, Sydney,commented upon judicial independence in a magisterial context, making reference to Alexander's Case (1918) 25 CLR 434 at 469. He observed that Isaacs and Rich JJ seemed to have taken the view that protecting the judicial independence of inferior courts, at least those on the lower end of the scale, served no real purpose.
455 In questioning whether that view should continue to prevail, Sir Anthony, in his paper, went on to say:
"...The litigants and the public expect impartial and independent adjudication from magistrates just as they expect it from judges. The common law principles relating to bias and ostensible bias apply to magistrates as well as judges. Magistrates' courts undertake important work extending over a wider range of issues. They exercise an important jurisdiction in relation to summary offences. They are the principal point of contact that the community has with the court system. Today there are strong reasons for applying the concept of judicial independence to magistrates."
456 The Canadian Supreme Court has held, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 150 DLR (4th) 577, that in order to preserve public confidence in the independence of the judiciary, Provincial legislatures are prevented from reducing Provincial court judges' remuneration. The Court's reasoning turned largely upon a provision of the Canadian Charter of Rights and Freedoms, and as a result may be of limited assistance in resolving this question in Australia.
457 No Australian authority of which I am aware holds that State legislatures are prohibited from reducing the remuneration of State court judges. There are undoubtedly powerful political considerations which prevent that course from being adopted. In most States, judicial remuneration is determined by independent statutory tribunals, though their recommendations need not necessarily be accepted.
458 Similarly, State judicial tenure is subject to amendment by ordinary State legislation, and is not, as a general rule, constitutionally entrenched. There are exceptions to that proposition: see for example ss 53, 54 and 55 of the Constitution Act 1902 (NSW) and ss 77 and 85 of the Constitution Act 1975 (Vic). However, these provisions deal only with such matters as removal, suspension and retirement from office, and the powers and constitution of the Supreme Court, and do not impose any limitation upon legislation which has the effect of reducing judicial remuneration.
459 It has been suggested that there is scope for Kable to be read as preventing State legislatures from undermining judicial independence in State courts by reducing the remuneration of the judges of those courts: see, for example, P Johnstone and R Hardcastle, op cit, at 238 and E Campbell, "Constitutional Protection of State Courts and Judges", (1997) 23 Monash University Law Review 397 at 415.
460 Some of these same commentators recognise, however, that the text of Ch III poses difficulties for the implication against political interference through economic manipulation which Kable might otherwise support. Section 72 expressly provides for the tenure and remuneration of the Justices of the High Court and of the other courts created by the Parliament. That section plainly does not refer to State judges, and has been held by the High Court not to apply to Territory judges.
461 While the concept of an "integrated Australian judiciary" favoured by three members of the Court in Kable, and also by Kirby J in Gould v Brown (supra) at 485-486, imposes limitations upon State legislative interference with State courts, the language of Ch III may be difficult to reconcile with the conclusion that these limitations apply to State legislation dealing with the tenure and remuneration of State judges.
462 It is a nice question whether the constitutional implication recognised by the majority in Kable derived solely from the structure and text of Ch III, or whether it was based upon a broader unwritten constitutional norm. Although the matter cannot be said to be free from doubt, in my opinion, the structure and text of Ch III formed a central part of the reasoning of the majority. Kable does not support any broader principle.
463 It is clear that Kable establishes that State courts are not immune from the requirements of Ch III. As integral components of the Australian judicial system, those courts, which are invested with federal jurisdiction, must remain capable of exercising the judicial power of the Commonwealth free from executive or legislative interference. The same reasoning cannot be applied to Territory courts which, on the authorities as they stand, do not exercise federal jurisdiction.
464 There is no doubt that Kable will, in certain circumstances, invalidate State legislation which operates to undermine public confidence in the independence of State courts. If that general principle underlies the judgment, and it can be assumed that the same reasoning can be applied to Territory courts, there nevertheless remains a difficulty in reconciling the broad notion of the need for such public confidence with the specific language of s 72.
465 The authorities establish that s 72 does not apply to State or Territory Courts. That omission cannot have been accidental. It is difficult in those circumstances to see how any broader implication concerning tenure and remuneration may be drawn from Ch III.
466 I agree, with respect, with the observations of Spigelman CJ in John Fairfax concerning the scope of the Kable limitation upon State legislative power. Kable extends beyond notions of incompatibility into the realm of procedure. It is not confined to the "character of a function or power" conferred by a State law, but encompasses the manner in which that function or power is to be performed.
467 It may seem odd that Kable, which is based upon the twin pillars of the separation of powers and judicial independence, should apply to incompatibility, procedure, and the abolition of State courts themselves, but not to the tenure and remuneration of State judicial officers. Yet the language of s 72 may dictate that conclusion.
468 In Kable, Gaudron J said, at 102:
"Once it is accepted that State courts are the creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State judges and the structure, organisation and jurisdictional limits of State courts. In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them."
469 McHugh J said, at 115:
"...the Constitution does not protect the appointment, remuneration and tenure of the judges of State courts invested with federal jurisdiction although it protects the judges of federal courts in respect of those matters."
470 Recently, the Full Federal Court in Ly v Jenkins [2001] FCA 1640 described, as an "accepted constitutional doctrine", the obligation of the Commonwealth, when investing a State court with judicial power, to take that court as it finds it.
471 The Court there referred to a passage in Le Mesurier v Connor (1929) 42 CLR 481 at 496:
"... [T]he power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal Courts."
472 The Full Court went on to cite Latham CJ in Peacock v Newtown Marrickville & General Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37:
"This is a power to give new, additional, jurisdiction to State courts. The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. It may make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved; or, as in the Judiciary Act 1903-1940, sec 39, it may allow the State law to operate in respect of such matters. But the State court must be taken as it exists. The constitution or structure of the court cannot be changed by the Federal Parliament."
473 Thus, the Full Court concluded, Parliament may affect the functions of a State court, but the "court's organization and constitution are inviolate": Russell v Russell (1976) 134 CLR 495 at 530. It also referred to Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 555 per Latham CJ:
"...The decision rests upon the distinction between structure and function. The Commonwealth Parliament cannot change the structure of a State court, but it may confer new functions upon that court."
474 It follows that even if, contrary to my earlier conclusion, Kable is applicable to the Territory courts, it is at least doubtful that it imposes limitations upon the powers of Territory legislatures to determine the appointment, tenure and remuneration of Territory judges.
CONCLUSIONS
475 Professor Robert Stevens in his important book, The Independence of the Judiciary: The View from the Lord Chancellor's Office, 1993, Clarendon Press, Oxford,at 3,observes:
"While there is widespread consensus on the obvious importance of the independence of the judiciary, the literature on it is meagre..."
476 That observation is less true today than it was in 1993.
477 It is sometimes forgotten that the need for judicial independence is not dependent upon the doctrine of the separation of powers, as originally articulated by Montesquieu and so willingly embraced by Blackstone. The American version of that doctrine, which found its way into the Australian Constitution, provides one route towards a theoretical justification for the need to secure judicial independence. It is not, however, the only route towards such a justification.
478 There has never been any real acceptance of the doctrine of the separation of powers in the United Kingdom. One has only to consider the functions performed by the Lord Chancellor to appreciate that fact. Yet great importance is attached to the independence of the judiciary.
479 The main reason given in support of judicial independence is that it is a condition of impartiality, and therefore of the right to a fair trial. As Sir Anthony Mason has observed, in the paper previously cited:
"...The criteria, mode and terms of appointment of judges, and the removal of judges from office continue to be topics of lively discussion and debate. In the past the discussion has been heavily influenced by the paramount importance of securing judicial independence which has always been seen as a central pillar of the rule of law. Judicial independence continues to be central to the modern debate because concern has been expressed about recent developments which have tended to erode the protection of judicial independence in Australia. Some of these developments have revealed a tension between judicial independence and judicial accountability."
480 See also A Mason, "Judicial Independence and the Separation of Powers - Some Problems Old and New" (1990) 13 University of New South Wales Law Journal 173; M D Kirby, "Judicial Independence in Australia Reaches a Moment of Truth" (1990) 13 University of New South Wales Law Journal 187; R D Nicholson, "Judicial Independence and Accountability: Can They Co-Exist?" (1993) 67 Australian Law Journal 404; M D Kirby, "Attacks on Judges-A Universal Phenomenon" (1998) 72 Australian Law Journal 599 and A M Gleeson, "Legal Oil and Political Vinegar" (1999) 10 Public Law Review 108.
481 The arrangements made for judicial remuneration are obviously central to judicial independence. As indicated earlier, Mr Bradley's appointment as Chief Magistrate, under the Special Determination, reflected an extraordinary lack of appreciation, on the part of those who ought to have known better, of the fundamental importance of securing judicial independence. It does not follow, however, that the appointment was invalid.
482 The words of Brennan J in Attorney-General (NSW) v Quin (supra), at 35-36, appear to me to be apposite:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
483 The decision to limit Mr Bradley's remuneration to a period of two years, as set out in the Special Determination, may fairly be described as manifesting an administrative error. No judge or magistrate should be put into the position of having to negotiate with the executive the terms of his or her remuneration. The perception that this may create in the minds of litigants who confront the government in court has serious consequences for the administration of justice.
484 To criticise what occurred in this case is not, however, to conclude that it vitiated Mr Bradley's appointment. That appointment was made in accordance with the provisions of the Act. The fact that the appointment was made against the background of a foolish attempt to introduce contract or fixed term appointments for magistrates, which was fortunately abandoned, does not invalidate it. The clumsy manner in which his remuneration was fixed is, in my view, a separate issue.
485 It follows that NAALAS' application that Mr Bradley's appointment be declared invalid must be dismissed. I have been asked by the parties to afford them an opportunity to consider my reasons for judgment before making any submissions as to costs. I propose to accede to that request.
I certify that the preceding four hundred and eighty-five (485) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Associate:
Dated: 7 December 2001
#DATE 07:12:2001
Counsel for the Applicant: Mr B Walker SC, with Mr A Moses and P Keyzer Solicitor for the Applicant: Geoff James Solicitor and Notary Counsel for the First Respondent: Mr J Reeves QC with Mr P McNab Solicitors for the First Respondent: Cridlands Lawyers Counsel for the Second Respondent: Mr A Myers QC with Mr P Hanks QC and Ms P Tate Solicitor for the Second Respondent: Solicitor for the Northern Territory Dates of Hearing: 20, 21, 22 and 23 August 2001 Date of Judgment: 7 December 2001
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