Re Mathews & Anor, Ex parte Wilson
[1996] HCATrans 93
TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone (03) 672 5608
Fax (03) 670 8883
O/N 9745
IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY
A14 of 1996
RE:MATHEWS & ANOR
ex parte:
WILSON & ORS
DAWSON J (in Chambers)
AT MELBOURNE, WEDNESDAY THE THIRD DAY OF APRIL 1996
MR M.L. ABBOTT QC: I appear with my learned friend DR S.C.CHURCHES instructed by Mr Nicholas Iles in this matter for the applicants.
HIS HONOUR: Yes, Mr Abbott. I apologise for the delay. I had not hitherto discovered the existence of this Court and - but I now know.
MR ABBOTT: Your Honour, this is our application by a number of Ngarrindjeri women applicants for - pursuant to the Constitution section 75(v), in the Judiciary Act sections 30 and 33 for firstly a writ of prohibition against Justice Jane Hamilton Mathews, the second respondent. Secondly, for a writ of certiorari against the Minister for Aboriginal and Torres Strait Islander Affairs, the first respondent. Thirdly, for an information for quo warranto against Justice Jane Hamilton Mathews, the second respondent. We have filed amongst the papers a draft order seeking the orders that we - listing the orders that we seek and in addition we have filed an outline of argument ‑ ‑ ‑
HIS HONOUR: I have read that and I have read the affidavits, Mr Abbott.
MR ABBOTT: And the affidavits, yes. Could I start, your Honour, by referring to what I discern is an important matter, where this departs from Grollo ‑ ‑ ‑
HIS HONOUR: Now, may I ask this question: do you intend to apply for leave to re-argue Grollo?
MR ABBOTT: No, your Honour.
HIS HONOUR: Yes.
MR ABBOTT: We say that Grollo is of assistance to us but this case goes further than Grollo and I would like therefore to take your Honour ‑ ‑ ‑
HIS HONOUR: Well, the reason for my asking that question is to ascertain whether you intend to attack the persona designata doctrine.
MR ABBOTT: No, your Honour. No, we do not intend to attack the persona designata doctrine, only its application. May I explain what we are on about?
HIS HONOUR: Yes.
MR ABBOTT: In Grollo there were two arguments primarily addressed to the Court. The first argument was that the power that was being exercised in issuing warrants was a judicial power and then the argument proceeded that because it was conferred on a judge and not the Court, the power was - the exercise of the power was invalid, or the conferral of the power was invalid. In the alternative it was argued that if it was not a judicial power it was incompatible with the judge's position as a judge/persona designata and so that the argument went even if a judge exercised the power, the non-judicial power as a persona designata, the exercise of the power was incompatible with the judicial office.
As to the first point the Court, I think, very shortly dealt with that. They said there was a wealth of authority, not the least being Hilton v Wells, Love's case, etcetera, which show quite clearly that the issuing of a warrant was not a judicial power and therefore the first argument fell to the ground. But the bulk of the judgments, in my respectful view, deal with the issue of persona designata.
HIS HONOUR: Well, in this case you are not contending that Justice Mathews was appointed to report other than as persona designata, are you?
MR ABBOTT: No, your Honour. No.
HIS HONOUR: Well, you can put that to one side.
MR ABBOTT: Our arguments are that clearly this is not a judicial power under section 10 of the Act. It cannot, in any way, shape or form, be a judicial power. It is an administrative function incidental to executive power.
HIS HONOUR: Yes, I do not think you need to convince me of that, Mr Abbott.
MR ABBOTT: And therefore as we put in the forefront of our submissions the first main issue is whether or not the incompatibility doctrine permits or does not permit the appointment of Justice Mathews as persona designata.
HIS HONOUR: Well, we can go straight to that, can we not?
MR ABBOTT: Well, although that is first in our argument, we put it first merely because that seems, to us, to be the more conservative approach. The second in point of time in our outline of argument is in fact perhaps the more radical argument and we would submit is in fact at least equal to the persona designata argument and that is whether Parliament is able to confer a grant of power on a minister to appoint a Chapter 3 Judge as persona designata by the very general words of section 10. And we deal with that in some little detail in our outline, which I will turn to in a minute.
HIS HONOUR: But if it is not incompatible with a judicial function and does not offend the separation of powers, why not?
MR ABBOTT: Because the issue is whether or not the doctrine of the separation of powers can be circumvented by the legislature and by the very general words of section 10.
HIS HONOUR: But that could only be so - that is, there could only be a circumvention if an appointment under section 10 of a judicial officer were incompatible with the judicial office, or the holding of judicial ‑ ‑ ‑
MR ABBOTT: There could only be a circumvention if the appointment was incompatible with the judicial office, yes.
HIS HONOUR: So that is the question: is the function of reporting under section 10 incompatible with the holding of judicial office?
MR ABBOTT: But we submit there is a second subsidiary question; even notwithstanding that the function may be incompatible with judicial office, can Parliament, in legislating in the very general way that it legislated in section 10 allow a minister to appoint a Chapter 3 Judge as persona designata? Even assuming that the appointment does not offend the incompatibility doctrine. That question was never raised in Grollo and is raised in this case.
HIS HONOUR: Well, you will have to elaborate on that, I am afraid I do not understand.
MR ABBOTT: Yes. Well, we say this; all the cases that deal with - that we have read and I do not pretend that our reading has been of every case - that deal with cases where the incompatibility doctrine has been raised, it has been where the legislature has invariably expressly referred to a particular judge or the class to which the judge belongs.
HIS HONOUR: Yes.
MR ABBOTT: So there has been an express statutory attempt, sometimes successful, sometimes not, to appoint a judge either directly as the judge, or as a judge from a class which is nominated in the legislation as persona designata. Here there is no legislative attempt.
HIS HONOUR: But the section is in general terms.
MR ABBOTT: Exactly, that is our point.
HIS HONOUR: And on the face of it includes judicial officers.
MR ABBOTT: But our point, your Honour, is that on the face of it, it does not include judicial officers because every case where Parliament has attempted to have a judicial officer - a Chapter III Judge appointed, Parliament has, in every case, either nominated a Chapter III class of judge or a particular Chapter III Judge.
HIS HONOUR: What, it is a sort of expressio unius argument.
MR ABBOTT: Exactly, exactly.
HIS HONOUR: Yes.
MR ABBOTT: Exactly. This point has not been raised in Grollo and we submit that it flows from some of the obiter in Grollo because the majority, of which your Honour formed part, spoke about the need for clearer indicia and in fact part of the reasoning of the majority of which your Honour formed part of, page 232 of Grollo, at the latter half of the page, referred to what Parliament had done to get around a claim that they had not intended a judge to act as persona designata. The Court observed in the last three lines:
The Act as it now stands in comparison with the Act as it stood when considered in the Hilton v Wells contains every clearer indicia showing that the power to issue interception warrants is conferred on judges as designated persons.
McHugh J, to the same effect, at page 241, if I could refer your Honour to page 241 line 40, where his Honour - with reference to the joint judgment of the former Chief Justice and Deane J said apropos Hilton v Wells:
Mason and Deane JJ however held that established principle required a clear expression of legislative intention before a Court would hold that functions entrusted to a judge of the Federal Court were exercisable as persona designata.
We say our case is a fortiori. We say that it requires - there is certainly an argument that it requires a clear legislative intention rather than mere general words before you even get to the situation.
HIS HONOUR: But an appointment under section 10 will necessarily be an appointment of a person as persona designata, will it not?
MR ABBOTT: Yes, it will be. But the issue is not whether it will be persona designata, but whether you need express words of - express intention of Parliament for a Chapter III Judge.
HIS HONOUR: But when it is said that clear words are needed in Grollo, what it means is that when a power is said to be vested or capable of being vested in a judge, it has to be made clear that it is vested or capable of being vested in a judge, not as a judge but as a persona designata. There is no question, in this case, of persons being a judge entering into an appointment under section 10.
MR ABBOTT: No.
HIS HONOUR: That situation, the situation you are talking about, is where the only persons who can exercise the power are judges and then the question arises whether they are personae designati or not.
MR ABBOTT: I accept all of that.
HIS HONOUR: What is said is there has to be clear words to show that they are to exercise a function not as judges but as personae designati. That question does not arise here because the function is not vested in judges. It is open.
MR ABBOTT: We say it does.
HIS HONOUR: Yes.
MR ABBOTT: Because, as your Honour has already observed, if a judge were appointed, it could only be - if a judge were nominated, to use the wording of section 10, it could only be as persona designata.
HIS HONOUR: So the question does not arise.
MR ABBOTT: Well, I have been endeavouring to put forward the argument that it does arise because there is still a primary issue as to whether or not the general - Parliament, by the very general words used in section 10 meant to comprehend within the category of persons who might be nominated a Chapter III Judge as persona designata. In other words ‑ ‑ ‑
HIS HONOUR: It clearly did not, it just meant persons, any person may be appointed. Of course that includes judges but ‑ ‑ ‑
MR ABBOTT: Well we, to some extent, rely upon the views expressed by McHugh J.
HIS HONOUR: Well perhaps not any person. It is a person who has certain qualifications, is it not?
MR ABBOTT: At the bottom of page 241 his Honour said, in the last two lines:
They -
referring to Mason and Deane JJ -
thought that there was much to be said for the view that even without a decision in the boilermaker's case, the underlying concept of a separation of powers doctrine, a safeguard of individual liberty, supported the need for a clear legislative intention before a Court would hold that functions entrusted to a judge or a Federal Court were the exercise of persona designata.
HIS HONOUR: That is the point; functions entrusted to a judge of the Federal Court. Because prima facie, they would say, it was entrusted to him in his capacity as a judge of the Court, not persona designata. But clear words were needed to establish that. But here no functions are entrusted to a judge.
MR ABBOTT: Exactly. And we say ‑ ‑ ‑
HIS HONOUR: Well, the question does not arise.
MR ABBOTT: ‑ ‑ ‑ on one argument, as your Honour said the expressio unius rule, whether you use it as a fortiori or expressio unius, the general words which prima facie on one construction give the minister the opportunity to nominate whoever he wants to nominate including a judge as persona designata. We would seek to argue that by reference to precedent that in every case where a judge has been nominated successfully as persona designata, there have been express words of a statute either of the individual judge or the class to which he or she belongs. Our argument on that aspect is simply that.
Could I return to the persona designata argument which is in our outline of argument. We - and that is the incompatibility doctrine. The question as we pose it in our outline is in these terms; assuming that the power given to the minister to appoint a reporter allows the minister to consider appointing a Federal Court judge, does the incompatibility doctrine operate to prohibit such appointment and render the purported grant of power nugatory to that extent? In this regard I rely upon the two affidavits of Mr Iles, the first dated 29 March and the second dated 2 April. I do not know whether your Honour has received the second affidavit.
HIS HONOUR: That is the shorter one?
MR ABBOTT: The short one, yes.
HIS HONOUR: Yes, I have.
MR ABBOTT: In our submission the nature of the task cast upon a reporter is such as to raise fairly and squarely the incompatibility doctrine.
HIS HONOUR: Well, the task that is to be performed by the reporter is merely to report, is it not? One gathers that from the Act.
MR ABBOTT: It is more than just merely to report.
HIS HONOUR: Where do you get that in the Act?
MR ABBOTT: Well, we get it from the construction of the Act which is best found in the case of Chapman v Tickner and I refer your Honour to the judgment in the first instance of O'Loughlin J (1995) 55 FCR 316 and at 355 his Honour refers - between letters (e) and (f) - his Honour referred to what the reporter did. It was more than just report, it was advice as well and this must clearly be so by virtue of what the reporter's job is to do. It is a report which has to have some conclusions. So it is not a mere conduit of investigations. It encompasses, also, advice and a consideration of the submissions before the judge or before the reporter.
He also referred to the - if I could just take your Honour to one of the exhibits which I think puts this in a nutshell. One of the exhibits to Mr Iles' affidavit which is NJI15, I think, of the first and longer affidavit ‑ ‑ ‑
HIS HONOUR: Yes.
MR ABBOTT: ‑ ‑ ‑ sets out what the procedure is that Justice Mathews is engaged in. On page 2 of a letter of 22 January 1996 addressed to a firm of Adelaide solicitors, her Honour sets out at the bottom of page 1 of that letter -she says:
You express concern that the process is to be a reporting one. But the legislation envisages nothing else. It is also clear that ...(reads)... the case call for an inquisitorial approach. She will, as already indicated, be seeking comments and suggestions in this regard.
Indeed, if your Honour pleases, that is exactly what, in our submission, the affidavit disclosed is in fact happening.
HIS HONOUR: Now, why is that incompatible with the judicial function?
MR ABBOTT: An inquisitorial approach is incompatible with the judicial function because for a judge to be seen as an inquisitor and rather than an adjudicator is, in my submission, the exact opposite of what a judge ought to be doing and invariably does do.
HIS HONOUR: Those who practice on the Continent would find some difficulty in accepting that proposition.
MR ABBOTT: Of course they would but, fortunately, we are here and they are there.
HIS HONOUR: But does not your proposition amount to this: that because she is performing a non-judicial function therefore it is inconsistent with the performance of the judicial function? That is something that cannot be acceptable. That is what you are saying, is it not?
MR ABBOTT: Yes, yes.
HIS HONOUR: Well, that cannot be so.
MR ABBOTT: What I say is ‑ ‑ ‑
HIS HONOUR: I mean, a judge issuing a search warrant or an interception warrant is not performing a judicial function.
MR ABBOTT: That is so.
HIS HONOUR: But it has been held that it is not incompatible with performance of a judicial function.
MR ABBOTT: Yes, but - well, it has been held that it is not so incompatible with the judicial function ‑ ‑ ‑
HIS HONOUR: Well, that is what I am asking you ‑ ‑ ‑
MR ABBOTT: ‑ ‑ ‑ as to bring the judicial office into disrespect.
HIS HONOUR: Well, exactly. Now, you are getting to the point. There may be incompatibility if the performance of the non-judicial function involves suggestions of bias or matters such as that.
MR ABBOTT: Yes.
HIS HONOUR: Well now, where do you get something like that here?
MR ABBOTT: We get that from the material in the affidavit and I will need to refer your Honour to the affidavit of Mr Iles and to our submissions on the facts. In our outline of argument ‑ ‑ ‑
HIS HONOUR: This is the first affidavit?
MR ABBOTT: Yes, the first affidavit of Mr Iles.
HIS HONOUR: Yes.
MR ABBOTT: You will - and I turn to our submissions - our outline of argument on the factual submissions at page 6 and following. Now we, in paragraph 5 of our submissions on the factual matters, and I tell your Honour that on 8 June 1995 the Federal Government, after a State Royal Commission was announced, announced that there would be a Federal independent inquiry and we refer to that in paragraph 1 on page 6 of our outline. We say that there is no basis on which Justice Mathews could have initially been appointed as a reporter under section 10. So we start off with a position that some role was intended to be cast on her which was never to be the role of a reporter.
HIS HONOUR: Well, that may be but the role she is now performing of which you complain is a role under section 10, is it not?
MR ABBOTT: That is so. But that brings me to what happened; she started off doing some initial work, senior and junior counsel were retained and in paragraph 5 of our outline on page 7, your Honour will see that she was reported in the newspapers as working on the proposed inquiry and for an organisation described or - as the Hindmarsh Island Development Commission. There were apparently premises leased by the Federal Government for an organisation called the Hindmarsh Island Development Commission and initial work was done in terms of reading of transcripts, the work being done by senior and junior counsel, and that is dealt with in the second affidavit of Mr Iles which deals with the press releases of Senator Crowley which endeavoured to meet the issues that were raised in the press.
We then refer to the politicisation of her role, which we say is a very significant factor and that is in paragraph 12 of our outline and that is a reference to a number of exhibits to Mr Iles' affidavit. We particularly draw your Honour's attention to the politicisation of her role as indicating incompatibility with the judicial office that she occupies and to the judicial office of a Chapter - and the Chapter III Judges' Office generally.
HIS HONOUR: Why is that? I mean a judgment may be debated politically but it does not mean the judge is ‑ ‑ ‑
MR ABBOTT: Well, there comes a time when if a judge steps into the political arena as a persona designata, that it may be that a Court would hold ‑ ‑ ‑
HIS HONOUR: Why is a report under section 10 stepping into the political arena?
MR ABBOTT: Because the judge is accepting the role of working for the minister, giving advice and a report to a minister.
HIS HONOUR: Well there is nothing in section 10 which requires her to work for the minister in the sense of working under his directions, nothing in section 10 which is incompatible with the exercise of a completely independent function.
MR ABBOTT: Well, your Honour would be entitled to construe perhaps section 10 in that way but the facts of what has been happening are set out in the affidavit and we submit they do give cause for alarm as to the integrity of the judicial office. At least as perceived by the public. And we submit that is the important issue. It is all very well - I say this with great respect - for your Honour to say well there is nothing in section 10, but all the public can do is look at what they see happening and I submit the issue - one of the issues for your Honour to consider is whether or not there is a perception or might possibly be a perception like bias in the mind of the public ‑ ‑ ‑
HIS HONOUR: Why should one perceive bias?
MR ABBOTT: I am sorry?
HIS HONOUR: Why should one perceive bias in the performance by Justice Mathews of a function under section 10?
MR ABBOTT: Because it involves her associating and dealing with various groups which are mutually opposed and so far ‑ ‑ ‑
HIS HONOUR: It involves her making a report and that is what a judge does, is to decide the truth between opposing contentions, is it not?
MR ABBOTT: Well, your Honour, could I take your Honour to the exhibits to Mr Iles' affidavit? We refer to NJI5, which was the initial media release of 8 June 1995. I do no more than draw your Honour's attention to what the public were told she would be doing initially to what she is now doing by virtue of section 10. I then take your Honour to NJI12 which is her appointment or the press release in relation to her appointment. NJI11 and NJI12 are her appointment as reporter and ‑ ‑ ‑
[10.05am]
HIS HONOUR: But that is something which the Minister said.
MR ABBOTT: Yes.
HIS HONOUR: Well, why does that mean that the function under section 10 which is a function under a statute is incompatible with the judicial office? The Minister can say what she wishes. But that does not affect Justice Mathews' function.
MR ABBOTT: Your Honour, the issue is not whether the wording of section 10 itself discloses per se an incompatibility but whether the exercise of the administrative function cast on Justice Mathews has, by virtue of the affidavit material, disclosed a case that in the minds of the public at least there is a possibility that her position as a judge has been compromised, or the position of Chapter IIIJudges generally has been comprised.
HIS HONOUR: That is surely confusing - two issues, is it not, Mr Abbott? If Justice Mathews' function as a reporter under the section is not incompatible with her holding judicial office, the fact that she so conducts herself - if that be the case and I see nothing to suggest it is, but the fact that she so conducts herself as to be behaving in a way which is incompatible with judicial office does not affect the validity of the appointment. It merely means that she is misbehaving herself, just as any judge can misbehave themself and render himself open to correction in a variety of ways.
MR ABBOTT: I accept the distinction your Honour has just adverted to. Could I perhaps then take your Honour to some of the matters that the Act requires her to deal with in her report. If your Honour looks at section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act, your Honour will see that section 10(3) refers to the activities of a reporter, and the reporter has to firstly advertise and then invite persons to furnish representations and then give due consideration to any representation so furnished, and when submitting the report attach them to the report.
It is our submission that the fact that she is required to give due consideration to representations, and in essence to give advice to the Minister as a result of the reporting activity that she has had to embark on demonstrates incompatibility or, at least, arguably demonstrates incompatibility.
HIS HONOUR: It demonstrates that it is not a judicial function, but does it go further than that?
MR ABBOTT: Yes, we say to have a judge giving consideration and advice to a Minister as a persona designata in the minds of the public blurs the distinction between the judicial office on the one hand and the persona designata on the other to such an extent that the incompatibility doctrine should be construed so as to preclude her from acting as persona designata in these circumstances.
HIS HONOUR: Well, that would make a lot of things that are now a matter of history open to question; for example, it was never suggested that it was incompatible with a judicial function for a judge of this Court to be a Minister representing this country abroad, which of course would involve advice of various sorts to the government of the day.
MR ABBOTT: If your Honour is referring to the war time appointments ‑ ‑ ‑
HIS HONOUR: Yes. Well, it would not matter if it was war time or not, the Separation of Powers doctrine applies in war time.
MR ABBOTT: There was a special amendment and a clear legislative intention, and I accept that notwithstanding ‑ ‑ ‑
HIS HONOUR: But we are talking here about constitutionality.
MR ABBOTT: Yes, we are. I could with some temerity suggest that it is unlikely that would happen today. But in any event, your Honour, if your Honour looks at subsection (4) of section 10, your Honour will see that this is a wide-ranging inquiry containing highly significant areas of examination in a matter which prima facie is extremely politically sensitive and impacts upon the rights, duties and obligations of many many people. The effect of a declaration is, in the eyes of some people, draconian because it means that they are unable to deal with their land as they would wish. I merely cite that, not because it is necessarily a good or a bad thing, but to show that the ambit of the exercise is of great significance.
HIS HONOUR: One can accept that. Things that judges do are very often of great significance.
MR ABBOTT: Things that judges do as judges though, your Honour.
HIS HONOUR: Well, that is right, but then I think incompatibility there is the fact that the thing that a person does as a non-judge is of great significance too. What you are really saying is, I imagine, that the assessment of evidence, the taking and assessment of evidence, in one form or another is not incompatible with a judge's function. The reaching of a conclusion is not incompatible with a judge's function, but what is incompatible is the entry into an area of policy which is a matter for government rather than judges. That must be your submission, is it not?
MR ABBOTT: That is so, your Honour, and I have some difficulty with the proposition that a Minister can hire a judge as persona designata and say: you are not acting as a judge, you are bringing your judge-like attributes to bear on an inquiry and a report process which deals with all these matters and I want you to give consideration to all these representations and give me some advice. In my submission, it is that structure of investigation and reporting and advice giving which is the strongest factor that I can show your Honour is potentially offensive ‑ ‑ ‑
HIS HONOUR: How would that interfere with just the performance by Justice Mathews of her judicial functions when she comes to perform those?
MR ABBOTT: Well, your Honour, I submit with respect I do not have to show that it does interfere.
HIS HONOUR: Well, you have to show incompatibility.
MR ABBOTT: I have to show that it has the potential to interfere, either with her functions as a judge or that it tends to lower the respect for the judicial office that she personally occupies, or which Chapter III Judges of the Federal Court generally occupy.
HIS HONOUR: Why would it lower respect for judges that she considers evidence and on that basis of it makes a report to the Minister?
MR ABBOTT: Well, I can only repeat in similar terms to what I said before, your Honour, that the notion of a Chapter III Judge being hired by a Minister ‑ ‑ ‑
HIS HONOUR: That word is somewhat offensive. It is not a matter of being hired.
MR ABBOTT: She is nominated.
HIS HONOUR: It is a matter of being appointed under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.
MR ABBOTT: The notion of a judge being nominated and then reporting to a Minister on these sorts of sensitive matters in a highly politicised matter as a whole - I mean, it is highly politicised because there has been a Royal Commission - in my submission demonstrates that there is incompatibility. I do not want to spend time going through it, since your Honour has read the affidavit - all the material in the affidavit to show just how highly politicised this whole escapade has been.
HIS HONOUR: But that does not show that Justice Jane Mathews is politicised or need be.
MR ABBOTT: No, it does not, but it shows that her office may bear the brunt or adverse effects of the politicisation, and that there is a tendency for her office to be dragged into disrepute by virtue of the fact of her appointment, no matter how fairly she discharges her duties as a reporter. I mean, I think that is really at the heart of all this. It is not that she will not act fairly or that she has not acted fairly or that even going down - if your Honour looks, for example, at NJI 17, could I just refer your Honour to NJI 17 as a sort of paradigm example of a document which, if true, we say tends to drag her position as a judge into disrepute.
Here is a notice by one section of the Ngarrindjeri community, one section only, saying that there is going to be a meeting yesterday - in fact, there was. It says:
Justice Jane Mathews who is preparing the Hindmarsh Island Bridge Report will be in attendance.
Now, on one view you could answer that by saying: well, it is appropriate that a reporter attend to hear the views of one section of the Ngarrindjeri community, just as it is perhaps appropriate that she should attend any other views from other sections of the Ngarrindjeri community. But, in my submission, in embarking on this process of attending meetings specially called as rallies and things of that nature disclose a tendency to drag down and derogate from the position of the judicial office that she occupies, notwithstanding that she is acting as persona designata.
The first step, or the first position, is that it is recognised by both the decision of the majority in Grollo and by the other members of the Court who sat on Grollo that the public have great difficulty in distinguishing between a judge acting as a judge and a judge acting as persona designata. It is easy for lawyers to make the distinction but difficult for members of the public. So your Honour, we submit with respect, should not apply a test that might pass muster with lawyers but your Honour should apply a test that would pass muster with ordinary people. In the view of ordinary people does this activity - or is it likely that in the view of ordinary people, that is, non-legal people, this activity that she is embarked on will ‑ ‑ ‑
HIS HONOUR: Well then, the argument really runs this way, that because the Act does not confine the manner in which the reporter is to deal with those things which she has to do under subsection (4) and reach a conclusion that it does encompass the performance of the function in a way which is incompatible with the holding of judicial office.
MR ABBOTT: Yes. Moreover, as Justice Mathews herself quite properly recognises in that letter, the performance of the reporting function encompasses a number of non-judicial activities like inquisitorial ‑ ‑ ‑
HIS HONOUR: I have difficulty in accepting that the inquisitorial method is incompatible with the exercise of a judicial function, but you put the submission that it is.
MR ABBOTT: And the fact that none of this evidence is taken on oath. But it gives the appearance and the veneer of a judge hearing the matter, a judge receiving submissions, a judge taking oral evidence not on oath, and then presenting a report which carries the imprimatur, in the eyes of the public at least, of her office even though naturally it will be expressed to be a report by her purely as persona designata. In our submission, all this tends to derogate her office.
HIS HONOUR: Why is she in any different position from a Royal Commissioner? Now, I know it has been suggested that it is undesirable that judges should become Royal Commissioners but, as far as I know, it has not been suggested that the performance of the functions of the Royal Commissioner are incompatible with the holding of judicial office.
MR ABBOTT: Your Honour is talking about a Chapter III Judge being a Royal Commissioner?
HIS HONOUR: Any judge, yes.
MR ABBOTT: Well, I think you need to examine the quality of the judicial office occupied by a particular judge, but dealing with Chapter III Judges specifically, I would have great difficulty in putting forward an argument in which I believed that ‑ ‑ ‑
HIS HONOUR: You do not have to believe in your argument ‑ ‑ ‑
MR ABBOTT: No, I know that, and that is why I said it, that is why I prefaced it with those remarks. I am just putting what argument I believe in, that a Chapter III Judge could be a Royal Commissioner without that position derogating from the judicial office. But I recognise in the case of Royal Commissions, there is a time-hallowed position that it is appropriate, and one might argue that in the eyes of the public at least they have become somewhat wedded to the idea that judges might be able to act as persona designata and be Royal Commissioners.
This is a totally new situation she herself acknowledges, as we have shown in the affidavit. This is the first time, to her knowledge, and indeed to ours, that any Chapter III Judge has been appointed a reporter. As the judgment of the Full Court, and indeed the single judge in the Tickner v Chapman cases make it clear it could be an officer of the Minister's department who fulfil the role of a reporter. There is nothing in the Act, as your Honour has already observed, that indicates that it is appropriate for a judge.
HIS HONOUR: That is the whole point, it is a non-judicial function.
MR ABBOTT: And we would say that by virtue of the failure to ascribe any course of action as to how it shall he carried out, it tends against the appointment of a judge. There is no power for the Minister to direct how it shall be carried out. The Act says what it says and that is it. It puts a judge, even as persona designata, in the position of having to work out, rightly or wrongly, the methodology that he or she will employ to eventually present a report and advice to a Minister of the Crown.
Your Honour, we say that this is a very important piece of legislation. It affects private and public rights. There is a total absence, we would submit, of any legislative intention to appoint or nominate a Chapter III Judge as a possible reporter, and that we would submit that there was no intention by Parliament that the document, the Separation of Powers, will be circumvented by the general wording of this Act. But, more importantly, we submit that in accepting the nomination as a reporter, Justice Mathews has compromised by virtue of the incompatibility doctrine her position as a judge or, indeed, the general position of Chapter III Judges.
Now, I think I have referred your Honour to the relevant exhibits that I wanted to put to your Honour. I was referring your Honour to subsection (4) of section 10 and developing an argument that those matters in subsection (4) placita (a) to (h) potentially raise political issues and, indeed, assist us in our incompatibility argument. I do not want to go through them, your Honour, I think I have said all I can say on them.
One point my learned junior has raised, and that is this, that Justice Mathews cannot hear evidence in any meaningful judicial way in the course of her investigation. She receives evidence without it being sworn, she has already announced that she will take evidence in an inquisitorial fashion, and by attending meetings such as the meeting in NJI 17. There is no protection for defamation, there is no putting of one portion of evidence to another party and, in our submission, the method by which the inquiry is being conducted must raise the public perception that it is incompatible with the judicial office.
As Justice McHugh referred to at page 245 of Grollo, when quoting from the American case of Mistretta, he said - and we submit this is in essence the test - at line 3:
The persona designata exception to the Boilermakers principle ...(reads)... by the political branches to cloak their work in the neutral colours of judicial action.
And we submit that is more or less the same as what has happened here. To continue on, his Honour said:
If therefore reasonable people not trained to discover distinctions without differences ...(reads)... had the burden of proving that those functions are compatible.
In our submission, the test is ‑ ‑ ‑
HIS HONOUR: Justice McHugh of course was in dissent in that case.
MR ABBOTT: Well, not, I apprehend, necessarily in that regard.
HIS HONOUR: No, that is true.
MR ABBOTT: If your Honour looks at the section at page 233 and following in the judgment of the majority, of which your Honour formed part, headed Incompatibility of Function, it is much to the same effect, I would submit with respect.
HIS HONOUR: Yes.
MR ABBOTT: The same quote from Mistretta was taken up by Justice Gummow at page 256.
HIS HONOUR: Yes, I noticed that.
MR ABBOTT: So we would submit the test is whether reasonable people not trained to discover distinctions without differences might reasonably apprehend that the functions undertaken by Justice Mathews as persona designata impaired his or her ability to carry out her judicial functions or conflicted with her independence or impartiality, and we would submit that on balance at least it is arguable on the basis of the affidavit material that this is so. For those reasons, we would seek that Your Honour make the orders which we seek in our draft minutes of orders.
HIS HONOUR: Yes. I will leave the bench shortly just to consider what course I will take in the matter.
SHORT ADJOURNMENT
HIS HONOUR: Mr Abbott, what I propose to do is to make an order pursuant to Order 55 Rule 2 and direct that this application be made upon notice of motion to a Full Court and to adjourn this application so that the notice may be given. I think that makes little difference, practically speaking, to your position.
MR ABBOTT: No.
HIS HONOUR: Very well, I will make that order.
AT 10.35 AM THE MATTER WAS ADJOURNED
INDEFINITELY
0
1
0