Waters, J.B. v The Acting Administrator of the Northern Territory
[1993] FCA 968
•10 DECEMBER 1993
JOHN BASCOMB WATERS v. THE ACTING ADMINISTRATOR OF THE NORTHERN TERRITORY and
THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
No. DG1 of 1993
FED No. 968/93
Number of pages - 21
Legal Practitioners - Constitutional Law
(1993) 119 ALR 557
(1993) 46 FCR 462
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J
CATCHWORDS
Legal Practitioners - Barristers - application to be appointed as one of Her Majesty's Counsel for the Northern Territory - recommendation of Chief Justice - Cabinet ministers lobbied against appointment - no opportunity for applicant to respond to adverse lobbying - Cabinet advice to Administrator in Council to refuse Commission - whether Administrator's decision justiciable.
Constitutional Law - Responsible Government - Northern Territory (Self Government) Act - role of Administrator as representative of the Crown - duty to act on advice of ministers.
Interpretation Act (NT), ss 34, 34(2)(b)
Judiciary Act 1903 (Cth), s 39B
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT), s 4
Legal Practitioners Act (NT), s 20
Northern Territory (Self Government) Act 1978 (Cth), ss 5, 6, 11, 14, 31, 32, 33, 35, 36, 37, 40
Supreme Court Act (NT), s 32
Transfer of Powers (Law) Act 1978 (NT)
Northern Territory (Self Government) Regulations 1978, r 4(1)
Attorney-General for Canada v Attorney-General for Ontario (1898) AC 247
Attorney-General (NSW) v Quin 170 CLR 1
Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 384
Kioa v West 159 CLR 550
Macrae v Attorney-General for NSW (1987) 9 NSWLR 268
Minister for Arts, Heritage and the Environment v Peko-Wallsend Limited 15 FCR 274
The Queen v Toohey, Ex parte Northern Land Council 151 CLR 170
Halsbury's Laws of England (4th Ed) vol 3(1), paras 359, 433
Political Influence in the Appointment of Queen's Counsel W.B. Fisse and D. St L. Kelly 44 ALJ 318 (31 July 1970)
HEARING
DARWIN, 15-16 November 1993
#DATE 10:12:1993
Mr M.D.A. Maurice QC with Mr S.Southwood (instructed by Waters James McCormack) appeared for the applicant.
Mr D.M.J. Bennett QC with Mr G.P. Watkins (instructed by the Solicitor for the Northern Territory) appeared for the respondents.
ORDER
The Court orders that the application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
OLNEY J The applicant is a barrister practising in the Northern Territory (NT). In July 1991 he sought appointment as one of Her Majesty's Counsel for the NT but despite the recommendation of the then Chief Justice of the Supreme Court of the NT (the Chief Justice) and the support of the Attorney-General for the NT (the Attorney-General), the NT Cabinet did not approve his appointment and ultimately the then Acting Administrator of the NT (the Administrator) on the advice of the Executive Council determined that the application be rejected.
In these proceedings the applicant seeks the Court's intervention with a view to having the decision of the Administrator declared void and the application reconsidered.
At the relevant time the office of Administrator was occupied in an acting capacity by the Honourable Mr Justice Asche, who then also held the office of Chief Justice. Since then His Honour has ceased to be the Chief Justice and has been appointed to the office of Administrator.
JURISDICTION
4. In the statement of claim filed at the commencement of the proceedings the applicant pleaded that the Administrator was an officer of the Commonwealth of Australia, he having been appointed to the office of Acting Administrator by the Governor-General pursuant to s 40 of the Northern Territory (Self Government) Act 1978 (Commonwealth) (the Self Government Act). Although it was not specifically asserted to be so, the pleading raised the inference that the applicant sought the exercise by this Court of the jurisdiction conferred on it by s 39B of the Judiciary Act 1903 (Commonwealth). In a subsequent amended statement of claim the applicant pleaded that this Court had jurisdiction pursuant to s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Commonwealth) and s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT). A number of grounds were pleaded to support the cross-vested jurisdiction. In their respective defences the respondents deny that the Administrator in any relevant sense acted as an officer of the Commonwealth but admit that this Court has jurisdiction pursuant to the cross-vesting legislation and whilst neither respondent has pleaded to the grounds relied upon by the applicant, both have pleaded that they have no objection to the exercise by this Court of the cross-vested jurisdiction of the Supreme Court of the NT (the Supreme Court).
There would appear to be no question that in fulfilling the functions required of him in the context of this case the Administrator was acting pursuant to NT legislation and in ordinary circumstances the Supreme Court would be the appropriate forum for the hearing and determination of the questions in issue. But this Court does have jurisdiction pursuant to the cross-vesting legislation and all parties have been prepared to let the matter proceed on that basis. It should not be thought that by proceeding to exercise its cross-vested jurisdiction this Court has made any determination as to the appropriateness or otherwise of the matter being heard in this Court, nor has it had any occasion to address the grounds upon which the applicant relied as the basis for the exercise of the cross-vested jurisdiction.
THE SELF GOVERNMENT ACT
6. The Northern Territory of Australia is constituted a body politic under the Crown by s 5 of the Self Government Act. The office of Administrator is created by s 32. Power to make laws for the peace, order and good government of the NT is vested in the Legislative Assembly with the assent of the Administrator (or, in limited circumstances, the Governor-General) (s 6) but proposals for the voting of money must be recommended by message of the Administrator to the Legislative Assembly (s 11). The Legislative Assembly is elected by persons qualified to vote at an election of a Member of the House of Representatives for the NT (s 14). An Executive Council is established by s 33 which provides:
33. (1) There shall be an Executive Council of the Northern Territory of Australia to advise the Administrator in the government of the Territory in relation to matters in respect of which the Ministers of the Territory have executive authority under section 35.
(2) The Council shall consist of the persons for the time being holding Ministerial office.
(3) The Administrator is entitled to attend all meetings of the Council, and shall preside at all meetings at which he is present.
(4) The Administrator may introduce into the Council any matter for discussion in the Council.
(5) Meetings of the Council shall be convened by the Administrator and not otherwise.
(6) Subject to the preceding provisions of this section and to any provision made by the regulations, the procedure of the Council shall be as the Council determines.
The Administrator may appoint any member of the Legislative Assembly to the office of Minister (s 36). A Minister's appointment terminates when the Minister ceases to be a member of the Legislative Assembly, upon termination by the Administrator, on resignation or when the Legislative Assembly first meets after a general election that takes place after the Minister's appointment (s 37).
The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers imposed or conferred by or under the Self Government Act extend to the execution and maintenance of the Act and the laws of the NT and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities (s 31).
Section 35 provides that the regulations may specify the matters in respect of which the Ministers are to have executive authority.
The process of self government in the NT has been achieved gradually. The scheme which was adopted upon the passing of the Self Government Act was to facilitate the transfer of executive authority from the Commonwealth to the NT in accordance with regulations made under s 35. Initially, only a relatively few items of executive authority were transferred but over a short period the scope of the executive authority of the Ministers was expanded so that (with a few exceptions) the legislative and executive functions and powers exercisable by the Legislative Assembly and Ministers largely correspond with the functions and powers of State parliaments and executive councils.
It appears from the foregoing that the scheme of the Self Government Act is to establish within the NT a system of responsible government (in respect of matters for which the Ministers have executive authority) similar to the version of the Westminster system which prevails elsewhere in Australia. This has meant that in practice the executive decision-making body is constituted by the Ministers holding office at any particular time meeting in Cabinet, and that Cabinet decisions are binding on the Ministers. The Executive Council as constituted by the Self Government Act is not a deliberative body, but rather provides the formal mechanism whereby Cabinet decisions are implemented.
THE LEGAL PRACTITIONERS ACT
12. Pursuant to regulation 4(1) of the Northern Territory (Self Government) Regulations SR 1978 No 102 as amended by SR 1979 No 205 the matters in respect of which the Ministers have executive authority have, since 1 October 1979, included "the legal profession".
The Legal Practitioners Act (NT) (originally called the Legal Practitioners Ordinance 1974) (Act No 18 of 1974) came into force on 1 July 1974. It deals, inter alia, with the right to practise in the NT as a barrister and/or a solicitor.
Section 20 deals with the appointment of Queen's Counsel. The present form of the section came into operation on 7 January 1980. References in the section to the Administrator were inserted by the Transfer of Powers (Law) Act 1978 (NT) (Act No 1 of 1980) in place of corresponding references to the Governor-General. In its present form s 20 provides:
20. HER MAJESTY'S COUNSEL
(1) The Administrator may, by commission, appoint a person who is a legal practitioner to be one of Her Majesty's Counsel for the Territory.
(2) A person so appointed has, in and in relation to the Territory, the same status, rights, privileges and responsibilities as he would have had if he had been appointed by Her Majesty as one of Her Majesty's Counsel for the Territory.
(3) There is payable to the Territory by a legal practitioner appointed as one of Her Majesty's Counsel such fee, in respect of his appointment, as is prescribed.
THE ROLE OF THE ADMINISTRATOR
15. For present purposes it is unnecessary to deal in detail with the role of the Administrator in the scheme of government which prevails in the NT. It is clear from the provisions of the Self Government Act to which reference has already been made that in general terms, the Administrator performs the functions in the NT which State Governors perform in the various Australian States. Later in these reasons the question of the status of the Administrator as a representative of the Crown is considered at some length.
In the context of the matters under consideration in these proceedings the following provision of the Interpretation Act (NT) is of relevance:
34. REFERENCES TO ADMINISTRATOR
(1) Subject to this section, a provision of an Act that confers upon the Administrator a power or function shall not be read as requiring, permitting or enabling the Administrator to exercise that power or perform that function except with the advice of the Executive Council.
(2) The Administrator may, without reference to the Executive Council -
(a) exercise a power to fix a date for the bringing into operation of an Act or regulations made under an Act or of a provision or part of an Act or regulations made under an Act; or
(b) exercise any other power or perform any function that the Administrator, with the advice of the Executive Council, determines, by notice in the Gazette, to be a power that may be exercised, or a function that may be performed, as the case may be, by the Administrator without reference to the Executive Council.
(3) The Administrator may, without reference to the Executive Council -
(a) exercise any power where the exercise of that power relates only to; or
(b) perform any function where the performance of that function relates only to,
matters in respect of which the Ministers of the Territory do not have executive authority under section 35 of the Northern Territory (Self-Government)Act 1978 of the Commonwealth.
There is no suggestion that any relevant notice of the type referred to in s 34(2)(b) of the Interpretation Act has been published in the Gazette and indeed the whole case has been conducted on the assumption that in exercising the function conferred by s 20 of the Legal Practitioners Act, the Administrator is required to exercise the same with the advice of the Executive Council.
THE APPOINTMENT OF QUEEN'S COUNSEL IN THE NT
18. Shortly after the transfer of executive authority in respect of the legal profession, an informal arrangement was reached between the then Chief Justice and the then Attorney-General concerning the manner in which the power to issue commissions of appointment as Queen's Counsel should be exercised pursuant to s 20 of the Legal Practitioners Act. One proposal considered, but rejected, was that the Act be amended to provide that such appointments be made only on the recommendation of the Chief Justice. It is not clear from the correspondence whether the proposal was that the recommendation of the Chief Justice be the sole criterion upon which the Administrator's power to grant a commission would be exercised (that is, without the involvement of Cabinet and Executive Council) or whether it was envisaged that the ability of the Executive Council to advise the Administrator to grant a commission be conditional upon a recommendation being first made by the Chief Justice. Whatever may have been the proposal, it did not find favour with the Attorney-General. After an exchange of correspondence with the Chief Justice, the Attorney-General on 22 April 1980 tabled in the Legislative Assembly a copy of a letter dated 1 April 1980 which he had written to the Chief Justice and which reflected the consensus reached by them on the subject. At the time of tabling the letter the Attorney-General (who was also the Chief Minister) made a brief statement which the Legislative Assembly resolved to note. The full text of the letter of 1 April 1980, and the statement are set out below:
Attorney-General
Darwin
1 April 1980
The Hon. Mr Justice W.E.S. Forster
Chief Justice's Chambers
Supreme Court
DARWIN N.T. 5790
Dear Judge,
I refer to your letter of 15 February and to our recent conversation.
As I said at our meeting, I would be happy if we were to adopt as a settled practice the Victorian system of appointing Queen's Counsel. All recommendations should come from the Chief Justice, and anyone making application to the Chief Justice to be considered for appointment should notify all those members of the profession senior to him. Also, there should be a month designated during which such applications can be made. Perhaps you could designate the month which would be appropriate for the purpose.
You have my assurance that no appointments will be made except upon your recommendation and I hope this will become settled tradition.
Yours sincerely,
(Signed) PAUL EVERINGHAM
TABLED PAPER
LETTER TO CHIEF JUSTICE CONCERNING QC's
Mr EVERINGHAM (Chief Minister): I table a copy of my letter to His Honour the Chief Justice of the Supreme Court of the Northern Territory concerning the appointment of Her Majesty's Counsel. I draw to the attention of honourable members section 20 of the Legal Practitioners Act which enables the Administrator, by commission, to appoint a legal practitioner to be one of Her Majesty's Counsel for the Northern Territory. Whilst therefore appointment as Queen's Counsel is in the competence of the Executive Council, it is His Honour the Chief Justice's view and mine that such appointment should not be made except upon the recommendation of the Chief Justice. Such a practice accords with that of the states and will ensure that any aspirant for a commission in the Northern Territory must have the support of the Supreme Court.
Letters patent appointing barristers as Her Majesty's Counsel are elsewhere issued by the governors as part of their instructions from the Queen. Because of our unique constitutional situation, legislation such as section 20 is necessary to enable appointments to be made here but I would hope that a tradition will become firmly entrenched whereby commissions are issued by the Administrator in Executive Council only upon the recommendation of the Chief Justice. Such a practice should not be, in my opinion, the subject of legislation because one presumes that successive governments will appoint barristers to be Queen's Counsel not by way of dispensing favours but in recognition of their eminence in the legal profession. This, of course, is the significance of such appointment although, in more recent years, most commissions have been given only to counsel who are pre-eminent and considered by the judges to be worthy of appointment. The practice that I have referred to should ensure that appointments in the Northern Territory are not made for reasons divorced from traditional considerations.
I move that the statement be noted.
Since that time the procedure contemplated has, for the most part, been adhered to. A total of 67 appointments have been made. There have been eight appointments of legal practitioners resident in the NT whilst the remainder of the appointees have been practitioners already appointed as Queen's Counsel in other Australian jurisdictions and not resident in the NT. There appears to have been one appointment made in 1987 when no recommendation was made by the Chief Justice, (reference to which is contained in a letter from the Chief Justice to the Solicitor-General dated 27 August 1987) but apart from that, each appointment has had the Chief Justice's recommendation before being submitted to Cabinet and, apart from the recommendation made in respect of the present applicant, on no occasion has Cabinet failed to approve the appointment of a person recommended by the Chief Justice.
THE FACTS OF THE CASE
20. There is no dispute between the parties as to any of the primary facts relied upon by the applicant.
The applicant relied upon an affidavit sworn by himself on 30 July 1993, as well as an affidavit of the applicant's solicitor sworn 11 November 1993. The respondents relied on an affidavit sworn by Peter Francis Conran (Secretary of the Department of the Chief Minister) on 29 October 1993. Numerous letters and other documents are exhibited to the main affidavits and for the most part the exhibits are common to the parties. In addition, a file of documents containing correspondence and other relevant documents in the custody of the Attorney-General was tendered by consent.
It is common cause that at all relevant times the applicant has been a legal practitioner who was qualified to be appointed as one of Her Majesty's Counsel pursuant to s 20 of the Legal Practitioners Act. He was first admitted to practise in the NT in July 1968 and has held an unrestricted practising certificate since 1972. From September 1972 to July 1990 he practised continuously as a barrister and solicitor in the NT and since July 1990 has maintained chambers in Darwin from which he has practised exclusively as a barrister and independently of any other legal practitioner.
On 12 July 1991 the applicant wrote to the Chief Justice seeking his approval to forward to the Administrator an application to be appointed as Queen's Counsel pursuant to s 20 of the Legal Practitioners Act. The letter was accompanied by another letter of the same date addressed to the Administrator. The occasion for the making of the application was the elevation to the Supreme Court bench of Mildren J who theretofore had been one of three locally resident Queen's Counsel practising in the NT. Some consultation took place between the applicant and the Chief Justice and between the applicant and the President of the NT Bar Association before the Chief Justice wrote to the Attorney-General on 24 September 1991 advising of the approach made by the applicant and recommending and supporting the application for appointment.
The Attorney-General acknowledged the letter from the Chief Justice by letter dated 1 November 1991 in which he said, inter alia:
I would expect that I will be in a position to propose the appointment of Mr Waters at the next available meeting of the Executive Council.
On 7 November 1991 the applicant discussed the progress of his application with Conran (who was then Secretary of the Department of Law) and there was an exchange of correspondence between them.
The matter came before Cabinet on 10 December 1991. The Attorney-General supported the proposed appointment but the matter was deferred. The applicant and the Chief Justice had a discussion on 17 December 1991 and in a letter written to the Chief Justice on 19 December 1991 the applicant conveyed the thrust of a telephone conversation he had had with a Ms Burns (a member of the Attorney-General's staff) on the previous day as to which he said:
I was informed by her that Cabinet members had been "heavily lobbied from within the profession". She informed me that this was from persons "from both sides of politics". I am now inclined to the view that one or perhaps two practitioners did stoop to pervert the convention and the appropriate courtesies to yourself.
Ms Burns informed me that one of the arguments used by my faceless and nameless opponents "within the profession" were that I had been insufficient time at the Independent Bar.
On 12 February 1992 the Chief Justice wrote to the Attorney-General supporting his earlier recommendation and requesting that if there was some reason of which he (the Chief Justice) was not aware, which was sufficiently serious to debar the applicant from being appointed as Queen's Counsel, the Attorney-General provide particulars so that the situation could be reassessed.
The Chief Justice and the applicant met on 28 February 1992 and on 19 March 1992 the applicant wrote to the Chief Justice concerning their discussion.
On 3, 19 and 28 April 1992 the applicant wrote to the Attorney-General. A reply dated 7 May 1992 was received from a member of the Attorney-General's staff advising that in accordance with established procedures the Attorney-General did not intend to enter into correspondence with the applicant on the matter.
At a meeting of Cabinet on 15 May 1992 the recommendation for the applicant's appointment as Queen's Counsel was "not approved".
In November 1992 the applicant wrote directly to the then Administrator who replied in supportive terms but concluded with the statement that the applicant's application for appointment had not been referred to him for consideration in Executive Council or otherwise. At the same time the Administrator wrote to the Attorney-General supporting the application.
For some reason which does not readily appear from the evidence, the original Cabinet submission made by the Attorney-General and which was "not approved" on 15 May 1992 was again considered by Cabinet on 20 November 1992, when it was again "deferred".
The applicant again wrote to the Administrator on 2 December 1992 asking that he exercise his right pursuant to s 33(4) of the Self Government Act to introduce the matter at Executive Council. The Administrator was unable to help because his commission was about to expire and so the applicant wrote on 7 December 1992 to the then Acting Administrator (who was then also the Chief Justice and is now the Administrator) again requesting that the matter be raised pursuant to s 33(4). The Acting Administrator sent the applicant's letter on to the Chief Minister. There followed some further correspondence involving the applicant, the Acting Administrator and the Chief Minister preceding a meeting of Executive Council on 28 January 1993. The agenda for the meeting referred to nine items being matters raised in subject papers numbered 4339 to 4347 (inclusive). The last item on the agenda (subject paper 4347) was -
Legal Practitioners Act
Appointment of QC - matter to be raised by Chief Minister: The Acting Administrator and seven Ministers (including the Chief Minister and the Attorney-General) were present. The Council approved the recommendations contained in all of the subject papers on the agenda.
Subject paper 4347 contained a recommendation "that the Administrator not appoint John Waters to be one of Her Majesty's Counsel for the Northern Territory". The recommendation was signed by the Chief Minister acting for and on behalf of the Attorney-General and was endorsed as approved by the Acting Administrator.
On 29 January 1992 the Acting Administrator wrote to the applicant as follows:
Mr J Waters
Barrister
James Muirhead Chambers
49 Wood Street
DARWIN NT 0800
Dear Waters,
In reply to your letters of 7 December 1992 and 22 December 1992 I am now in a position to give you the following information:
1. The Executive Council met on 28 January 1993.
2. Pursuant to your request, which I had conveyed to the Chief Minister, the Chief Minister raised the matter at the meeting.
3. I was informed that the matter had been discussed by Ministers on earlier occasions and that the view expressed then and expressed now was that after consideration on the merits the request that you be granted silk be refused and I was so advised.
4. I was also informed that this decision did not relate to the policy decision later made that no further applications for silk would be received.
5. As Acting Administrator I am bound to accept and did accept the advice of the Executive Council.
Yours sincerely,
(Signed) Austin Asche
The Hon Justice K.J.A. Asche
Chief Justice and
Acting Administrator
At no time since writing to the Chief Justice on 12 July 1991 has the applicant been advised of any objection to this appointment as Queen's Counsel. Nor is there any record of a response being made to the request for particulars contained in the Chief Justice's letter to the Attorney-General of 12 February 1992.
THE APPLICANT'S CASE
37. The applicant's application for appointment as Queen's Counsel is said, in effect, to have been to fill a vacancy in the office created upon the elevation of Mildren J. The applicant was the only such applicant and had the support of the Chief Justice as well as the two professional bodies, the NT Law Society and the NT Bar Association. Some emphasis is placed upon the paragraphs numbered 3 and 4 of the letter from the Acting Administrator dated 29 January 1993 in which it is said that His Honour had been informed that the advice to refuse the application was given "after consideration on the merits". (Paragraphs 3 and 4 of the Chief Justice's letter, when taken in their context do not reflect upon the personal merit of the applicant but rather indicate that the application was considered and was not rejected on the basis of an arbitrary decision that no further Queen's Counsel be appointed).
There is indirect evidence of some persons having lobbied Cabinet members against the application but no specific grounds for its refusal have been disclosed nor is there anything on record throwing any light on the reasons which motivated Cabinet's decision. The applicant says that the overwhelming inference from the materials before the Court is that Cabinet acted on some information, adverse to the applicant, going to the merits of his application, which Cabinet is not prepared to disclose to the applicant, thus denying him the opportunity to deal with the matters raised against him. The point is also made that in these proceedings no evidence has been forthcoming from any member of Cabinet seeking to explain the decision. The Court is invited to draw an inference that any response by a member of Cabinet to the matters raised would demonstrate that Cabinet's decision had been influenced by information adverse to the applicant which has not been disclosed to him and which he has been denied the opportunity to answer.
Counsel for the applicant submits that the applicant had a legitimate expectation of being appointed as Queen's Counsel. It is said that there was a vacancy, that he had the requisite seniority, that he was the only applicant, that his application had the unqualified support of the Chief Justice and that there were no disqualifying features concerning the merits of the application. In those circumstances it is said that he had a right to expect that he would be appointed or at least that his appointment would not be declined on the basis of merit. His expectation is said to arise from the practice which had been adhered to ever since the power to make such appointments had been vested in the Administrator.
It is central to the applicant's case that the failure to appoint him as Queen's Counsel has significant implications for him in the conduct of his practice (a fact which can hardly be gainsaid) and that accordingly, he was entitled at the very least to expect that if Cabinet was going to act on information adverse to him, he would be accorded procedural fairness before the matter was finally determined. The applicant's case, put shortly, is that an exercise of power under s 20 of the Legal Practitioners Act has no vestige of the royal prerogative but rather is a statutory power the exercise (or non-exercise) of which is susceptible to judicial review.
THE RESPONDENTS' CASE
41. The respondents say that there are three features of decisions under s20 of the Legal Practitioners Act which place them apart from normal administrative decisions of government, namely, they are derived from the prerogative, they are made by the Administrator on the advice of the Executive Council and they are not circumscribed by the requirement to have regard to particular considerations. The overall effect of the foregoing is said to render the decision under consideration non-justiciable and in particular not amenable to considerations of procedural fairness or natural justice.
Further, the respondents reject several of the premises upon which the applicant's case relies. First, it is disputed that it can properly be said that the elevation of Mildren J caused a "vacancy". Second, it is disputed that there is any natural progression through the legal profession which gives rise to an expectation of an appointment as silk upon achieving any particular degree of seniority. Third, the respondents dispute that there was no rational explanation for Cabinet's decision other than the explanation that undisclosed adverse information supplied by third parties was taken into account.
Fourth, the confidentiality of Cabinet deliberations (and those of Executive Council) prevent the respondents revealing the basis of the decision making process. In particular reference is made to s 38 of the Self Government Act which requires members of Executive Council (and Ministers) before entering on the duties of their office to make and subscribe on oath or affirmation to not, except as may be required by law, divulge any information (including the contents of any document) of which they may become aware by reason of their membership of Executive Council or their holding ministerial office. It is said that it would be contrary to the oath of office and the doctrine of Cabinet solidarity for any Minister to disclose particulars of any debate in Cabinet or Executive Council. And last, it is said that there is nothing improper about the lobbying of Ministers, which is is said, is a normal and regular part of the Westminster system of government.
The parties for the most part rely upon the same authorities to support their respective cases and reference will be made to some of those authorities below. It is the case however that the authorities relied upon do not directly impact upon the ultimate issues peculiar to the facts of the matter under consideration.
QC - AN OFFICE OR AN HONOUR
In Attorney-General for Canada v Attorney-General for Ontario (1898) AC 247 Lord Watson said (at 252)-
The position occupied by Queen's Counsel is in the nature of an office under the Crown, although any duties which it entails are almost as unsubstantial as its emoluments; and it is also of the nature of an honour or dignity to this extent that it is a mark and recognition by the Sovereign of the professional eminence of the Counsel.
In Halsbury's Laws of England (4th Ed) vol 3(1) para 433, it is said of the various offices which may be held only by barristers:
that of greatest significance within the practising Bar is the Office of Queen's Counsel.
In the NT where the relevant statute makes provision for the appointment of Queen's Counsel by commission granted by the Administrator, there is every reason to regard the appointment as an appointment to an office.
Further, there are some practical consequences that flow from holding that office. First, under the scale of fees which applies in the NT, the fees which may be charged by senior counsel (i.e. Queen's Counsel) are considerably higher than those chargeable by junior barristers and second, the costs allowable upon taxation in Supreme Court proceedings may in an appropriate case be affected by the fact that senior counsel has been involved.
It has not always been the case that all appointments of Queen's Counsel have been based solely on the professional standing of the counsel concerned. In Halsbury (4th Ed) Vol 3(1) para 359, after referring briefly to the history of the office, the author says:
As the number of King's Counsel increased, they ceased in any real sense to be counsel to the Crown and became simply a class of counsel who, by eminence or favour (emphasis added) had been given a rank superior to that of ordinary barristers.
The statement to the Legislative Assembly made by the Attorney-General on 22 April 1980 tacitly conceded that the power to make appointments pursuant to s 20 of the Legal Practitioners Act was capable of being used otherwise than to acknowledge the eminence of counsel, and a major purpose of the understanding reached with the Chief Justice was to ensure that appointments should not be made by way of the dispensation of favours but rather only as recognition of eminence in the legal profession.
It would be wrong to treat an appointment as Queen's Counsel in the NT as merely the conferring of an honour. In strict sense, it is probably correct to regard such an appointment as an appointment to an office although it is a very special type of office which imposes no obligations on either the appointing authority or the appointee. Nor does the appointment confer any benefit on the appointing authority although to the appointee, the potential for benefit as the result of the appointment is substantial.
To the extent that there is judicial authority to suggest that a decision of the executive government to confer an honour is not justiciable, such authority has no application in the present context.
THE NATURE OF THE POWER CONFERRED BY S 20
52. Traditionally the appointment of a barrister as Queen's (or King's) Counsel has been effected by the granting of letters patent in the name of the Sovereign. This is clearly an exercise of Crown prerogative and has been the practice adopted in all Australian States. In an article entitled "Political Influence in the Appointment of Queen's Counsel" (W.B. Fisse and D. St L. Kelly) 44 ALJ 318 (31 July 1970) the authors say of the methods adopted in Australia for the appointment of Queen's Counsel:
Of course, the methods of appointment of silks are by no means uniform throughout Australia, particularly in relation to initiation of the process leading to the appointment of Queen's Counsel. This ranges from direct application by prospective silks on the one hand, to recommendation by the Chief Justice alone on the other. But common to all systems in Australia is in the fact that the ultimate power of appointment lies in the hands of each jurisdiction's government.
The Self Government Act, in establishing the NT as a body politic under the Crown, created a unique constitutional basis for the government of the NT. As to whether the Administrator is the representative of the Crown in the NT, differing views have been expressed. In The Queen v Toohey, ex parte Northern Land Council (Toohey) 151 CLR 170, Wilson J (at 278) rejected a submission that the Administrator remained a servant of the Crown in the right of the Commonwealth, as had been the case under the former Northern Territory (Administration) Act 1910. His Honour then said:
... In my opinion, this submission fails to have regard to the true significance of the Self Government Act. It effected an important change in the political character of the Northern Territory with a corresponding change in the status of the office of Administrator. The preamble to the Act declares its purpose to be to confer self-government on the Territory, and for that purpose to provide, inter alia, for the establishment of separate political, representative and administrative institutions in the Territory. Section 5 declares that -
"The Northern Territory of Australia is hereby established as a body politic under the Crown by the name of the Northern Territory of Australia."
This section is of fundamental and far-reaching importance. It brings into being a new self-governing polity under the Crown. Of necessity, it required the appointment of a representative of the Crown in right of that polity, to administer the government thereof and perform the traditional vice-regal functions. Section 6 invests the Legislative Assembly with power to make laws for the peace, order and good government of the Territory, a power which in my opinion, subject to the limits provided by the Act, is a plenary power of the same quality as, for example, that enjoyed by the legislatures of the States. The constitution of the Territory as a self-governing community is no less efficacious because it emanates from a statute of the Parliament of the Commonwealth than was the constitution of the Australian colonies as self governing communities in the nineteenth century by virtue of an Imperial statute. ... In my opinion, the Self-Government Act is a valid exercise of the power conferred on the Parliament by s 122 of the Constitution. The fact that the Administrator is appointed by the Governor-General and holds office at his pleasure does not deny his character as representative of the Crown in right of the Territory. ... Furthermore, while there are provisions which emphasize a continuing role for the Governor-General in relation to the assent to bills, and to their disallowance (ss. 8 and 9), and which maintain a special relationship between the Territory and certain specified laws of the Commonwealth (see, for example, ss. 53 and 54), and while it remains true that the Parliament retains the power to repeal or amend the enactment, none of these things destroy the analogy in the present situation with the relationship that existed between the United Kingdom Government and Parliament and the Australian colonies in the nineteenth century. The creation of a new polity under the Crown, with its own Crown representative, remains a fact. (pp 278-280)
In the same case Aickin J was of the view that it was strictly unnecessary to consider the status of the Administrator but as it seemed desirable to do so, expressed agreement (at pp 265-6) with the observations of Wilson J on that point and with his conclusion that the Administrator is the representative of the Crown in the NT. Stephen J's reasons proceeded on the unstated assumption that the Administrator is the representative of the Crown in the NT. Mason J (at 217) agreed with Stephen J's reasons and stated his own reasons why the particular regulation then under consideration was open to challenge which he did on the express assumption that "the Administrator in Council is the Crown". Murphy J (at 231) considered it to be immaterial in the instant case whether the Administrator is "the Crown" but Gibbs CJ whilst being of the view that it was not essential to the prosecutor's argument to establish that the Administrator could not be regarded as the representative of the Crown nevertheless considered it convenient to consider that question and at 183-6 set out his reasons for concluding that the Administrator does not represent the Crown within the NT.
The debate as to whether or not the Administrator has the status of the representative of the Crown in the NT appears to have been resolved in favour of him having that status, but that conclusion leaves unresolved the further question as to whether the Administrator by reason of that status, has the authority, similar to that enjoyed by State Governors, to grant in the Sovereign's name, letters patent for the appointment of Her Majesty's Counsel. In his statement to the Legislative Assembly on 22 April 1980, the then Attorney-General appeared to accept that by reason of the "unique constitutional situation" in the NT, legislative authority was necessary to facilitate the appointment of Queen's Counsel. However, that statement was made before the decision of the High Court in Toohey. But even if it be the case that the Administrator as the representative of the Crown in the NT enjoys the same authority to grant letters patent as do the State Governors, that authority would only be exercisable in accordance with the established practice under a system of responsible government, namely, upon the advice of the Executive Council.
Section 20 of the Legal Practitioners Act has the effect of eliminating any doubt as to the Administrator's authority to make appointments to the office of Queen's Counsel, but otherwise preserves the traditional method of making such appointments. And the traditional status of Queen's Counsel so appointed is, by the statute, preserved insofar as it is provided in s 20(2) that a person appointed pursuant to s 20(1) has in relation to the NT, "the same status, rights, privileges and responsibilities as he would have had if he had been appointed by Her Majesty as one of Her Majesty's Counsel for the Territory".
In Macrae v Attorney-General for NSW (Macrae) (1987) 9 NSWLR 268 Kirby P expressed the view (at 281) that the fact that the power to make judicial appointments, which was undoubtedly a prerogative of the Crown, was reposed in the State Governor by virtue of a statute, did not take it out of the category of prerogative powers. This is no doubt correct, but the distinction between the exercise of the prerogative power on the one hand and statutory power on the other is probably only significant to the extent that the source of the power may affect the nature of the discretion residing in the decision-maker. Contemporary authority, to which reference is made below, tends to regard the subject matter of the decision, rather than the source of the power, as the factor most relevant in determining justiciability.
IS THE DECISION JUSTICIABLE?
58. Even if it is correct, as the respondents assert, that the power conferred by s 20 of the Legal Practitioners Act is derived from the prerogative, that fact is irrelevant to the question of the justiciability of the decision. The proposition that the exercise of executive power is not immune from judicial review merely because it emanates from the prerogative rather than from a statutory source was adopted by all five members of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the CCSU Case)(1985) 1 AC 374. In that case their Lordships were of opinion that the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter. The same opinion was expressed by the Full Court of the Federal Court of Australia in Minister for Arts, Heritage and the Environment v Peko-Wallsend Limited 15 FCR 274.
The CCSU case was referred to with approval by Mason J in Kioa v West 159 CLR 550 at pp 582-3 where His Honour said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: ... The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi (No. 2) (1977) 137 CLR, at p 404 Barwick CJ expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: ... The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi (No. 2) the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI(1982) 151 CLR 342 or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374, at p 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.
The same theme was touched on by Kirby P in Macrae.
Macrae, had to do with the appointment to judicial office of Magistrates who had been appointed to a court which had been abolished and replaced by a new court. In dealing with the question of legitimate expectation, Kirby P said (at p 282):
In the FAI case, the High Court of Australia made it plain that there is no rule of law in Australia which denies the application of the rules of natural justice to cases of an initial grant of a license provided for by legislation. True it is, there will be a greater reluctance to intervene in such cases because the establishment of a legitimate expectation will be harder to prove. True also, regard will be had to the likely effect of the exercise of the power upon a person claiming a legitimate expectation to receive its benefit. The impact may be economic. But it may also be less tangible, as upon the reputation of the claimant. It would, for example, be difficult, if not impossible, to succeed in a case in which a senior barrister, however accomplished and well qualified, complained thathe had been continuously passed over and others preferred for judicial appointment or appointment as one of Her Majesty's counsel. What the Crown may give, it may also deny. The multitude of reasons which influence such decisions, their imprecision and insusceptibility to judicial review generally, render such issues non-justiciable in the courts.
Kirby P expressly distinguished the position of the appellants (who sought the opportunity to answer adverse information that had been used as the basis for not re-appointing them to the office of Magistrate) from that of a normal first appointee to a court (p 282) and at p 285-6 Mahoney JA said:
In the present context, the legitimate expectations of an applicant would involve, inter alia, two things: that he would have the right to put "his case" in respect of matters of the present kind; and that he would have the right to know of such particular matters of the present kind as were to be relied on against him. I do not mean by this that, in every case of appointment as a magistrate, such matters could be expected: the argument in the present case was expressly confined by Mr Handley QC to the context of the appointment of a magistrate who had served under previous legislation and was to be considered for appointment under legislation to be substituted for it. In addition, the context in the present case includes the circumstance that the plaintiffs had been informed, as they were informed, that existing magistrates were to accede to the office of magistrate under the new Act. They were subsequently informed of the change of attitude embodied in what was done by the Law Reform Commission and the Appointments Committee. But what took place took place in the context of applications having been invited from them for appointment in the circumstances detailed in the Law Reform Commission's Report.
It was not suggested for the plaintiffs that, in the case of a person applying for appointment under the 1982 Act, it would be necessary for the Minister, in considering what recommendation he should make, to inform the applicant of all of the circumstances to be taken into account or, indeed, of the fact that the Minister had been appropriately informed of matters such as those appearing in Mr Briese's report. It was, I think, conceded that, in the context of an appointment to the office of magistrate, the expectations of an applicant would not legitimately extend to disclosure of such matters and the granting of an opportunity to deal with them. It is therefore not necessary for me to consider such a case.
In Attorney-General (NSW) v Quin (Quin) 170 CLR 1 the High Court had occasion to deal with another aspect of the matter dealt with in Macrae. In Quin (at 16) Mason CJ said:
Section 12 of the Act is expressed in very general terms. Sub-section (1) provides:
"The Governor may, by commission under the public seal of the State, appoint any qualified person to be a Magistrate". Sub-section (2) prescribes the qualifications for eligibility for appointment. The section makes no attempt to prescribe the procedures to be followed or the criteria to be applied in making such an appointment, except in so far as s. 12(1) requires appointment by commission under the public seal of the State. In all other respects the section leaves it to the Governor and to those responsible for advising him to adopt such procedures and apply such criteria as may be considered appropriate. In view of the practice followed in New South Wales in relation to the appointment of judicial officers, 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. After all, the Attorney-General may, without adopting any procedure or applying any set criteria, decide to recommend a particular person for appointment and that recommendation may be accepted by Cabinet, resulting in appointment by the Governor.
And later (at 18):
Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers. Apart from s. 12, 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.
In the same case Brennan J expressed a similar opinion (at 33):
Except where the power of appointment to a public office is governed by statute, the power must be at large if its exercise is to answer the purpose for which it is conferred, namely, to advance the interests of the public. If the power is conferred by statute but the statute prescribes no procedure for the making of appointments nor any criteria governing the exercise of the power, the power must be at large for the same reason. The Executive Government or other repository of the power is entrusted with authority to decide who is best fitted to fulfil the duties of the office. It is inconsistent with the public interest to postulate any preferential right to appointment in an individual. ... If it be said that unfettered executive discretion lays the way open to patronage or worse, the remedy must lie in the hands of the legislature which created, or which may prescribe the manner of exercise of, a power of appointment or which may call to account the Minister who advises on the exercise of the power. The remedy does not lie in an examination by the courts of appointments made by the Executive Government or an insistence on judicially-declared criteria affecting the exercise of the power. A fortiori, when the power is to appoint to a judicial office.
There is a close similarity between the decision-making process adopted under NT legislation for the appointment of both Supreme Court judges (Supreme Court Act (NT) s 32) and Queen's Counsel. In each case the appointment is by commission granted by the Administrator. There are compelling reasons to equate an appointment as Queen's Counsel with a judicial appointment. Both have their origins in the Crown prerogative and both involve an assessment not only of the professional eminence of the appointee but of his or her personal character and suitability to occupy the office and in both cases policy decisions unconnected with the personal merit and standing of an individual are apt to be influencial. It has not been the practice in Australia to subject judicial appointments to the scrutiny of judicial review nor has it been so in respect of the appointment of Queen's Counsel. There are no factors, either constitutional or legislative, which distinguish the situation in the NT from that which prevails elsewhere in Australia. The weight of persuasive authority is against the proposition that the decision not to appoint the applicant is justiciable.
THE APPLICANT'S LEGITIMATE EXPECTATIONS
66. If the decision in question in these proceedings is not justiciable, there is no occasion to consider whether there existed a legitimate expectation which would entitle the applicant to a review of the decision. However, as various matters have been raised and argued touching upon the question of legitimate expectations, it is appropriate to make some response to them.
In Quin Mason CJ addressed the question of legitimate expectation as follows (at 20):
It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, as legitimate expectation may be created by the giving of assurances (Salemi; Kioa; CCSU), the consequences of denial to the benefit to which the expectation relates (FAI v. Winneke; Kioa) or the satisfaction of statutory conditions (In re H.K. (An Infant)). The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate. The duty to accord procedural fairness in connexion with a claimant's legitimate expectation is sometimes said to be referable to a general duty of good administration: (Ng Yuen Shiu; CCSU; In re H.K.). But the content of that broader duty is still defined by reference to the claimant's legitimate expectation. In the absence of such an expectation, there is no corresponding duty to accord fairness. For that reason, although in one sense it means nothing to say that a person entitled to fair procedures or good administration has a legitimate expectation of being accorded such treatment, it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity: (Kioa; CCSU).
With these comments in mind, it is convenient to briefly deal with the various grounds relied upon by the applicant as giving rise to a relevant legitimate expectation.
Neither the traditions inherited from the English common law nor the well established practice adopted in Australia dictate that any particular number of Queen's Counsel are required to be in practise at any particular time. Whilst it may be that in the NT the Chief Justice has a view as to the desirability of maintaining the numerical strength of locally resident Queen's Counsel at a particular level the executive government of the day is under no obligation to accept the advice of the Chief Justice on that, or any other, question. There could be no legitimate expectation that upon the elevation of Mildren J a new appointment would be made.
The scheme instituted in 1980 following the transfer of executive power in relation to the legal profession involved the executive accepting the proposition that it was desirable that appointments only be made on the recommendation of the Chief Justice. There is nothing in the Attorney-General's statement to the Legislative Assembly to suggest other than that the executive would continue to exercise the discretion to make or refuse appointments. The favourable recommendation of the Chief Justice did not create a legitimate expectation that Cabinet would necessarily, and without becoming involved in the decision-making process, automatically advise the Administrator that every person recommended by the Chief Justice would be appointed. If this were the case, it would mean that by agreement between the Chief Justice and the Attorney-General, a proper and usual executive function, which by statute is vested in the Administrator acting on the advice of the Executive Council, would be arrogated in favour of the Chief Justice. Relevant to this point is a short passage from Mason CJ's reasons in Quin where he said (at 17):
The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power.
Nor is the fact that the Attorney-General, the Minister responsible for the administration of the Legal Practitioners Act, supported the appointment of the applicant sufficient to raise a legitimate expectation that Cabinet would accept his recommendation. If that were the case, the effective decision-making power would be transferred from Cabinet to the Attorney-General.
The lobbying of members of Cabinet by persons interested in influencing government decisions is a necessary and indeed appropriate feature of a system of democratic responsible government. It is a very common occurrence. Sometimes it is done in the most public manner, and sometimes it is done privately. It would bring the whole process of government to a halt if on every occasion that a Minister is lobbied by a person or group having a particular interest, it was necessary for the Minister to invite a response from persons or groups advocating a different point of view. The applicant could not legitimately expect to be given the opportunity to respond to representations made to Ministers.
An appointment as Queen's Counsel has the potential to enable the appointee to enhance his earning capacity. But there is nothing in the traditions and practise of the legal profession to give rise to an expectation that by either eminence or seniority in the profession a practitioner will necessarily progress to a stage where he or she becomes entitled to expect those benefits. The appointment of Queen's Counsel has by tradition been within the province of the executive government. Examples abound of barristers who, for one reason or another, have been overlooked for appointment or whose appointments have been delayed.
CONCLUSION
74. The various statutes and authorities to which reference has been made above lead to the following conclusions:
1. There has been established in the NT by valid Commonwealth legislation a system of responsible government broadly similar to the version of the Westminster system prevailing elsewhere in Australia.
2. Both by convention and by statute the Administrator as the representative of the Crown in the NT is obliged to exercise his powers and functions on the advice of the Executive Council.
3. The authority conferred upon the Administrator to make appointments pursuant to s 20 of the Legal Practitioners Act is in all essential respects equivalent to the Crown prerogative enjoyed by other representatives of the Crown in Australia to make similar appointments by letters patent.
4. An appointment as one of Her Majesty's Counsel for the NT is an appointment to an office and is not merely an honour.
5. The nature of the office to which the applicant sought appointment is such that the decision-making process may be influenced by a multitude of reasons which are not necessarily precise and which may not necessarily have any relevance to the personal merits of the applicant.
6. The decision-making process required to be undertaken in respect of an appointment pursuant to s 20 of the Legal Practitioners Act is similar in all relevant respects to the process of appointment to judicial office and is not susceptible to judicial review.
7. The decision of the Administrator to refuse to appoint the applicant as one of Her Majesty's Counsel for the NT is not justiciable.
8. The application should be dismissed.
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