Justice For All Australians

http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_StephenDonaghue.pdf

GILBERT & TOBIN PAPER

In his dissenting judgment in Baker v The Queen, Justice Kirby said that the decisions of the majority in Baker and Fardon demonstrated that the implication identified by the High Court in Kable’s case was now a ‘dead letter’.1

His Honour may well be correct in so far as the Kable implication limits the power of States to involve their Supreme Courts in the preventive detention of people considered to be a danger to the community – the factual context in which Kable was decided. In light of the decision in Fardon, if a State or Territory wishes to introduce preventive detention it need only adopt a model based on the Queensland legislation upheld in that case in order to avoid constitutional difficulties.

Nevertheless, in this paper I will argue that it is premature to write the Kable principle off entirely. Instead, it may well assume increasing importance in areas unrelated to preventive detention. Justice McHugh provided an indication of those areas in Fardon, when he stated:

This paper takes two parts. The second part takes up Justice McHugh’s invitation and explores the implications that the Kable principle might have for the appointment of acting judges in the States and Territories.

2 Fardon v Attorney-General (Qld) (2004) 210 ALR 50 at [43] (emphasis added). 2

In order to set the scene for that topic, however, I will first provide an overview of decisions in Bradley and Fardon. Constraints of time mean that I will not summarise Baker, which is of less relevance to the discussion that follows.

The first case, Bradley, involved a challenge to the validity of the appointment of the Chief Magistrate of the Northern Territory. The Magistrates Act of the Territory provided that the Chief Magistrate ‘holds office until he attains the age of 65 years’. Mr Bradley was 54 when he assumed office, meaning he could have served for 11 years. At the time of his appointment, however, his remuneration was set for a period of just 2 years.

The Northern Australian Aboriginal Legal Aid Service sought a declaration that Mr Bradley had not been validly appointed, relying in part upon the Kable principle. The High Court unanimously upheld Mr Bradley’s appointment. In reasoning to that conclusion, however, the Court accepted two of the three steps in the argument advanced by Legal Aid Service.

The first step was that a court of the Territory may exercise the judicial power of the Commonwealth. No party disputed that step. It was, however, important to the argument because it provided the foundation for the application of the Kable principle within the Territories.

The second, and most important step, was that it is implicit in the terms of Chapter III of the Constitution that a court capable of exercising the judicial power of the Commonwealth must both be and appear to be an independent and impartial tribunal. In a joint judgment judgment of the six Justices other than Chief Justice Gleeson, their Honours approved a passage in Justice Gaudron’s judgment in Ebner v Official Trustee in Bankruptcy, where her Honour had observed as follows:

The endorsement of that passage in Bradley strongly suggests that there is now a constitutional requirement that all Australian courts, whether exercising federal or non-federal jurisdiction, must be constituted by persons who are both impartial in fact, and who appear to be impartial. In other words, Australian constitutional law now contains an implicit guarantee of judicial independence that appears equivalent to express guarantees found in foreign constitutions and human rights instruments.

It seems that the critical issue in future cases will not be the existence of this requirement, but its content. It was at this point, the third step, that the Legal Aid Service failed, because the Court held that the Territory legislation did not contravene the ‘the relevant minimum characteristic of an independent and impartial tribunal’ exercising jurisdiction of the relevant kind.4

The task of discerning the relevant minimum characteristic of an independent and impartial tribunal may be a complex one, as the Court has acknowledged that ‘No exhaustive statement of what constitutes that minimum in all cases is possible’.5 As Chief Justice Gleeson indicated in his separate judgment, however, international instruments and the constitutional jurisprudence in other countries may assist in identifying the minimum requirements.6

Ultimately, Bradley was decided upon a point of statutory interpretation rather than constitutional law. The Court held that the Magistrates Act imposed an enforceable duty on the Administrator to make determinations from time to time in relation to a judge’s remuneration that either continued or enhanced the judge’s remuneration.7 The existence of that duty meant that Mr Bradley was not ‘inappropriately dependent on the legislature or executive of the Territory in a way incompatible with requirements of independence and impartiality’.8 4

FARDON V ATTORNEY-GENERAL (QLD)

The second relevant case is Fardon,9 which concerned a challenge to the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

The majority of the High Court (Justice Kirby dissenting) held that the Queensland Act was valid. It rejected the argument that the function of making orders for preventative detention could never be given to State courts. It emphasised, instead, that the purpose of the Queensland Act was not to punish people for past conduct, but to use a past conviction as the criterion for the applicability of preventative detention orders.10 The majority distinguished Kable on two bases. They were:

18 Fardon v Attorney-General (Qld) (2004) 210 ALR 50 at [102]. See also Kirby J at [144](3). See also Silbert (2004) 78 ALJR 464 at 468-469 [26]; 205 ALR 43 at 49-50.

It appears that the fact that regular review of a serious kind was required of orders under the Act was vital to the validity of the Act,12 as was the fact that the Act operated upon someone who was already a ‘prisoner’ and who had therefore been subjected to the ordinary criminal process.13

Fardon plays down the significance of the strand of reasoning in Kable that was based upon the importance of maintaining public confidence in the judiciary.14 The Chief Justice, for example, said that it ‘cannot be a serious objection to the validity of the Act that the law which the Supreme Court … is required to administer relates to a subject that is, or may be, politically divisive or sensitive’.15 His Honour emphasised that the Court's opinion of its own standing is not a criterion of validity.16

Justice Gummow, with whom Justice Hayne relevantly agreed, explained that if the exercise of a power or function is likely to undermine public confidence in the courts then that is an important indicator that the law is incompatible with the institutional integrity of State courts.17 Justice Gummow specifically pointed out, however, that (quote):

Consequently, following Fardon the focus of the Kable principle is very much upon the protection of the institutional integrity of State and Territory courts.19 It is no doubt for that reason that Justice McHugh suggested that the future application of the doctrine most likely related to the terms and conditions of appointments to state courts. It is to that topic that I now turn.

Prior to the decisions in Bradley and Fardon, it would have seemed unlikely that the primary application of Kable would have been in relation to the composition of State courts. Indeed, it could have been predicted with some confidence that Kable would not have any operation in this area.

In Kable itself, Justice Gaudron reasoned that the fact that State courts are creatures of the States meant that:

Those comments may explain why, in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman, leading counsel on all sides apparently assumed that, unless s 72 of the Constitution applied to Territory courts, there was no constitutional basis upon which the validity of the appointment of the acting judge who presided over Mr Eastman’s murder trial could be impugned. ²²

In light of Bradley, that assumption requires re-examination, because it is now clear (although it was far from clear when Eastman was argued) that all courts – 7

One question that arises in working through the ramifications of that implication is whether acting judicial appointments conform to that minimum standard. Each State and Territory has legislation that permits such appointments, although in most jurisdictions these provisions have been little used in recent years other than to appoint retired judges as acting judges. That, of course, that has not always been the case. As recently as the late 1990s, the NSW government pursued a policy of making large numbers of acting appointments, particularly to its District Court.

This issue is once again topical, as there is now before the Victorian Parliament the Courts Legislation (Judicial Appointments and Other Amendments) Bill. If enacted, that Bill would insert new provisions into the Victorian Constitution, the most important of which would provide that:

It might be thought that Ex parte Eastman24 establishes that there is nothing inherently unconstitutional about an acting judicial appointment, given that in Eastman the High Court dismissed a challenge to a criminal conviction based upon the fact that the trial had been conducted by an acting judge. It is therefore perhaps not surprising that, in Bradley, the joint judgment treated Eastman as authority that established that, quote, ‘the absence of a full commission to the trial judge did not gainsay the appearance of impartiality’.25 8

27 The relevant legislation is set out in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at [46]. The relevant acting judge had been appointed for a period of less than 8 months, pursuant to legislation that on its face allowed the appointment of an unlimited number of acting judges, with the only qualification for appointment being that the person had been enrolled as a legal practitioner for not less than 5 years

With respect, Eastman should not be treated as authority for that proposition, because it seems clear from the judgments and report of that case that the only issue debated in Eastman was whether the earlier decisions of the Court that held that s 72 did not apply in the Territories should be overruled.26 The argument was that, if s 72 applied, then the acting appointment was plainly invalid. If s 72 did not apply, however, it was assumed that the acting appointment was valid.

Consequently, the Court in Eastman did not address whether the statutory provisions pursuant to which the acting judge was appointed satisfied the requirement that the judge be, and appear to be, independent and impartial. Had the Court considered that issue, it would have been taken into a whole new area of inquiry which may well have led to the conclusion that, while the acting judge in Eastman was no doubt ‘impartial’, he was not ‘independent’ because the legislation pursuant to which he was appointed did not contain any structural guarantees of independence.27

Before developing that argument, I should point out that, despite its endorsement of Eastman, the joint judgment in Bradley went out of its way to sound a note of caution in relation to the appointment of acting Judges. Six members of the Court stated, in what was plainly intended as a warning shot in relation to the appointment of acting judges, that (quote):

29 As ordinarily the validity of an Act can be assessed by reference to the character of the law: H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547, 561 [12]. See also Kartinyeri v The Commonwealth (1998) 195 CLR 337, 352-353, 371-372; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186 per Latham CJ; Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J. See also Kable (1996) 189 CLR 51 at 116 per McHugh J; Fardon v Attorney-General (Qld) (2004) 210 ALR 50 at [159] per Kirby J.

If, on the other hand, their Honours were suggesting that the Kable principle might operated to invalidate particular acting appointments, the Court would be drawn into a line drawing exercise that would be both arbitrary and uncertain (and therefore difficult for Governments who wish to make acting appointments to predict). Further, a focus upon the effect of individual appointments on the appearance of impartiality would deny the central role to legislative guarantees of independence that, I will shortly argue, lie at the heart of the international jurisprudence concerning independent and impartial tribunals.

The second curious feature of the passage quoted from Bradley is that it suggests that the point at which numerous acting appointments would lead to the invalidity depends upon the appearance of impartiality. If, as Fardon suggests, the emphasis is now upon ‘institutional integrity’ rather than public perception, then the suggestion that invalidity will arise only if there are a sufficiently large number of acting appointments to distort the character of the court and undermine public confidence in it, is difficult to understand. Of course, widespread acting appointments would be one way in which institutional integrity could be undermined, but it is by no means the only way that could occur. The existence of even a single Supreme Court judge who was reasonably thought to be beholden to the executive would have the potential to cause serious damage to the integrity of an entire court.

Consequently, I would argue that the test should not be whether acting appointments are so widespread as to distort the character of the Court. Instead, the test identified earlier in the judgment in Bradley should be employed, which is to ask whether the Tribunal satisfies the requisite minimum standards for independence and impartiality. 10

32 Çiraklar v Turkey, 28 October 1998, 1998-VII, at [39]; cf Campbell and Fell v United Kingdom (1984) 7 EHRR 165, where 3 years voluntary terms were upheld, as otherwise it may have been difficult to convince people to accept appointment.

The case law of the European Court of Human Rights and the Supreme Court of Canada may provide useful guidance in ascertaining the minimum requirements for an ‘independent and impartial tribunal’. Decisions of both courts suggests that the focus in deciding whether a particular tribunal is independent and impartial should be upon whether there are sufficient guarantees of independence in the relevant legislation, rather than whether the court is in fact impartial. As Chief Justice Lamer of the Supreme Court of Canada put it (quote):

In the Canadian jurisprudence, the perception of independence is important, but the relevant perception is the ‘perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees’.31 The objective guarantees are necessary to ensure an appearance of independence. That approach is not dissimilar to the role attributed to public perception in Fardon.

The European and Canadian authorities were applied in the specific context of acting judges by the Scottish High Court of Justiciary in Starrs v Ruxton.34 In that case, which led to changes to the recorder system in England,35 two trials conducted before temporary sheriffs were held to be invalid because the temporary sheriffs were not ‘an independent and impartial tribunal’. The features of the regime that led to invalidity included that the appointment of a temporary sheriff could be recalled by the Executive at any time;36 that the appointment was for a limited period of time;37 and that elements of the policy for the reappointment of temporary sheriffs tended ‘to encourage the perception that temporary sheriffs who were interested in their advancement might be influenced in their decision-making to avoid unpopularity with the Lord Advocate’.38

In conclusion, I return briefly to the Victorian Bill. That Bill is less susceptible to attack than was the Scottish temporary sheriff system, as it contains better guarantees in relation to independence. For example, under the Bill an acting judge holds office for a fixed period of 5 years (unless he or she first attains the age of 70). In that respect, the Victorian Bill contains a better guarantee than most of State and Territory legislation, which ordinarily contemplate 6-12 month appointments).39 Further, while the Attorney-General may require an acting Judge to undertake the duties of a Judge on a full-time or sessional basis,40 the Attorney does not have the power to revoke or amend such a notice once it has been given.41 Finally, an acting judge can be 12

removed from office only in the same way and on the same grounds a permanent judge.42

Secondly, acting judges can be re-appointed, but they are not entitled to reappointment.43 As a result, there are real incentives for acting judges to seek re-appointment or permanent appointment. The Judicial Conference of Australia has suggested that those incentives include superannuation benefits potentially valued at hundreds of thousands of dollars if a temporary appointee receives a permanent appointment before his or her temporary appointment expires.

Finally, the Bill provides that an acting judge must not engage in legal practice ‘while undertaking the duties of a Judge’ except with the approval of the Attorney-General.44 There exists a clear danger that acting Judges appointed on a sessional basis might be beholden to the Attorney-General to obtain permission to continue legal practice.

Particularly in those three respects, there is scope for debate as to whether acting judges appointed pursuant to the Bill would have sufficient guarantees of independence to satisfy the minimum criteria for an independent and impartial tribunal. Those questions, and related questions with respect to the shorter term acting appointments that are possible in other jurisdictions, may well provide the context in which any further elucidation of the Kable principle occurs.