The Australian Judiciary (incomplete)

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Preface Second Edition

My late colleague, Emeritus Professor Enid Campbell, and I were very delighted when Cambridge University Press gave us the green light to proceed with a second edition of The Australian Judiciary. We were much heartened by the warm reception to the first edition of the book. Unfortunately, Enid did not recover from an illness and unexpectedly passed away before work on the second edition could commence. In this edition I have taken into account a number of interesting and controversial developments pertaining to individual members of the judiciary and to the institution as a whole. This new edition follows the scheme of the first edition of the book. As was stated in the first edition, the principal aim of this book is to contribute to a better understanding of the Australian judiciary. Australians are entitled to engage in critical discussions about the judicial branch of government, as is befitting a healthy democracy; however, when they do so, it should be from an informed standpoint. Sir Gerard Brennan, Chief Justice of the High Court of Australia 1995–8, said: The judiciary, the least dangerous branch of government, has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people . . . have confidence in the exercise of the power of judgment.1

In a society regulated by the rule of law, disputants place their faith in the judicial institutions to resolve their conflicts. In other words, the judiciary provides a forum in which laws are interpreted and applied to resolve conflicting claims between citizens and citizens, or between citizens and governments. As stated earlier, in the Australian federal system the judicial role extends even to the determination of the validity of laws made by

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the various legislatures in the Australian federation. Hence, the judiciary occupies a very important place in the framework of government. Most Australians are conscious of the existence of a system of courts and tribunals. In general they accord deference to persons who carry the title of ‘judge’ or ‘justice’. They also harbour the impression that answers to disputes are to be found in ‘the law’, and that these judges or justices are people who are steeped in the learning of the law and who have the ability and the backing of the state to elucidate the law and apply it. This impression is maintained by the constant reporting in the media of cases that capture the interest of the public, or cases that have a profound impact on the development of the law. Chapter 2 seeks to explain the Australian court system and the use of the title of ‘judge’. It also provides some observations on the people who constitute the body of judges in Australia. The judiciary exists as a branch of government. The strength of the institution lies in the perception of the public that it is not subservient to the legislative and executive arms of government. As a whole, the judiciary in Australia continues to command the confidence of the public. Chapter 3 explains how the maintenance of public confidence in the judiciary is underpinned by the principle of judicial independence. The chapter seeks to elucidate the doctrine of separation of judicial powers that has developed in Australia. The enhanced awareness that judges do contribute to the development of the law and that they are not mere automatons engaged in a mechanical exercise of applying the law has generated increasing interest in the types of persons who are appointed to the Bench. This is particularly true of the higher levels of judicial appointment, such as the Federal Court and the High Court of Australia. The selection and appointment of judges and the terms and conditions of their appointment are covered in chapter 4. Chapter 5 explores the mechanisms for the removal, suspension and disciplining of judges. Once a person is appointed a judge there are certain unstated assumptions about how that person shall conduct himself or herself in his or her private and public life. The conduct of judges is controlled by a combination of law, ethics and conventions. These matters are discussed in chapter 6. Judges make a significant contribution to other spheres of public life. They are often the source from which a government will appoint persons to chair various public inquiries. Judges have been appointed and continue to be appointed to various ‘non-judicial posts’ such as chancellors of universities or patrons of various organisations. Questions relating to the propriety of judges engaging in extra-curial or ‘non-judicial’ work are considered in chapter 7.

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Chapter 8 examines the panoply of laws that provide protection to the judicial institutions. It looks at the key weapon available to judges to protect the dignity of the courts, namely the law relating to contempt of court. The various criminal offences pertaining to the administration of justice, the law and conventions regarding parliamentary debate on matters before the courts and legislative intrusion into the discharge of judicial functions are canvassed. Reference is also made to the judicial immunities from suit and prosecution. From time to time attacks have been levelled at judges, and a familiar refrain is that judges lack accountability. The concept of accountability is discussed in chapter 9. The focus of the chapter is to highlight the different ways in which judges are rendered accountable for their performance of judicial duties. The book is not intended to comprehensively cover all matters relating to the judiciary. Hence, matters such as court administration and case management, court procedures, the pros and cons of the adversary system, alternative methods of dispute resolution, the costs of litigation and the operation of the jury system are not considered in this book. Today there is significant interest in the varying approaches to the interpretation of constitutions and statutes. This interest is heightened in the case of constitutional interpretation by the High Court. This book does not seek to consider whether the judiciary should engage in ‘judicial activism’ or whether judges should deflect criticism of judicial usurpation of parliamentary functions by adopting a policy of judicial self-restraint. For the reader who is interested in this particular matter there is a growing body of literature in Australia and an overwhelming abundance of books and articles in other jurisdictions, particularly the USA. Notes 1 G Brennan, ‘Justice Resides in the Courts’, The Australian (Sydney), 8 November 1996, 15.

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CHAPTER 1

Introduction

[T]he judiciary is the one branch of government which is an unlikely candidate as despot; despite the great powers which it is capable of exercising, especially in the area of judicial review, it remains very much at the mercy of the other arms of government. The Rt Hon Sir Ninian Stephen1

The importance of the judiciary In a democracy, constitutional government is ensured by a system of checks and balances. In his 1908 analysis of the notion of constitutional government, Dr Woodrow Wilson identified among the essential elements and institutions of a constitutional system, ‘[a] judiciary with substantial and independent powers, secure against all corrupting or perverting influences; secure, also, against the arbitrary authority of the government itself’.2 Dr Wilson went on to describe the courts as the ‘balance-wheel’ of a constitutional system. He described the importance of a judicial forum in the preservation of the liberty of the individual and the integrity of the government in the following terms: There the individual may assert his rights; there the government must accept definition of its authority. There the individual may challenge the legality of governmental action and have it judged by the test of fundamental principles, and that test the government must abide; there the government can check the too aggressive self-assertion of the individual and establish its power upon lines which all can comprehend and heed. The constitutional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balancewheel of our entire system; it is meant to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty.3

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This description by Dr Wilson is apt to the judicial forum in Australia. The judiciary in Australia, as in all vibrant democracies, stands as a bulwark protecting the citizens from the overweening executive powers. It plays an adjudicative role in disputes between citizens and citizens, and between citizens and state. Given the federal nature of the Australian Constitution, the function of the federal judicial branch, according to Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,4 is ‘the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters), or between the various polities in the federation’.5 The ‘core function’ undertaken by most judges on a day-to-day basis, according to French CJ of the High Court of Australia, is to hear and decide cases that come before them. He explains that such a decision-making process involves three basic steps. Firstly, the judge has to determine the legal rules or standards applicable to the case. Secondly, the judge has to consider the evidence and decide what the facts are. Thirdly, the judge has to apply the legal rule or standard to the facts ‘in order to determine the rights and liabilities of the parties and to award legal remedies or not as the case may be’.6 The High Court, as the apex court of Australia, has not only the power but also the duty to pronounce upon the validity of legislation, whether passed by the Commonwealth Parliament or the State legislatures. In a federal system, the judicature occupies a special position, unlike that in a unitary system or under a flexible constitution where the supremacy of Parliament is the governing principle. As a federal government is one whose powers have defined limits, it lacks the competency to exceed those limits. In R v Kirby; Ex parte Boilermakers’ Society of Australia7 the High Court said: The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the government were placed in the federal judicature.8

The Australian Constitution contains a sprinkling of express rights but does not have an equivalent of the US Bill of Rights.9 Because of the absence of an entrenched Bill of Rights or a statutory embodiment of rights,10 the Australian judiciary does not attract the degree of controversy that attends the US Supreme Court when the latter is called upon to interpret the scope of the express guarantees contained in the Bill of Rights. Criticisms of judicial ‘activism’ in relation to the Australian judiciary are infrequent; however, criticisms of judicial adventurism and activism are levelled at the High Court from time to time. Such an

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occasion arose in 1992 when the Court developed a doctrine of an implied right of political communication.11 The current prospects for a federal Bill of Rights are dim. If it should come to pass that such an instrument is adopted there will be greater public scrutiny of judicial decisions centred around this instrument. The judiciary, especially the High Court, would likely see itself as the ‘guardian’ of the guarantees embodied in the Bill of Rights, as can be seen from the experience in the United Kingdom. In the UK context, Lord Steyn, pointing to the Human Rights Act 1998 as the UK’s Bill of Rights, asserted that the guarantor of those rights ‘is and can only be an independent, neutral, and impartial judiciary’.12 With the assumption of such an enhanced role would come demands for greater judicial accountability and possibly for fundamental changes in the process of appointing judges. Another important function of the courts is the power of judicial review over the acts of the executive. In performing the role of judicial review of the validity of legislation and of the legality of executive action, there will arise occasions when there will be tensions between the judiciary and the executive. Hence, it is vital that the judiciary be fully independent in order for it to carry out its role with fidelity to the oath of judicial office. A sense of the important role played by an independent judiciary is best obtained by looking at the decision of the High Court in the Communist Party case.13 A Menzies-led government had enacted the Communist Party Dissolution Act 1950 (Cth), which was designed ‘to ban the Communist Party and affiliated bodies, and to restrict the civil liberties of persons declared by the government to be dangerous or potentially dangerous communists’.14 Despite the fact that this law was part of the Liberal– Country Party coalition’s election platform for the 1949 election (which the coalition won) and despite the ‘anti-communist hysteria fanned by the Korean War’,15 the High Court in a landmark decision invalidated the Act. Professor George Winterton observes: The Communist Party case demonstrated that our freedom depends on impartial enforcement of the rule of law, of which courts are the ultimate guardians. Although, of course, not infallible, impartial and fearless courts determined to exercise their proper powers are our final defence against tyranny.16

The case, Professor Winterton elaborates, was one of the High Court’s most important decisions because of ‘its symbolic importance as a reaffirmation of judicial independence’.17

The development of an independent judiciary The notion of an independent judiciary took a very long time to evolve. The roots of the development of an independent judiciary can be traced

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back to the English Act of Settlement 1701.18 Prior to this Act, particularly in the seventeenth century, the appeal by the Crown and Parliament to the law for support in their struggle for power enhanced the importance of the judiciary.19 Professor Shimon Shetreet observes that the judges thus became so important to the political struggle that ‘both Crown and Parliament began to exercise every available form of control over the judiciary’.20 The Crown sought to exercise control over the judiciary in various ways. As judges then held office at the Crown’s pleasure they could simply be removed from office without cause, or they could be suspended. There were other forms of control available to the Crown, also. Judges were dependent on the discretion of the Crown in relation to their salaries, pensions and promotion. To counter the Crown’s influence over the judges, the Parliament sought to exert its own control over the judiciary by resorting to claimed breaches of parliamentary privilege, impeaching judges or calling them before Parliament to defend their decisions or actions.21 Judicial independence was significantly advanced by the passage of the Act of Settlement 1701. The rule that judges served at the good pleasure (durante bene placito) of the Crown was transformed by this Act as it provided that: [t]he judges’ commission be made quamdiu se bene gesserint [during good behaviour] and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.22

However, judges could still be removed without cause upon the demise of the monarch. This was overcome in 1760 by an Act which provided that their commissions should continue notwithstanding the demise of the monarch.23 Judicial independence was further secured in England by various developments after the Act of Settlement 1701. Professor Shetreet explains these developments as follows: An Act of 1760 first established judicial salaries, and provided that they should be made a permanent charge upon the Civil List. In 1799 legislation established judicial pensions. Only in the last century did judges’ remuneration take the form of comprehensive salaries coupled with a prohibition against supplementing it. Until then judicial salaries were supplemented by additional sources of income such as judicial fees, presents, profits arising out of sale of offices, allowances for robes and loaves of sugar. The additional sources of income were eliminated in a very long, gradual evolution extending over three centuries.24

The rule of law The operation of the rule of law depends on a truly independent judiciary.25 One of Australia’s most highly regarded High Court Chief Justices, Sir Owen Dixon, described the Commonwealth Constitution as an instrument framed in accordance with many traditional conceptions, and added:

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‘Among these I think that it may fairly be said that the rule of law forms an assumption’.26 This was reinforced by Sir Anthony Mason, Chief Justice of the High Court (1987–95), when he pointed out that ‘the principal objects of the Constitution were to provide for a system of representative and responsible government and the maintenance of the rule of law by an independent judiciary’.27 The rule of law is a notion that is difficult to define as it has different meanings.28 One sense of the notion is as the antithesis of the exercise of arbitrary power. A more prevailing meaning is ‘the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’.29 If the governed and the governors are to stand equally before the law it is imperative that the judiciary should be impartial and have the appearance of impartiality;30 hence, the effective operation of the rule of law requires a truly independent judiciary.31 The importance of judicial independence is highlighted by the oath (or affirmation) which a judge has to take upon appointment to the Bench. For instance, the judges of the High Court of Australia must take an oath (or affirmation) upon assuming office to ‘do right to all manner of people according to law without fear or favour, affection or ill will’.32 In his swearing-in speech as Chief Justice of the High Court of Australia, Sir Gerard Brennan elucidated the meaning and significance of this oath:33 The . . . promise is to ‘do right to all manner of people according to law without fear or favour, affection or ill-will’. . . In substantially that form the oath or affirmation is taken by every judge. It is rich in meaning. It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be. It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scale of justice. When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with law. That is the way in which right is done without fear or favour, affection or ill-will. Judges sometimes appear to be remote, belonging to what have been described as ‘the chill and distant heights’. In the doing of justice that must be so. Justice is not done in public rallies. Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.

The words ‘without fear or favour, affection or ill-will’, commonly recited in judicial oaths in most liberal democratic countries, signify the values of independence and impartiality which constitute ‘the pillars on which justice according to the law stands’.34 Meaning of judicial independence Judicial independence, according to Sir Anthony Mason, is ‘a privilege of, and a protection for, the people’.35 It is necessary to consider what

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the principle of judicial independence means and why that principle is regarded as being of fundamental importance.36 In any society there will always be conflicts between the people and governmental authorities and between individual and individual. The essence of a civilised society is the supplanting of violent retaliation or retribution by a system of courts. Inevitably, when a court is called upon to adjudicate a dispute there will be a winner and a loser.37 Quite obviously, if the loser believes the judge to be acting according to the dictates of the government or to be partial towards the other party, they are unlikely to accept the verdict of the judge. The resentment generated can lead to ‘social discord, division, conflict and violence’.38 Hence it is important for the community to have absolute confidence in the impartiality of the judiciary. That confidence exists only if the judiciary is seen to be truly independent. Judicial independence has a number of aspects to it. Shimon Shetreet explains these aspects as follows: The independence of the individual judge refers to his personal independence (that is, his personal security of tenure and terms of service), as well as his substantive independence (that is, in the discharge of his official function). In addition to the independence of the individual judge there is also the collective independence of the judiciary as a whole. This aspect is sometimes referred to as the corporate or institutional independence of the judiciary.39

Shetreet also points to another aspect of judicial independence, namely the independence of the individual judge vis-à-vis the judge’s judicial superiors and colleagues. He labels this the ‘internal independence’ of the judge.40 The key essence of the substantive independence of the individual judge is that a judge must be ‘free from pressures which could tend to influence a judge to reach a decision in a case other than that which is indicated by intellect and conscience based on a genuine assessment of the evidence and an honest application of that law’.41 French CJ in South Australia v Totani42 said: At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process.43

Impartiality has been described as ‘the supreme judicial virtue’.44 There is some debate as to whether the principle of judicial independence connotes more than just the notion of impartiality. In the Canadian case of MacKeigan v Hickman45 McLachlin J said that impartiality relates to ‘the mental state possessed by a judge’ whereas judicial independence denotes

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‘the underlying relationship between the judiciary and other branches of government which serves to ensure that the court will function and be perceived to function impartially’.46 However, Justice R D Nicholson (Federal Court of Australia) found the distinction ‘between impartiality (as a state of mind) and independence (as a state of institutional independence)’ to be ‘too semantic’. In his view they reflected different aspects of the principle of judicial independence.47 The principle of judicial independence seeks to secure for the judiciary an environment in which the judges can perform their functions without being subject to any form of duress, pressure or influence.48 For a judiciary to be properly independent, it is also argued, it must be substantially in charge of its own administrative affairs.49 International standards and judicial independence The principle of judicial independence is accorded almost universal recognition.50 The requirement that judges should be independent in their decision-making is acknowledged by all liberal democratic legal systems.51 The importance of an ‘independent and impartial’ tribunal is accorded recognition in a number of international instruments.52 The Universal Declaration of Human Rights (Art 10) provides that ‘[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’. Similarly, the International Covenant on Civil and Political Rights (Art 14(1)) enshrines the right of everyone who is charged with a criminal offence to ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’.53 It is worthwhile to note the following provisions of the Basic Principles on the Independence of the Judiciary, which were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Milan, September 1985) and subsequently endorsed by the United Nations General Assembly (in December 1985): 1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the laws of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

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THE AUSTRALIAN JUDICIARY 4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with law. 5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

The Draft Universal Declaration on the Independence of Justice (1989) (Singhvi Declaration) also deals with the independence of the judiciary. Paragraphs 3 and 8 of the draft declaration provide: 3. In the decision-making process, judges shall be independent vis-à-vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of the judge to pronounce his judgment freely. Judges, on their part, individually and collectively, shall exercise their functions with full responsibility of the discipline of law in their legal system. ... 8. Judges shall always conduct themselves in such a manner as to preserve the dignity and responsibilities of their office and the impartiality and independence of the judiciary. Subject to this principle, judges shall be entitled to freedom of thought, belief, speech, expression, professional association, assembly and movement.

The universal status of the principle of judicial independence was reaffirmed by a resolution adopted on 19 August 1995 by the Chief Justices at the 6th Conference of Chief Justices of Asia and the Pacific.54 The resolution embodying the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region provides, in Art 3, the following: (3) Independence of the Judiciary requires that: (a) the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences direct or indirect, from any source; and (b) the Judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature.

Other instruments providing international standards pertaining to judicial independence include: The International Bar Association’s Minimum Standards of Judicial Independence (1982) (New Delhi Standards); the International Commission of Jurists’ Draft Principles on the Independence of the Judiciary (1981) (Siracusa Principles); and the

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Bangalore Principles of Judicial Conduct (2002). The importance accorded to the principle of judicial independence is underlined by a number of international conferences and meetings on the subject, including: the World Conference of Independence of Judiciary (Montreal, 1983); the Lusaka Seminar on the Independence of Judges and Lawyers (1986); and the Latimer House Conference which formulated the Latimer House Principles and Guidelines for the Commonwealth (1998). The most recent statement of international standards is the Mt Scopus Approved Revised International Standards of Judicial Independence (2008) which emanated from a number of conferences involving many legal academics and jurists.55

A declaration of judicial independence On 10 April 1997, the Chief Justices of the Supreme Courts of all six Australian States, the Australian Capital Territory and the Northern Territory issued a Declaration of Principles on Judicial Independence.56 The Declaration was timed to coincide with the holding of the South Pacific Judicial Conference. In a radio interview, Chief Justice John Doyle of the South Australian Supreme Court (1995–2012) explained that the Chief Justices concerned thought that it was a ‘good idea’ to record in writing principles pertaining to some aspects of judicial independence.57 At the outset the Declaration referred to various international instruments, in particular the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region. The following principles were enunciated in the Declaration, relating to the appointment of judges of the State and Territory Courts: (1) Persons appointed as Judges of those Courts should be duly appointed to judicial office with security of tenure until the statutory age of retirement. However, there is no objection in principle to: (a) the allocation of judicial duties to a retired judge if made by the judicial head of the relevant court in exercise of a statutory power; or (b) the appointment of an acting judge, whether a retired judge or not, provided that the appointment of an acting judge is made with the approval of the judicial head of the Court to which the judge is appointed and provided that the appointment is made only in special circumstances which render it necessary. (2) The appointment of an acting judge to avoid meeting a need for a permanent appointment is objectionable in principle. (3) The holder of a judicial office should not, during the term of that office, be dependent upon the Executive Government for the continuance of the right to exercise that judicial office or any particular jurisdiction or power associated with that office.

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THE AUSTRALIAN JUDICIARY (4) There is no objection in principle to the Executive Government appointing a judge, who holds a judicial office on terms consistent with principle (1), to exercise a particular jurisdiction associated with the judge’s office, to an additional judicial office, in either case for a limited term provided that: (a) the judge consents; (b) the appointment is made with the consent of the judicial head of the Court from which the judge is chosen; (c) the appointment is for a substantial term, and is not renewable; (d) the appointment is not terminable or revocable during its term by the Executive Government unless: (i) the judge is removed from the first mentioned judicial office; or (ii) the particular jurisdiction or additional judicial office is abolished. (5) It should not be within the power of Executive Government to appoint a holder of judicial office to any position of seniority or administrative responsibility or of increased status or emoluments within the judiciary for a limited renewable term or on the basis that the appointment is revocable by Executive Government, subject only to the need, if provided for by statute, to appoint acting judicial heads of Courts during the absence of a judicial head or during the inability of a judicial head for the time being to perform the duties of the office. (6) There is no objection in principle to the appointment of judges to positions of administrative responsibility within Courts for limited terms provided that such appointments are made by the Court concerned or by the judicial head of the Court concerned.

The Declaration was described by Sir Gerard Brennan as ‘timely’, and he explained that the High Court and federal courts were not signatories to the Declaration because their independence was protected by the Commonwealth Constitution.58 Sir Gerard added: Political issues must be debated, political fortunes must wax and wane, political figures must come and go according to the popular will. That is the nature of a democracy. But the apolitical organ of government, the courts, are there continually to extend the protection of the law equally to all who are subject to their jurisdiction: to the minority as well as the majority, the disadvantaged as well as the powerful, to the sinners as well as the saints, to the politically incorrect as well as those who embrace a contemporary orthodoxy.59

Guarantees of judicial independence Prior to federation, removal of Australian colonial judges could be effected under the Colonial Leave of Absence Act 1782, an Imperial Act commonly referred to as ‘Burke’s Act’.60 The power of removal was expressed in the following terms in s 2: If any person or persons holding such office shall be wilfully absent from the colony or plantation wherein the same is or ought to be exercised, without

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a reasonable cause to be allowed by the governor and council for the time being of such colony or plantation, or shall neglect the duty of such office, or otherwise misbehave therein, it shall and may be lawful to and for such governor and council to remove such person or persons from every or any such office . . .

After federation, for practical purposes this Act became a dead letter. In Australia, at the federal level, the concept of judicial independence is manifested in s 72 of the Commonwealth Constitution: The Justices of the High Court and of the other courts created by the Parliament – (i) Shall be appointed by the Governor-General in Council; (ii) Shall not be removed except by the Governor-General in Council on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The judiciary in Australia The judiciary in Australia is under constant scrutiny.61 Vigilance is required in order to counter attempts by the other organs of government to erode the standing and the independence of the judicial institutions. From time to time, warnings are uttered by those who are especially concerned that the failure to arrest the undermining of judicial independence will have serious ramifications for the rule of law in Australia. On his retirement from the Court of Appeal of New South Wales in February 1990, Justice R M Hope said that while judges and the judicial system must be sufficiently robust to be subjected to informed criticism, ‘the attrition of continual uninformed and unjustified criticism is not merely an irritant; it could, if not kept in check, cause great, even irreparable harm to the system itself’.62 Justice Michael Kirby (High Court of Australia 1996–2009), writing in 1994 on developments over the previous decade, said that these developments made it plain that judicial independence ‘cannot be taken for granted in Australia’.63 Controversies arise from time to time which cast the spotlight on the judiciary. The most controversial episode in the history of the Australian judiciary was the attempt to remove Justice Lionel Murphy from the High Court. This episode provoked a political storm.64 The Murphy saga began on 2 February 1984 and came to an end on 21 October 1986. That period saw two Senate committees65 grapple with the matter, protracted court proceedings against Murphy66 that ultimately led to his acquittal, and

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eventually the setting up of a Parliamentary Commission of Inquiry (comprising three retired State Supreme Court judges)67 which was terminated shortly before Justice Murphy died of cancer on 21 October 1986.68 In 1989, the judiciary in Queensland was thrust into the spotlight when, for the first time since federation, a judge of a State Supreme Court was removed from office. The removal of Justice Angelo Vasta was effected by the Queensland Parliament following a report of a special Commission of Inquiry chaired by Sir Harry Gibbs.69 In another episode, the reorganisation of the magistracy in New South Wales by the Local Courts Act 1982 (NSW), in which six serving magistrates were not appointed to the new Local Courts, was condemned by one judge as representing a ‘shocking erosion of the principle of independence of judicial and like decision-makers’.70 The importance of the need for vigilance was underlined by an unprincipled and shocking attack in 2002 on Justice Michael Kirby by Senator Bill Heffernan under parliamentary privilege, accusing the judge of using ‘Comcars (cars of the Commonwealth Car Drivers Fleet) to “trawl for rough trade” boys in Darlinghurst, Sydney’.71 The document upon which the allegation was founded turned out to be a forgery. From time to time questions arise as to whether some judges have reached a ‘use-by date’ when they start to express publicly comments which are regarded generally as being out of touch with mainstream society or when they are, as a result of physical and/or mental impairment, unable to perform their judicial functions in an efficient and competent manner. The ‘incapacity’ controversy that engulfed Justice Vince Bruce of the Supreme Court of New South Wales shows how public confidence in the judicial institution can be eroded when judges, due to serious ailment, fail to deliver their judgments or do so with unacceptable delays.72 The 2007 case of Cesan73 evoked much public indignation when two men sought to have their convictions on charges of conspiracy to import a commercial quantity of the drug known as ecstasy into Australia quashed. One of the grounds raised in their appeals to the New South Wales Court of Criminal Appeal was that a miscarriage of justice had been occasioned by the fact that the trial judge (Judge Ian Dodd) had fallen asleep during parts of the trial.74 The 2–1 decision of the Court of Criminal Appeal, which dismissed the appeals, was reversed by a unanimous decision of the High Court. In the course of his judgment, French CJ said: The somewhat elusive criterion of ‘public confidence’ is in some cases, such as the appearance of bias, subsumed in what a fair and reasonable observer would think. The courts nevertheless depend in a real sense upon public confidence in the judicial system to maintain their authority. The maintenance of that

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authority depends, inter alia, upon that element of the judicial process which requires that parties before the court be given and be seen to be given a fair hearing. It is necessary to a fair hearing that the court be attentive to the evidence presented by the parties and to the submissions which they make. The appearance of unfairness in a trial can constitute a ‘miscarriage of justice’ within the ordinary meaning of that term.75

In 2011, two New South Wales magistrates, following inquiries and reports by the New South Wales Judicial Commission, were subject to removal motions in the State Parliament, but the motion in each case failed. The magistrates, who may be removed by motion of both Houses of Parliament, explained to the New South Wales Upper House that they were affected by ‘a mild mental disability’ but that ‘with medication, regularly taken, there was no reason why they could not continue on the Bench’.76 Generally, removal mechanisms are employed in the context of proved misbehaviour or incapacity of a judge. The extreme vagueness of the notion of ‘misbehaviour’ as opposed to the notion of ‘incapacity’ poses a number of questions. Where is the line to be drawn between misbehaviour that would justify removing a judge and misbehaviour that requires a lesser form of sanction? Is the sanction of issuing a reprimand to a sitting judge appropriate, in light of the possible concern that a judge may feel pressured to tailor his or her judgments to comply with the views (real or imagined) of the body empowered to issue the reprimand? In relation to the latter category, for example, which entity or body should have the power to issue a reprimand to a judge? Should the misbehaviour be confined to that which occurs during the term of judicial office? What sort of conduct is expected of judges in their private lives?77 What is the most appropriate mechanism to adopt in order to effect the removal of a judge without compromising the independence of the judiciary? The establishment of a Judicial Commission under the Judicial Officers Act 1986 (NSW) to investigate and deal with complaints against judges has yet to be emulated in other states in Australia.78 The various episodes affecting the judiciary have led to calls for greater accountability on the part of judges. While it is undisputed that every branch of government should be accountable to the Australian people, what is in dispute are the modes of accountability. Quite often, critics of the courts would invoke the attacking line that the judges are ‘unelected’ and, by implication, totally unaccountable. Such a simplistic view displays an ignorance of the many existing modes of judicial accountability.79 When unfair criticisms are levelled at a particular judgment of a court, to what extent can a judge respond to such criticisms? Justice Ken Hayne of the High Court of Australia said:

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THE AUSTRALIAN JUDICIARY It is taken as axiomatic in this country that judges will not discuss publicly the cases that they have tried. The reasons for judgment that have been given either sufficiently explain what has been done, and why, or they do not. If they do not, it is too late to supplement them. The judge does not, and cannot, respond to the press campaign about the sentence passed or judgment reached in a case.80

While there may be consensus among judges about adopting a ‘judicial reticence’ approach when their judgments are under attack, ‘the rule that in general judges do not speak publicly on any matter of public controversy is under some challenge’.81 The danger to judicial independence arising from judges being sucked into a vortex of political controversy makes it necessary for guidelines to be adopted to protect the judicial institution.82 It is necessary to consider what the notions of ‘judicial accountability’ and ‘judicial independence’ entail and for consideration to be given to reconciling these two notions. In exploring these concepts in this book, heed is given to the observation of Justice R D Nicholson that the two values should be seen as ‘complementary rather than antithetical’.83

Concluding observations The judiciary is an institution that is held in high esteem in Australia; but just like any institution of government, it consists of ordinary human beings with their strengths and frailties. Chief Justice French of the High Court of Australia candidly remarked: ‘The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards’.84 Nevertheless, he acknowledged that the standards to which courts are held and to which they hold themselves are higher in recent times.85 The traditional deference accorded to the judiciary has given way to an environment in which there is close scrutiny of the workings of the courts. This book seeks to provide an account of the Australian judiciary with the view that any scrutiny of the institution and calls for accountability should be well-founded on an informed understanding of the institution.

Notes 1 N Stephen, ‘Southey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion’ (1982) 13 Melbourne University Law Review 334, 338.

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2 W Wilson, Constitutional Government in the United States (Columbia University Press, 1908) 24. 3 Ibid 143. 4 (1996) 189 CLR 1. 5 Ibid 11. 6 R French, ‘The Judiciary in an Age of Global Interdependence’ (Speech delivered at the International Association for Court Administration Conference, Bogor, Indonesia, 15 March 2011). Also, Kitto J, in defining judicial power in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374–5, said: ‘[The] process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist’. 7 (1956) 94 CLR 254. 8 Ibid 267–8. 9 Commonwealth Constitution: section 51(xxxi) providing a guarantee of ‘just terms’ in relation to legislative acquisition of property from any state or person ‘for any purpose in respect of which the Parliament has power to make laws’; section 80 prescribing a mandatory jury trial in the case of a trial ‘on indictment of any offence against any law of the Commonwealth’; section 116 providing for the non-establishment of religion clause; and section 117 providing protection from discrimination against a person on the basis of interstate residence. 10 Victoria and the Australian Capital Territory each have a statutory Bill of Rights:Charter of Human Rights and Responsibilities Act 2006 (Vic) and Human Rights Act 2004 (ACT) respectively. 11 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. See H P Lee, ‘The Implied Freedom of Political Communication’ in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) ch 16. 12 Lord Steyn, ‘Democracy, the Rule of Law and the Role of Judges’ [2006] European Human Rights Law Review 243, 246. 13 Australian Communist Party v Commonwealth (1951) 83 CLR 1. 14 G Winterton, ‘The Communist Party Case’ in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 108. 15 Ibid. 16 Ibid 135. 17 Ibid 129. 18 The Act did not take effect until the accession of George I in 1714. 19 S Shetreet, Judges on Trial (North-Holland Publishing Co, 1976) 3. 20 Ibid. 21 Ibid 5. See also E Campbell, ‘Judges at the Bar of Parliament’ (1999) 18 Australian Bar Review 63. 22 M L Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Canadian Judicial Council, 1995) 3. 23 1 Geo III, c 23. 24 Shetreet, above n 19, 11. 25 Lisafa Holdings v Commissioner of Police (1988) 15 NSWLR 1, 5 ( Street CJ). 26 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193. See also McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, 670, where Murphy J referred to the operation of the rule of law as an implication arising from the nature of Australian society. For recent affirmation of the rule of law as an assumption underlying the constitutional rubric, see Enfield City v Development Assessment Commission (2000) 199 CLR 135, 157 (Gaudron J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Thomas v Mowbray (2007) 233 CLR 307, 342 [61] (Gummow and Crennan JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224

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27 28 29 30 31

THE AUSTRALIAN JUDICIARY CLR 322, 351 [30] (Gleeson CJ and Heydon J); South Australia v Totani (2010) 242 CLR 1, 42 [61] (French CJ). A Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 2. A V Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) 202. See also J Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 Law Quarterly Review 195. Ibid 202. Ibid. The Constitutional Commission, in 1988, also said in the Final Report of the Constitutional Commission: The independence of the judiciary and its separation from the legislative and executive arm of government is, of course, an essential feature of the rule of law. It is regarded as of great importance in all democratic societies.

See also Building Construction Employees and Builders Labourers’ Federation of New South Wales v Minister for Industrial Relations [1986] 7 NSWLR 372, 375–6 (Street CJ). 32 The oath taken by judges of the High Court is provided as follows by the High Court of Australia Act 1979 (Cth) s 11 and Schedule: I do swear that I will bear true allegiance to her Majesty . . . that I will well and truly serve her in the office of Justice of the High Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill will . . .

33 34

35

36

37

See also: ACT – Supreme Court Act 1933 (ACT) ss 19 and 42; NSW – Oaths Act 1900 s 4; NT – Supreme Court Act 1979 s 37 and sch 1, Magistrates Act s 20; Qld – Oaths Act 1867 s 3(1); SA – Oaths Act 1936 ss 7 and 11; Tas – Promissory Oaths Act 1869 s 4 and sch 2; WA – Supreme Court Act 1935 s 9(2) and second sch, District Court of Western Australia Act 1969 s 11(2) and sch 1, Family Court Act 1997 s 13 and sch 1. In the case of the English judiciary, see Promissory Oaths Act 1868 s 6 and sch Pt II. See also Justice J B Thomas, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009) 331. The history of oaths of judicial office is described in E Campbell, ‘Oaths and Affirmation of Public Office’ (2000) 21 Journal of Legal History 1. (1995) 183 CLR ix, x. The New Zealand Law Commission, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests?, Issues Paper No 1 (2011). This paper was released as part of the Commission’s review of the Judicature Act 1908 and is available at the New Zealand Law Commission’s website: www.lawcom.govt.nz. A Mason, ‘The Independence of the Bench, the Independence of the Bar and the Bar’s Role in the Judicial System’ (1993) 10 Australian Bar Review 1, 3. See also A Lamer, ‘The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change’ (1996) 45 University of New Brunswick Law Journal 3. See S Shetreet, ‘Judicial Independence and Accountability: Core Values in Liberal Democracies’ in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 3–23. See generally S Shetreet and Jules Deschenes (eds), Judicial Independence: The Contemporary Debate (Martinus Nijhoff, 1985); M Warren, ‘Does Judicial Independence Matter?’ (2011) 85 Australian Law Journal 481. R E McGarvie, ‘The Foundations of Judicial Independence in a Modern Democracy’ (1991) 1 Journal of Judicial Administration 3, 6, explained:

Most losing parties will accept the decision of a judicial officer who has obviously conducted a hearing fairly, found the facts honestly, applied the principle of the law genuinely believed to apply, and given reason for the decision which show that this process was followed. 38 Ibid. 39 S Shetreet, ‘The Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act 1986’ (1987) University of New South Wales Law Journal 4, 7.

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40 See S Shetreet, ‘Judicial Independence and Accountability: Core Values in Liberal democracies’ in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 3–23. 41 R E McGarvie, ‘The Foundations of Judicial Independence in a Modern Democracy’ (1991) 1 Journal of Judicial Administration 3, 6. See his reiteration of this point in R E McGarvie, ‘The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence’ (1992) 1 Journal of Judicial Administration 236. Judicial independence, according to Sir Harry Gibbs, means ‘that no judge should have anything to hope or fear in respect of anything which he or she may have done properly in the course of performing judicial functions’: cited in G Sturgess and P Chubb, Judging the World, Law and Politics in the World’s Leading Courts (Butterworths, 1988) 353. See also The Queen v Moss; Ex parte Mancini (1982) 29 SASR 385, 391 (King CJ). 42 (2010) 242 CLR 1. 43 Ibid 43 [62]. 44 Sir Gerard Brennan said: ‘Partiality and the appearance of partiality are both incompatible with the proper exercise of judicial power. The one poisons the stream of justice at its source; the other dries it up’: ‘The State of the Judicature’ (1998) 72 Australian Law Journal 33, 34. See also R D Nicholson, ‘Judicial Independence and Accountability – Can They Coexist?’ (1993) 67 Australian Law Journal 404. 45 [1989] 2 SCR 796. 46 Ibid 826. 47 See Nicholson, above n 44, 405. 48 Lord Taylor of Gosforth said: ‘Public confidence in the fairness of the justice system depends crucially on the judges being believed to be impartial, free from bias and from extraneous influence’: ‘The Independence of the Judiciary in a Democracy’ (1995) 4 Asia Pacific Law Review 1, 2. See also S Kenny, ‘Maintaining Public Confidence in the Judiciary’ (1999) 25 Monash University Law Review 209. 49 For judicial comments on the obligations of the executive branch (and implicitly the legislative branch in relation to resources) to protect federal courts so as to enable them to perform their constitutionally mandated functions, see Clampett v Attorney-General [2009] FCAFC 151, [75]–[81], especially [76]. 50 See M L Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Canadian Judicial Council, 1995) 18–21; M Kirby, ‘Abolition of Courts and Nonreappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181, 204–6. 51 G Winterton, Judicial Remuneration in Australia (Australian Institute of Judicial Administration, 1995) 12. 52 See also L J King, ‘Minimum Standards of Judicial Independence’ (1984) 58 Australian Law Journal 340. For a catalogue of the international instruments see: Judicial Independence Minerva Research Group at http://www.mpil.de/ww/de/pub/forschung/forschung_im_detail/projekte/minerva_richterl_unabh/intdocs.htm. 53 See also the European Convention on Human Rights, Art 6. 54 See D Malcolm, ‘The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region’ (1996) 70 Australian Law Journal 299. 55 http://law.huji.ac.il/upload/InternationalStandardsofJudicialInd2008.doc. 56 The text of the Declaration can be found at: (1997) 15 Australian Bar Review 175. 57 ABC Radio National, ‘The Law Report’, 15 April 1997 (The Hon John Doyle). 58 G Brennan, ‘Declaration of Principles on Judicial Independence’ (1996–97) 15 Australian Bar Review 175. 59 Ibid. 60 For cases involving Australian colonial judges, see Willis v Gipps (1846) 5 Moo PC 379; 13 ER 536; Montague v Lieutenant Governor and Executive Council of Van Diemen’s Land (1849) 6 Moo PC 489; 13 ER 773. These two cases are mentioned in the ‘Opinion of Mr CW Pincus, QC’ in Report of the Senate Select Committee on the Conduct of a Judge, Parl Paper No 168 (1984), Appendix 4, 19–21. 61 M Kirby, ‘Judges Under Attack’ (1994) 38 Quadrant (December) 11. Justice Kirby has also observed the increasing attacks on the judiciary in a number of common law countries: see M Kirby, ‘Attacks on Judges – A Universal Phenomenon’ (1998) 72 Australian Law

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62

63 64 65 66

67

68

69

70 71 72 73 74 75 76 77 78 79 80

THE AUSTRALIAN JUDICIARY Journal 599. Concern about the erosion of the independence of the Australian judiciary was expressed by the Law Society of New South Wales in a submission to the Secretary-General of the United Nations: (1992) 30 Law Society Journal (April) 53; Australian Bar Association, ‘The Independence of the Judiciary’ (1991) 77 Victorian Bar News 18, paras 2.1 and 2.2. See also, Report of the Commission on Separation of Powers and Judicial Independence, An Independent Judiciary (American Bar Association, 1997). A radical change in attitudes towards the judiciary has also occurred in England. Lord Taylor of Gosforth, the Lord Chief Justice of England, said: ‘Judges, like politicians, are today scrutinised and criticised, not only by informed commentators, but by the public at large’: ‘The Independence of the Judiciary in a Democracy’ (1995) 4 Asia Pacific Law Review 1, 10. Remarks by Justice R M Hope at the ceremony to mark his retirement, Supreme Court of New South Wales, 2 February 1990; also quoted in M Kirby, ‘Judicial Independence in Australia Reaches a Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187, 188. Kirby, above n 62, 211. Kirby, above n 62, 199, claimed that the controversy ‘took a toll on the public’s perception of the High Court and the judiciary generally’, but the validity of such a claim is doubtful. Report of the Senate Select Committee on the Conduct of a Judge, Parl Paper No 168 (1984); Report of the Senate Select Committee on Allegations Concerning a Judge, Parl Paper No 271 (1984). The trial before Cantor J resulted in Murphy’s conviction on 5 July 1985 on one of the charges. This conviction was quashed by the NSW Court of Appeal (R v Murphy (1985) 63 ALR 53). At the second trial (before Hunt J), the jury on 28 April 1986 acquitted Murphy. See A R Blackshield, ‘The “Murphy Affair”’ in J A Scutt (ed), A Radical Judge (McCulloch Publishing, 1987) 248–53. The Commission was established by the Parliamentary Commission of Inquiry Act 1986 (Cth). The members of the Commission were Sir George Lush, Sir Richard Blackburn and Andrew Wells. See ‘Re The Honourable Mr Justice Murphy – Ruling on Meaning of “Misbehaviour”’ (1986) 2 Australian Bar Review 203. The ‘Murphy Affair’ is discussed at pp 117–20 below. See also: G Lindell, ‘The Murphy Affair in Retrospect’ in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) ch 12; H P Lee and V Morabito, ‘Removal of Judges – The Australian Experience’ [1992] Singapore Journal of Legal Studies, 40–55. First Report of the Parliamentary Judges Commission of Inquiry (Government Printer, Brisbane, 1989). Apart from Sir Harry Gibbs, the other members of the Commission were Sir George Lush and Michael Helsham. For a brief account, see V Morabito, ‘Are Australian Judges Accountable?’ (1994) 1 Canberra Law Review 73, 82–3; M Kirby, ‘Abolition of Courts and Non-reappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181, 193–4. For analysis of the ‘Vasta Affair’, see pp 120–22 below. Kirby, above n 69, 183. For a discussion of this episode, see pp 131–2 below. See E Campbell and M Groves, ‘Attacks on Judges under Parliamentary Privilege: A Sorry Australian Episode’ [2002] Public Law 626, 627–8; A J Brown, Michael Kirby – Paradoxes and Principles (Federation Press, 2011) 319–46. For a discussion of the ‘Bruce Affair’, see pp 124–6 below. Cesan v R; Mas Rivadavia v R (2008) 236 CLR 358. The judge, who suffered from sleep apnoea, retired in July 2005: http://news.Ninemsn. com.au/article.aspx?id=293573&print=true. Cesan v R; Mas Rivadavia v R (2008) 236 CLR 358, [71]. P W Young, ‘Suitability for the Bench’ (2011) 85 Australian Law Journal 463. See Richard Evans, ‘Yeldham – Awkward Questions Remain’ (1997) 32 Australian Lawyer 10. See Guide to Judicial Conduct (Australasian Institute of Judicial Administration Incorporated, 2nd ed, 2007), published for the Council of Chief Justices of Australia. See pp 135–8 below. See ch 9. K Hayne, ‘Letting Justice Be Done Without the Heavens Falling’ (2001) 27 Monash University Law Review 12, 13 (presented as the Fourth Fiat Justitia Lecture, Monash University, 21 March 2001).

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81 Ibid 13–14. 82 See Guide to Judicial Conduct, above n 77. 83 See R D Nicholson, ‘Judicial Independence and Judicial Accountability – Can They Coexist?’ (1993) 67 Australian Law Journal 404, 414. 84 Cesan v R; Mas Rivadavia v R (2008) 236 CLR 358, [72]. 85 Ibid [73]. See also Lawal v Northern Spirit Ltd [2003] UKHL 35; [2004] 1 All ER 187, 196 [22] (Lord Steyn).

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CHAPTER 2

The courts and judges

The Australian court system1 Australia’s legal system is a federal system and one under which power to establish courts is reposed in both the State and the federal Parliaments, and also in the legislatures of the self-governing Territories of the Commonwealth. The courts of the Territories ultimately owe their existence to legislation of the federal Parliament.2 While there are distinctions drawn between federal and State courts and between federal and State jurisdictions, the Australian judicial systems are nevertheless integrated, to an extent.3 This integration has been achieved in several ways: by the establishment of the High Court of Australia as the ultimate court of appeal for Australia;4 by the use of State courts as repositories of federal jurisdiction; by complementary State legislation, which cross-vests the State jurisdictions of the Supreme Courts;5 and by constitutional and legislative provisions dealing with the execution of court processes and judgments.6 There are also institutional arrangements to facilitate the transfer of cases from the court in which proceedings have been initiated to another court when the other court is considered to be the more appropriate forum.7

State courts and State magistracies The court systems of the Australian States have evolved from the court systems originally established in the Australian colonies by the imperial power, Great Britain.8 These State systems are similar to one another. In each State, and also in the Australian Capital Territory and the Northern Territory, there is a Supreme Court having a wide civil and criminal jurisdiction.9 The Supreme Courts decide cases both at first 20 Downloaded from https://www.cambridge.org/core. Universiteit Leiden / LUMC, on 17 Nov 2019 at 15:56:52, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139028431.003

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instance and on appeal from lower courts. In some of the States and in both Territories there are now courts of appeal which form a division of the Supreme Court.10 The courts below the Supreme Courts possess more limited jurisdictions, though in practice the lower courts handle the vast majority of cases, both civil and criminal. In all States except Tasmania there is an intermediate court, usually called a District Court.11 In addition, there are local or magistrates courts staffed by stipendiary magistrates; that is to say, persons engaged as judicial officers for a salary.12 These courts have generally displaced the earlier courts, often called courts of petty sessions, whose members were styled justices of the peace, often not legally qualified, and serving part-time in an honorary capacity. In some Australian States there are courts whose jurisdiction is of a specialist nature. Such specialist courts include: the Family Court of Western Australia; the New South Wales Land and Environment Court; the NSW Compensation Court; the Children’s Court of Victoria; the Queensland Mental Health Court; and the Environment, Resources and Development Court of South Australia.13 The local or magistrates courts handle civil cases in which a sum of money, up to a specified amount, can be claimed. Legislation is frequently enacted to increase the civil jurisdiction of these courts. Much of the work of the magistrates courts involves the trial of persons charged with criminal offences that are triable summarily; that is to say, offences which may be tried without a jury. There are many such offences. If an offence is triable only before a judge and jury, a person charged with the offence will normally come before a magistrate for what is known as a committal hearing. The task of the magistrate in committal proceedings is to decide whether there is sufficient evidence against the accused to warrant that person being tried for an alleged offence. The intermediate courts have a wider civil jurisdiction than the local and magistrates courts, and criminal trials before them are usually trials before a judge and jury. No account of the courts of the States, however brief, would be complete without reference to the fact that, under State laws, there are various bodies which, though not designated as courts, perform functions of a judicial character: they decide disputes about people’s rights and liabilities according to legal rules. Examples are small claims tribunals and residential tenancy tribunals. Such bodies have usually been established to provide a means of enabling disputes to be adjudicated at little cost and according to procedures less formal than those followed in the ordinary courts. Some of these tribunals can be regarded as court substitutes, in the sense that they have been invested with a jurisdiction formerly reposed in a body named a court. While the members of a tribunal may not have been accorded the title of judge, or even accorded the same security of

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tenure as that enjoyed by judges of the ordinary courts, the functions of the tribunal nonetheless may be truly judicial in character, in that they involve settlement of disputes about rights and liabilities according to law. Some State tribunals have both judicial and non-judicial functions. Examples include the New South Wales Administrative Decisions Tribunal, established in 1997, and the Victorian Civil and Administrative Tribunal, established in 1998. The High Court of Australia For many years after the federation of the Australian colonies in 1901 there was but one federal court, the High Court of Australia. This court was formally brought into being in 1903 by the Judiciary Act of that year.14 Upon its establishment the High Court acquired original jurisdiction (that is, a jurisdiction to decide as a court of first instance) in the five classes of matters listed in s 75 of the federal Constitution. These matters include suits between the governments of the federation and certain proceedings against officers of the Commonwealth.15 In addition, the High Court acquired a jurisdiction, under s 73 of the federal Constitution, to hear and determine appeals against decisions of the State Supreme Courts, subject to any limitations which were prescribed by the federal Parliament.16 Federal courts, federal tribunals and the federal magistracy The Federal Court of Bankruptcy was created in 193017 and the Commonwealth Industrial Court in 1957.18 However, the most important developments in the federal court system did not take place until the 1970s. Under the Family Law Act 1975 (Cth) the federal Parliament established the Family Court of Australia. This court became the central court for determining petitions for divorce and other matrimonial causes under the Family Law Act, an Act which effectively displaced State laws on matrimonial causes.19 The Family Court’s jurisdiction has since been enlarged by the referral of certain powers by the States to the Commonwealth.20 The Federal Court of Australia was established under the Federal Court of Australia Act 1976 (Cth). It was to acquire jurisdiction, under a number of separate statutes, in a variety of matters arising under federal laws.21 Initially, the Federal Court’s jurisdiction included that which had been given to the federal Industrial Court, established in 1957, but in 1993 this jurisdiction was relocated to the newly created Industrial Relations Court of Australia. That court was later disestablished, effectively, and its jurisdiction returned to the Federal Court.22 Section 13 of the Federal Court of Australia Act 1976 (Cth) divides the Federal Court into two divisions: the General Division and the Fair Work

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Division, created in 2009 by the Rudd Labor Government in furtherance of its industrial relations policy. Under the definition provided in s 13(4), the jurisdiction of the General Division is comprised of all cases which are not assigned to the Fair Work Division by an Act of Parliament. Section 6A of the Federal Court of Australia Act 1976 (Cth) provides the procedure by which a Judge of the Federal Court is to be specifically assigned to exercise jurisdiction in either division. By virtue of s 15(1A), assignment to a Division has the consequence of precluding the assigned judge from exercising jurisdiction in the other Division of the Federal Court. If a judge is not assigned, he or she is permitted to exercise jurisdiction in both divisions: s 15(1C). The Administrative Appeals Tribunal (or AAT) was established by the Administrative Appeals Tribunal Act 1975 (Cth) and is the principal source of merits review for decisions made by the Commonwealth executive. The matters which fall within the AAT’s jurisdiction are entirely determined by the express conferral of such power by specific Commonwealth Acts.23 A federal magistracy has also been established under the Federal Magistrates Act 1999 (Cth). Under the Federal Magistrates (Consequential Amendments) Act 1999 (Cth) the Federal Magistrates Court has been invested with jurisdiction to deal with many of the matters which come within the jurisdiction of the Federal Court or the Family Court of Australia. Cases which have been commenced in these latter courts may be transferred to the Magistrates Court. Provision has also been made whereby cases commenced before the Magistrates Court may be transferred to another appropriate federal court. The primary object of the scheme was to relieve the Federal Court and the Family Court of some of their workloads, particularly in less complex cases. It was also intended that proceedings before the lower court should be less costly to litigants and should be handled more speedily than cases before the higher courts. In 2010, the Gillard Labor Government introduced legislation which would effectively rescind jurisdiction of the Federal Magistrates Court with respect to family law matters; however, the Bill has lapsed.24 A Fair Work Division of the Federal Magistrates Court was created by the introduction of a section 10A to the Federal Magistrates Act 1999 (Cth) in 2009. The amendments take a similar form to those discussed with respect to the Federal Court, with similar limitations placed upon the exercise of general jurisdiction by a judge assigned to a specific division (per s 12(3A)). The cross-vesting of state and federal jurisdiction One feature of Australia’s court system which distinguishes it from that of the USA is that the courts of the Australian States exercise jurisdiction not merely under State laws but also under federal statutes. Under ss 71 and 77

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of the federal Constitution the federal Parliament was empowered to invest any of the courts of the States with jurisdiction in federal matters, they being the matters listed in ss 75 and 76 of the Constitution. These matters included suits against the Commonwealth and any matter arising under Commonwealth legislation. The framers of the federal Constitution thought it expedient to allow the courts of the States to be used as repositories of federal jurisdiction because, in their opinion, it would be many years before the number of federal matters arising for judicial decision would be sufficient to justify the establishment of federal courts additional to the High Court. Under the Judiciary Act 1903 (Cth) the courts of the States were invested with federal jurisdiction in all of the matters listed in ss 75 and 76 of the federal Constitution, with the exception of certain matters which were declared to be within the exclusive jurisdiction of the High Court.25 In 1987, an attempt was made to repose State jurisdiction in the Federal Court and the Family Court in the form of Jurisdiction of Courts (Crossvesting) Acts passed by the Commonwealth and the States. It was thought by the scheme’s advocates that this arrangement would eliminate perceived gaps in the capacity of federal courts to hear complex matters involving manifold issues, and would facilitate a more ‘unitary’ judicial system which could more efficiently dispose of litigation.26 However, in Re Wakim; Ex parte McNally,27 the High Court held that the federal Constitution does not permit federal courts to be invested with State jurisdiction. The majority specifically rejected the proposition that a move towards greater efficiency via a consolidation of state judicial power in federal courts was an end contemplated by Chapter III of the Constitution.28 The implications of Wakim for the prospects of a truly unitary judicial system were at one stage hotly debated by commentators, judges and lawyers.29 Today, given the expansive notion of federal jurisdiction, federal jurisdiction can often be found being exercised in State courts, and almost always in commercial matters. Cross-vesting remains alive and well from the Federal Court of Australia to State Supreme Courts and vice versa where there is federal jurisdiction in a matter in the State court. The work of judges The traditional and primary task of judges is to adjudicate justiciable disputes according to law. But the kinds of disputes that arise for adjudication cover a very wide spectrum, and the skills required of judges in the determination of different kinds of disputes are not always the same. Most judges are occupied in the trial of cases at first instance. In many of these cases there is little or no dispute about the applicable law.

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Rather, controversy will centre on issues of fact and whether there is evidence in support of the facts asserted by the parties. In the course of a trial, questions may arise as to the relevance of evidence sought to be tendered by a party, the admissibility of evidence under the rules of evidence, and the permissibility of questions which parties or counsel wish to ask of witnesses. The judge presiding at the trial – whether it be a trial before the judge alone or a trial before a judge and jury – is required to deal with evidentiary questions as they arise. If the trial is before a jury, the presiding judge has to give directions to the jury at the conclusion of hearing the evidence and the arguments of the parties. The trial work of judges may be civil or criminal or, more commonly, an admixture of both. The civil cases that come before the courts are diverse and some of them call for special expertise in a particular branch of the law, e.g., corporations law, intellectual property law, taxation law, or trade practices law. Some courts themselves have a specialised jurisdiction – e.g., the Family Court of Australia – but even in a court of more general jurisdiction there can be a degree of specialisation. This may be reflected in a formal sub-division of the court into divisions, or in a practice of assigning judges to cases according to their expertise. There are now some judges in Australia whose primary work is to decide appeals from decisions of other judges. They are the judges of the State Courts of Appeal and of the High Court of Australia. Sometimes the appeal court’s function is merely to decide whether the court below has made an error of law, but usually the appeal is by way of a rehearing. In an appeal in the strict sense, the appeal court has to decide whether, on the basis of the evidence before the court in which the case was tried at first instance, the decision under appeal was correct, in point of fact and law. In an appeal by way of a rehearing, the appeal court ‘is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters that have taken place subsequent to that decision’.30 Most of the questions that courts of appeal have to decide are questions of law and they may be ones on which the law is unclear or unsettled. The question may concern the meaning and effect of legislation. It may be one concerning the common law to be distilled from prior judicial decisions and the weight to be accorded to those decisions. Occasionally, a court of appeal’s role may be one of developing common law to deal with problems that have not hitherto arisen for judicial decision, or that have not been resolved in a satisfactory way in prior cases. Judges of courts of appeal can therefore be expected to be persons of considerable stature and learning as lawyers, and also to exhibit ‘statesman-like’ qualities, among them a sensitivity to constitutional limitations on their role as makers and renovators of law.

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By no means is all of the judicial work of judges carried out in open court. In the course of civil litigation, various applications made by parties may be dealt with in judges’ chambers. Generally, chamber work is done in open court, subject to the judge directing otherwise. Most of these applications will relate to matters of procedure. Outside the courtroom, judges also need to devote time to tasks such as reading the documents filed in the court by parties, studying legislation and precedents to which they have been referred by the parties or their counsel, and considering the judgment to be delivered in a case. Considerable time may need to be spent in writing reasons for judgment.31 Certainly the number of hours a judge spends sitting in open court is not an accurate measure of the judge’s total workload. The official duties of judges are not always confined to adjudication. Some judges are called upon to perform administrative tasks such as determining applications for warrants sought by law enforcement officers to enable a search of premises or interception of telecommunications.32 The chief judge of a court will have additional administrative functions relating to matters such as allocation of cases to particular judges, and preparation of annual budgets and reports. Judges may also be involved in review and revision of rules of court; that is, the rules governing the procedures of the court.33 Individual judges may have other extra-judicial duties not directly related to the business of the court. Some may serve as members of parole boards, others may be appointed from time to time to conduct royal commissions of inquiry or other inquiries commissioned by the executive branch of government; some may serve as members of administrative appeals tribunals or as members of law reform bodies; some may serve as officers of non-governmental bodies; for instance, as chancellors of universities. In the States it has been customary for the Chief Justice of the Supreme Court to be appointed as Lieutenant-Governor, the Governor’s deputy. The question of what extra-judicial work it is appropriate for judges to undertake is examined in chapter 7. The judicial functions of the Australian courts are sufficiently varied to warrant employment within the ranks of the judiciary of persons with different aptitudes, experience and skills. Those who might have excellent qualifications to deal with commercial causes might not, for example, have had much experience of criminal trials. The qualifications that might be expected of the chief judge of a court are not necessarily the same as those expected of the other judges of the same court. One consideration that may be critical in selecting a chief judge is whether a prospective appointee has demonstrated qualities which fit him or her to perform the management functions of the office and to stand, in public view, as the acknowledged ‘leader’ of a court in which the chief judge is to be regarded as the first among equals.

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In the performance of their court duties, judicial officers are assisted by various administrative personnel. Judges of the higher courts usually have personal assistants known as judges’ associates. Persons so employed are usually recent law graduates, some of whom may go on to pursue careers as barristers. Research assistance may be afforded by staff of the court’s library or by persons engaged as research assistants. The level of administrative support provided to judges can affect their ability to handle their case loads expeditiously and efficiently; however, it does not necessarily relieve them of some of the stresses that can attend the discharge of their important responsibilities.34 Who is a judge? What’s in a name? Some confusion can exist about who is to be regarded as a judge of a court of law. On a broad view the judges are all those persons who have been appointed to some judicial office, irrespective of how that office is designated and irrespective of the title given to the holder of the office. The members of the High Court of Australia are, of course, judges. One of them holds the office of Chief Justice; the others hold office as Justices of that Court. The titles of their offices were borrowed from those given to the members of the United States Supreme Court by the Judiciary Act 1789.35 The members of other Australian superior courts,36 such as the Supreme Courts, are titled Justice. The members of the intermediate courts do not carry the title of Justice. Their title is simply that of judge. The magistrates also hold judicial offices, though they do not bear titles that immediately suggest they are members of the judiciary. This is a matter of concern to many magistrates.37 In some Australian jurisdictions, the Masters of the Supreme Court have been declared by statute to be members of the Supreme Court.38 In Victoria, as from 17 December 2008, the office of Master of the Supreme Court was replaced with the office of Associate Judge.39 If one adopts a broad definition of courts of law – one that encompasses all bodies created by statute to exercise judicial powers (but not the judicial power of the Commonwealth) – one has to include among the ranks of the judiciary a large number of persons who have been appointed to institutions which are not designated courts and which, under their constituent Acts, have been described rather as tribunals or perhaps even boards.40 The offices to which members of such bodies are appointed will seldom be designated in such a way that the holders of office would be readily perceived to be judges. Rather, they may be designated as presidents, deputy presidents, senior members or members.

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The presidential members of Victoria’s Accident Compensation Tribunal, prior to its abolition by statute in 199241 and the transfer of its functions to the County Court, could quite properly be regarded as officers of the State’s judiciary. The function of the Tribunal had been declared to be to act as a court.42 The presidential members were designated judges of the Accident Compensation Tribunal with the ‘rank, status and precedence of a judge of the County Court’.43 They held office ‘during good behaviour’ until a prescribed retiring age, and they could not be removed from office by the Governor in Council except on the address of both Houses of the Parliament.44 In some Australian jurisdictions there are statutory definitions of the terms ‘judicial office’ and ‘judicial officer’. These definitions have been enacted primarily for the purpose of delineating the classes of persons who are to enjoy protections relating to tenure of office. Under the New South Wales Constitution Act 1902 (as amended in 1992), for example, the term ‘judicial office’ is defined in s 52(1) as covering the Chief Justice of the Supreme Court, the President of the Court of Appeal, the Judges of Appeal and the Judges and Master of the Supreme Court; the Chief Judge, Deputy Chief Judge and Judges of the Industrial Court and members of the Industrial Relations Commission in Court Session; the Chief Judge and Judges of the Land and Environment Court; the Chief Judge and Judges of the District Court; the Chief Judge and Judges of the Compensation Court; the members of the Local Courts and the Children’s Court; the Industrial Magistrates and the Magistrates of the Licensing Court.45 It is highly doubtful if legislation (at least in the case of federal legislation) which provides for the designation of officers of government as judges or justices, even though their official duties are not judicial in character, would survive a challenge in the High Court today. The legally qualified Deputy Presidents of the Industrial Relations Commission of Australia have been accorded judicial status, but why? The reasons are to be found in the history of the Commission. The ‘justices’ of the Industrial Relations Commission of Australia and Fair Work Australia The Commission began its life as the Commonwealth Court of Conciliation and Arbitration, established under the Conciliation and Arbitration Act 1904 (Cth). Section 12 of the Act provided that the President of this body should be appointed from among the Justices of the High Court. The President was authorised to appoint deputies: they had to be Justices of the High Court or judges of a State Supreme Court. At the time the Act was passed there were only three members of the High Court: Griffith CJ, Barton and O’Connor JJ. O’Connor J was appointed in

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February 1905 to be the first President of the Commonwealth Conciliation and Arbitration Court, but he resigned that office in September 1907 and was replaced by Henry Bournes Higgins J, who had joined the High Court in October 1906. Under the Conciliation and Arbitration Act 1904 (Cth) Higgins J’s term as President expired at the end of seven years, but he was reappointed in September 1914. He resigned the office in June 1921 and was succeeded by Powers J, who had previously been a deputy of the President.46 Other Justices of the High Court who served as Deputy Presidents were Gavan Duffy, Starke and Rich JJ.47 The nexus between the High Court and the Commonwealth Conciliation and Arbitration Court was severed by the Conciliation and Arbitration Act 1926 (Cth). That legislation required that persons appointed to the latter court were to possess prescribed legal qualifications, but henceforth the President did not have to be a Justice of the High Court. Powers J promptly relinquished the office of President.48 He was the last of the Justices of the High Court to occupy that office. In 1956 the High Court, in what has come to be known as the Boilermakers’ Case,49 ruled that the investiture in the Conciliation and Arbitration Court of both judicial and non-judicial powers infringed Chapter III of the Commonwealth Constitution. Anticipating that the High Court’s decision would be upheld on appeal to the Judicial Committee of the Privy Council,50 the federal government secured amendments to the Conciliation and Arbitration Act 1904 (Cth) to separate the arbitral and judicial functions of the Court.51 The arbitral functions were transferred to a body called the Commonwealth Conciliation and Arbitration Commission, and the judicial functions were transferred to a new court, the Commonwealth Industrial Court. The amending legislation of 1956 ensured that the judges of the old Court would be appointed to one or other of the new bodies.52 It also provided that presidential members of the Commission, who had to possess prescribed legal qualifications, should have the same status as judges of the Industrial Court.53 Further amendments in 1958 provided that these presidential members should also have the same rank and designation as judges of the Industrial Court.54 They could therefore be designated as Justice. In 1972 the Conciliation and Arbitration Act (Cth) was amended yet again, partly to enable persons to be appointed deputy presidential members of the Commission, even if they did not possess legal qualifications.55 All of the presidential members appointed prior to the 1972 amendments continued to have the same designation, rank, status and precedence as judges of the Industrial Court. The legislation of 1972, as amended in 1973, provided that deputy presidential members appointed thereafter who were (or had been) barristers or solicitors

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of the High Court or of a State or Territory and who were of not less than five years’ standing would also have the same designation, rank, status and precedence as judges of the Industrial Court. Newly appointed Deputy Presidents who did not possess these legal qualifications would merely have the same rank, status and precedence as judges of the Industrial Court,56 and therefore they could not be designated Justice. Following the creation of the Federal Court of Australia by the Federal Court of Australia Act 1976 (Cth), the jurisdiction of the Industrial Court was transferred to the Federal Court;57 however, the Industrial Court was not immediately abolished. It was to be abolished ‘upon a day to be fixed by proclamation being a day on which no person holds office as a judge of that court’.58 All but two of the judges of the Industrial Court were appointed to the Federal Court.59 The Conciliation and Arbitration Act 1904 (Cth) (as amended) was replaced by the Industrial Relations Act 1988 (Cth). This new Act replaced the Conciliation and Arbitration Commission with a new body called the Industrial Relations Commission of Australia. All presidential members of the new Commission were to have the same rank, status and precedence as judges of the Federal Court, and every presidential member (or former presidential member) was entitled to be styled ‘The Honourable’;60 but the presidential members were no longer declared to have the same designation as judges of the Federal Court. Provision was, however, made in the Industrial Relations (Consequential Provisions) Act 1988 (Cth), whereby those appointed as presidential members of the Industrial Relations Commission who were legally qualified presidential members of the Conciliation and Arbitration Commission immediately before the commencement of the Industrial Relations Act 1988 (Cth) could elect to have the same designation as a judge of the Federal Court.61 As a result of amending legislation enacted in 1993, the reference to the Court became a reference to the Industrial Relations Court of Australia.62 Subsequent legislation disestablished the Industrial Relations Court and returned its jurisdiction to the Federal Court.63 If the question is asked: ‘Were the members of the Industrial Relations Commission of Australia judges of a court of law?’, the answer must surely be ‘no’. The Commission was not invested with any of the judicial powers of the Commonwealth. Commonwealth legislation which gives presidential, or even non-presidential, members of the Commission the same designation, rank, status and precedence as judges of a named court, which is a court proper, cannot make those persons judges of a court of law invested with judicial powers. The Australian Industrial Relations Commission ceased operating on 31 December 2009 and its successor tribunal (although with new

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functions and powers), Fair Work Australia (which was constituted under the Fair Work Act 2009 (Cth)), commenced in 1 July 2009. The tribunal of Fair Work Australia comprises the President, Deputy Presidents and Commissioners. They hold office up to the age of 65 years, unless there is an earlier termination of their appointment or resignation.64 Qualifications for appointment are set out in s 627: the President, Deputy Presidents and Commissioners may but are not required to have legal qualifications if they possess the other qualifications identified in s 627. Section 629A of the Fair Work Act 2009 provides that ‘[t]he President has the same status as a Judge of the Federal Court’ – this refers to status, not designation. The last President of the Australian Industrial Relations Commission, Giudice J (Geoffrey Giudice), was appointed President of Fair Work Australia and he had been appointed Judge of the Federal Court on 17 September 1997. The only other justice appointed to Fair Work Australia is A J Boulton J, who was appointed as Senior Deputy President. A Chairman of the Grants Commission The Grants Commission is an independent statutory body established by a Commonwealth statute to advise the Commonwealth government on what grants of financial assistance should be made to States, pursuant to s 96 of the federal Constitution. In 1975 the government decided that the next chairman should be Justice R Else Mitchell, a judge of the Supreme Court of New South Wales. It was understood that the judge would resign his judicial office. The government introduced a Bill to amend the Grants Commission Act 1973 (Cth) to enable the judge to retain the designation, rank, status and precedence of a judge of a specified court. The Opposition in the House of Representatives moved an amendment to the Bill that, had it been passed, would have denied to the new Chairman of the Commission the title of judge. The motion was defeated. As a result, the former judge continued to be styled Justice, notwithstanding that the functions of the Commission were in no sense judicial.65 A Chairman of the National Crime Authority66 Section 5 of the National Crime Authority (Status and Rights of Chairman) Act 1984 (Cth) declared that the Honourable Donald Gerard Stewart should ‘during the period of his service in the office of Chairman of the National Crime Authority . . . have the same designation, rank, status and precedence as a judge of the Supreme Court of the Australian Capital Territory’. This arrangement proved to be highly controversial.67

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D G Stewart had served as a judge of the District Court of New South Wales between 1977 and 1981. On 24 June 1981 he was appointed by the Commonwealth, New South Wales, Queensland and Victorian governments as a royal commissioner to inquire into drug trafficking in New South Wales. On 25 June 1981 he was appointed a judge of the Supreme Court of New South Wales.68 On 28 March 1983 he received a further royal commission to inquire into the Nugan Hand group of companies.69 On 12 June 1984 it was announced that Justice Stewart was to be, as from 1 July that year,70 the first chairman of the National Crime Authority, established under the National Crime Authority Act 1984 (Cth).71 This appointment had been approved by both the Commonwealth and New South Wales governments, but had been resisted by the State’s Chief Justice, Sir Laurence Street, and by most of the other judges of the Supreme Court. The Chief Justice considered that occupancy of the office of chair of the National Crime Authority, a body charged with criminal investigatory functions, was incompatible with judicial office. He also considered it improper that such an appointment should have been made without his approval. In late June 1984 the Chief Justice issued what was, in effect, an ultimatum to Justice Stewart: the judge had ‘no alternative but to choose between continuing membership of this Court and membership of the Crime Authority’.72 Justice Stewart had not, at this stage, ever sat as a judge of the Supreme Court and had yet to complete the work of the royal commission he was working on at the time. On 31 July 1984, the Commonwealth Government announced that legislation would be introduced to enable Justice Stewart to resign from the Supreme Court and yet continue to have the status of a judge. On the same day, Justice Stewart issued the following public statement:73 To my great regret, recent publicity concerning my appointment as the inaugural chairman of the National Crime Authority whilst remaining a judge of the Supreme Court of New South Wales has been such that a public controversy has emerged which threatens to embroil the judiciary and adversely affect the National Crime Authority itself. The situation, whilst not of my making, simply cannot be allowed to continue. Accordingly, after much anxious deliberation, it is my intention to resign from the Supreme Court, such resignation to take effect at the conclusion of my current inquiries into the Nugan Hand group of companies, which are due to conclude on December 31, 1984. It is necessary for me to postpone my resignation until the completion of those inquiries in order to retain certain powers which the NSW Royal Commissions Act vests in me as a judge of the Supreme Court of NSW. These powers are necessary for the proper discharge of my duties as royal commissioner. My decision to resign from the Supreme Court has been taken despite the fact that I reject the notion – as do a number of other judges of the court – that the position of chairman of the National Crime Authority is incompatible with

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my remaining a judge of the Supreme Court and despite the fact that I take the view – as do a number of other judges of the court – that the decision of whether or not to accept the office of chairman was one solely for myself.

The National Crime Authority (Status and Rights of Chairman) Act 1984 (Cth) received the royal assent on 15 October 1984 and commenced to operate on that day. Its long title was ‘An Act relating to the status and rights of the Honourable Donald Gerard Stewart, the present Chairman of the National Crime Authority’. Section 4 made it clear that the Act applied in relation to Stewart only if he had, ‘whether before or after the commencement of this Act, resigned his office as a judge of the Supreme Court of New South Wales’. Once he resigned that office, Stewart would ‘have the same designation, rank, status and precedence as a Judge of the Supreme Court of the Australian Capital Territory’, not merely during his four-year term as Chairman of the National Crime Authority,74 but also ‘during any period of service by him in another full-time office under the Commonwealth that’ was declared to be an office to which s 5 applied.75 In fact, Stewart was later appointed to such an office, that of chair of the Resource Assessment Commission, a body established by statute in 1989.76 That statute also made some amendments to the special ‘Stewart Act’ of 1984, including a change to its title. That Act was retitled National Crime Authority (Status and Rights of Former Chairman) Act 1984 (Cth).77 Justice Stewart’s resignation from the office of judge of the Supreme Court of New South Wales took effect from 31 December 1984. He thereupon ceased to be a judge. While he continued to be entitled to be addressed as ‘Mr Justice’, none of the offices held by him could be described as judicial in character. In a paper presented at the Fourth Annual Seminar of the Australasian Institute of Judicial Administration in 1984, Sir Murray McInerny, then a judge of the Supreme Court of Victoria, and Garrie J Moloney queried the ‘social purpose served by legislation which confers upon a person who has been, or is to be appointed to, an executive or non-curial position, “the designation, rank, status and precedence as a Judge”’ of a named court.78 Their own position was made clear in the following observations: Putting aside the personal gratification which such positions achieve for the appointee, and no doubt his family, and the fact that they may ensure that at formal dinners at Government House, the appointee will sit closer to the Governor-General than would otherwise be the case, there is a danger that such legislation may serve to erode the status of the judicial office proper and thereby debase the judicial currency . . .79

It is not difficult to express general agreement with those sentiments. One understands the reasons why those who hold judicial office may wish to

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retain ‘the designation, rank, status and precedence’ of a judge of a named court should they resign judicial office in order to accept appointment to a non-judicial office. It is also easy to understand the reasons why some people who are not occupants of judicial offices may not wish to be considered for appointment to some non-judicial, public office unless accorded a title suggesting that they are judges; but the conferment of judicial titles on persons whose offices do not involve the exercise of judicial functions can be a source of confusion among members of the public as to who are judges and what are judicial institutions. Stipendiary magistrates do have good cause to complain about the failure to accord them titles which indicate that they are judicial officers80 when occupants of some non-judicial offices have been designated as judges, but not as members of any court.81 Arbitrators and mediators Those in dispute about matters arising under the laws concerning civil rights and liabilities are not compelled to resort to a court to have the dispute adjudicated. They may, by contract, agree to have their dispute settled by an arbitrator chosen by them. Under such a contract, the arbitrator’s function may be to settle the dispute, according to the law that bears on the parties’ legal rights and liabilities, but the arbitrator could not, based on that reason, be regarded as a member of the judiciary, as his or her authority to decide would stem solely from a contract. That authority would be little different from the authority that members of what are called domestic tribunals have to decide whether the rules of a voluntary association, such as a football club, have been infringed. In Australia there are statutory regimes under which officers of government are appointed to act as arbitrators and conciliators of certain types of disputes, notably disputes between employers and employees and certain contractual disputes.82 However, these officers are also not regarded as members of the judiciary, mainly because in the exercise of their statutory functions they are able to make awards that prescribe rights and obligations which will operate in the future. The awards will operate much like legislation. Mediators are persons who act as intermediaries between parties in dispute and whose function it is to assist those parties to come to some mutually agreeable settlement of the dispute, and one which is not inconsistent with applicable law. Provision for use of mediators may be made in statutes,83 but mediators cannot be regarded as judges, as despite their official status their function is not to adjudicate the matters on which the parties are divided.

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Jurors The Australian court system is one under which persons accused of certain legal wrongs are entitled to a trial before a judge as well as a jury whose members are drawn from the public. The law requires trial before judge and jury principally when persons are prosecuted on charges of serious criminal offences. In such trials the jury has the task of deciding whether the accused is guilty of the crime charged. The members of the jury, collectively, are certainly performing a judicial function, but for the purposes of this work we do not regard them as members of the judiciary.

Who are the judges? Published sources of information do not reveal a great deal about the people who make up the Australian judiciary at a particular point in time. Government directories will usually list the members of most courts, and most series of reports of judicial decisions include lists of the members of the courts whose decisions are reported in the series; however, such listings do not reveal much more than the names and number of persons who are members of a court at a certain point in time. Anyone interested in learning more about members of the courts will find it necessary to consult other possible sources of information. Some biographical details may be gleaned from the publication of swearing-in ceremonies, reports from organisations concerned with the judiciary, the personalia columns in law journals and from entries in Who’s Who in Australia, but these sources seldom provide details relating to the judges of the lower courts. Even published information about the judges of the superior courts varies considerably in its comprehensiveness. The rise of the internet has made the compilation of data about judicial demographics a far more streamlined process; however, that information certainly does not provide an adequate foundation for any worthwhile sociological study of the judiciary. In a survey of the superior courts as they stood at June 2011, a series of questions that could be answered more or less objectively were considered, namely: how many women occupied senior judicial offices; what occupation judges had held prior to being appointed to office; how many of the judges had held judicial office prior to their present appointment; at what ages the judges were first appointed to a judicial office; and what academic qualifications were held by judges. The courts surveyed were the High Court of Australia, the Federal Court of Australia, the Family Court of Australia, and the Supreme Courts of the Australian States and Territories. The membership of the Industrial Relations Court of Australia was not surveyed because the judges of that court were also judges of the Federal Court.

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Male and female judges84 In the first edition of this book, a survey was taken of the gender balance in the superior courts. In December 1999, approximately 260 persons were judges of the superior courts; of those, 33 were women – roughly 13 per cent. Of those 33 female judges, 14 (approximately 45 per cent) were judges of the Family Court of Australia and 5 were judges of the Federal Court. There were 4 female judges in each of the Supreme Courts of New South Wales and Queensland, and 2 female judges in the Supreme Court of Victoria. The High Court of Australia and the Supreme Courts of the Northern Territory, South Australia and Western Australia each had 1 female judge. The Australasian Institute of Judicial Administration (AIJA) now makes gender statistics available on its website.85 These statistics are comprehensive and cover the superior courts, the intermediate courts and the magistracy. For consistency’s sake, only the statistics pertaining to the superior courts are reproduced here. As of March 2011, it is reported that of the 262 superior court judges surveyed by the AIJA, 65 were women – roughly 25 per cent. Of those 65 female judges, 3 were judges of the High Court, 8 were judges of the Federal Court, and 13 were judges of the Family Court. The Supreme Courts of New South Wales, Victoria and Queensland each had 10 female judges. The Supreme Court of Western Australia had 4 women, the Supreme Court of South Australia had 3 female judges, and the Supreme Court of Tasmania had 2 female judges. The Supreme Court of the Northern Territory had 2 female judges, and the Supreme Court of the ACT had 1. It is possible therefore confidently to say that, overall, the number of women in the ranks of the judiciary has doubled between 1999 and 2011. Federally, there has been an increase in the number of female judges on every court apart from the Family Court. With respect to the States and Territories, every jurisdiction has seen an increase in the number of female judges.

Backgrounds of the judges Different people are likely to be interested in different aspects of judges’ backgrounds. Some may be interested in their socio-economic backgrounds, some in where the judges went to school, some in their religious and political affiliations (if any), some in the university law schools attended (if any).86 Even if it was regarded as pertinent to inquire into such matters, it would have been impossible to assemble relevant and reliable data without seeking answers from individual judges to

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questionnaires which many judges would most probably regard as intrusive, and perhaps even impertinent. The survey thus restricts itself to information which is readily and publicly available, and as such presumably has been published with the acquiescence of the judges in question. The data includes acting judges and associate justices (formerly known as Masters of the Court). The first point of inquiry was into the professional experience of judges sitting on superior courts. As is explained in chapter 4,87 statutes relating to the Australian courts include provisions that prescribe minimum qualifications for appointment as a judge of a particular court. One of those qualifications is Australian citizenship. Another is a prescribed number of years’ standing as a legal practitioner of a named court or named courts. The latter qualification can, in theory, be satisfied by someone who has been admitted as a legal practitioner but who has never in fact engaged in work that anyone would recognise as the practice of law in a professional capacity. Traditionally, the judges – at least those of the superior courts – have been overwhelmingly appointed from amongst the ranks of barristers, those advocates who have had many years’ experience in appearing before the courts and are therefore presumed to be familiar with court practices and procedures. In the original edition of this book, it was found that the majority of appointments (70 per cent) were from the ranks of barristers who had taken silk – that is, Queen’s Counsel (QC) and Senior Counsel (SC). It was also noted that there has been a perceptible increase in the number of persons appointed as judges of Australian superior courts who had formerly practised as solicitors as opposed to barristers, although this is still quite a rare occurrence in relation to a superior court in the larger States or to the Federal Court of Australia. Generally speaking, solicitors appointed to the judiciary were noted to have had considerable experience in the conduct of litigation. Their practice was typically within the litigation departments of large law firms, or as an instructing solicitor acting in close proximity to barristers and the court. All of these observations remain valid in 2011. The latest survey found that, of the 272 judges, acting judges and associate judges on superior courts whose pre-judicial qualifications were known, 193 had taken silk prior to being appointed – roughly 71 per cent. In contrast, only 33 had been practising as solicitors prior to being appointed – roughly 17 per cent. When the range was limited solely to the judges sitting on the New South Wales, Victorian, Western Australian and Queensland Courts of Appeal, it was found that 87 per cent had taken silk, contrasted with 1 judge (3 per cent) whose principal former occupation was that of solicitor. Of the 7 High Court justices, 6 had taken silk prior to being

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appointed (roughly 86 per cent); all, however, were barristers prior to their judicial appointment.88 The significance of this fact is that to gain admission to the ranks of Queen’s (or Senior) Counsel89 a legal practitioner must normally have practised primarily as a barrister for some time. Appointment as a Queen’s (or Senior) Counsel also represents a commitment on the part of the appointee to continue to act in the capacity of barrister for the foreseeable future. As one might expect, many appointees to the bench have participated in academic life both prior to and subsequent to their appointment, whether it is through having taught at law schools,90 having participated in the authoring of instructive legal tracts,91 or even making significant contributions to other fields of knowledge;92 however, a minority of judges on superior courts had been principally employed as academics prior to being appointed to the bench. There are former academics on the Federal Court of Australia,93 the Supreme Court of Victoria,94 and the Supreme Court of Western Australia.95 Five judges sitting on superior courts had previously served as State Solicitors-General: one on the Federal Court (as Chief Justice),96 two on the Supreme Court of South Australia (one as Chief Justice),97 one as a judge of the Victorian Court of Appeal,98 and one on the Australian Capital Territory Court of Appeal.99 Four judges on superior courts had also previously served in the capacity of Crown Counsel.100 Only one judge had previously sat as a Member of Parliament.101 Aside from pre-judicial employment, the prior judicial experience of judges was another point of interest in this survey. In none of the Australian jurisdictions is there any formalised system under which those aspiring to judicial office begin their judicial career in the lowest rank of judicial office – the magistracy – and then progress by promotion to higher ranks on the basis of appropriately assessed performance in the lower rank;102 however, it is not uncommon for a judge to be appointed to a superior court from another (typically lower) court.103 Less common is an appointment from the magistracy. The survey found that roughly 27 per cent of superior court judges had immediately previously served in a judicial capacity on another court, as a master or associate judge, as an acting judge, or as a magistrate.104 When limited to the judges sitting on the New South Wales, Victorian, Western Australian and Queensland appellate courts, the percentage of those who had previously served on a court increases to 74 per cent. As is to be expected, the overwhelming majority of judges appointed to appellate courts previously sat on the trial divisions of their respective courts. Appointed to the New South Wales Court of Appeal were six judges from the Trial Division of the Supreme Court of New South Wales, and two

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Federal Court judges. Appointed to the Victorian Court of Appeal were seven judges of the Trial Division of the Supreme Court of Victoria, and one former Federal Court judge. Appointed to the Western Australian Court of Appeal were four judges of the Trial Division of the Supreme Court of Western Australia. Appointed to the Queensland Supreme Court of Appeal were four judges of the Trial Division of the Queensland Supreme Court, and one judge of the District Court (now the President of the Queensland Court of Appeal).105 When limited to the judges sitting on the Federal Court, the percentage of those who previously held judicial positions drops to 20 per cent. Two judges had previously sat on the Victorian Court of Appeal, one judge had previously sat on the Supreme Court of Western Australia, two judges had previously sat on the Supreme Court of South Australia, one judge had previously sat on the Supreme Court of Queensland, and two judges had previously sat on the Land and Environment Court of New South Wales.106 When the Family Court is examined in isolation, the number of judges appointed from lower courts, State superior courts, and the magistracy stands at roughly 44 per cent. Notably, the Chief Justice of the Family Court previously served as the Chief Magistrate on the Federal Magistrates Court. All five appellate judges and the Deputy Chief Justice had previously sat as ordinary judges of the Family Court. One judge had formerly sat on the District Court of South Australia, one judge on the District Court of New South Wales, and one judge on the District Court of Western Australia. Three judges had previously sat as magistrates, and four judges had previously acted as court registrars.107 All of the justices of the High Court of Australia have previously served on other courts; French CJ, Gummow, Crennan and Kiefel JJ had previously served on the Federal Court, Heydon and Bell JJ had previously served on the New South Wales Court of Appeal, and Hayne J had previously served on the Victorian Court of Appeal.108 The final point of interest with respect to employment and academic demographics was comprised of the educational profiles of judges sitting on superior courts. In the original edition of this book, it was hypothesised that there would be an increase in the percentage of appointed judges holding a higher academic degree in law. The 2011 survey found that, of the superior court judges surveyed, 26 per cent had completed a higher academic degree in law – an increase of roughly 8 per cent from the 1996 survey. Of that 26 per cent, 22 per cent had completed a masters degree in law, whereas 4 per cent had completed a doctorate in law.109 These figures do not reflect the various postgraduate qualifications obtained by many judges in disciplines as varied as history,110 philosophy,111 and agricultural science.112

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Age profiles The statistics presented below are reflective of the 204 judges whose ages were readily ascertainable. As of July 2011, the statistics show that it is extraordinarily rare for a person to be appointed a judge of a superior court under the age of 40; only two judges were appointed to their presently held position before turning 40. Roughly 5 per cent of judges were appointed between the ages of 40 and 44; 13 per cent were appointed between the ages of 45 and 49; 34 per cent were appointed between the ages of 50 and 54; 28 per cent were appointed between the ages of 55 and 59; and 20 per cent were appointed after the age of 60.113 Most judges (62 per cent) can therefore be said to have been appointed to their present position in their fifties. A majority of superior court judges are, as of 2011, aged in their sixties (roughly 58 per cent).114

Length of judicial service Most Australian judges are now subject to a compulsory retiring age of 70 or 72 years. Thus, a person appointed to judicial office at the age of 50 years has the prospect of serving in that office for 20 or 22 years.115 The survey of the serving judges of the superior courts revealed that 54 per cent had been appointed to their current position less than 5 years ago; 26 per cent had served in their current position for 6–10 years; 13 per cent had served in their current position for 11–15 years; 5 per cent had served in their position for 16–20 years; and 2 per cent had served for more than 20 years.116 Opinions relating to what is the optimum length of service in the same judicial office are likely to vary; however, most would probably agree that a court should be constituted in such a way that at any point in time its members include judges who have served for at least five years. Certainly, it is not desirable that a court be constituted in such a way that all or most of its judges are due to retire at much the same time. A measure of continuity in the membership of the court is essential. Notes 1 A more detailed description of the system is provided in J Crawford and B Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004). All the superior courts and many of the inferior courts now maintain websites which provide information about their current jurisdiction. 2 Section 122 of the Constitution states that: ‘The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent

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and on the terms which it thinks fit’; see also E Campbell, P-Y Lee and J Tooher, Legal Research: Materials and Methods (LBC Information Services, 4th ed, 1996) 36–53. The present work does not deal with the courts of the external Territories of the Commonwealth, e.g., Norfolk Island. 3 Several comments to this effect were made by members of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. According to Gummow J, of the majority, ‘Upon federation, it became plausible, for the first time, to speak of one Australian judicial system which was a unified structure’ (138); however, the High Court did not become the ‘apex of that unified system’ until the passing of various statutes that directed all appeals to it. Thus, since the UK and Commonwealth Australia Acts 1986 came into force, ‘s 73 of the Constitution places this Court in final superintendence over the whole of an integrated national court system’ (138). Similarly, McHugh J, also of the majority, stated that the State courts ‘are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power’ (114–15). By contrast, Dawson J, of the minority, stated that there is ‘no one court system in Australia . . . The system is a federal system, and whilst the framers of the Constitution might have established a judicial system which was neither State nor federal but simply Australian, they did not do so. It is therefore dangerous to attempt to draw conclusions from the fact that the Australian legal system may be regarded as whole’ (84). Notwithstanding Dawson J’s reservations, however, the notion of a single doctrinally unified Australian judicial system has become increasingly uncontroversial. See the recognition of a ‘single system of jurisprudence’ by a majority of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563–66 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby J J); the consolidation of this principle by the High Court in Lipohar v The Queen (1999) 200 CLR 485, 505–10 (Gaudron, Gummow and Hayne J J), in Re Wakim; Ex parte McNally (1999) 198 CLR 511, 574, and in Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 534–5 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne J J); and the subsequent deployment of the principle, in Sweedman v Transport Accident Commission (2006) 226 CLR 362, 399 (Gleeson CJ, Gummow, Kirby and Hayne J J). 4 Gummow J referred to the following statutes in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 138: the Privy Council (Limitation of Appeals) Act 1968 (Cth); the Privy Council (Appeals from the High Court) Act 1975 (Cth); the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). 5 See the discussion on pp 23–4. 6 Section 51(xxiv) of the Constitution gives the federal Parliament power to make laws with respect to ‘the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States’. This power was initially exercised by the Service and Execution of Process Act 1901 (Cth), but this Act has been superseded by the Service and Execution of Process Act 1992 (Cth). See also the explication of s 51(xxiv) provided by the High Court in Dalton v NSW Crime Commission (2006) 227 CLR 490, 500–2. 7 Section 40 of the Judiciary Act 1903 (Cth) provides for the removal of constitutional causes into the High Court by order of the High Court; s 42 provides for the remittal of causes, and s 44 provides for the remittal of matters by the High Court to other courts. 8 A C Castles, An Australian Legal History (Lawbook, 1982), 44–6, 67–70, 90–94, 104–6, 129–52. 9 Supreme Court Act 1933 (ACT) ss 20(1)(a) and (b); Supreme Court Act 1970 (NSW) s 23; Supreme Court Act 1979 (NT) s 14(1)(b); Supreme Court of Queensland Act 1991 s 8(1); Supreme Court Act 1935 (SA) ss 17, 18, 19; Australian Courts Act 1828 (Imp) s 3; Constitution Act 1975 (Vic) s 85(1); Supreme Court Act 1935 (WA) ss 16, 18. 10 Supreme Court Act 1970 (NSW) s 38(a): the Court of Appeal is a division of the Supreme Court. Supreme Court Act 1979 (NT) s 51(2): the Supreme Court, when exercising its appellate jurisdiction pursuant to s 51(1), is to be known as the Court of Appeal of the Northern Territory of Australia. Supreme Court Act 1933 (ACT) s 37E: the Supreme Court, when exercising its appellate jurisdiction under Part 2A, is to be known as the Court of Appeal of the Australian Capital Territory. Supreme Court of Queensland Act 1991 (Qld) s 16(1)(b):

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THE AUSTRALIAN JUDICIARY the Court of Appeal is a division of the Supreme Court. Constitution Act 1975 (Vic) s 75A(1)(a): the Court of Appeal is a division of the Supreme Court. The establishment of the courts of appeal as divisions of the Supreme Court, rather than as separate courts, has probably been influenced by the fact that under s 73 of the federal Constitution there is provision for appeals from State Supreme Courts to the High Court of Australia: see p 234 below. District Court Act 1973 (NSW); District Courts Act 1967 (Qld); District Court Act 1991 (SA); County Court Act 1958 (Vic); District Court of Western Australia Act 1969 (WA). The Acts constituting these courts may not provide an exhaustive statement of their jurisdiction. The courts may derive some of their jurisdiction from other Acts. Magistrates Court Act 1930 (ACT); Local Court Act 2007 (NSW); Local Court Act 1989 (NT); Justices Act 1928 (NT); Magistrates Courts Act 1921 (Qld); Magistrates Act 1983 (SA); Magistrates Court Act 1991 (SA); Justices Act 1959 (Tas); Magistrates Court Act 1987 (Tas); Magistrates Court (Civil Division) Act 1992 (Tas); Magistrates’ Court Act 1989 (Vic); Magistrates Court Act 2004 (WA); Magistrates Act 1977 (NT). The jurisdiction of the local and magistrates courts is described in J Lowndes ‘The Australian Magistracy: From Justices of the Peace to Judges and Beyond – Part I’ (2000) 74 Australian Law Journal 509, 519–25. See also the description provided by Gleeson CJ (as he then was) in the speech ‘The State of the Judicature’ (2007) 14 Australian Journal of Administrative Law 118. See also S R Anleau and K Mack, ‘The professionalization of Australian magistrates: Autonomy, credentials and prestige’ (2008) 44(2) Journal of Sociology 185. See also Crawford and Opeskin, above n 1, 223–33, 254–8, 269–76. The High Court was initially created pursuant to s 4 of the Judiciary Act 1903 (Cth), which was in Part II of that Act. This Part was repealed by the Judiciary Amendment Act (No 2) 1979 (Cth). The High Court is now constituted under s 5 of the High Court of Australia Act 1979 (Cth). M Black pointed out that the Commonwealth Court of Conciliation and Arbitration was created in 1904 and continued to function as a federal court until 1956, ‘when, by a majority, the High Court found that if the Court were to exercise judicial power it must be properly constituted as a Chapter III court, and that, if constituted as a Chapter III court, it could not exercise non-judicial, arbitral, functions’: M Black, ‘“. . . Such Other Federal Courts as the Parliament Creates”: 100 Years of Evolution’ (2004) 30 Monash University Law Review 1, 6. Pursuant to s 76 of the Constitution, the Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under the Constitution or involving its interpretation – this has been fully implemented by Parliament in s 30(a) of the Judiciary Act 1903 (Cth); (ii) arising under any laws made by the Parliament – the implementation of this provision has now been comprehensive – in general terms, it is found in s 30(c) of the Judiciary Act 1903 (Cth), otherwise it is found in specific areas, such as the Commonwealth Electoral Act 1918 (Cth); (iii) of admiralty and maritime jurisdiction – this has been implemented in the Admiralty Act 1988 (Cth); (iv) relating to the same subject matter claimed under the laws of the different States – this has never been implemented. The Judiciary Act 1903 (Cth) s 35 provides that – (1) the High Court has jurisdiction to hear and determine appeals from State Supreme Courts, subject to any exceptions and regulations prescribed pursuant to this section [No regulations have been prescribed pursuant to this section]; (2) an appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1), unless the High Court gives special leave to appeal; ... (5) the foregoing provisions have effect subject to any special provision made by another Act preventing or permitting appeals from State Supreme Courts in particular matters. Note also s 35A of the Judiciary Act 1903 (Cth), which sets out the criteria which must be met by the State or Territory court’s decision in order to be eligible for leave to the High Court. It must either: involve a question of law which is of public importance, or which resolves differences of opinion between different courts as to the state of the law; or be in the interests of the administration of justice.

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17 Provision for the creation of Courts of Bankruptcy was made in s 18(1)(a) of the Bankruptcy Act 1924 (Cth), but it was not until the amending statute, the Bankruptcy Act 1930 (Cth), that s 18A was inserted into the principal Act, providing for the establishment of a federal Court of Bankruptcy. The Bankruptcy Amendment Act 1976 (Cth) transferred the jurisdiction of the Federal Court of Bankruptcy, then operating pursuant to the Bankruptcy Act 1966 (Cth), to the Federal Court of Australia and also abolished the former Court. 18 This Court was created after the High Court’s decision that its predecessor, the Commonwealth Court of Conciliation and Arbitration (established pursuant to the Conciliation and Arbitration Act 1904 (Cth)), had been invested with non-judicial and judicial powers, contrary to Chapter III of the federal Constitution. In R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, the majority of the Court found inescapable: the conclusion that the Arbitration Court, though under s 51(xxxv) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth. The basal reason why such a combination is constitutionally inadmissible is that Chapter III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth (289). The Conciliation and Arbitration Act 1956 (Cth), which amended the principal Act, the Conciliation and Arbitration Act 1904 (Cth), inserted s 26. This section provided for a federal court, to be known as the Commonwealth Industrial Court. 19 The Commonwealth Parliament has power to legislate with respect to matrimonial causes by virtue of ss 51(xxi) and (xxii) of the Constitution. By s 3(1) of the Family Law Act 1975 (Cth), the Matrimonial Causes Act 1959 (Cth) was repealed. 20 The reference to power is found in s 51(xxxvii) of the Constitution. The following statutes have referred power in the family law area to the Commonwealth Parliament, and their provisions are comparable: The Commonwealth Powers (Family Law – Children) Act 1986 (NSW) s 3(1), provides that the following matters, to the extent that they are not otherwise included in the legislative powers of the Commonwealth Parliament, are referred to it for a specified time by the Act: (a) maintenance of children and payment of expenses in relation to children or child bearing; (b) custody and guardianship of, and access to, children. See also Commonwealth Powers (Family Law – Children) Act 1986 (Vic); Commonwealth Powers (Family Law – Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law) Amendment Act 1994 (WA). The Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), s 4(1), provides that the following matters, to the extent that they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to it for a specified time by the Act: (a) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes; (b) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex. See also Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2009 (SA); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas); Commonwealth Powers (De Facto Relationships) Act 2006 (WA). 21 Commonwealth statutes such as: the Customs Act 1901 (Cth); the Crimes Act 1914 (Cth); the Income Tax Assessment Act 1936 (Cth); the Migration Act 1958 (Cth); the Competition and Consumer Act 2010 (Cth); the Administrative Decisions (Judicial Review) Act 1977 (Cth); the Water Act 2007 (Cth); and the Fair Work Act 2009 (Cth). See also M Black, ‘The Federal Court of Australia: The First 30 Years – A Survey on the Occasion of Two Anniversaries’ (2007) 31 Melbourne University Law Review 1017; R French, ‘Federal Courts Created by Parliament’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 123, 148–58.

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22 The Federal Court of Australia (Consequential Provisions) Act 1976 (Cth) transferred the jurisdiction of the Australian Industrial Court to the Federal Court of Australia; however, s 361(1) of the Industrial Relations Reform Act 1993 (Cth) (which amended the principal Act, the Industrial Relations Act 1988 (Cth)) established a new federal court called the Industrial Relations Court of Australia. Under s 412(1) this Court was invested with jurisdiction with respect to matters arising under the Act. Major changes were brought about by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Under this Act, the Industrial Relations Act 1988 was retitled the Workplace Relations Act 1996. Significant amendments were made by the amending Act to the Federal Court of Australia Act 1976 (Cth). Under s 3 and Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), the jurisdiction of the Industrial Relations Court of Australia was transferred to the Federal Court of Australia. The Workplace Relations Act 1996 (Cth) was subsequently superseded by the Fair Work Act 2009 (Cth). Section 562 of the latter Act provides that the Federal Court is to have jurisdiction with respect to any matter arising under the Act. 23 A ‘Jurisdiction List’ is published by the AAT and can be found at: http://www.aat.gov.au/ LawAndPractice/JurisdictionAndTimeLimits/JurisdictionList.htm. 24 The Access to Justice (Family Court Restructure and Other Measures) Bill 2010 (Cth) was introduced by Attorney-General Robert McClelland. The Bill would have amended, inter alia, the Family Law Act and the Federal Magistrates Act with the effect of creating ‘General’ and ‘Appellate and Superior’ Divisions of the Family Court. It was intended that Federal Magistrates exercise jurisdiction in matters to be heard within the General Division. See the Explanatory Memorandum. At the end of June 2012, the Military Court of Australia Bill 2012 establishing the Military Court of Australia under Ch III of the Constitution was passed by both Houses of Parliament: see below ch 3, n 70. 25 Under s 38 of the Judiciary Act 1903 (Cth), it is provided that, subject to s 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters: (a) matters arising directly under any treaty; (b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State; (c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State; (d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth; (e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or of a federal court. Section 39(1) provides that the jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any court of a State by virtue of s 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in the section. Section 39(2) provides that: the several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in s 38, and subject to specified conditions and restrictions. 26 See e.g., the Second Reading Speech of the Jurisdiction Of Courts (Cross-vesting) Bill 1986 (Cth) by former Attorney-General Lionel Bowen, particularly his concern that the Australian judicial system is composed of a ‘system of courts with geographic and other jurisdictional limitations which get in the way of the efficient resolution of the disputes of litigants’; and the discussion of how the unamended cross-vesting scheme represented a step towards a ‘unitary’ judicial system, in Opeskin and Wheeler, above n 21, 299. 27 (1999) 198 CLR 511.

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28 Re Wakim; Ex parte McNally (1999) 198 CLR 511, 554–62 (Gleeson CJ); 579–80 (Gummow and Hayne JJ). Following this decision, amendments were made to the federal legislation (Jurisdiction of Courts Legislation Amendment Act 2000). State legislation was enacted to ensure preservation of the judgments of the federal courts in exercise of the cross-vested State jurisdictions, prior to Wakim. These judgments were to be treated as if they were judgments of State courts (Federal Courts (State Jurisdiction) Acts 1999). 29 See L Aitkin, ‘Toils of Laocoon: Aspects of Federal Jurisdiction after Wakim’ (2000) 19 Australian Bar Review 223; J Lorrie, ‘Re Wakim: An Overview of the Fallout’ (2000) 19 Australian Bar Review 237; Justice R French (at the time a Federal Court judge), ‘Judicial Exchange: Debalkanising the Courts’ (2006) 15 Journal of Judicial Administration 142, esp. 152; M Black (former Chief Justice of the Federal Court), ‘Federal Court of Australia: The First 30 Years – A Survey on the Occasion of Two Anniversaries’ (2007) 31 Melbourne University Law Review 1017, 1031; M Black, ‘An Integrated Judicial System for Australia: Cross-vesting and Co-operation after Re Wakim’ (Brad Selway Memorial Lecture, The University of Adelaide, 28 June 2007); Justice James Allsop (before he was appointed President of the NSW Court of Appeal), ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ (2007) at: http://www.fedcourt.gov.au/pdfsrtfs_a/admiralty_papersandpublications16.pdf, originally published in (2002) 23 Australian Bar Review 29. 30 Mickelberg v R (1989) 167 CLR 259, [11] (Mason J). 31 See chapter 9. 32 See chapter 3. 33 See chapter 9. 34 For recent judicial comments on the stresses of judicial work see M Kirby, ‘Judicial Stress – an Update’ (1997) 71 Australian Law Journal 774; J B Thomas, ‘Get up off the Ground – A Commentary on Hon Kirby J’s “Judicial Stress – An Update”’, ibid at 785; M Kirby, ‘Judicial Stress – A Reply’, ibid at 791. See also the speech by Justice Patricia Bergin during the 2002 National Judicial Orientation Programme, entitled ‘Time Management’, recommending the introduction of a ‘Judicare’ programme akin to the ‘Lawcare’ and ‘Barcare’ programes in New South Wales, at: http://www.lawlink.nsw.gov.au/lawlink/ supreme_court/ll_sc.nsf/pages/SCO_speech_bergin_221002. 35 Sir Victor Windeyer, ‘“Judges” and “Justices” – What’s in a Name?’ (1973) 47 Australian Law Journal 224 at 225. 36 On the distinction between superior and inferior courts see E Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal of Judicial Administration 249. 37 It is worth noting that magistrates have now been found to be akin to judges for the purposes of remuneration by the Federal Court in Clark v Commissioner of Taxation (2008) 171 FCR 1. The Judicial Conference of Australia and the Association of Australian Magistrates recommended that Magistrates take on the title of ‘Judge’, in their submissions to the Senate Standing Committee on Legal and Constitutional Affairs’ Inquiry into Australia’s Judicial System and the Role of Judges. The approach in the Judicial Officers Act 1986 (NSW) was adopted by the Committee’s final report, Australia’s Judicial System and the Role of Judges (2009), at p 3, although it declined to conclusively establish the meaning of judicial officers. 38 See, e.g., Constitution Act 1975 (Vic) s 75(2). See also Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49. 39 Courts Legislation Amendment (Associate Judges) Act 2008 (Vic). According to Practice Note 6 of 2008, Supreme Court of Victoria, the formal title is ‘The Honourable Associate Justice’. 40 See pp 21–2 above. 41 Accident Compensation (Work Cover) Act 1992 (Vic), s 64. 42 Accident Compensation Act 1985 s 51(1). 43 Section 42(2). 44 Section 43. 45 See also Judicial Commissions Act 1994 (ACT) s 3; Judicial College of Victoria Act 2001 (Vic) s 3; Judiciary Legislation Amendment Act 2006 (Cth), which amended the Judiciary Act 1903 (Cth) to include a definition of a ‘non-judicial officer’ as being ‘an officer of the court who is not a magistrate, or arbitrator, of the kind described in s 39(2)(d) of the Judiciary Act 1903

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THE AUSTRALIAN JUDICIARY (Cth) just before the commencement of this Schedule’. Section 39(2)(d) previously referred to:

46 47 48 49 50 51 52

53 54 55

56 57 58 59 60 61 62 63 64 65

66 67 68

(a) Stipendiary, Police and Special Magistrates, and State Magistrates specially authorised by the Governor General to exercise federal jurisdiction; and (b) arbitrators on whom all or part of the jurisdiction of a State court of summary jurisdiction was conferred by a prescribed law of the State. Powers J became a Justice of the High Court in April 1913 and shortly afterwards was appointed as a Deputy President of the Conciliation and Arbitration Court. He held the latter office until April 1920 but was reappointed in February 1921. Gavan Duffy J was appointed to the High Court in 1913, Starke J in 1920 and Rich J in 1913. On 30 June 1921. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. In fact it was sustained: Attorney-General (Cth) v R (1957) 95 CLR 529. Conciliation and Arbitration Act 1956 (Act No 44). The Act received the royal assent on 30 June 1956. Section 7(2). Blanche D’Alpuget’s biography of Sir Richard Kirby details how appointments were made to the Commonwealth Industrial Court versus appointments to the Commonwealth Conciliation and Arbitration Commission – B D’Alpuget, Mediator: A Biography of Sir Richard Kirby (Melbourne University Press, 1977). Section 7(5). See also s 7(6) which provided that a judge of the old Court who was appointed a presidential member of the Commission did not thereby cease to be such a judge. Act No 30 of 1958 s 5. Commonwealth, Parliamentary Debates, House of Representatives, 26 April 1972, 2005; Act No 37 of 1972 s 8 (inserting a new s 7(5)). Act No 138 of 1973 s 9 amended the 1972 provision slightly. Professor Joe Isaac, Monash University, was the first Deputy President to be appointed under these provisions in 1972–3. The name of the Court was changed to Australian Industrial Court by Act No 138 of 1973. Conciliation and Arbitration Amendment Act (No 3) 1976 (Cth). The transfer of jurisdiction was effective from 1 February 1977. Section 4. Section 79 of the Industrial Relations (Consequential Provisions) Act 1988 continued the existence of the Industrial Court though it was effectively a court without business. The two not appointed were Dunphy and Joske JJ. Joske J resigned in 1977 and Dunphy J in 1983. Sections 9(2) and (3). Section 80(2). Act No 98 of 1993, s 63. The history of the Commission up to 1990 is related in M Kirby, ‘The Removal of Justice Staples – Contrived Nonsense or Matter of Principle?’ (1990) 6 Australian Bar Review 1. Act No 60 of 1996. Fair Work Act 2009 (Cth) s 629. The debate on the amendment appears in Commonwealth, Parliamentary Debates, House of Representatives, 16 April 1975, 1741(Eric Robinson MP and Joan Child MP); 21 April 1975, 1905–8; 22 April 1975, 1954–66 (Ray Thorburn MP, John Hodges MP, Gareth Clayton MP, Stephen Lusher MP, Peter Morris MP, Alan Cadman MP, Philip Lucock MP, Lionel Bowen MP, Eric Robinson MP); and 3 June 1975, 3240–42 (Lionel Bowen MP, Eric Robinson MP, Kevin Cairns MP). In the interests of completeness it is noted that the NCA is now known as the Australian Crime Commission as of 2003. The controversy is related in R Thomson, The Judges (Allen & Unwin, 1986) ch 4. See also Australasian Institute of Judicial Administration, Judges as Royal Commissioners and Chairmen of Non-judicial Tribunals (1986) 22–30. ‘Personalia – Mr Justice Stewart’ (1981) 55 Australian Law Journal 707.

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69 He was expected to present his report by 31 December 1984, but the time was later extended to 30 April 1985. 70 The formal appointment was made on 25 June 1984 and was for a term of four years, commencing on 1 July 1984 – Commonwealth, Gazette: Special, No S 260, 4 July 1984. 71 This Act received the royal assent on 15 June 1984 and commenced to operate on 1 July 1984. 72 The letter is reproduced in Thomson, above n 67, 106. 73 Reproduced in Thomson, above n 67, 121. 74 His term of office was extended from 1 July 1988 until 30 June 1989 – Commonwealth, Government Gazette, No GN25, 13 July 1988, 1396. 75 National Crime Authority (Status and Rights of Chairman) Act 1984 s 5. The term ‘office under the Commonwealth’ was defined in s 3. 76 Resource Assessment Commission Act 1989. It received the royal assent on 26 June 1989. 77 During his term of office as Chairman of the National Crimes Authority, Justice Stewart received a further royal commission to inquire into what is known as The Age tapes affair (see Commonwealth, Government Gazette, No S 130, 15 April 1985) and on 19 September 1985 was appointed a full time Deputy President of the Administrative Appeals Tribunal (Commonwealth, Government Gazette, No G 40, 8 October 1985). 78 Australasian Institute of Judicial Administration, above n 67, 4. 79 Ibid. 80 J Lowndes, ‘The Australian Magistracy: From Justices of the Peace to Judges and Beyond: Part II’ (2000) 74 Australian Law Journal 592, 595–9. 81 Aside from concerns predicated upon recognising the dignity of the magistrate’s office, concerns are also predicated upon the difference a judicial title can potentially make to a magistrate’s remuneration. See e.g., the general concerns raised by the Law Society of NSW in their submission to the Commonwealth Attorney-General with respect to the application of the title of ‘judge’ to magistrates of the Federal Magistrate’s Court in light of the aforementioned partial integration of that Court and the Family Court of Australia’s jurisdictional scope, at: http://www.lawsociety.com.au/idc/groups/public/ documents/internetpolicysubmissions/073965.pdf. 82 See e.g., the mediating role of the Australian Competition and Consumer Commission as provided for in the Competition and Consumer Act 2010 (Cth). 83 See e.g., the regime for the use of ‘family dispute resolution practitioners’ in Part II Division 3 of the Family Law Act 1975 (Cth). 84 See http://www.aija.org.au/gender-statistics.html (current as of 11 March 2011) for gender statistics. 85 Ibid. 86 See M Sexton and L W Maher, The Legal Mystique: The Role of Lawyers in Australian Society (Angus and Robinson, 1982) 4–6. 87 See pp 89–90 below. 88 See Appendix 1 at p 318. 89 In most Australian jurisdictions (New South Wales, Queensland, Victoria, Western Australia, South Australia and the Commonwealth) the rank of Senior Counsel has displaced that of Queen’s Counsel. 90 Amongst those judges who teach law are included: Justice Margaret Stone of the Federal Court of Australia, who teaches as an adjunct Professor of Law at the University of New South Wales; Justice Andrew Greenwood of the Federal Court of Australia, who teaches as an adjunct Professor of Law at the University of Queensland; Justice Arthur Emmett of the Federal Court of Australia, who teaches Roman Law at the University of Sydney; Justice Peter Rose of the Family Court of Australia, who lectures at the China University faculty of Political Science and Law; Acting Judge Ronald Sackville of the New South Wales Court of Appeal, who was Dean of Law at the University of New South Wales; Justice Robert McDougall of the Supreme Court of New South Wales, who acts as an adjunct Professor of Law at the University of Technology Sydney; Justice Clyde Croft of the Supreme Court of Victoria, who acts as an adjunct Professor of Law at Deakin University; Justice Christopher Richard Refshauge of the Australian Capital Territory Supreme Court, who teaches as an adjunct Professor of Law at the University of Canberra;

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THE AUSTRALIAN JUDICIARY and Justice Dean Mildren of the Northern Territory Supreme Court, who teaches as an adjunct Professor of Law at Charles Darwin University. Justice Paul Finn of the Federal Court of Australia was Goodhart Professor at Cambridge University in 2012. For example, Justice William Gummow of the High Court of Australia has co-authored the volume Equity: Doctrines and Remedies; Justice John Heydon, also of the High Court, acts as the General Editor of Halsbury’s Laws of Australia. For example, Justice David Hodgson of the NSW Court of Appeal has published in the fields of philosophy of mind (The Mind Matters) and moral philosophy (The Consequences of Utilitarianism); Justice Michael Pembroke of the NSW Supreme Court has authored a book of essays, Trees of History and Romance, which explores the aesthetics and history of the tree. Justice Paul Finn was formerly a Professor of Law at the Research School of Social Sciences at the Australian National University; Justice Julie Dodds-Streeton also worked as an academic, although her Honour’s principal career prior to appointment was as a barrister. Justice Marcia Neave was formerly a Professor of Law at Monash University; Justice Elizabeth Hollingworth was briefly a Senior Fellow at Melbourne University’s faculty of law before being appointed to the Bench. Justice Ralph Simmonds was formerly the Dean of Murdoch University Law School. Chief Justice Patrick Keane formerly served as the Solicitor-General of Queensland before being appointed to the Queensland Court of Appeal. Chief Justice John Doyle and Justice Christopher Kourakis were Solicitors-General of South Australia immediately prior to their judicial appointments to the Supreme Court of South Australia. Justice Pamela Tate was Solicitor-General of Victoria prior to being appointed to the Victorian Court of Appeal. Justice Malcolm Gray served as Solicitor-General of South Australia from 1979 to 1986. Justice Terence Buddin was formerly the Crown Counsel for NSW during the period 1999–2001; Justice Karin Emerton was Crown Counsel for Victoria from 2007 to 2009; Justice John McKechnie had previously served as Crown Counsel for WA from 1988 to 1990; Justice Helen Wood had previously served as Crown Counsel for Tasmania from 1985 to 1992. Justice John Reeves of the Federal Court of Australia, who sat as a Labor member of the Australian House of Representatives. This is in contrast to the system followed in many of the continental European legal systems. Note the interesting case of the Hon Sir Guy Green, who went from being a magistrate (1971–3) to Chief Justice of the Supreme Court of Tasmania (1973–95). Appendix 1 at pp 318–19. Ibid. Ibid 318. Ibid 319. Ibid 318. Ibid 319. For example, Justice Susan Crennan of the High Court of Australia holds a postgraduate diploma in History from the University of Melbourne. For example, President Chris Maxwell and Justice Pamela Tate of the Supreme Court of Victoria both hold the degree of BPhil (Oxon), which is a postgraduate degree in philosophy. Justice Ian Coleman of the Court of Appeal of the Family Court holds a Masters degree in Agricultural Science. Appendix 1 at p 317. Ibid. Provided that the judge was not appointed before the maximum age stipulations were set in place. Appendix 1 at p 317.

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CHAPTER 3

The judiciary as a branch of government

Introduction At Commonwealth, State and Territory levels in Australia, the judiciary is a branch of government separate from the legislative and executive branches and independent of them. The functions of the courts also differ from those of the other branches of government. While courts have a capacity to shape the law, it is a limited capacity. The principal function of courts is, of course, to adjudicate disputes according to the law. Judges cannot develop the law except in the course of an adjudication, and then only in an incremental fashion.1 The judicial branches of government are separate from the other branches in the sense that their members cannot be members of the legislature, and, subject to a few exceptions, judges cannot act as agents of the executive branch.2 The judicial branches can be regarded as independent of the other branches so long as their members are assured that they are able to exercise the judicial function free from interference by either a legislature or an executive, and also that they cannot be prejudiced by other branches simply on account of their decisions. Judicial independence is assured in various ways, notably by constitutional provisions which accord the judges security in the tenure of the offices to which they have been appointed.3 To an extent, judges themselves are able to enforce the principle of judicial independence. If, for example, it were to be established that the sentence imposed on a criminal offender by a magistrate had been imposed under dictation from a Minister of the Crown or so as to comply with some ministerial policy, there would be little doubt that, on appeal, the sentence would be set aside. The magistrate’s discretion in imposing an appropriate sentence would be expected to be exercised quite independently of the wishes of any Minister. 49 Downloaded from https://www.cambridge.org/core. Universiteit Leiden / LUMC, on 17 Nov 2019 at 15:57:21, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139028431.004

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This chapter deals with the constitutional and other arrangements in Australia which ensure the separation of the judicial branch of government from the other branches. It also examines the rationale for what is known as the separation of powers doctrine, and the concept of judicial power. Finally, the chapter examines the relationships between the judicial branch and other branches of government. The separation of powers doctrine Montesquieu, a renowned French thinker (1689–1755), captured the essence of the separation of powers doctrine in the following eloquent language: [T]here is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be the end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.4

Although it has been pointed out that judicial independence ‘is not related historically to the separation of powers doctrine’,5 the development by the High Court of a separation of judicial power doctrine is a tacit recognition that the ‘ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental powers might be exercised’6 rested upon the judicature. The High Court added: This would be enough in itself, were there no other reasons, to account for the fact that the Australian Constitution was framed as closely to correspond with its American model in the classical division of powers between the three organs of government, the legislature, the executive and the judicature.7

Viscount Simonds, delivering the opinion of the Privy Council in Boilermakers, said: ‘[I]n a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive’.8 Many High Court Justices have also highlighted the importance of the strict separation of federal judicial power in guaranteeing judicial independence. The separation of judicial power, according to Sir Anthony Mason, not only protects against the exercise of arbitrary power, but also ‘assists in maintaining the independence of the judiciary and contributes to public confidence in the administration of justice’.9 Public confidence in the judiciary is maintained when the judiciary is seen to be separate from the other branches of government.10

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The separation of powers doctrine is not expressly enunciated in the Commonwealth of Australia Constitution, but it has been perceived to be implicit in its framework. In the Dignan case,11 Dixon J pointed to the division of the arms of government and their compartmentalisation into various chapters of the Constitution to illustrate the existence of the doctrine. Section 1 in Ch I (headed ‘The Parliament’) provides that the legislative power of the Commonwealth shall be vested in the federal Parliament; s 61 in Ch II (headed ‘The Executive Government’) provides that the executive power shall be vested in the sovereign and is exercisable by the Governor-General as the sovereign’s representative; s 71 in Ch III (headed ‘The Judicature’) provides that the judicial power shall be vested in the High Court of Australia and in such other courts as the Commonwealth invests with federal jurisdiction. It was observed by the Judicial Committee of the Privy Council in the Boilermakers’ case that: ‘[i]n the absence of any contrary provisions the principle of the separation of powers is embodied in the Constitution’.12 The Privy Council added: But, first and last, the question is one of construction and they doubt whether, had Locke and Montesquieu never lived nor the Constitution of the United States ever been framed, a different interpretation of the Constitution of the Commonwealth could validly have been reached.13

The separation of powers doctrine, as refined through judicial decisions, does not operate in a strict fashion in Australia. This is because the framers of the Australian Constitution chose to amalgamate the federal model of the United States Constitution with the Westminster system of responsible government. Under the Westminster system of government, which prevails in Australia, there is no real separation of powers between the legislature and the executive.14 Furthermore, constitutional provisions require that the members of political executives – Ministers of the Crown – be drawn from the ranks of Members of Parliament, or else become Members of Parliament within a certain time after their appointment as Ministers. These Ministers are responsible to the relevant Parliament. The theory of responsible government enables the executive branch of government to remain in power as long as it continues to command the confidence of a majority of members of the lower house of Parliament. Another influential factor was the importance accorded to the doctrine of parliamentary sovereignty as expounded by A V Dicey. Sir Anthony Mason said that reliance on parliamentary sovereignty has been ‘talismanic’ and that ‘it has resulted in the separation doctrine having no application to the legislative power’.15 This was recognised by the High Court in Dignan, which permitted the federal Parliament to

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delegate its law-making power to the executive.16 There was, however, a clear insistence by the Court on a strict isolation of the judicial power. In a few instances, even though the powers under consideration look like judicial powers, they have not been classified as judicial powers of the Commonwealth. The Parliamentary contempt power was classified as a power incidental to the legislative function ‘notwithstanding the fact that considered more theoretically – perhaps one might even say, scientifically – they belong to the judicial sphere’.17 In the case of courts-martial, which are established in exercise of the defence power, in theory they do not exercise the judicial power of the Commonwealth but a distinct power of adjudication specific to the maintenance of military discipline.18 In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,19 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, in explaining the purpose of the separation of powers under the Commonwealth Constitution, said that the ‘separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed’.20 They added that the separation of the judicial function from the other functions of government would advance two constitutional objectives: ‘the guarantee of liberty and, to that end, the independence of Chapter III judges’.21 The separation of judicial power doctrine, as developed in Australia, has led to the establishment of the following propositions:22 first, federal judicial power cannot be invested in a federal court that does not satisfy the requirements of Chapter III of the Constitution;23 and second, as decided in the Boilermakers’ case, a non-judicial power, other than a power which is ancillary or incidental to the exercise of judicial power, cannot be invested in a Chapter III court. In consequence, even though the Commonwealth Court of Conciliation and Arbitration was constituted as a Chapter III court, it was unconstitutional to repose both arbitral and judicial functions in the same body. Such a doctrine also helps to explain why federal judges cannot be Members of Parliament or Ministers of the Crown. The admixture of judicial and non-judicial functions would run contrary to the Boilermakers’ doctrine. The judicial power of the Commonwealth was regarded by the High Court to be unlike the legislative and executive powers; thus, it was affected by different considerations. The judicial power of the Commonwealth is confined to matters specified in ss 75 and 76. These sections provide as follows: 75. In all matters – (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

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(iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter – (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States.

It is also instructive to note that s 77(iii) empowers the Commonwealth Parliament to make laws ‘investing any court of a State with federal jurisdiction’. Meaning of judicial power One of the consequences of the Boilermakers’ doctrine (that both judicial and non-judicial powers cannot be reposed in the same tribunal) is that occasions can arise in which it is necessary to decide whether a power is or is not a judicial power. A definition of judicial power often cited is that offered by Griffith CJ in Huddart Parker and Co Pty Ltd v Moorehead:24 [T]he words ‘judicial power’ as used in s 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.25

Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd,26 said that, as a general rule, a judicial power involves ‘a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons’.27 Windeyer J, in the same case, observed that an abstract, conceptual approach cannot conclusively resolve all disputes about the boundaries of judicial power.28 Windeyer J is right in his observation because some functions do lie in a conceptual ‘borderland’ between the functions that can definitively be characterised as an exercise of either the judicial or executive powers.29 Furthermore, the abstract notion of judicial power is attenuated by the constitutional context in which it is exercised; for example, the underpinning of federal judicial power by Chapter III of the Commonwealth

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Constitution differentiates its scope from state judicial power.30 To simplify this conceptually difficult area, judges often compare the contested function with the functions and processes historically exercised by courts of law.31 In brief, the courts have based their reasoning on a ‘historical examination’ of what courts have done.32 While these definitions and explanations do provide general guidance in identifying a power as ‘judicial’ in a large number of cases, their application in many other instances does not necessarily yield the ‘right’ answer. As Peter Gerangelos remarked, ‘judicial power’ is a concept ‘notoriously resistant to precise definition, and indeed to definition which may render it absolutely distinct from the non-judicial powers’.33 Even judges have acknowledged that it is well-nigh impossible to develop an exhaustive definition of what is meant by the judicial power of the Commonwealth.34 Deane, Dawson, Gaudron and McHugh JJ, in Brandy v Human Rights and Equal Opportunity Commission,35 conceded that attempting to formulate a comprehensive definition of judicial power was difficult because the combination of relevant factors is not always the same, thus posing the difficulty of pointing to any essential or constant characteristic.36 The best example of a federal judicial function is ‘the adjudgement and punishment of criminal guilt under a law of the Commonwealth’.37 This is a function that has become acknowledged as ‘essentially and exclusively judicial in character’.38 The determination of the validity of impugned legislation is also clearly a judicial function; however, as the Commonwealth judicial power is confined to matters specified in ss 75 and 76, Chapter III courts are precluded from exercising a jurisdiction to give advisory opinions on the validity of legislation.39 The adjudgement of the rights and liabilities of parties to a contract or the liabilities of an alleged tortfeasor is another example of a judicial function. While the High Court has held in Thomas v Mowbray40 that the making of an interim control order by a federal court involves the exercise of judicial power, it has held in Grollo v Palmer41 that it is not an exercise of judicial power for federal judges to entertain applications for warrants to intercept telecommunications. In some cases where the power in dispute hovers between a judicial and non-judicial appellation, or what Dixon CJ and McTiernan J in R v Davison42 described as ‘doubtful cases’, the High Court has suggested the adoption of ‘a historical criterion’. This was elaborated upon by Kitto J in the following terms: Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is

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within the concept of judicial power as the framers of the Constitution must be taken to have understood it.43

In Thomas v Mowbray the impugned s 104.4 of the Criminal Code (Cth) empowered a federal court to make an interim control order on the application of a member of the Australian Federal Police.44 In making a control order, the court must be satisfied on the balance of probabilities that the order ‘would substantially assist in preventing a terrorist act’ or that ‘the person has provided training to, or received training from, a listed terrorist organisation’: s 104.4(1)(c). The court must also be satisfied that each of the restrictions imposed on a person was ‘reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act’: s 104(1)(d). The plaintiff in Thomas v Mowbray was subjected to a number of restrictions under the control order: he was confined to his residence between midnight and 5 a.m. each day; he was required to report to the police three times each week; he was required to submit to having his fingerprints taken; he was prohibited from leaving Australia without the permission of the police; he was prohibited from acquiring or manufacturing explosives, from communicating with certain named individuals, and from using certain communications technologies. A majority (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) of the High Court in Thomas v Mowbray upheld the validity of s 104.4 on the basis that the power to make a control order was an exercise of a judicial power. The majority drew an analogy with various powers which, based on historical considerations, are regarded as judicial powers. Gleeson CJ cited two ‘familiar’ examples: bail and apprehended violence orders.45 Both instances exemplify the judicial exercise of power to create new rights and obligations. Gleeson CJ, while acknowledging that both examples were not ‘exact’ analogies, pointed out that in the case of apprehended violence orders, they have ‘many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful’.46 Kirby and Hayne JJ dissented on the basis that the standards prescribed for the exercise of the power were of ‘nebulous generality’47 or were too indeterminate.48 Thomas v Mowbray is a neat illustration of how judicial minds can easily differ on the identification of a particular power as judicial or non-judicial.49 The High Court has also recognised a ‘chameleon’ doctrine under which, in the words of Mason J, ‘[a] function may take its character from that of the tribunal in which it is reposed’.50 Kirby J, in Thomas v Mowbray, referred to this doctrine as ‘occasionally useful’ and cautioned that, at most, the doctrine ‘is one way of resolving a doubt about the essential nature of the function’.51

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Parliament and the judicial process The classic definition of judicial power by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead 52 was couched in broad and abstractive terms. Griffith CJ had described judicial power as that exercised by a body that delivers a ‘binding and authoritative decision’ in order to ‘decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property’.53 It is generally accepted that the determination of these controversies must be done according to the ‘fundamental principles of law’ and without regard to arbitrary preferences or public opinion.54 Some argue that the special character of judicial power cannot be divorced from the ‘judicial method’, which refers to the requirement that judges give coherently formulated reasons derived from external standards, which articulate or reinforce general principles of law, and which do justice to the parties.55 Contemporary constitutional jurisprudence of the High Court focuses on ‘the gradual inclusion of due process principles within the constitutional definition of “judicial power”’.56 In Nicholas v The Queen57 Gaudron J pointed out the relevance of considering the judicial process in determining the nature of judicial power in the following manner: [C]onsistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in the manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to the facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of the guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.58

It is permissible for the federal Parliament to prescribe practices and procedures to be followed by a court of federal jurisdiction and to lay down the rules of evidence to be applied in the determination of a controversy. Even then, federal Parliament does not have carte blanche on this score. The Federal Court of Australia in Esso v Dawson59 thus observed: But there are limitations upon the Parliament’s power to affect the procedures to be applied in a court exercising federal jurisdiction. In New South Wales v Canellis60 the High Court said the principles of natural justice (or procedural fairness as it is now called) apply to the exercise of judicial power. And in Leeth v Commonwealth61 Mason CJ, Dawson and McHugh JJ suggested that an attempt

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by Parliament to cause a court to act in a manner that is contrary to natural justice may be to impose a non-judicial requirement inconsistent with the exercise of judicial power.62

The imprecision in the definition of judicial power poses practical difficulties in the operation of the Boilermakers’ doctrine. The doctrine established in the Boilermakers’ case was severely criticised by Barwick CJ in Joske’s case.63 He claimed that the doctrine was unnecessary for the effective working of the Australian Constitution, or for the maintenance of the separation of the judicial power of the Commonwealth, or for the protection of the independence of courts exercising that power. Barwick CJ added: The decision leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit. But none the less and notwithstanding the unprofitable inconveniences it entails it may be proper that it should continue to be followed. On the other hand, it may be thought so unsuited to the working of the Constitution in the circumstances of the nation that there should now be a departure from some or all of its conclusions.64

Professor Cheryl Saunders rightly said that ‘[t]he moment has passed’ and that the two limbs of the Boilermakers’ case ‘are now firmly entrenched, by precedent and by institutional practices and doctrines to which the precedents have given rise’.65 The persona designata doctrine Quite obviously, an unqualified application of the Boilermakers’ doctrine would prevent ‘a federal court from exercising a function which might conveniently be undertaken by a court and is not necessarily incompatible with the exercise of judicial power’.66 The High Court has recognised the need for some degree of flexibility in the application of the separation of judicial powers doctrine. In the case of courts-martial,67 and the power exercised by a Parliament to deal with a contempt of Parliament,68 it is very clear that these functions entrusted to tribunals other than Chapter III courts satisfy the identifying characteristics of a judicial function. Nevertheless, the constitutionality of these functions has been upheld and justified on historical considerations. The High Court has also held, despite a divergence of views on the Court, that defence service tribunals do exercise judicial powers, though not contrary to Chapter III. In an ironical twist, when the Commonwealth Parliament amended the Defence Force Discipline Act 1982 (Cth) to replace the system of courts-martial with the Australian Military Court (AMC), the High Court invalidated the provisions creating the AMC. In Lane v Morrison,69 the High Court concluded that the AMC was not set up as a

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Chapter III court and yet it was required to exercise federal judicial power.70 The High Court has now accepted that Commonwealth legislation which authorises registrars of the Family Court of Australia to exercise certain judicial functions (e.g., making orders over agreed property disposition) is not unconstitutional, provided the judges of the court maintain effective supervision over the determinations of the registrars.71 A more controversial exception to the separation of power doctrine is the ‘persona designata’ exception. Under the persona designata doctrine, non-judicial powers can be exercised by a judge provided they are conferred upon the judge as a designated person rather than as a judge. This doctrine, involving ‘distinctions without differences’,72 places the performance of administrative functions not incidental to the exercise of judicial functions by federal judges as an exception to the Boilermakers’ doctrine of separation of judicial power. The persona designata doctrine has been subjected to judicial exegesis in a number of cases. In 1979 it was held by the Federal Court in Drake v Minister for Immigration and Ethnic Affairs73 that the separation of powers doctrine was not violated by the appointment of federal judges to the Administrative Appeals Tribunal. In 1985, in Hilton v Wells,74 the High Court was confronted with a more difficult situation. Unlike Drake, where a federal judge was appointed to a separately constituted tribunal, Hilton v Wells concerned Federal Court judges who were involved in the exercise of the power to issue telephonic interception warrants. It was contended that s 20 of the Telecommunications (Interception) Act 1979 (Cth), as amended, in requiring a Federal Court judge to determine applications for the issue of a warrant authorising persons to intercept communications made to or from a telecommunication service, conferred on the Federal Court a non-judicial power and was therefore invalid. In upholding the validity of s 20, Gibbs CJ, Wilson and Dawson JJ affirmed the proposition that, although the Commonwealth Parliament cannot confer non-judicial powers on a federal court, or invest a State court with a nonjudicial power, ‘there is no necessary constitutional impediment which prevents it from conferring non-judicial power on a particular individual who happens to be a member of a court’.75 Consequently, the issue was simply one of construction as to whether s 20 conferred the power on the Federal Court or on the judges individually as designated persons. The nature of the power was a factor relevant in determining whether a judge was intended to exercise the power in a personal capacity or as a judge of the Federal Court. Gibbs CJ, Wilson and Dawson JJ advanced the proposition that if the power is judicial, the likelihood is that ‘it is intended to be exercisable by the judge by virtue of that character’ but that if it is purely administrative,

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and not incidental to the exercise of judicial power, the likelihood is that ‘it is intended to be exercised by the judge as a designated person’.76 They warned that if the nature or extent of the functions cast upon judges ‘were such as to prejudice their independence or to conflict with the proper performance of their judicial functions’, the legislation would indubitably be rendered invalid by the principle underlying the Boilermakers’ case.77 The dissenting judges, Mason and Deane JJ, found that the function of issuing warrants was imposed on the judges of the Federal Court not as designated individuals, but in their capacity as judges of that court. They remarked: To the intelligent observer . . . it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade.78

The incompatibility test In 1995 the High Court was called upon again to deal with the validity of legislation conferring power to issue interception warrants on ‘eligible’ judges of courts created by the Commonwealth Parliament. The postHilton v Wells amendments to the Telecommunications (Interception) Act 1979 (Cth) required a judge to consent to being nominated as an ‘eligible’ judge and to be so declared by the Minister. In Grollo v Palmer,79 the High Court injected an ‘incompatibility’ test in determining the validity of the legislation. In order to invoke successfully the persona designata doctrine, Brennan CJ, Deane, Dawson and Toohey JJ prescribed compliance with two conditions: ‘first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent; and second, no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (the incompatibility condition)’.80 In holding that the incompatibility condition was not infringed, the majority judges said that any practical difficulty arising from the exercise of the non-judicial function by a judge could be easily surmounted.81 They noted a similar use of judges in issuing interception warrants in some other countries.82 They also pointed out that because of the intrusive and clandestine nature of interception warrants and the necessity to use them to combat serious crime, it was important to have ‘some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy’ exercising control over the

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official interception of communications. The ‘professional experience and cast of mind’ of a judge would ensure the striking of an appropriate balance between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. They added: It is an eligible judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.83

A year later the incompatibility test was applied in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs.84 Justice Mathews, a judge of the Federal Court of Australia, had accepted nomination as a ‘reporter’ under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). In a joint judgment, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said that the function that had to be performed in exercise of the non-judicial power must be examined in order to ascertain its compatibility with the exercise of judicial powers. They specified the following criteria for the consideration of the court: The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislative or the Executive Government . . . Next, an answer must be given to the question whether the function is required to be performed independently of an instruction, advice or wish of the Legislative or the Executive Government, other than a law or an instrument made under a law . . . If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds – that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests.85

In applying the specified criteria the majority judges concluded that the function of reporting conferred on Justice Mathews was incompatible with the holding of office as a Chapter III judge. They said that the function of reporting was performed as an integral part of the process of the Minister’s exercise of power, and its performance by a judge would place the judge ‘firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser’.86

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Clearly, there is judicial recognition of the importance of the doctrine of separation of judicial power in a healthy democracy. At the same time, a conundrum was created when the High Court gave endorsement to the persona designata exception to the doctrine. McHugh J highlighted the conundrum in the following terms: Clearly, a tension exists between complying with the principle of the separation of powers and vesting powers in federal judges as persona designata. If the separation of powers doctrine is to continue effectively as one of the bulwarks of liberty enacted by the Constitution, the incompatibility qualification on the persona designata doctrine is a necessity. Without that qualification, it would permit the Parliament ‘to sap and undermine’ the separation of legislative, executive and judicial powers that is inferentially expressed by ss 1, 61 and 71 of the Constitution and which was vigorously applied by this Court and the Judicial Committee of the Privy Council in the Boilermakers’ Case.87

The Kable doctrine and State courts It is generally acknowledged that the doctrine of separation of judicial powers established in the Boilermakers’ case is not applicable to State courts.88 In 1996, however, in the landmark decision of Kable v Director of Public Prosecutions (NSW),89 the High Court extended the incompatibility notion in such a way that State legislation seeking to confer upon State courts certain non-judicial functions may be held invalid on the ground that it violates Chapter III of the federal Constitution. Under Chapter III, the federal judicial power can be invested in ‘such other courts as the Commonwealth invests with federal jurisdiction’, and the phrase ‘other courts’ encompasses the courts of the States. The State legislation the validity of which was contested in Kable’s case was the Community Protection Act 1994 (NSW), passed by the New South Wales Parliament on 2 December 1994. The Act conferred jurisdiction on the Supreme Court of New South Wales to make an order for the preventive detention of the appellant, Gregory Wayne Kable. Kable, who had killed his wife and had also engaged in violent behaviour towards her before the killing, was subsequently convicted of her manslaughter. While he was serving his term of imprisonment Kable wrote a number of threatening letters, mainly to his deceased wife’s relatives. To allay fears of a repetition of violent behaviour by Kable upon his release, it was expressly provided in s 3 that the object of the Act was ‘to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable’. Furthermore, the need to protect the community was to be given ‘paramount consideration’ in the construction of the Act. The ad hominem nature of the Act was clear, for s 3(3) provided that:

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Section 5(1) of the Act empowered the Supreme Court of New South Wales to make an order for detention of Kable in prison for a specified period if it was satisfied on reasonable grounds that he was ‘more likely than not to commit a serious act of violence’, and that it was appropriate ‘for the protection of a particular person or the community generally’ that he be held in custody. The maximum period for detention was six months;90 however, more than one application for an order could be made in relation to the same person. This feature of the Act prompted McHugh J to observe that theoretically it would be possible for such a person to be imprisoned for life under the Act. This would come about not because of any crime that was committed by the person subject to the order but ‘because on the balance of probabilities the Supreme Court is satisfied that the appellant is more likely than not to commit a serious act of violence’.91 A six-month detention order was made by the Supreme Court against Kable. An appeal against this order was dismissed by the New South Wales Court of Appeal. An application for a second detention order against Kable was refused by the Supreme Court. An appeal to the High Court against the decision of the Court of Appeal raised for consideration the validity of the Community Protection Act 1994 (NSW). A majority of the High Court (Toohey, Gaudron, McHugh and Gummow JJ) held that the Act was invalid. Gaudron, McHugh and Gummow JJ based their conclusion on the proposition that the Act was invalid because it purported to vest functions in the Supreme Court of New South Wales that were incompatible with the exercise of the judicial power of the Commonwealth by the Supreme Court of that State. In a judgment reflective of the general reasoning, McHugh J pointed out that, under the Constitution, the State courts constitute part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. No distinction between the status of State courts invested with federal jurisdiction and those created as federal courts was contemplated by the Constitution as there should not be two different grades of federal judicial power.92 In the words of Gaudron J, the Constitution does not permit different qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament.93 Gummow J also said that the judicial power of the Commonwealth could not be divided into an ‘inferior grade’ and a ‘superior grade’.94 In light of such reasoning, Gaudron, McHugh and Gummow JJ held that the Parliaments of the States could not by virtue of Chapter III of the Constitution legislate to confer powers

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on State courts which are ‘repugnant to or incompatible’ with their exercise of the federal judicial power.95 The application of the incompatibility test resulted in the invalidation of the Community Protection Act 1994 (NSW). An analysis of the provisions of the Act led Gaudron J to conclude that the Act made ‘a mockery’ of the judicial process.96 The inevitable weakening of public confidence in the process would also weaken public confidence in the judicial system. In holding that the Act had infringed Chapter III of the Constitution, McHugh J said that ordinary reasonable members of the public might reasonably infer that the Supreme Court was an ‘instrument of executive government policy’, resulting in the impairment of public confidence in the impartial administration of the judicial functions of the Supreme Court.97 Gummow J found the ad hominem nature of the Act, which also required the Supreme Court of New South Wales to inflict punishment without any anterior finding of criminal guilt, ‘repugnant to judicial process’. He said that the appearance of institutional impartiality would be undermined by the perception of the judiciary as ‘an arm of the executive which implements the will of the legislature’.98 Toohey J, the fourth member of the majority, reached the finding of invalidity from a slightly different angle. A State court, in the exercise of its federal jurisdiction, could not, he thought, act in a manner that was incompatible with Chapter III of the Commonwealth Constitution. Because of ‘federal constitutional points’ raised in the Supreme Court and on appeal to the State’s Court of Appeal, the Supreme Court was in fact exercising federal jurisdiction. The Act, in his view, required ‘the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process’.99 The prevailing view is that the incompatibility is grounded on the vesting of federal judicial power in a State court, and not restricted to the actual exercise of federal judicial power as stated by Toohey J. Although attempts were made on many occasions to invoke the Kable principle,100 it became apparent that a trend was emerging of the High Court seeking to put ‘a tight fence’ around the principle.101 In Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police102 and K-Generation Pty Ltd v Liquor Court,103 the invocation of the Kable principle was rejected by the High Court. Gypsy Jokers concerned the issuance by the Commissioner of Police of a fortification removal notice pursuant to the Corruption and Crime Commission Act 2003 (WA). The impugned legislation provided, in s 76(2), that the Commissioner could identify any information as confidential ‘if its disclosure might prejudice the operations of the Commissioner’. K-Generation was concerned with a refusal by the Liquor and Gambling Commissioner of an application for an entertainment venue licence

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made under the Liquor Licensing Act 1997 (SA). The Liquor and Gambling Commissioner, relying on information classified as ‘criminal intelligence’ not disclosed to the applicants, refused the application on the ground that to grant it would be contrary to the public interest. The impugned legislation in Gypsy Jokers and K-Generation was upheld by the High Court, which construed the legislation in each case as in fact ‘reserving to the court a discretion as to whether or not to accept the commissioner’s claim for confidentiality’.104 This trend of seeking to marginalise the Kable principle seems, however, to have been arrested by recent High Court decisions.105 The Kable ‘guard dog’ principle has been ‘reinvigorated’,106 and, in the words of Sir Anthony Mason, ‘promises to be a mastiff that is barking with frightening ferocity’.107 Some earlier views that were expressed appeared to suggest that the criterion of invalidity was the impairment of public confidence in the courts.108 In Momcilovic v The Queen109 Gummow J made it clear that matters of perception and public confidence in the consideration of the Kable principle were apt to mislead, and that the ‘touchstone’ of validity concerned the ‘institutional integrity of the courts’.110 The principle was articulated by French CJ and Kiefel J in their joint judgment in Wainohu v New South Wales as follows: ‘that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Chapter III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system’.111 They added: The term ‘institutional integrity’, applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court’s independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle.112

French CJ and Kiefel J further said that another defining characteristic of a court is that it generally gives reasons for its decisions. This characteristic in the case of the Supreme Courts of the States has a constitutional dimension because of the appellate jurisdiction conferred upon the High Court by s 73 of the Constitution.113 It is clear that the Kable principle is being wielded vigorously by the High Court to give greater protection to the independence and impartiality of the courts of the States. Undoubtedly, the Kable principle lacks a clear boundary114 and is shaped on a case-by-case basis. Despite the ‘dubious foundations’ of Kable and the ‘incoherence of the dual but different implications in Kable and Boilermakers’, Sir Anthony Mason regarded the Kable principle as a commendable development for it ‘has brought federal courts and state courts exercising federal jurisdiction into

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a more principled relationship, at least so far as the functions with which they can be entrusted’.115 Relationships with other branches of government The principle that the federal Parliament cannot interfere with the judicial processes of federal courts was invoked by the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs116 to invalidate a federal law117 which directed the courts not to order the release of ‘designated’ persons as it amounted to ‘a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction’.118 The High Court has made it very clear that it is not prepared to tolerate parliamentary intrusion into the judicial power of the Commonwealth.119 To afford citizens ‘the right to enjoy the fruits of litigation free from the vagaries and vicissitudes of political interest and factional influence’,120 the separation of powers must provide the basis for identifying constitutional limitations on the exercise of legislative power which poses a threat to ‘the independent exercise of judicial power vested in the courts’.121 Peter Gerangelos has pointed out, however, that the search for constitutional limitations based on the separation of powers is ‘an area of some considerable complexity’.122 This is largely because not all judicial interferences amount to a violation of the separation of powers. Gerangelos elaborated on the following two scenarios in which the integrity of the ‘decisional independence’ of the judicial branch would most likely be compromised: The first, ‘the pending case scenario’, concerns legislative interference, whether inadvertent or intentional, with the resolution of cases pending within the judicial system, either awaiting first instance hearing or appeal. The second, ‘the final judgment scenario’, arises where legal controversies have been finally decided within the system and the legislature attempts to interfere with the particular outcome.123

A principle which is clear is that a legislative interference with the judicial process which constitutes a legislative ‘usurpation’ of the judicial power is unconstitutional. Thus, in Polyukhovich v Commonwealth124 the High Court acknowledged that federal legislation amounting to a Bill of Attainder would be invalid.125 This view was expressed even though there is no Australian equivalent of the provision in the United States Constitution which prohibits both the United States Congress and the State legislatures from passing such legislation.126 In Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth127 the High Court said that it is well established ‘that Parliament may legislate so as to affect and alter rights in issue in

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pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution’.128 The Court said that it was otherwise ‘when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings’.129 While the courts seek to insulate judicial power from non-judicial powers with a view to securing the independence of the judiciary, they recognise the hard reality that the courts do not operate in a vacuum. In their daily operations the courts are constantly making a diversity of orders. They can be handing down terms of imprisonment, imposing fines or issuing restraining orders, such as injunctions. They rely on the executive to enforce orders, and for the execution of sentences of imprisonment and restraining orders, collection of fines, imprisonment for contempt of court and seizure and sale of property for non-payment of judgment debts. The ability of the courts to perform their functions efficiently is dependent on adequate public funding. This requires the involvement of the executive arm of government in determining the number of judicial officers to be appointed and the amount of funds to be allocated to the court system. This in turn requires the Parliament to pass the necessary legislation to appropriate public money. There cannot be expenditure of public money without parliamentary authorisation. This principle, at federal level, is reflected in s 83 of the federal Constitution, which stipulates that ‘[n]o money shall be drawn from the treasury of the Commonwealth except under appropriation made by law’.130 Every year, the government secures the passage through Parliament of a general Appropriation Act to appropriate moneys for the business of government over the following 12 months. The second reading of the Bills for the Appropriations Acts is moved by the Treasurer in the lower house. In addition, there are also Acts of Parliament that provide continuing authority to spend specified sums of money. These special or standing appropriations provide continuing authority until they are repealed or amended. The reliance by the courts on executives and legislatures for their funding has implications for judicial independence. Professor Stephen Parker thus observed: [T]he power to decide a court’s budget has some potential to be used to undermine judicial independence because declining resources and working conditions are bound to concern dedicated professional people. Similarly, the failure to increase the number of judges proportionate to the increase in caseload can make the judges of a court, collectively, supplicants to government.131

Len King, a former Chief Justice of the Supreme Court of South Australia, said that the law minister has the function of demanding of Cabinet that

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‘adequate resources be provided and to explain publicly why an adequately performing judicial system is so fundamental to society that financial pruning must never be allowed to impair its ability to deliver prompt and effective justice’.132 Apart from the power of the purse strings, the executive can affect the judiciary through the manner in which it seeks to exercise its power of judicial appointments.133 In Australia this power has generally been viewed as having been exercised in a responsible way. Nevertheless, by exercising this power the executive can shape the future direction of judicial interpretation, especially by a court which has the task of constitutional interpretation, such as the High Court of Australia. This can be illustrated by the demand of then Deputy Prime Minister (Tim Fischer) for appointment of ‘Capital C conservative’ judges in the wake of the Wik decision. The executive can also initiate moves to have a judge removed from office. The usual mode of removal comprises an address from the Houses of Parliament ‘praying for such removal on the ground of proved misbehaviour or incapacity’, followed by actual removal by the vice-regal representative. Because the judiciary has to rely on the goodwill of the legislature for its resources and on the executive to enforce its judgments, it is not surprising for it to be described as ‘the least dangerous branch of government’134 or the branch of government ‘least dangerous to the political rights of the Constitution’.135 Alexander Hamilton wrote in The Federalist Papers, regarding the proposed Constitution for the United States of America, that the judiciary ‘is beyond comparison the weakest of the three departments of power’.136 Hamilton elaborated: The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over the sword or the purse . . .137

In Australia, a judicial decision, no matter how unpalatable, is usually respected by the executive branch of government. In some instances the executive branch may seek to counter an adverse court ruling by promoting legislation to override it. For instance, after the High Court’s ruling in Teoh’s case,138 a few governmental attempts were made to negate the new rule that Australia’s ratification of a treaty can generate a legitimate expectation that administrative decision-makers will act in conformity with the treaty. The High Court’s ruling was applauded by some commentators, but it was a cause of concern in governmental circles, mainly because it left administrative decision-makers with little guidance on what their obligations were to be. In a joint statement on the Teoh case, two Federal Government Ministers said that Australia was a party to many treaties

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and that the decision of the High Court gave little if any guidance on which treaty provisions would be relevant.139 They added that it was not in anybody’s interests to allow such uncertainty to continue. They announced that Australia’s entry into an international treaty was not a reason for raising a legitimate expectation that the treaty would be taken into account in the exercise of administrative powers. Subsequently, the government introduced an ‘Anti-Teoh Bill’ with the main objective of negating the effect of the Teoh case.140 The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which recommended the enactment of the legislation. The Bill lapsed with the calling of national elections. A further joint statement was issued by the new government. A similar Bill was introduced into Parliament, but it also lapsed. To date, no further attempt to negate the effect of Teoh has been made by a federal government. Governmental exasperation with decisions of the Federal Court in immigration matters led to amendments to the Migration Act 1958 (Cth) in 1992 to limit the review jurisdiction of the Federal Court.141 In exercising the jurisdiction invested in it by the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Federal Court had held invalid many administrative decisions made in purported exercise of powers conferred by the Migration Act 1958 (Cth). The amendments to the Migration Act 1958, introduced in 1992, removed from the Federal Court much of its jurisdiction to review decisions in migration cases on the grounds set out in the Administrative Decisions (Judicial Review) Act 1977. The amendments were designed to restrict the grounds on which the Federal Court could review many classes of decisions under the Migration Act. The constitutionality of the amendments was contested in Abebe v Commonwealth,142 but a majority of the High Court held that the federal Constitution does not prevent the federal Parliament from enacting legislation to withdraw from courts that it has created jurisdictions that it has previously invested in them. In their judgments, judges sometimes point out to legislatures that their attempts to change a particular piece of legislation could have unintended consequences. Thus in Abebe v Commonwealth, Gleeson CJ and McHugh J of the High Court pointed out that Parliament had chosen to impose a severe restriction on the jurisdiction of the Federal Court to review the legality of decisions of the Refugee Review Tribunal. They warned that the restriction would pose significant consequences for the High Court ‘because it must inevitably force or at all events invite applicants for refugee status to invoke the constitutionally entrenched s 75(v) jurisdiction of this court’ resulting in serious effects on the business of the court.143 The concern over the detrimental impact on the work of the High Court by the amendments to the Migration Act was reiterated by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte

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Durairajasingham.144 He said that the reforms brought about by the amendments were ‘plainly in need of reform themselves’, and expressed the hope ‘that in the near future the parliament will reconsider the jurisdictional issues involved’.145 In 2001, Parliament enacted amendments to the Migration Act which ‘reinstated the jurisdiction of the Federal Court under s 39B of the Judiciary Act . . . to review what were now to be described as “privative clause decisions”’.146 According to Stephen Gageler, the ‘practical consequence’ of the decision of the High Court in S157/2002 v Commonwealth147 was ‘to return the Federal Court to a position in some respects quite similar to that which had existed before 1992’.148 In those cases where judges, in the course of their reasons for decision, have drawn attention to a need to review the laws they are obliged to apply, the other branches of government would generally be receptive to such judicial sentiments. Judges do recognise a need not to trespass on the domains of the other branches of government. Judicial caution is manifested when courts are confronted with applications for an injunction to restrain, for example, the Speaker of a Parliament from presenting a Bill, enacted by the normal parliamentary procedures, for the Royal Assent. The need for caution was explained by Kirby P in Eastgate v Rozzoli.149 He said that there is an expectation that if an injunction were issued it would be obeyed. He added: ‘If, however, Parliament declined to accept a perceived intrusion of another branch of Government in its affairs, a risk of disobedience might arise. The court would then be faced with grave difficulty in enforcing its orders’.150 In Australia, judges have reached an accommodation of the extent to which they will exercise judicial supervision over the observance of the requirements of the law-making processes of parliaments. The broad attitude is that they should intrude as little as possible into the inner workings of Parliament. The general approach is to allow the process of law-making to be completed and then to step in to pronounce upon the validity or invalidity of the Act by means of declaration, which is a non-coercive remedy. This accommodation was spelt out by Kirby P in the following fashion after he had analysed the relevant cases in Australia and overseas: 1. In relation to the compliance by the Parliaments of the Commonwealth of Australia, Federal and State, with constitutional or other lawful requirements concerning their internal procedures, Australian courts have powers different from those conventionally accepted by the courts of the United Kingdom in respect of the Parliament of that country. 2. The power to issue injunctions and to make declarations in relation to the deliberative stages of proceedings in Parliament will virtually always be refused out of the necessity to permit Parliament to conclude its deliberations.

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THE AUSTRALIAN JUDICIARY 3. After the passage of legislation through the House or Houses of Parliament and before presentation of the resulting Bill to the Governor for the Royal Assent, the courts have asserted the power to issue an injunction to restrain the officers responsible for presenting the Bill to the Governor for the Royal Assent. A fortiori they have asserted a power to make a declaration as to the validity of the legislation at that stage. 4. Nevertheless, it is now settled practice in Australia that such an injunction will virtually never be issued, nor a declaration made, at that stage. It will be left to the applicant to seek relief after the Royal Assent has been given and the Bill has become law. 5. Such relief will be available virtually immediately and may be directed to the officials who would otherwise have the responsibility of enforcing the allegedly invalid law. It is in this way that the Courts of Australia have achieved an appropriate balance between: (a) The fulfilment of their role as guardians of the rule of law, including in respect of any requirements that may be laid down by law and which parliament is obliged to obey in respect of the passage of a particular law; and (b) The respect which is conventionally accorded to a separate branch of Government with its own ancient rights and privileges reflected in the Bill of Rights of 1689, established by longstanding tradition and recognised in many places, including in the law of Parliament.151

Despite adopting a policy of judicial non-interference in the ‘intramural deliberative activities’ of the Parliament, Barwick CJ in Cormack v Cope152 said that the court ‘has both a right and a duty to interfere if the constitutionally required process of lawmaking is not properly carried out’.153 In ruling on the validity of the legislation of parliaments, courts often stress that they are not concerned with the desirability of the legislation. As is often said, this is a matter calling for political wisdom. Dixon CJ in Burton v Honan154 said: In the administration of the judicial power in relation to the Constitution there are points at which matters of degree seem sometimes to bring forth arguments in relation to justice, fairness, morality and propriety, but these are not matters for the judiciary to decide upon.155

The growth of ‘administrative law’ has seen an increase in tension between the courts and the executive branches of government. Although courts have claimed that in the exercise of their power to review administrative actions they are not concerned with the ‘merits’ of the case but rather its ‘legality’, the invocation of grounds such as unreasonableness to render nugatory administrative decisions can often blur the line between ‘merits’ and ‘legality’ review.156 In those instances where the executive branch has perceived an overstepping of the mark, the response has been the enactment by Parliament of ‘privative clauses’ to

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oust the jurisdiction of the courts or by legislative restriction of the courts’ jurisdiction.157 The judicial branch has responded to legislative initiatives to reduce the courts’ jurisdiction by invoking the distinction between jurisdictional and non-jurisdictional errors of law. The High Court has recognised that federal legislation can exclude judicial review in respect of non-jurisdictional error but not in respect of jurisdictional error. In Kirk v Industrial Relations Commission (NSW)158 the High Court invalidated a privative clause under State legislation which excluded judicial review in relation to jurisdictional errors. Given that the Constitution provided for an integrated judicial system, and as the High Court has entrenched appellate jurisdiction, the State Supreme Courts’ supervisory jurisdiction is also entrenched and cannot be undermined.159 This is part and parcel of the system of checks and balances in a democratic polity. To maintain judicial independence it is vital for the courts to ‘hit the right note’ in their dealings with the other branches of government. The following observations of the United Kingdom’s Joint Committee on Parliamentary Privilege in its Parliamentary Privilege – First Report160 are apt: The effective working of the constitution depends on the courts being ever sensitive to the need to refrain from trespassing on the province of Parliament or even appearing to do so, and on Parliament being similarly sensitive to the need from trespassing on the province of the courts.

The High Court in the eye of a storm An unprecedented event occurred in 1996 when, in response to attacks on the High Court by former Deputy Prime Minister Tim Fischer alleging unwarranted delay in the deciding of the Wik case,161 the then Chief Justice of the High Court, Sir Gerard Brennan, wrote a letter to Mr Fischer rebutting the criticism.162 Prior to the Wik case, in the 1992 landmark case of Mabo,163 the High Court had handed down a judgment which in essence acknowledged the recognition by the common law of Australia of ‘a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands . . .’164 On 23 December 1996, the High Court, in a 4:3 decision in Wik, rejected the notion that the grant of a pastoral lease would necessarily result in the extinguishment of native title. In between the two decisions, the Labor government under Prime Minister Paul Keating had introduced legislation into the federal Parliament to ensure further protection of native title and to establish a system for dealing with native title claims. Bitter debate ensued. David Solomon observed: ‘Miners and pastoralists, supported by the National and Liberal Parties, wanted native rights to be restricted or even

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eliminated’.165 A few weeks earlier, Fischer had been reported as having criticised the High Court for its delay in handing down judgment on the Wik native title claim. Because of the unprecedented nature of this episode, the contents of the correspondence are reproduced here in full. In his letter to Mr Fischer dated 3 January 1997, Sir Gerard Brennan wrote: I have delayed writing this letter until the judgment of the Court in the Wik Case was delivered. The Australian of 28 November carried a headline and article ‘Fischer lashes High Court for delay in Wik decision’. This was the second attack you have made upon the Court suggesting an unwarranted delay: the first was in relation to the date of hearing, the second in relation to the date of judgment. It is as well that you should be acquainted with the facts of the case. The Wik Case judgment was delivered by Justice Drummond of the Federal Court on 29 January 1996. The Federal Court granted the Wik and Thayorre Peoples leave to appeal to the Full Court of the Federal Court on 22 March 1996. On 27 March 1996 the State of Queensland and another party filed notices of motion in the Brisbane office of the High Court seeking removal of those appeals into the High Court pursuant to s 40 of the Judiciary Act 1903. Removal of such cases is not automatic. Because of the urgency of the matter, the application was expedited by being inserted into the list for the next day of hearing applications for special leave to appeal, namely, 15 April. The order for removal was made on that day. On 6 May, I held a directions hearing to identify the issues and to give directions for the preparation of this complex matter. The parties, who co-operated efficiently, prepared lengthy written submissions and accepted time limits on oral argument. The matter was advanced in the High Court hearing list and came on for hearing on 11 June. The hearing was completed on 13 June. The appeal books consisted of 17 volumes, containing 263 documents covering 3,036 pages. There were 7 volumes of legislation contained in 338 documents covering 1,971 pages. The written submissions of the parties and of the interveners covered 714 pages with 915 pages of attachments. 98 Australian and 155 overseas cases were cited. The transcript of oral argument covered 266 pages. This mass of material involving novel and difficult questions of law is an indication of the length of time that each of the Justices was required to spend to form his or her view on the answers to be given to the questions of law that arose in each of the appeals. That time had to be found while the Court continued to sit and to deal with the cases listed for hearing during the balance of the year. To say that there was any unwarranted delay in the delivery of this judgment is quite unjustified. The practice of this Court is to deliver a judgment as soon as can conveniently be done after all Justices have written their judgments. This was the practice followed in the Wik case. Judgment was delivered on 23 December 1996. This Court has never attracted criticism for a failure to discharge its enormous burden. On the contrary, during my time on this Court, the only comment on this score that has been made by those who are familiar with its working is amazement at its capacity to produce judgments of erudition in the variety of fields covered by its caseload. Perhaps some indication of the

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Justices’ devotion to their duty is that the members of this Court, alone amongst other Courts and, for that matter, other branches of Government, have for many years been unable to take the leave to which they are entitled, sabbatical or other, during their tenure of office. I am sure that you are no stranger to long hours of work. Neither are the Justices of this Court. You will the more readily appreciate that attacks of the kind that you have made, emanating from a Deputy Prime Minister, are damaging to this Court. You will appreciate that public confidence in the constitutional institutions of Government is critical to the stability of our society. By a convention which is based in sound practice, judges do not (and certainly should not) publicly attack the members of the political branches of government, and the members of the political branches of Government do not (and certainly should not) attack the judges except on a substantive motion in the Parliament. This convention does not restrict criticism of Court judgments, but it does restrict criticism of judicial integrity or devotion to judicial duty. Neither the co-operation that is required among the branches of Government nor the dignity of this Court would be advanced by my making a public statement to repel the attacks which you have made. Indeed, Courts are not capable of responding – nor would they wish to respond – to media attacks. I ask you to bear this in mind and to consider whether the making of attacks on the performance by this Court of its constitutional functions is conducive to good government, even if an attack can gain some temporary political advantage.166

In his letter of 13 January 1997, Mr Fischer replied: I acknowledge your letter of 3 January and I have carefully noted your comments. In my public statements I have at all times sought to acknowledge the separation of powers between the Executive Government and the Judiciary. This separation of powers was referred to in the Australian article of 28 November 1996. My comments were made against the background of incorrect advice I had received which predicted that the Wik decision would not be handed down by the High Court until calendar year 1997. My intentions were neither to engineer the headline printed in The Australian, nor was it to gain ‘some temporary political advantage’. Short or long term political advantage and/or disadvantage would only have resulted, in my view, from a far more robust comment than those I made. Ironically I am currently under attack for placing too much faith in the judiciary in the context of debate concerning the Constitution, and one option proposing a non-discretionary extra role for the Chief Justice in relation to the Governor-General. I readily acknowledge the huge and difficult work load before the High Court of Australia. I also strongly concur with your view that ‘public confidence in the constitutional institutions of government is critical to the stability of our Government’. I have made a point of saying on the ABC ‘AM’ program and elsewhere recently, that I respect the amount of work being processed by the High Court. I should add I also particularly note your comment that Court judgments may be criticised as a separate matter from judicial integrity and devotion to duty, the Sydney Morning Herald of 11 January 1997 falls into that category although it was somewhat exaggerated.

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THE AUSTRALIAN JUDICIARY Thank you for writing to me and please accept my best wishes for 1997.167

For a number of months following the decision in Wik, the High Court was ‘denounced by conservative politicians, lawyers, pastoralist and miners’.168 The language employed in a number of instances was not only intemperate; it could reasonably be construed as inciting contempt for the Court. The then Premier of Queensland (Mr Borbidge) was reported to have described the High Court Bench as ‘a historic pack of dills’ and ‘an embarrassment’.169 The unrelenting assaults on the High Court can be underscored by a sampling of the epithets collated by Justice Michael Kirby: ‘bogus’, ‘pusillanimous and evasive’, a ‘pathetic . . . self-appointed [group of] Kings and Queens’, a body ‘packed with feral judges’, ‘a professional labor cartel’.170 Scurrilous abuse of particular members of the judiciary, or attacks that question the integrity of judicial institutions, undermine public confidence in the courts and acceptance of their decisions. This is not to suggest that courts should be immune from criticism. On the contrary, the judgments of the courts should be scrutinised and critically evaluated. But those who hold positions of power and influence in the country have a responsibility to ensure that the line between measured criticism of judgments and denigration of judges is not traversed.171 Constitutionalism in Australia is not enhanced by hostility directed against the judiciary, which plays such a pivotal role in maintaining the rule of law. As Dickson CJ of the Canadian Supreme Court observed: ‘[Judicial independence] is . . . the lifeblood of constitutionalism in democratic societies’.172 As guardians of the Constitution, judges have to make difficult decisions about what the Constitution permits and prohibits. A document drawn up a century ago cannot be construed as if the world had stood still. As Sir Victor Windeyer noted: In any country where the spirit of the common law holds sway, the enunciation by the courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries; or that they may do so.173

If there is disagreement with the way a judge has resolved a legal issue it is quite acceptable to express disagreement with the judge’s reasoning. Some have suggested that judges are unaccountable because unlike parliamentarians they do not stand for re-election. This is incorrect because judges are accountable in different ways.174 Accountability in the sense of requiring a judge to toe the policy line of the government of the day would completely destroy public confidence in the judiciary. In the absence of a truly independent judiciary there is not rule of law but rather rule by executive power.175

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Conclusion A strict separation of judicial power doctrine has been developed by the courts. The doctrine sustains judicial independence, but by itself cannot protect the independence of the judiciary. Sir Ninian Stephen has remarked: What ultimately protects the independence of the judiciary is a community consensus that that independence is a quality worth protecting, the citizen being better served if the judiciary is preserved from domination by those more overtly powerful elements of governments, on whose support the judiciary is dependent, yet whose exercise of power the judiciary is charged with keeping within bounds prescribed by law . . . Without that community consensus operating as a restraint, the temptation for governments to erode the judiciary’s independence is likely over time to prove fatal to it.176

Sir Ninian Stephen also observed that ‘an independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed’.177 In 1989 he was of the view that judicial independence was still flourishing in Australia.178 Although a year later, Sir Daryl Dawson expressed his confidence that judicial independence in Australia was still ‘alive and well’,179 there is no room for complacency. Any attempt by the executive or legislative arm of government to encroach, whether blatantly or surreptitiously, upon judicial independence will only be foiled by constant vigilance.180 Notes 1 See M Kirby, The Judges (Australian Broadcasting Commission, 1983) ch 5; M McHugh, ‘The Law-making Function of the Judicial Process’ (1988) 62 Australian Law Journal 15 (Pt 1), 116 (Pt 2). 2 See pp 57–65 below. 3 See p 116 below. 4 Montesquieu, The Spirit of the Laws (Thomas Nugent trans, Hafner Press, 1949) 151. 5 O Hood Phillips, ‘A Constitutional Myth: Separation of Powers’ (1977) 93 Law Quarterly Review 11, 13. See G Winterton, Judicial Remuneration in Australia (Australasian Institute of Judicial Administration, 1995) 10. 6 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). 7 Ibid. 8 Attorney-General (Cth) v R (1957) 95 CLR 529, 540. 9 A Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 6. See also C Saunders, ‘The Separation of Powers’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) ch 1. 10 An interesting fact to note, as pointed out by Justice P W Young, is that ‘it is only relatively recently in some places that magistrates were divorced from the public service and made into independent judicial officers’: see Young, ‘The Magistracy’ (1998) 72 Australian Law Journal 402. This aspect of the magistracy, especially the regime as it operated in New South Wales, is discussed in J Lowndes, ‘The Australian Magistracy: From Justices of the Peace to Judges and Beyond – Part I’ (2000) 74 Australian Law Journal 509. 11 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

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12 Attorney-General (Cth) v R (1957) 95 CLR 529, 540. 13 Ibid. 14 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. See L Zines, The High Court and the Constitution (Butterworths, 5th ed, 1997) ch 9. 15 A Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 4. 16 Dixon and Evatt JJ suggested some limits to the extent to which power could be delegated: see Zines, above n 14, 201–2. As has been acknowledged, however, the delegation of subordinate law-making power to the executive can be ‘on a very large scale’: Mason, above n 15, 1. 17 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 167 (Dixon CJ for the Court). 18 Re Tracey; Ex parte Ryan (1989) 166 CLR 518. 19 (1996) 189 CLR 1. 20 Ibid 10–11. 21 Ibid 11. See also R v Davison (1954) 90 CLR 353, 380–81. 22 See Zines, above n 14, 208–18. 23 New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54; Waterside Workers’ Federation v J W Alexander Ltd (the Alexander case) (1918) 25 CLR 434. 24 (1908) 8 CLR 330. 25 Ibid 357. 26 (1970) 123 CLR 361. 27 Ibid 374–5. In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11, the discharge of the federal judicial function was described by the High Court as involving the ‘ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion’, and a result which would be ‘promulgated in public and implemented by binding orders’. 28 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394. 29 Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson [2002] UKHL 46, 50 (Lord Steyn). 30 See Re Judiciary and Navigation Acts (1921) 29 CLR 257; Momcilovic v R (2011) 280 ALR 221, 255 (French CJ). 31 See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 (Windeyer J); R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, 627 (Mason J); Nicholas v The Queen (1998) 193 CLR 173, 208 (Gaudron J); See also Opeskin and Wheeler, above n 9, 210. 32 Zines, above n 14, 221. 33 P Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process – Constitutional Principles and Limitations (Hart Publishing, 2009) 3. 34 See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 (Windeyer); Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188. 35 (1995) 183 CLR 245. Brandy (at 267) highlighted the enforceability of decisions as a distinguishing feature of judicial power. See I Omar, ‘Darkness on the Edge of Town: The High Court and Human Rights in the Brandy Case’ (1995) 2 Australian Journal of Human Rights 115; E Henderson, ‘Trials, Tribunals and Tribulations: Brandy v Human Rights and Equal Opportunity Commission’ (1995) 17 Sydney Law Review 581; M Allars, ‘Theory and Administrative Law: Law as Form and Theory as Substance’ (1996) 79 Canberra Bulletin of Public Administration 20; K Walker, ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights’ (1995) 25 University of Western Australia Law Review 238; M G Cowman, ‘Separation of Judicial Power: Brandy v Human Rights and Equal Opportunity Commission’ (1995) 2 Deakin Law Review 119; S Ratnapala, ‘Harry Brandy’s Case and its Implications for Taxation Administration in Australia’ (1995) 18 University of Queensland Law Journal 233. As to the Federal Government’s response to the decision in Brandy, see M Allars, Australian Administrative Law – Cases and Materials (Butterworths, 1997) 87–8; R Treyde, ‘Enforcing Human Rights: The Response to Brandy’ (1996) 7 Public Law Review 15.

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36 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267. See E Campbell, ‘The Choice Between Judicial and Administrative Tribunals and the Separation of Powers’ (1981) 12 Federal Law Review 24, 29; F Wheeler, The Separation of Federal Judicial Power – A Purposive Analysis (PhD Thesis, Australian National University, 1999) 170–71: ‘Analysing the case law on judicial power can sometimes feel like chasing shadows’. 37 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). 38 Ibid. 39 Re Judiciary and Navigation Acts (1921) 29 CLR 257. A request for an advisory opinion, according to the High Court (Higgins J dissenting), was not a ‘matter’ within ss 75 and 76 of the Constitution. See Zines, above n 14, 165. 40 (2007) 233 CLR 307. 41 (1995) 184 CLR 348. 42 (1954) 90 CLR 353. 43 Ibid 382. 44 See generally: G Lindell, ‘The Scope of the Defence Power and other Powers in the Light of Thomas v Mowbray’ (2008) 10 Constitutional Law and Policy Review 42; H P Lee ‘Salus Poluli Suprema Lex Esto: Constitutional Fidelity in Troubled Times’ in H P Lee and P Gerangelos (eds), Constitutional Advancement in a Frozen Continent (Federation Press, 2009) 74–6; F Wheeler, ‘The Separation of Judicial Power and Progressive Interpretation’ in H P Lee and P Gerangelos (eds), Constitutional Advancement in a Frozen Continent (Federation Press, 2009) 222, 230–34. 45 (2007) 233 CLR 307, 328 [16]. 46 Ibid. 47 Ibid 419 [322] (Kirby J). 48 Ibid 468 [475] (Hayne J). 49 For a view in support of the majority decision, see Wheeler, above n 44, 234. For a view in support of the minority decision, see D Myerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray’ (2008) 36 Federal Law Review 209, 228. 50 R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, 628. See also Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, 360 (Gaudron J). 51 (2007) 233 CLR 307, [343] (emphasis in original). 52 (1909) 8 CLR 330. 53 Ibid 357. See also Fencott v Muller (1983) 152 CLR 570, 608; and the discussion of this basic definition by French CJ in ‘Judicial Activism: The Boundaries of the Judicial Role’ (Paper presented at LawAsia Conference 2009, Ho Chi Minh City, Vietnam, 10 November 2009) 1–2. 54 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 382–3 (Isaacs J, citing Blackstone J). See also McHugh J (as he then was), ‘Tensions between the Executive and the Judiciary’ (Speech delivered at the 2002 Australian Bar Association Conference, Paris, 10 July 2002, and published in (2002) 76 Australian Law Journal 567); Hayne J, ‘Concerning Judicial Method – Fifty Years On’ (Paper delivered as The Fourteenth Lucinda Lecture at Monash University, Melbourne, 17 October 2006, and published in (2006) 32(2) Monash University Law Review 223). 55 Hayne J, above n 54; McHugh J, ‘The Judicial Method’ (Speech delivered at the 1998 Australian Bar Association Conference, London, 5 July 1998, and published in (1993) 73 Australian Law Journal 37). These standards include the principles of causation in tort and crime, and the separate standards of proof used to determine fault in civil and criminal law. 56 W Bateman, ‘Procedural Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411, 412. 57 (1998) 193 CLR 173. 58 Ibid, 208–9. D Williams, ‘Judicial Power and Good Government’ (2000) 11 Public Law Review 133, 139. 59 (1999) 162 ALR 79. 60 (1994) 181 CLR 309. 61 (1992) 174 CLR 455, 470.

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62 (1999) 162 ALR 79, 83. 63 R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 CLR 87. 64 Ibid 90. Mason J also queried the correctness of the Boilermakers’ decision: ibid 102. 65 C Saunders, ‘The Separation of Powers’ in B Opeskin and F Wheeler (eds), The Australian Federal System (Melbourne University Press, 2000) 13. 66 Mason, above n 15, 6. 67 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, 462; R v Cox; Ex parte Smith (1945) 71 CLR 1. 68 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157. Professor Zines explained that ‘the historic function of parliament was held to have been conferred by an express provision of the Constitution, namely s 49’: see above n 14, 201. Section 49 of the federal Constitution provides that the powers, privileges and immunities of the Houses of the federal Parliament shall, until declared by the Parliament, be the same as those of the Commons House of Parliament of the United Kingdom, as of 1901. In Egan v Willis (1998) 195 CLR 424, 494, Kirby J remarked that ‘[t]hat aspect of the decision in Ex parte Fitzpatrick and Browne may one day require consideration’. 69 (2009) 239 CLR 230. See K Cochrane, ‘Lane v Morrison’ (2010) 61 AIAL Forum 62. 70 Responding to the decision, the Commonwealth Parliament, in September 2009, enacted two pieces of legislation to restore the system of military disciplinary tribunals obtaining before the decision in Lane v Morrison. The High Court dismissed a challenge to one of these pieces of legislation: Haskin v Commonwealth (2011) 244 CLR 22. The interim measures under these two pieces of legislation (the Military Justice (Interim Measures) Act (No 1) 2009 (Cth) and the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) are being replaced: see the Military Court of Australia Bill 2012 (Cth) (which has been passed by both Houses of Parliament and is awaiting assent). 71 Harris v Caladine (1991) 172 CLR 84. 72 Medical Board of Victoria v Meyer (1937) 58 CLR 62, 97 (Dixon J); cited by French C J and Kiefel J in their joint judgment in Wainohu v New South Wales (2011) 243 CLR 181, 203 [33]. See C Campbell, ‘An Examination of the Doctrine of Persona Designata in Australian Law’ (2000) 7 Australian Journal of Administrative Law 109. 73 (1979) 24 ALR 577. 74 (1985) 157 CLR 57. 75 Ibid 68. 76 Ibid 72. 77 Ibid 73–4. 78 Ibid 84. 79 (1995) 184 CLR 348. 80 Ibid 364–5. They added (at 365): ‘Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth’. 81 For instance, a judge who has issued an interception warrant based on information revealed to the judge can ensure that he or she does not sit on any case to which the warrant relates: ibid 366. 82 The majority judges cited the Federal Republic of Germany, the USA, Canada and New Zealand as examples: (1995) 184 CLR 348, 367–8. In Klass v Federal Republic of Germany, the European Court of Human Rights said that ‘it is in principle desirable to entrust supervisory control to a judge’: (1978) 2 European Human Rights Reports 214, 235. See H P Lee, P J Hanks and V Morabito, In the Name of National Security – The Legal Dimensions (LBC Information Services, 1995) 65–8. 83 (1995) 184 CLR 348, 367. 84 (1996) 189 CLR 1. See pp 194–7 below. 85 Ibid 17. 86 Ibid 18–19. 87 Grollo v Palmer (1995) 184 CLR 348, 376.

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88 Building Construction Employees and Builders Labourers’ Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372; Clyne v East (1967) 68 SR (NSW) 385; City of Collingwood v Victoria (No 2) [1994] 1 VR 652; Gilbertson v South Australia [1978] AC 772 (PC); Nicholas v Western Australia [1972] WAR 168. The 1988 Constitutional Commission recommended that no alteration be made to the Commonwealth Constitution relating to the terms of office of State or Territorial judges, magistrates or other persons exercising judicial power: Constitutional Commission, Final Report (AGPS, 1988) Vol 1, 393 (para 6.139) and (for the reasons for the recommendation) 396–8. 89 (1996) 189 CLR 51. See E Campbell, ‘Constitutional Protection of State Courts and Judges’ (1997) 23 Monash University Law Review 397; R Orr, ‘Kable v DPP: Taking Judicial Protection Too Far?’ (1996) 11 Australian Institute of Administrative Law Forum 11; E Handley, ‘Do Hard Laws Make Bad Cases? – The High Court’s Decision in Kable v Director of Public Prosecutions (NSW)’ (1997) 25 Federal Law Review 171; K Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153; G Carney, ‘Wilson and Kable: the Doctrine of Incompatibility – An Alternative to the Separation of Powers?’ (1997) 13 Queensland University of Technology Law Journal 175; R Hardcastle, ‘A Chapter III Implication for State Courts: Kable v DPP’ (1998) 3 Newcastle Law Review 13; P Johnston and R Hardcastle, ‘State Courts: the Limits of Kable’ (1998) 20 Sydney Law Review 216; F Wheeler, ‘The Kable Doctrine and State Legislative Power Over State Courts’ (2005) 20(2) Australasian Parliamentary Review 15; H P Lee, ‘The Kable Case: A Guard Dog that Barked But Once?’ in G Winterton, State Constitutional Landmarks (Federation Press, 2006) 390–415. 90 Section 5(2). 91 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 108. 92 Ibid 114–15. 93 Ibid 103. 94 Ibid 127. 95 Ibid 103 (Gaudron J). 96 Ibid 108. 97 Ibid 124. 98 Ibid 134. 99 Ibid 98. 100 For unsuccessful invocations of the decision in Kable to challenge the validity of legislation, see Evans v Strachan (1999) 167 ALR 159 (the Living Marine Resources Management Act 1975 (Tas)); R v Moffatt [1998] 2 VR 229 (the Sentencing Act 1991 (Vic)). 101 See H P Lee, ‘The Kable Case: A Guard Dog that Barked But Once?’ in G Winterton, State Constitutional Landmarks (Federation Press, 2006) 412. 102 (2008) 234 CLR 532. 103 (2009) 237 CLR 501. 104 P Emerton and H P Lee, ‘Judges and Non-judicial Functions in Australia’ in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 424. 105 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1. 106 J Stellios, ‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113, 125. 107 A Mason, ‘Delivering Administrative Justice: Looking Back with Pride, Moving Forward with Concern’ (2010) 64 AIAL Forum 4, 6. 108 Kable (1996) 189 CLR 51, 98 (Toohey) 107–8 (Gaudron J), 117–19 (McHugh J). 109 (2011) 280 ALR 221. 110 Ibid [175]. See E Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20 Sydney Law Review 183. 111 (2011) 243 CLR 181, 208 [44]. See C Steytler and I Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35(2) University of Western Australia Law Review 227. 112 (2011) 243 CLR 181, 208 [44].

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113 Ibid. 114 See B Gogarty and B Bartl, ‘Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters’ (2009) 32(1) University of New South Wales Law Journal 75. 115 Mason, above n 107. 116 (1992) 176 CLR 1. 117 Migration Act 1958 (Cth) s 54R. 118 (1992) 176 CLR 1, 36 (Brennan, Deane and Dawson JJ, with Gaudron J expressing her agreement). 119 See G Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in G Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 185–208; F Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248. See also Liyanage v R [1967] 1 AC 259 (PC). 120 P Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process – Constitutional Principles and Limitations (Hart Publishing, 2009) 4. 121 Ibid. 122 Ibid. 123 Ibid 3. 124 (1991) 172 CLR 501. 125 A Bill of Attainder is ‘a legislative enactment which inflicts punishment without a judicial trial’: ibid 535 ( Mason CJ). A Bill of Pains and Penalties is one where the penalty is other than death. 126 US Constitution, Art I, s 9, cl 3, and Art I, s 10, cl 3. 127 (1986) 161 CLR 88. See F Wheeler, ‘BLF v Minister for Industrial Relations: The Limits of State Legislative and Judicial Power’ in G Winterton (ed), State Constitutional Landmarks (Federation Press, 2006) 362–89. 128 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88, 96 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ). 129 Ibid. 130 Substantially identical provisions can be found in the Constitution Acts of the following States: Constitution Act 1902 (NSW) s 39; Constitution Act 1975 (Vic) s 44; Constitution Act 1889 (WA) s 64. Section 68(1) of the Constitution of Queensland Act 2001 (Qld) provides that: The Legislative Assembly must not originate or pass a vote, resolution or Bill for the appropriation of – (a) an amount from the consolidated fund; or (b) an amount required to be paid to the consolidated fund; that has not first been recommended by a message of the Governor. 131 S Parker, ‘The Independence of the Judiciary’, in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System (Melbourne University Press, 2000) 80. He acknowledged, however, that in such situations the motive of the government is important. He added:

132 133 134 135 136 137

It may be reprehensible to refuse to appoint more judges because a government does not like the decisions of a court or the behaviour of the Chief Justice. However, refusing to appoint more judges because the work practices of the court are thought to be inefficient might be supportable on the facts. L J King, ‘The Attorney-General, Politics and the Judiciary’ (2000) 74 Australian Law Journal 444, 454. See chapter 4. Sir Gerard Brennan, ‘Justice Resides in the Courts’, The Australian (Sydney), 8 November 1996, 15. The Federalist Papers No 78 (Hamilton). Ibid. Ibid.

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138 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. See M Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ (1995) 17 Sydney Law Review 204; A Duxbury, ‘The Impact and Significance of Teoh and Lam’ in M Groves and H P Lee (eds), Australian Administrative Law – Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) ch 19. M Groves, ‘Is Teoh’s case still good law?’ (2007) 14 Australian Journal of Administrative Law 126. 139 Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, International Treaties and the High Court Decision in Teoh, 10 May 1995. 140 M Allars, Australian Administrative Law – Cases and Materials (Butterworths, 1997) 144–5. The South Australian Parliament enacted an Act to combat the ruling: see Administrative Decisions (Effect of International Instruments) Act 1995 (SA). 141 See M H McHugh, ‘Tensions Between the Executive and the Judiciary’ (2002) 76 Australian Law Journal 567, 575–8; S Gageler, ‘Impact of migration law on the development of Australian administrative law’ (2010) 17 Australian Journal of Administrative Law 92. 142 (1999) 197 CLR 510. This decision did not impair the constitutionally entrenched jurisdiction possessed by the High Court under s 75 of the Constitution. 143 Ibid 534. 144 (2000) 168 ALR 407. 145 Ibid 411. 146 Gageler, above n 141, 101. 147 (2003) 211 CLR 476. 148 Gageler, above n 141, 103. 149 (1990) 20 NSWLR 188. 150 Ibid 193. 151 Ibid 198–9. The cases referred to by Kirby P included Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; McDonald v Cain [1953] VLR 411; Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203; Clayton v Heffron (1960) 105 CLR 214; Cormack v Cope (1974) 131 CLR 432; Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136. 152 (1974) 131 CLR 432. 153 Ibid 453. 154 (1952) 86 CLR 169. 155 Ibid 179. 156 See M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 4th ed, 2009) chs 2 and 3. 157 See pp 234–8 below. 158 (2010) 239 CLR 531. 159 M Groves, ‘Reforming Judicial Review at the State Level’ (2010) 64 AIAL Forum 30, 32. 160 Joint Committee on Parliamentary Privilege, United Kingdom Parliament, Parliamentary Privilege – First Report, 1999, 263 para 226. 161 Wik Peoples v Queensland (1996) 187 CLR 1. 162 Letter from Sir Gerard Brennan to Mr Tim Fischer, 3 January 1997, reproduced in J Woodford, ‘Chief Justice tells Fischer: stop attacks’, The Sydney Morning Herald, 28 January 1997, 1. Copies of the letter and Mr Fischer’s reply were supplied to the authors, on request, by both Sir Brennan and Mr Fischer. The authors wish to thank them both for their kind permission to reproduce the contents of the letters. 163 Mabo v Queensland (No 2) (1992) 175 CLR 1. The case was decided by a 6:1 majority. The dissenting judge was Dawson J. 164 See the joint judgment of Mason CJ and McHugh J, ibid 15. 165 D Solomon, The Political High Court (Allen and Unwin, 1999) 32. 166 See above n 162. 167 See above n 162. 168 Solomon, above n 165, 35. 169 S Emerson, B Lane and staff reporters, ‘States push for High Court change’, The Australian (Sydney), 19 February 1997, 1.

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170 M Kirby, ‘Attacks on Judges – A Universal Phenomenon’ (1998) 72 Australian Law Journal 599, 601. See also H P Lee, ‘Why We Must Protect the Protectors’ The Sydney Morning Herald (Sydney), 13 June 1997, 17. 171 In 2002, the federal Minister for Immigration, Multicultural and Indigenous Affairs, Philip Ruddock, through the Solicitor-General, expressed his regrets to the Federal Court of Australia that certain comments made by him about the courts ‘dealing themselves back into the review game’ might be misinterpreted by members of the public. The then Chief Justice of the Federal Court of Australia, Michael Black, had told the Solicitor-General that ‘the court is not amenable to external pressure from Ministers or from anyone else whomsoever’ – see E Campbell and H P Lee, ‘Criticism of judges and freedom of expression’ (2003) 8 Media and Arts Law Review 77, 87–8. In 2011, Prime Minister Julia Gillard made critical comments regarding a High Court decision which rendered invalid a declaration by the Minister for Immigration and Citizenship declaring Malaysia as a specified country on which off-shore processing of asylum seekers could be carried out. She was reported to have said, inter alia, that the High Court had missed an opportunity to enhance the nation’s response to ‘the evil of people-smuggling’ and that the decision turned on its head the understanding of the law in Australia prior to the decision. The Prime Minister singled out Chief Justice Robert French and claimed that in considering comparable legal questions when he was a judge of the Federal Court he had made different decisions to the one that the High Court had made. The remarks by the Prime Minister provoked a controversy – see M Franklin, ‘Julia Gillard versus the High Court as the PM takes aim at Chief Justice Robert French’, The Australian (Sydney), 2 September 2011, available at: http://www.theaustralian.com.au/ national-affairs/julia-gillard-versus-the-high-court-as-the-pm-takes-aim-at-chief-justice-robert-french/story-fn59niix-1226127707674. See also M Fraser, ‘The Courts Must Rule, Above and Beyond the Political Fray’ The Age (Melbourne), 12 September 2011, available at: http://www.theage.com.au/opinion/politics/the-courts-must-rule-above-and-beyondthe-political-fray-20110911-1k44d.html. Cf H P Lee, ‘Politics Aside, Gillard is Within Her Rights to Query the Court’ The Age (Melbourne), 6 September 2011, available at: http:// www.smh.com.au/opinion/politics/politics-aside-gillard-is-within-her-rights-to-query-thecourt-20110905-1ju4g.html. 172 R v Beauregard [1986] 2 SCR 56, 70. 173 Victoria v Commonwealth (the Payroll Tax case) (1971) 122 CLR 353, 396–7. 174 See chapter 9. 175 Unfair attacks on the judiciary pose another conundrum. Who should defend the judiciary from such assault? In Australia, some judges have asserted that the federal Attorney-General should act as the defender of the federal judiciary: see A Mason in ‘Democracy and the Judiciary’ (1997) 35(11) Law Society Journal 51, who argued that an Attorney-General has a responsibility to uphold the rule of law as administered by an independent judiciary. Sir Anthony added (at 53) that there would be occasions when the Attorney-General should respond to ‘irresponsible criticisms which threaten to undermine public confidence in the judiciary’. G Brennan expressed the view that ‘[i]f the attack is from a political source, the response must be from a political identity’: see G Brennan, ‘The State of the Judicature’ (1998) 72 Australian Law Journal 33, 42. That role was disowned in 1998 by the then federal Attorney-General, Mr Daryl Williams: D Williams, ‘A Matter for Courts to Defend’, Canberra Times, 15 January 1998, 9; D Williams, ‘Judicial Independence’ (1998) 36(3) Law Society Journal (April) 50; T Hands and D Davies, ‘Defend Thyself!’ (2003) 28(2) Alternative Law Journal 65. For a discussion of the role of the Attorney-General, see L J King, ‘The Attorney-General, Politics and the Judiciary’ (2000) 74 Australian Law Journal 444; B Heraghty, ‘Defender of the Faith? The Role of the Attorney-General in Defending the High Court’ (2002) 28 Monash University Law Review 206; J Plunkett, ‘The Role of the Attorney-General in Defending the Judiciary’ (2010) 19 Journal of Judicial Administration 160. 176 N Stephen, ‘Southey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion’ (1982) 13 Melbourne University Law Review 334, 339. 177 Ibid 338.

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178 N Stephen, Judicial Independence (Australasian Institute of Judicial Administration, 1989) 10. 179 D Dawson, ‘The Independence of the Judiciary’ (Address delivered at the Australian Bar Conference, Darwin, 8 July 1990) 10. 180 ‘[I]nstitutional attrition’ was viewed as a matter of concern, especially when the tribunals ‘are constituted of non-tenured members who generally have a close attachment to government’: see B Gogarty and B Bartl, ‘Tying Kable Down: The Uncertainty About the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters’ (2009) 32(1) University of New South Wales Law Journal 75, 88. A similar concern had been expressed in: Supreme Court of Victoria, Annual Report (1988)22.

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CHAPTER 5

Removal, suspension and discipline of judges

Removal of judges Historically, judges appointed by the English monarch held office at the pleasure of the Crown (durante bene placito). Thus, it was possible for judges to be dismissed peremptorily and without cause. The struggle between the English Parliament and the Crown, which ultimately led to the subjugation of the latter to the former, also led to the advancement of judicial independence. Judicial independence of the Crown was eventually secured by Article III, s 7 of the Act of Settlement 1701 (Eng), which provided as follows: The judges’ commissions be made quamdiu se bene gesserint [during good behaviour] and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.1

At the federal level, judicial independence was given constitutional protection in s 72(ii) of the Commonwealth Constitution. This provides that federal judges (that is, Justices of the High Court and judges of the other courts created by the Commonwealth Parliament) ‘[s]hall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’. In the case of South Australia, Western Australia and Tasmania, it is simply provided that it would be lawful to remove judges of the Supreme Court upon the address of both Houses of Parliament,2 although the Supreme Court judges in South Australia and Western Australia are stated by a separate provision to hold and remain in office ‘during good behaviour’.3 The grounds of ‘proved misbehaviour’ or ‘incapacity’ are expressly specified in New South Wales,4 Queensland,5 Victoria,6 the Northern Territory7 and the Australian Capital Territory.8 116 Downloaded from https://www.cambridge.org/core. Universiteit Leiden / LUMC, on 17 Nov 2019 at 15:55:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139028431.006

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The standard mode of removal is an address of both Houses of Parliament in New South Wales, South Australia, Victoria and Western Australia, or an address of the Legislative Assembly in Queensland (the only State with a bicameral parliament), the Northern Territory and the Australian Capital Territory. In addition, Victoria, Queensland and the Australian Capital Territory all provide for the convening of ad hoc bodies where an allegation of misbehaviour or incapacity has been made to the designated authority.9 These bodies are tasked with determining whether on the facts the misbehaviour or incapacity of the judge warrants his or her removal as a step prior to an address in Parliament to remove the judge. In the case of New South Wales, s 53 of the Constitution Act 1902, which applies to all the judicial officers (as defined in s 52) in the State, is ‘entrenched’; it cannot be altered unless the alterations have been approved by electors voting at a referendum.10 Part IIIAA of the Victorian Constitution Act 1975, which applies to all judicial officers (defined in s 87AAA) in the State, is similarly entrenched and cannot be altered unless the proposed amendments are passed by a special majority.11 The Lionel Murphy affair It was under s 72(ii) of the Commonwealth Constitution that steps were taken to determine whether Justice Lionel Murphy, a Justice of the High Court, should be removed from office. Those steps were arrested shortly before his death on 21 October 1986. The ‘Murphy saga’12 was most controversial and raised questions about the efficacy of the removal mechanism established by s 72(ii). The saga began when The Age published a series of articles based on transcripts of telephone conversations of Morgan Ryan, a Sydney solicitor who was associated with leaders of organised crime, which had been taped illegally by the New South Wales police. The transcripts revealed conversations between Ryan and other people. One of the voices in the tapes was alleged to be that of Murphy.13 Following a public outcry and calls for his resignation by the federal Liberal/National opposition, the then federal Attorney-General (Senator Gareth Evans) sought a report from the Australian Federal Police on whether the contents of the tapes disclosed the commission of any federal offences. The Attorney-General also sought an opinion from Ian Temby, the then Director of Public Prosecutions designate. Temby, relying on a very narrow construction of ‘misbehaviour’ in s 72(ii) of the Constitution, concluded that even if the material was authentic, it could not support a conclusion that there was ‘misbehaviour’ within the meaning of s 72.14 In the face of relentless pressure for further investigation into the matter, the Attorney-General announced that a task force would

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be formed. The utility of that measure was questioned by the media. Following presentation of an opinion by the then Solicitor-General (Gavan Griffith QC) on the meaning of ‘misbehaviour’,15 and the tabling of that opinion before the federal Parliament, the Senate (in which the government did not command a majority) resolved to appoint a committee of its members to inquire into the authenticity of the tapes and transcripts and whether the conduct of Justice Murphy as revealed in the tapes and transcripts constituted misbehaviour that would warrant his removal from office. The Senate Select Committee on the Conduct of a Judge was formed on 18 March 1984.16 Among the materials referred to the committee was a transcript of a conversation between Justice Murphy and Ryan concerning a future dining engagement at which Clarrie Briese, who was replacing Murray Farquhar as the Chief Stipendiary Magistrate, would be present. Briese was invited to appear before the committee to ascertain what light could be thrown upon the conversation. Briese had presented evidence that Justice Murphy had sought, through Briese as the Chief Stipendiary Magistrate of New South Wales, to influence the due and ordinary course of justice in relation to committal proceedings against Ryan. To put into context the allegation, it should be noted that Briese was concerned to enhance the independence of the magistracy in New South Wales and had made representations to the State government to improve the position of the magistrates in New South Wales. Justice Murphy said he would raise the matter with the State Premier and the in-coming State Attorney-General. In 1981, Ryan was prosecuted on a charge of conspiracy relating to the provision of ‘false documents to illegal Korean immigrants to Australia’.17 Stipendiary Magistrate Jones, who had presided over the committal hearings, had reserved his decision to a later date. A day before Stipendiary Magistrate Jones was to hand down his reserved decision, Briese received a telephone call from Justice Murphy informing him that the State Attorney-General would be proceeding with legislation to protect the independence of the magistracy. This was followed by an utterance that has carved for itself a place in Australian legal history: ‘And now, what about my little mate?’ The following is an exchange between Senator Don Chipp and Briese:18 Senator Chipp – ‘Well, you could have known how close their friendship was after the first dinner. Now I can understand it would be improper, ill-advised, for a High Court judge to say to a chairman of magistrates, “Incidentally, how is my little mate going?” That would be improper, ill-advised, whatever, but it would not be illegal. But if someone is saying to the Chairman of the Magistrates’ Court, “Look, I have done you a favour Clarrie, what about returning it by doing something about my little mate?”. That to my knowledge, even as a non-lawyer, is an illegal act. It is an offence. Would you see it that way?’

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Mr Briese – ‘I would see it that way, yes.’ Senator Chipp – ‘Now, I again ask you to go back to that telephone call, if you can possibly help us here. You have got no doubt in your mind that at that time, you believed that he was asking for a quid pro quo?’ Mr Briese – ‘That is what it seemed to me.’

The committee was evenly divided: Senators Tate, Bolkus and Crowley were unable to infer that Murphy had intended to influence the outcome of proceedings against Ryan by uttering the words, ‘And now, what about my little mate?’, or satisfy themselves that Murphy had in fact uttered those words. Senators Chipp, Durack and Lewis reached the opposite conclusion. The inconclusive finding of the committee led to the establishment on 6 September 1984 of a second Senate inquiry, called a Senate Select Committee on Allegations Concerning a Judge. The second committee was required to inquire into the allegations made before the first committee by the Chief Stipendiary Magistrate of New South Wales, Clarrie Briese, concerning Justice Murphy and whether there was sufficient ground to warrant the removal of Justice Murphy from office. On this occasion the four Senators on the committee were assisted by two former judges.19 The second committee published its report on 31 October 1984. A majority concluded that Murphy had attempted to influence the course of justice in relation to the proceedings against Ryan and that this amounted to ‘misbehaviour’ under s 72(ii).20 On 5 July 1985, Murphy was tried before the Supreme Court of New South Wales and was convicted upon the charge of attempting to pervert the course of justice in relation to the committal proceedings against Ryan. He was sentenced to imprisonment for 18 months with a minimum of 10 months. On 28 November 1985, his conviction was quashed by the New South Wales Court of Appeal, which ordered a retrial.21 On 28 April 1986, he was acquitted at the retrial. Nevertheless, the federal Parliament passed legislation for the setting up of a Parliamentary Commission of Inquiry to examine all outstanding allegations against Justice Murphy and to determine whether there had been ‘misbehaviour’ on his part that warranted his removal from the High Court.22 In view of the revelation that Justice Murphy had terminal cancer, the Commission was terminated by Act of Parliament.23 A useful outcome of the Commission’s activities was the presentation of a report on its interpretation of ‘misbehaviour’ for the purposes of s 72 of the Commonwealth Constitution. The Justice Murphy saga represented a shocking episode in the history of the Australian judiciary. The appointment of Justice Murphy to the High Court was controversial in the first place. Although to have judges with some political experience on the High Court is useful, the wisdom of appointing a serving politician straight into the Court without an appropriate ‘cooling-off period’ is highly questionable. Justice James

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Thomas found Justice Murphy’s conduct towards Briese ‘worrying’ because it was capable of showing ‘a lack of probity and a fundamental lack of respect for legal process’.24 He added: ‘A person who is prepared to influence others to bend that process is likely to be prepared to do so in his own court too’.25 The Vasta affair The removal of Justice Angelo Vasta of the Supreme Court of Queensland in 1989 represented the first time, post-federation, that a Supreme Court judge was removed from office by the State Governor, on an address from the Legislative Assembly. Angelo Vasta was appointed a judge of the Supreme Court of Queensland on 9 February 1984, with effect from 13 February 1984.26 Justice Vasta was removed from office on 8 June 1989. His removal was the culmination of an investigation by a Parliamentary Judges Commission of Inquiry appointed to ‘advise the Legislative Assembly whether any behaviour of the Honourable Mr Justice Angelo Vasta, since his appointment as a Judge of the Supreme Court either of itself or in conjunction with other behaviour’ warranted his removal from office as a judge of the Supreme Court.27 This inquiry was spawned by an earlier inquiry on corruption in Queensland, headed by Tony Fitzgerald. Fitzgerald was appointed a judge of the Federal Court of Australia in 1981 but he resigned to return to private practice in 1984. On 26 May 1987 he was appointed to head the ‘Commission of Inquiry into Alleged Illegal Activities and Associated Police Misconduct’. One of those placed under the Fitzgerald inquiry’s spotlight was Sir Terence Lewis, the Police Commissioner of Queensland, who was eventually sacked by the Queensland government on 19 April 1989.28 In September and November 1985 and in March 1986 a satirical magazine, Matilda, had published a series of articles concerning the judicial qualities and ability of Justice Vasta, his friendship with Sir Terence Lewis and certain other matters. Justice Vasta commenced a defamation action against Matilda. In September 1986 both Justice Vasta and Sir Terence gave evidence on oath concerning the relationship between the two of them. By October 1988 Sir Terence had given evidence to the Fitzgerald inquiry and one of the matters canvassed by it was the relationship between Justice Vasta and Sir Terence.29 In consequence the following chain of events occurred: It seems that Mr Callinan QC, Senior Counsel for the Queensland Government appearing in that Inquiry, formed the view that the evidence and material apparently demonstrated improper conduct of Mr Justice Vasta of such gravity

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that he drew it to the attention of the Minister for Justice and Attorney-General, Hon P J Clauson MP. In a letter dated 24 October 1988 . . . the Minister relayed the information he had received to the Chief Justice, who in reply . . . indicated that he regarded the matter as sufficient to warrant his standing down of the Judge pending further elucidation. The Chief Justice and the Senior Puisne Judge spoke to Mr Justice Vasta that same day, and thereafter he stood down, or was stood down, it does not matter which is correct. On 25 October 1988 His Honour wrote to the Premier requesting that a panel of three retired Supreme Court Judges be appointed to inquire into his behaviour.30

The Parliamentary Judges Commission of Inquiry was appointed on 17 November 1988. It was composed of Sir Harry Gibbs (as the Presiding Member), Sir George Lush and Michael Helsham, all of them being retired judges. In February 1989 the Commission began its hearings and on 12 May 1989 it submitted its report to the Speaker of the Legislative Assembly of Queensland. The Commission found that there was nothing in the evidence to indicate that Justice Vasta did not discharge his duties as a judge in accordance with his judicial oath. However, the Commission proceeded to ascertain whether the evidence proved behaviour by Justice Vasta which indicated that he was not ‘a fit and proper person to continue in office as a Judge of the Supreme Court of Queensland’.31 Broadly, the commission found ‘that he had given false evidence to a defamation hearing, made and maintained allegations that the attorney-general, the chief justice and Tony Fitzgerald had conspired against him, and made false statements, false claims and arranged “sham” transactions to his own taxation advantage and that of Cosco’.32 In response to an invitation, Justice Vasta appeared at the Bar of Parliament and disputed the findings of the commission. The Queensland Parliament then voted to remove him from his judicial office. Justice J B Thomas has highlighted two aspects of the proceedings relating to the removal of Justice Vasta which have been the focus of critical comments: 1. Despite the commission’s recommendation that the government should meet at least part of the judge’s costs, no governmental contribution was offered until 1996. This highlights the need for a clear protocol that the recommendations of such inquiries on the question of costs will be acted on as a matter of course by the government that appoints the commission. 2. In its second report, the commission made the following comment: ‘The Commission, as a result of its experience in conducting this inquiry into [the conduct of two judges] . . . has formed the clear opinion that the holding of an inquiry into the question whether “any behaviour” of a judge warrants removal is open to grave objection. It is one thing to inquire into specific allegations of impropriety but it is quite another to conduct an

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THE AUSTRALIAN JUDICIARY inquisition into all aspects of a judge’s life. An inquiry of the latter kind exposes the judiciary to unacceptable risks that pressure will be applied to its members and becomes especially dangerous if instigated by pressure groups or as a result of media clamour’.33

‘Judicial misbehaviour’ There are generally two broad grounds stated as justification for removal of a judge: ‘incapacity’ and ‘misbehaviour’. The former refers to physical or mental impairment which would be of such a nature or duration as to warrant removal. This ground has not given rise to controversy, unlike the ground of ‘misbehaviour’. Two constructions of ‘misbehaviour’ were proffered during the protracted Murphy saga. The first construction involves a narrow reading of ‘misbehaviour’. Such a view was contained in an opinion of the Commonwealth Solicitor-General (Gavan Griffith QC).34 In his opinion of 24 February 1984, he wrote: [T]he terms of section 72 dictate meaning for ‘proved misbehaviour’. The fundamental principle of maintaining judicial independence is recognised by excluding all modes of removal other than for misbehaviour as a breach of condition of office. In matters not pertaining to office, the requirement is not conviction for offence in a court of law. Inasmuch as Parliament considers the matter, the question is whether there is proved offence against the general law ‘of such a nature as to warrant the conclusion that the incumbent is unfit to exercise the office’. Parliament is not at large to define proved misbehaviour, by reference to its own standards or views of suitability for office or moral or social character or conduct. The Parliamentary inquiry is whether commission of an offence of the requisite quality and seriousness is proved. Parliament would act beyond power if it sought to apply wider definition or criteria for misbehaviour than the recognised meaning of misbehaviour not pertaining to office.35

The Commonwealth Solicitor-General thus concluded: Misbehaviour is limited in meaning in section 72 of the Constitution to matters pertaining to – (1) judicial office, including non-attendance, neglect of or refusal to perform duties; and (2) the commission of such an offence against the general law of such a quality as to indicate that the incumbent is unfit to exercise the office. Misbehaviour is defined as breach of condition to hold office during good behaviour. It is not limited to conviction in a court of law. A matter pertaining to office or a breach of the general law of the requisite seriousness in a matter not pertaining to office may be found by proof, in appropriate manner, to the Parliament in proceedings where the offender has been given proper notice and opportunity to defend himself.36

The narrow view was contradicted by C W Pincus QC, who wrote an opinion for the Senate Select Committee on the Conduct of a Judge.37 He stated that

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it was for Parliament to decide whether any conduct alleged against a judge constituted misbehaviour sufficient to justify removal from office. He added: ‘There is no “technical” relevant meaning of misbehaviour and in particular it is not necessary, in order for the jurisdiction under s 72 to be enlivened, that an offence be proved’.38 The broad view of ‘misbehaviour’ was supported by the Parliamentary Commission of Inquiry established in relation to Justice Murphy. It was of the view that the word ‘misbehaviour’ in s 72 is not confined to misconduct in office or misbehaviour of a criminal nature. The focus of the commissioners was on conduct of such a nature as to render the judge unfit to hold office. Sir Richard Blackburn construed ‘proved misbehaviour’ to mean ‘such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question’.39 Andrew Wells was of the view that it extends to conduct in or beyond the execution of judicial office, which represents ‘so serious a departure from standards of proper behaviour’ that it must be found to have destroyed public confidence in the ability of the judge to continue performance of duty under and in accordance with the Constitution.40 Sir George Lush said: If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their courts, it may be appropriate to remove them.41

The broad view of ‘misbehaviour’ is clearly a preferable view. It is imperative that public confidence in a judge’s ability to perform judicial duties properly be maintained, for it is public confidence that sustains the independence of the judiciary. Could conduct prior to an appointment to judicial office and which came to light after appointment be invoked as grounds to warrant removal from office? On 3 February 1998, Ian Callinan QC was appointed to the High Court. On 20 July 1998, a controversy was sparked by the unprecedented call by the Law Council of Australia for a parliamentary investigation into certain conduct of Justice Callinan prior to his appointment to the High Court.42 Justice Callinan’s role as a barrister in a case had attracted adverse comments from Justice Goldberg of the Federal Court in White Industries (Qld) Pty Ltd v Flower & Hart.43 Professor A R Blackshield posed the question: ‘Would conduct by a practising barrister, assumed for this purpose to constitute an abuse of judicial process, be sufficiently relevant to his duties as a judge, or his attitude to the judicial process, to affect his fitness for office?’44 White Industries, a construction company, had sought to recover its costs on an indemnity basis from the firm of solicitors, Flower & Hart,

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which had acted for the firm Caboolture Park. The chain of events leading to the application for an order for costs was as follows. White Industries had sought payment pursuant to a building contract between it and Caboolture Park. The latter took counteraction against White Industries by bringing proceedings against it in respect of conduct that was alleged to be in violation of s 52 of the then Trade Practices Act 1974 (Cth), or to constitute fraudulent misrepresentation or negligent misstatement. A cross-claim for moneys due under the building contract was brought by White Industries. After 150 hearing days Flower & Hart obtained leave to cease to act for Caboolture Park. Judgment was given against Caboolture Park together with costs. White Industries obtained judgment on its cross-claim with costs; however, by this time Caboolture Park had gone into liquidation and the costs orders were never enforced. Justice Goldberg found the proceeding instituted by Flower & Hart on behalf of Caboolture Park was for a purpose other than the vindication of a claimed right, and said: It is not part of the legal process in this court that its process and procedures be used as an instrument of oppression so as to frustrate the bringing, and expeditious disposition, of a legitimate claim.45

Justice Goldberg found that the action taken by Flower & Hart on behalf of its client was simply to frustrate and delay White Industries’ claim to recover the moneys due under the building contract. This, in his view, amounted to ‘an abuse of process’.46 He also found that Justice Callinan, when a barrister, had ‘acquiesced’ and ‘approved’ of the delaying tactics adopted by the law firm.47 The federal Attorney-General (Daryl Williams) rejected calls for a parliamentary inquiry and issued the following statement: I have carefully considered the issues raised by the comments about Justice Ian Callinan made by Justice Goldberg in his judgement in White Industries v Flower & Hart. I have taken into account the suggestions made by the executive of the Law Council of Australia and Opposition members that there should be an inquiry. I have decided that on the information available, no inquiry into the conduct of the judge is warranted. Any inquiry held inappropriately can endanger the independence of the judiciary, damage the standing of the courts and do harm to an individual judge. It is relevant that there is a range of views among eminent constitutional lawyers as to the meaning of ‘proved misbehaviour’ in s 72 of the Constitution. The events in question took place 12 years prior to judicial appointment and do not relate to the discharge of judicial functions.48

‘Incapacity’ – the Bruce affair On 16 June 1998 an unprecedented event occurred in New South Wales. Justice Vince Bruce of the Supreme Court of that State appeared before

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members of the Legislative Council to put his case as to why he should not be removed from judicial office. Justice Bruce’s appearance at the Bar of Parliament was the culmination of a chain of events triggered off by a complaint regarding his delay in handing down a judgment.49 In New South Wales, complaints against judges may be made to the Judicial Commission, a body established under the Judicial Officers Act 1986 (NSW). In a statutory declaration, dated 4 September 1997, a complaint was made to the Judicial Commission by Commander R L Beveridge concerning Justice Bruce. The nub of the complaint was that Justice Bruce had heard a matter involving Commander Beveridge which had taken two hours to hear but that no judgment had been delivered by the time the complaint was made. In his complaint, Commander Beveridge said: ‘Taking six months over a simple case is bad enough but then to give what I can only construe as deliberately misleading advice to the Chief Judge is almost beyond belief’.50 This was a reference to the assurances by Justice Bruce, when approached on two occasions on the matter by Hunt, the Chief Judge at Common Law, that the judgment would be delivered by a specified time. The judgment was finally delivered on 27 February 1998. Commander Beveridge subsequently wrote to the Judicial Commission that even though the judgment was totally in his side’s favour, nothing had been gained ‘as the plaintiff’s principal purpose in bringing the appeal was to delay’ bankruptcy proceedings brought by Beveridge, and that the plaintiff had subsequently left the country.51 Letters from the Judicial Commission seeking Justice Bruce’s response to the complaint were not responded to. The complaint was subsequently referred to the Conduct Division of the Judicial Commission. By April 1998 the Conduct Division was considering another 28 matters apart from the Beveridge complaint, all of which involved allegations of delay on the part of Justice Bruce. In 16 of the cases he had taken 11–13 months to deliver judgment; 18–19 months in two cases; and 30–36 months in three cases.52 Justice Bruce had been appointed to the Supreme Court on 7 July 1994. It was pointed out to the Conduct Division that, since at least 1995, he had been suffering from depression. It was diagnosed as a major depression only in December 1997. The depression, it was contended, accounted for the delays in the 29 matters and breaches of assurances regarding judgment delivery dates. It was further contended that the diagnosis and the attendant treatment had resulted in Justice Bruce’s recovery from depression and that he would thereafter be able to perform his judicial functions. While the complaints were under consideration by the Conduct Division, Justice Bruce had prepared a schedule showing the dates upon which he proposed to deliver judgment in each of the 22 outstanding

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matters listed. By 8 May 1998 only two judgments remained outstanding. Even then, most of the judgments were not delivered in accordance with the promised dates, with the delays being attributed in part to some new health problems such as back pain and migraine. Two of the members of the Conduct Division of the Judicial Commission, Justice T R H Cole and Justice Lloyd, found that the substantiated complaints against Justice Bruce could justify parliamentary consideration of his removal from office. Their report stated that there had been proved to be an incapacity to perform judicial duties judged by any reasonable standard. It went on to state: The number of instances of delay is great. The extent of individual delays is unacceptable by any reasonable standard. The failure to adhere to assurances of performance which Justice Bruce knew or suspected would be conveyed to litigants has been shown to result in both distress and hardship to litigants. Incapacity to perform judicial duties has been proven to have been present from, at least, early 1995 and continues.53

The third member of the Conduct Division, Dennis Mahoney (who had retired from the office of President of the Court of Appeal of New South Wales), wrote a dissenting opinion.54 He expressed the view that ‘from approximately January–February 1998 the Judge has been able to carry out his judicial duties to an acceptable standard’.55 The report was tabled in Parliament.56 A motion calling for Justice Bruce to address the Legislative Council and show cause why he should not be removed was moved by the Attorney-General. On 16 June 1998 Justice Bruce pleaded his case before the assembled members of the Legislative Council.57 On 25 June 1998 the Council, by a 24:16 vote, voted not to remove him from office.58 On 22 February 1999 Justice Bruce announced his resignation from the Supreme Court of New South Wales. In 2011, members of the Legislative Council of the New South Wales Parliament voted to reject separate motions to remove two magistrates following reports from the Conduct Division of the Judicial Commission of New South Wales. The Commission considered a number of complaints against each of these magistrates. It was established that one of the magistrates was suffering from a bipolar disorder while the other attributed her behaviour at the time of the complaints to depression.59 Suspension of judges from office When removal proceedings against a judge are instituted it is sometimes desirable that the judge should seek leave of absence pending the outcome of the proceedings. If a judge refuses to do this it may be necessary

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to suspend the judge from office in order to protect the integrity and reputation of the court. In the absence of clear statutory provisions, attempts to suspend a judge may be highly questionable. Except in New South Wales and the Australian Capital Territory,60 there is no general statutory provision for the suspension of judicial officers; however, there are a variety of statutory provisions pertaining to the suspension of magistrates. The power of suspension is vested either in the Governor (Tasmania, South Australia and Western Australia) or the Governor in Council (Queensland). Victoria has no provisions allowing for the suspension of magistrates, as they are treated as ‘judicial officers’ for the purposes of the disciplinary procedures outlined in Part IIIAA of the Constitution Act 1975 (Vic). In Tasmania, the power of suspension is exercisable by the Governor only on address by both Houses of the Tasmanian Parliament praying for suspension or removal on the ground of proved misbehaviour or incapacity.61 In the case of South Australia, the power of suspension is exercisable only on the advice of the Chief Justice of the Supreme Court and only on certain specified grounds.62 In Western Australia, the power of suspension may be exercised by the Governor only after either the Chief Justice, or a judge nominated by the Chief Justice, undertakes an inquiry into the truth of an allegation of misbehaviour and makes recommendations to the Attorney-General.63 In the case of an allegation of incapacity, the Chief Justice, or a judge nominated by the Chief Justice, forms a part of a medical panel convened by the Attorney-General to determine and make recommendations as to whether the magistrate is physically or mentally incapable of performing their office.64 In Queensland, the power of suspension is exercisable only if the Supreme Court has made a determination that there are reasonable grounds on which removal might be sought, on the application of the Attorney-General.65 If a magistrate is suspended, the Attorney-General must then apply to the Supreme Court for a determination as to whether proper cause exists for removing the magistrate from office. The power of the Governor in Council to remove the magistrate from office is activated by an adverse determination by the Supreme Court. In New South Wales, s 54(1) of the Constitution Act 1902 allows for the suspension of judicial officers, but only in accordance with legislation. The enactment of the Judicial Officers Act 1986 (NSW) resulted in the vesting of the power of suspension in the chief judges of the courts. The power may be exercised once a complaint has been made to the Commission, or if a judge has been charged with a criminal offence, or if the Conduct Division of the Commission has presented an adverse report to the Attorney-General.66

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In the Australian Capital Territory, s 19 of the Judicial Commissions Act 1994 (ACT) provides for the automatic suspension of a judicial officer from the performance of all functions upon the commencement of an investigation into allegations of misconduct or misbehaviour. The suspension continues until the Attorney-General is furnished with a report from the judicial commission exonerating the judicial officer from having engaged in any conduct warranting removal from office.67 If a finding of conduct warranting removal from office is made by the Commission, the suspension may be lifted if the Legislative Assembly does not hear or pass a motion to remove the judicial officer within five sitting days of receiving the Commission’s report from the Attorney-General.68 In the absence of an express power of suspension, can it be implied from the existence of the power of appointment? It is doubtful that such an implication can be made in those jurisdictions where the power of appointment to an office is committed to one body while the power of removal from office is committed to another.69 This was one of the conundrums posed by the Murphy affair. During the protracted proceedings against Justice Murphy there had been suggestions that the proper course for him was to resign from the High Court. On 31 July 1986, the Chief Justice, Sir Harry Gibbs, wrote a letter to Justice Murphy in which he first expressed his sympathy over the news that Murphy was terminally ill with cancer of the colon, and then proceeded to state as follows: As you know, I think it undesirable that you should sit, and in the interests of the Court, as well as in your own interest, I do not propose to list you to sit. However, if you do decide to take your seat on the bench I request you to let me know (or to ask your staff to let my staff know) beforehand on what cases during this sittings you would wish to sit and I shall then make the necessary arrangements. I would propose to make a news release in the following terms: Mr Justice Murphy has informed me that he is gravely ill. He has also stated that he intends to exercise what he has described as his constitutional right to sit on the Court, notwithstanding that the Parliamentary Commission of Inquiry has not yet made its report. It is essential that the integrity and reputation of any Justice of this Court be seen to be beyond question. That being so, I regard it as most undesirable that Mr Justice Murphy should sit while matters into which the Commission is inquiring remain unresolved, and before the Commission has made its report. Nevertheless in the circumstances to which I have referred, I do not regard it as appropriate to do more than express that view.70

In his response, Justice Murphy said: Your statement questions whether I have a constitutional right to sit on the Court. The plain constitutional position is that the Justices when appointed to the Court have a constitutional right to sit until death, resignation or removal under s 72 (on the grounds only of proved misbehaviour or incapacity). It is not for the Chief Justice or any Justice to decide whether it is undesirable for any other Justice to sit

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on the Court. It is improper for one Judge to publicly express an opinion on the desirability of another to continue as a Justice or to exercise his functions as a Justice. This is at the foundation of the independence of the judiciary.71

Justice Murphy also added: For a Chief Justice to state that if there is a question about a Justice’s reputation or integrity, or if there is an inquiry into a Judge’s conduct, he should not continue as a Justice, undermines the independence of every federal judge. Significantly, you made no such suggestion when the 2 Senate inquiries were in progress, the second of which included Parliamentary Commissioners. During both of those inquiries I sat and decided cases.72

Justice Murphy did sit on the Court in early August 1986 but died on 21 October 1986. On that day a Bench of the Justices of the High Court handed down judgments in two cases in which all seven of their number had participated.73 The Commonwealth Constitution does not expressly give any person or body a power to suspend federal judges from office; however, the Chief Judge of the Family Court, the Chief Justice of the Federal Court and the Chief Federal Magistrate are now empowered to ‘temporarily restrict a judge to non-sitting duties’ in relation to their respective court.74 Finally, it should be noted that where a judge is the subject of an investigation to determine whether he or she should be removed from office, the chief judge of the relevant court, pending the outcome of the inquiry, may decide not to assign further cases to that judge. The view has been expressed that ‘[t]he position likely to be adopted by most courts of supervisory jurisdiction is that complaints by individual judges about allocation (or non-allocation) of judicial business are non-justiciable’.75 To date, there has been no reported case in which the validity or constitutionality of an ‘administrative suspension’ has been challenged in an Australian court. The following observation has been made: Some leeway for exercise of managerial discretion in assignment of cases among the judges of a court must be allowed. On the other hand, there is something objectionable about a system which permits the managers of court business to take action which is tantamount to suspension of judges from duty, without being accountable for their action. It is surely preferable for provisions to be made whereby judges can be suspended from office in a formal way, for defined causes which relate to their fitness to continue to attend to the duties of office.76

Judicial review of proceedings against judges When investigations are initiated against judges with a view to their removal from office, or when decisions to remove them are made, a question arises as to whether there can be resort to the courts to challenge the legality of such investigations or decisions.77 So far, no case has arisen in which the

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High Court of Australia has had occasion to rule on the legality of a decision to remove a judge. If an occasion does arise, the ability of the courts to intervene will no doubt be dependent upon a number of factors. An important factor may be whether the power of removal is constrained by reference to specified grounds for removal or prescribed procedures to be followed in exercising a power of removal. Another important factor is whether there exists a privative clause precluding judicial review. If an extra-parliamentary commission of inquiry has been established to inquire into and report on the conduct of a judge, the actions of such a body are clearly amenable to judicial review. General principles of administrative law could be invoked.78 For instance, judicial review might be sought if it were alleged that the commission had failed to observe statutory procedural requirements or common law requirements of procedural fairness. The participation of a particular member of the commission could be challenged on the ground that there was reasonable apprehension of bias on his or her part, or that such a member did not fulfil the requisite qualifications prescribed by the statute establishing the commission. The position is different if what is challenged is the parliamentary judgment that a judge should be removed on the ground of proved misbehaviour or incapacity. Such a judgment would necessarily be reflected in the addresses of the Houses of the federal Parliament in the terms of s 72(ii) of the federal Constitution. Judicial review of the Houses’ determination would arguably be in violation of Article 9 of the Bill of Rights 1689, which is a part of the law of all Australian jurisdictions.79 Article 9 provides that: [T]he freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Evidence of proceedings in a parliament, if sought to be adduced to impeach the proceedings to remove a judge, cannot be received by the courts, according to the course of judicial decisions on Article 9.80 That the decision of the Houses of the federal Parliament to remove a judge is not justiciable is supported by the legislative history of s 72(ii);81 however, the justiciability issue still remains in the realm of mere speculation. In the Murphy affair, the constitutionality of the Parliamentary Commission of Inquiry Act 1986 (Cth) was challenged. The High Court in Murphy v Lush82 did not find it necessary to rule on the challenge. An interlocutory injunction to restrain the Commission from proceeding with the inquiry entrusted to it by the Parliament was refused by the High Court. Justice Murphy died before the Commission completed its inquiry. Nevertheless, the High Court did regard the constitutionality of the Act as a triable issue in the case. In 1998 Justice Vince Bruce of the Supreme Court of New South Wales instituted court proceedings in an attempt to prevent a report of

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the Judicial Commission of that State being used to effect his removal by the requisite parliamentary process. Judicial review was sought on the ground that there was no evidence to support the finding in the report, and partly because it was contended that the Judicial Officers Act 1986 (NSW) required that a report of the Conduct Division of the Judicial Commission, which could lead to a parliamentary address for removal of a judge, be a unanimous report of all three members of that Conduct Division. This contention was rejected by the Court of Appeal of New South Wales.83 However, the Court did note that if the three persons constituting the Conduct Division were not unanimous the report should say so, and that the dissenting member should record his or her reasons for dissent. This should be done in order to inform the Parliament. Finally, the legislation regulating the proceedings for removal of a judge may expressly seek to preclude the courts from reviewing acts or decisions pertaining to the removal.84 Such ‘ouster’ or ‘privative’ clauses may vary in their scope. Their effectiveness is not absolutely certain.85 Abolition of courts On 28 November 1994, in a public lecture, Justice Kirby drew attention to a practice which ‘has now become relatively common in Australia’.86 He explained: The immediate problems . . . have arisen in the context of the abolition of courts and independent tribunals and the creation of new courts or tribunals to which some only of the former office-holders are appointed.87

Justice Kirby asserted that the practice represents a ‘shocking erosion of the principle of independence of judicial and like decision-makers’.88 A conspicuous example of this development arose in the context of the reorganisation of the magistracy in New South Wales effected by the Local Courts Act 1982 (NSW). All but five of the serving magistrates who applied were appointed to the new Local Courts by the Governor on the advice of the Attorney-General.89 The policy adopted was that serving magistrates who applied would be appointed to the new Local Courts unless they were considered unfit for judicial office. The Chairman of the Bench of Stipendiary Magistrates had written to the Attorney-General stating that there were strong reasons based on their past performance not to reappoint these five magistrates. At first instance, Lee J of the Supreme Court dismissed the claim of the five magistrates that they had been denied natural justice on their applications to be appointed magistrates under the Local Courts Act 1982 (NSW). On appeal, the Court of Appeal

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unanimously held that there had been a denial of procedural fairness arising from the failure of the Attorney-General to give the five magistrates any opportunity to respond to the allegations.90 Accordingly, the Court of Appeal declared that the Attorney-General’s decision not to recommend the appointment of the five magistrates was void. Following this decision of the Court of Appeal, the five magistrates were told that they could apply for appointment to the Local Courts in competition with other applicants. It was the contention of Mr Quin, one of the five magistrates, that his application should be considered on its individual merits without reference to other applications. The Court of Appeal, in a majority judgment, resolved the issue in his favour; however, that decision was reversed by the High Court.91 Justice Kirby, writing extra-curially, has lamented the majority decision of the High Court as sending a ‘bad signal’,92 and described it as a ‘most unfortunate decision’.93 Justice Kirby added: Unless reversed, it will continue to assist executive governments throughout Australia to erode judicial independence and tenure upon the asserted basis that this is being done to uphold ‘quality’ in courts, tribunals and other public offices. If regular resubmission of judicial appointees to a suggested test of ‘quality’ is permissible, whether directly or indirectly, we have shifted the basis of tenure in judicial and like appointments.94

In his judgment in Quin, Mason CJ pointed out that the reorganisation of the court structure in New South Wales was a genuine exercise and that no suggestion was made that its object was simply to enable the removal from office ‘by covert means’ of the magistrates concerned.95 Mason CJ said: In the end the respondent’s case depends upon the assertions that there was a breach of the duty of fairness when the Executive excluded him from the appointment process applied to former magistrates by taking into account the adverse material and that relief in respect of that denial requires reinstatement of that process to his application. That case fails because it would require the court to compel the Attorney-General to depart from a method of appointing judicial officers which conforms to the relevant statutory provision, is within the discretionary power of the Executive and is calculated to advance the administration of justice.96

In the case of the New South Wales magistracy the reorganisation of the courts was perceived to have posed a threat to judicial independence because of the failure to reappoint some of the existing magistrates.97 The abolition of Victoria’s Accident Compensation Tribunal proved even more controversial. That tribunal had been established under legislation introduced by a Labor government in 1985, and its members had the same rank, status and precedence as judges of the County Court. A provision in the Act under which it was established guaranteed the members tenure of office:

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their removal from office could only be effected by the Governor of Victoria on an address of both Houses of Parliament. In December 1992 the newly elected Liberal government secured enactment of legislation that abolished the tribunal and transferred its jurisdiction to the County Court. According to Justice Kirby, the controversy concerned ‘an undoubted court and undoubted judges’.98 The government by-passed the removal mechanism simply by enacting the statute which abolished the tribunal. The dismissed judges were not offered other judicial positions of an equivalent status. In response to criticism of the action, the Victorian Attorney-General was reported to have said: This has nothing to do with judicial independence. Precisely the same considerations apply to any highly qualified individual who unexpectedly loses a public office which hitherto had been secure for life. Regrettably, in Victoria’s present circumstances, all too many persons in public office will experience this disappointment.99

It has been pointed out that a fundamental flaw in the reported statement was the ‘false’ equation of members of the judiciary with public servants, for the former ‘stand between the Government and the people’.100 On the other hand, there has been support for the view that it is inaccurate to describe the members of such a tribunal as ‘judges’.101 In commenting on the abolition or restructuring of specialist courts and tribunals, ‘usually in the area of industrial law and workers compensation’, Chief Justice Doyle of the Supreme Court of South Australia said: The relevant legislation is enacted because it is considered by the government of the day to be in the public interest, and that is a judgment which is properly to be made by Parliament. But . . . the replacement or restructuring of a court could be a convenient way to achieve indirectly what could not be achieved directly.102

He added: Such situations are regulated entirely by convention. The convention is that the existing judges of the court that is abolished or restructured must be appointed to a court of equivalent status or to the new replacement court. Failing that, they should continue to hold office in the former court, even if the work of that court has come to an end.103

Sometimes a government may have very good reasons for restructuring a court. It may want to appoint to the new court ‘judges of the best calibre, and judges suited to the new jurisdictions’ in order to make the new court work as well as possible. Such a restructuring will not be controversial as long as the principle of security of tenure in relation to the judges of the former court is observed.104

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Reforming the removal mechanism The protracted proceedings against Justice Murphy have prompted some to suggest that the removal mechanism provided for in s 72(ii) of the federal Constitution is not satisfactory. Justice McGarvie of the Supreme Court of Victoria (who later became the Governor of Victoria) made the following observation: When, on the first occasion of modern time in the country, the machinery designed in an earlier era to determine whether a judge ought to be removed, was put into operation in the case of Mr Justice Murphy, it was found quite inadequate to cope with the conditions of today. In a contested case, with political undertones, the traditional parliamentary procedures were unable in any satisfactory way to ascertain what had occurred or whether what had occurred could warrant removal. It was a good illustration of a system which apparently worked in earlier times, but is ineffective in the conditions of today.105

In considering the issue of removal, Chief Justice Gibbs said: A House of Parliament or the Senate is not the most suitable body for finding the facts in a complex and contested case, although it is true that a committee of the House or Senate may be constituted for the purpose. There are no legal means of ensuring that a judge will not continue to sit while the proceedings remain unresolved.106

The last observation of Chief Justice Gibbs was drawn from his personal involvement in the ‘Murphy saga’. In relation to that case he had expressed the view that Justice Murphy should not sit on the High Court until a report had been made by the Parliamentary Commission of Inquiry, as it was essential that ‘the integrity and reputation of any Justice of this Court be seen to be beyond question’.107 The issue of whether the removal mechanism embodied in s 72(ii) of the Commonwealth Constitution should be reformed was considered by the Constitutional Commission. In its Final Report, it recommended that s 72 should be altered by adding the following paragraphs to it: An address for removal of a Justice shall not be made unless a Judicial Tribunal, requested by a Minister of State for the Commonwealth to inquire into an allegation of misbehaviour by or of incapacity of the Justice, has reported that the facts found by it could amount to misbehaviour or incapacity warranting removal. The Parliament may make laws providing for the establishment, constitution and procedure of a Judicial Tribunal, but each member of the Tribunal must be a Justice of a superior federal court other than the High Court or a judge of the Supreme Court of a State or Territory. The address of each House of Parliament must be based on facts found by the Tribunal and be made no later than the end of the next session or after the report of the Judicial Tribunal.108

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Complaints against judges Occasional disquiet has arisen over the lack of a clear mechanism for dealing with complaints against judges regarding misconduct that may fall short of that required for dismissal or suspension. The process generally has been an informal one. ‘Chief Justices and Attorneys-General evaluated complaints for themselves and took whatever action they thought appropriate’.109 In its Final Report, the Constitutional Commission expressed the view that the issue of whether an organisation should be created to deal with complaints against judges was a matter of policy for the parliaments and governments of Australia rather than an issue calling for constitutional amendment. Reforms at State level New South Wales is the only jurisdiction in Australia that has empowered a standing statutory body to examine complaints against judges. The Judicial Commission of New South Wales [hereinafter ‘the Commission’] was established by the Judicial Officers Act 1986 (NSW).110 The Commission consists of ten members,111 six of whom are ex officio members drawn from the judiciary, including the Chief Justice of the New South Wales Supreme Court. The Chief Justice is also the President of the Commission.112 There are four members appointed by the Governor on the nomination of the Minister.113 One appointed member must be a legal practitioner114 and the others must be persons who have ‘high standing in the community’.115 A quorum of members is five. Under s 15(1) of the Act anyone may complain to the Commission about ‘a matter that concerns or may concern the ability or behaviour of a judicial officer’. Such a matter may also be referred by the responsible Minister to the Commission. Section 15(2) provides that: The Commission shall not deal with a complaint unless it appears to the Commission that: (a) the matter, if substantiated, could justify parliamentary consideration of removal of the judicial officer from office; (b) although the matter, if substantiated, might not justify parliamentary consideration of removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties of the officer.

Complaints made under s 15 are initially considered by the Commission, which is required to conduct a preliminary examination of a complaint by initiating such inquiries as it thinks appropriate, to be conducted, as far as possible, in private.116 The Act was amended in 2006 to eliminate

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the distinction between ‘minor’ and ‘serious’ complaints previously used to determine whether a substantiated complaint warranted removal. The intention behind this amendment was to simplify procedure.117 The Act also established a Conduct Division,118 which consists of three persons appointed by the Commission, one of whom is appointed Chairperson.119 Those persons are to be judicial officers (but not necessarily members of the Commission), although one may be a retired judicial officer.120 Separate panels may be constituted to deal with separate complaints.121 A majority of votes cast constitutes the decision of the Conduct Division.122 The primary function of the Conduct Division is to examine and deal with complaints referred to it by the Commission. Section 21(1) provides that complaints that are not summarily dismissed by the Commission shall be referred to the Conduct Division, although a ‘minor’ complaint may be referred to the relevant head of jurisdiction if the attention of the Conduct Division is deemed not to be warranted.123 Once a complaint is referred to it, the Conduct Division is required to examine the complaint, initiating such inquiries as it thinks appropriate, in private if possible.124 The Conduct Division may extend its investigations to matters arising in the course of dealing with the complaint.125 At the same time, it may also deal with grounds for complaint disclosed against another judicial officer.126 The Conduct Division may hold hearings when dealing with a complaint. In the case of a ‘serious’ complaint, the hearing is to take place in public unless a direction is made that the hearing should be held, in part or in whole, in private because privacy is deemed by the Conduct Division to be desirable.127 In relation to ‘minor’ complaints, the hearings must take place in private.128 Once a complaint is dealt with, the Conduct Division may do any of the following: (a) dismiss the complaint, based on the grounds contained in s 20(1) or because the complaint was not substantiated;129 (b) where a minor complaint is wholly or partly substantiated,, refer the matter back to the head of jurisdiction;130 (c) where a serious complaint is wholly or partly substantiated, form the opinion that the matter could justify parliamentary consideration of removal;131 or (d) refer the complaint, minor or serious, to an appropriate body or person.132

The Conduct Division may also request that a judicial officer undergo a medical examination and form an opinion that removal is warranted based on a refusal to participate.133

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In respect of all serious complaints, the Conduct Division shall present to the Governor a report setting out the Conduct Division’s conclusions.134 That report is thereafter required to be laid before both Houses of Parliament. In respect of minor complaints, the Conduct Division shall furnish a report to the Commission setting out the action taken.135 Reports of either kind are to be furnished to the judicial officer concerned.136 There is also a correlative duty to furnish a copy to the complainant. A judicial officer may be suspended by the relevant head of jurisdiction on the basis of a complaint made against the judicial officer, a report of the Conduct Division recommending removal or as a result of being either charged or convicted in New South Wales of certain criminal offences or being convicted elsewhere.137 A judicial officer may be removed, and may not otherwise be removed, on the basis of a report of the Conduct Division setting out its opinion that the matters referred to could justify parliamentary consideration of the removal of the judicial officer on the ground of proved misbehaviour or incapacity.138 A holder of a judicial office may be removed by the Governor on an address from both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity. The furore that erupted when the legislation for the establishment of the Judicial Commission of New South Wales was first proposed has now abated. It is useful nevertheless to rehearse some of the criticism which was levelled at the legislation. In a public statement, 32 Judges of the New South Wales Supreme Court claimed that the proposed law had the potential to reduce the judiciary to ‘disciplined subservience’.139 Justice McClelland expressed the view that: . . . the mere establishment of an official body with the express function of receiving complaints against judges as a first step in an official investigation renders judges vulnerable to a form of harassment and pressure of an unacceptable and dangerous kind, from which their constitutional position and the public interest require that they should be protected.140

He also suggested that the similar fear of damage to the reputation of judges, and consequently public confidence in the court, has led to restrictions on the ability of persons to pass comments on the character or motives of judges. Accordingly, he concluded that ‘[t]he imposition of any official sanction against a judge who is to remain in office is objectionable in principle’.141 Two former Chief Justices of the High Court also criticised the legislation. Sir Harry Gibbs said that ‘[t]he likelihood is that most complaints will be dismissed by the Commission and will never reach the Conduct

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Division, but the fact that they are made and have to be processed is a source of vexation and possible damage to a judge’.142 Sir Anthony Mason expressed fear that ‘[t]he New South Wales procedure for dealing with every complaint may merely encourage the making of groundless complaints by disappointed litigants’.143 Accordingly, he said that the reputation of judges would be harmed, notwithstanding eventual vindication. Approximately 85 per cent of all the complaints made in the first 10 years of the operation of the Commission were summarily dismissed by the Commission. The 2011 Annual Report of the Commission indicates ‘once more the bulk of the complaints were from litigants-in-person with about 95% being dismissed’.144 The New South Wales complaints system was set up as a reaction to the controversy afflicting some judicial officers in the State. It was modelled on the Californian Commission on Judicial Performance, which has operated since 1960. As Justice James Thomas observed: Perhaps it has been overlooked that the American system grew out of widespread public pressure resulting from frequent daily scandals invoking the state judiciaries over an extended period . . . Of course the position may have been much worse without the new system, but even with the threat of discipline from commissions that have now been in operation between ten and twenty years, American judges still misconduct themselves in proportions that are mammoth by our standards, Australia’s problems are miniscule by comparison.145

Justice R E McGarvie had warned that Australia should be ‘both discerning and selective’ when looking at the American experience and initiatives. The introduction of an American-style judicial discipline commission ‘would’, he maintained, ‘diminish . . . [the] standing, reputation and quality of the judiciary and reduce community confidence in it’.146 Sir Anthony Mason, assessing two decades of operation of the Judicial Commission of New South Wales, expressed the view that the system has worked ‘well, effectively and fairly, without endangering the independence of the judiciary, or the reputation of individual judges’.147 It is clear that judicial hostility to a judicial commission has abated. Chief Justice Wayne Martin of the Supreme Court of Western Australia has given his express support for the establishment of a judicial commission in his State.148 In Victoria, the former Brumby Labor Government proposed that Victoria establish a permanent, statutory judicial commission similar to the Commission of New South Wales. This eventually took the form of the Judicial Commission of Victoria Bill 2010. The purpose of the Bill was to provide a formal procedure to deal with those complaints not deemed ‘serious’ enough to require the removal of a judge from office.149 The proposed Victorian Bill allowed any person to complain about ‘any conduct of a judicial officer whether or not the conduct was in the

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course of that officer carrying out his or her functions as a judicial officer’.150 It also allowed any person to complain about ‘the capacity of a judicial officer to carry out his or her functions as a judicial officer’.151 Similar provisions also allowed complaints against registrars and VCAT (Victorian Civil and Administrative Tribunal) officers.152 The legislation resembled in all respects its inter-state equivalents in terms of the powers allocated to an investigatory panel and the vesting of ultimate authority in the head of jurisdiction. The Victorian Bill lapsed with the defeat of the Brumby Labor Government in 2011. Under the Ballieu Liberal Government in Victoria, allegations of judicial misconduct are to be heard by the new Independent Broad-based Anti-Corruption Commission instead of a judicial commission; however, the term ‘corruption’153 does not appear to include the type of behaviour that would constitute misbehaviour or incapacity for the purposes of s 87AAB of the Constitution Act 1975 (Vic). This approach resembles the treatment of alleged judicial corruption in New South Wales, Queensland and Western Australia.154 Reforms at Commonwealth level The Constitutional Commission’s Advisory Committee on the Australian Judicial System recommended against the establishment of a body to receive and act upon complaints about federal judges which could not warrant removal. The Committee argued that the failed and disappointed litigant would be encouraged ‘to salve disappointment and save face with friends and associates by blaming the judge and justifying that attitude by making a complaint about the judge’; that overseas experience showed that many complaints were made by defeated litigants seeking in effect a retrial; that the authority and standing of judges would be diminished if they were placed in a position where they were made the subject of a system for the collection of complaints about them; that the establishment of a complaints organisation would operate ‘to detract from the reputation of judges’; that the staff involved in the system would have a vested interest to press for its continuance; and that based on overseas experience, the number of complaints would grow. The Committee in the end recommended that ‘no organisation should be set up to receive and act upon complaints about federal judges which could not warrant removal’.155 Despite the criticism of the idea of establishing a complaints handling mechanism, the Australian Law Reform Commission said in a discussion paper that its research and consultations ‘point to the need to establish a federal version of the [Judicial Commission of New South Wales] to receive and investigate complaints against judicial officers’. It proposed that the Commonwealth ‘should establish an independent judicial commission,

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modelled on the Judicial Commission of New South Wales, to receive and investigate complaints against federal judges and magistrates’.156 The Australian Law Reform Commission subsequently retreated from this proposal.157 The Commission recommended that each federal court ‘should develop and publish a protocol for defining, receiving and handling bona fide complaints against judges, judicial officers and members, as well as complaints about court systems and processes’.158 In Recommendation 12, it said: The federal Parliament should develop and adopt a protocol governing the receipt and investigation of serious complaints against federal judicial officers. For these purposes, a ‘serious complaint’ is one which, if made out, warrants consideration by the Parliament of whether to present an address to the Governor-General praying for the removal of the judicial officer in question, pursuant to s 72 of the Constitution. Parliament should give consideration to whether, and in what circumstances, the protocol might provide for the establishment of an independent committee, drawn from a panel of distinguished retired judges (or other suitably qualified persons), to investigate the complaint and prepare a report to assist Parliament with its deliberations. Such a provision should not derogate from the flexible powers presently possessed by the two Houses to fashion and control their own procedures.159

The Commission referred to submissions that raised doubts about the constitutional validity of a judicial commission with respect to federal judges. In particular, a submission of the Federal Court of Australia that Chapter III of the Commonwealth Constitution and ‘the principles of independence of the judiciary that it reflects and supports’ provided ‘substantial limitations upon what can validly be done by way of the establishment and operations of a Judicial Commission’. The submission further pointed out that the appellate process was the exclusive method for correcting judicial errors, including alleged errors by reason of matters such as bias or apprehended bias and that ‘the range of matters that, on the widest view, could permissibly be the subject of an inquiry by a body operating anywhere within the reach of Chapter III of the Constitution’ were limited indeed. The submission stated: Within the federal judiciary, self-administration has had a powerful role in enhancing judicial accountability. The governance of the Federal Court is essentially collegiate in character, involving committees of judges and senior registry staff, meetings of the whole Court from time to time, and an Annual Report to Parliament. This form of governance is a powerful, positive influence, through peer and collegiate pressure, upon individual performance and accountability.160

The change of mind by the Commission about a proposed standing judicial commission was also brought about by the submission of the Law Council of Australia that such a proposed body ‘would probably

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need to exclude the justices of the High Court’. The Commission referred specifically to the following submission of the Law Council, which argued that the justices of the High Court of Australia should be excluded expressly from any legislation establishing a federal judicial complaints body. The Law Council of Australia added: This is because of the High Court’s essential apex role in Australia’s justice system. Given the High Court’s role under the Commonwealth Constitution, the Law Council considers it singularly inappropriate that the High Court justices should be placed in a position where they may have to consider a justiciable complaint against one of their number, arising from a complaint made about that High Court judge to the federal judicial complaints body. Even worse, by analogy with the litigation [in relation to Justice Bruce and the Judicial Commission of New South Wales] the prospect of the High Court judicially reviewing the work of a federal judicial complaints body in relation to one of its own number, is too appalling to contemplate.161

The Law Council said that the two Houses of Parliament should have sole consideration of the conduct of a High Court judge; however, the idea of a national judicial commission has been rejected by the Council of Chief Justices.162 In 2009, the Senate Legal and Constitutional Affairs References Committee’s Inquiry into Australia’s Judicial System and the Role of Judges recommended the creation of a federal judicial commission, particularly to address the less serious complaints of misbehaviour and incapacity made against federal judges.163 This Commission would be based upon the New South Wales Judicial Commission.164 The Committee adopted Sir Anthony Mason’s view that: . . . the constitutional procedure does not address cases of misconduct or incapacity which are incapable of justifying removal. A judge may be guilty of delay, discourtesy, gender bias or of less serious misconduct which does not justify removal but could merit an expression of disapproval, a caution or counselling by a head of jurisdiction.165

The federal Attorney-General, Nicola Roxon, who was sworn in as Attorney-General of the Commonwealth on 14 December 2011, indicated in a speech to the Victorian Bar Association on 18 February 2012 that she would be introducing legislation ‘to provide a clear, accountable and effective system for handling complaints about federal judicial officers’.166 On 14 March 2012, the Judicial Misbehaviour and Incapacity (Parliamentary Commission) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 were introduced in the federal Parliament. In her second reading speech, the federal AttorneyGeneral said that a testament to the high calibre of the judiciary was that ‘there have been few serious complaints about judges’ and also acknowledged that ‘Australia continues to be very well served by its judiciary’.167

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The two Bills were designed to ‘considerably improve the current ad hoc and somewhat opaque system of judicial complaints handling’.168 The Judicial Misbehaviour and Incapacity (Parliamentary Commission) Bill 2012 establishes a standing process which augments the removal mechanism under s 72(ii) of the Commonwealth Constitution. The Bill enables the federal Parliament to establish parliamentary commissions ‘to investigate specified allegations about misbehaviour or incapacity in relation to federal judicial officers when required’ (including the justices of the High Court). A commission consists of three members appointed on the nomination of the Prime Minister, after consulting the Leader of the Opposition in the House of Representatives. At least one member of the commission must be a former Commonwealth judicial officer, or a judge, or former judge, of the Supreme Court of a State or Territory. The main role of a parliamentary commission is ‘to inquire into allegations and gather information and evidence so the parliament could be well informed in its consideration of the removal of a judge’. It reports to the Houses of Parliament its opinion of ‘whether or not there is evidence that would let the Houses of the Parliament conclude that the alleged misbehaviour or incapacity is proved’.169 This fairly limited role is to ensure that the commission does not ‘usurp’ the role of the federal Parliament in determining whether the conduct of a judicial officer amounted to proved misbehaviour or incapacity. A commission is required to act in accordance with the rules of natural justice. Other provisions detail the process to be followed for a commission. It is required to conduct its investigations in an inquisitorial manner, require witnesses to appear at its hearings, take evidence on oath, conduct hearings in private, require production of documents and issue search warrants. As a conscious recognition of judicial independence, in investigating an allegation, a commission is not empowered to compel current and former Commonwealth judicial officers to participate in the investigation. A companion Bill, the Courts Legislation Amendment (Judicial Complaints) Bill 2012, sets out ‘a non-legislative framework’ to assist the Chief Justices of the Federal Court and the Family Court, and the Chief Federal Magistrate, to manage complaints about judicial officers that are referred to them. This framework was described as providing ‘a broad and flexible model that augments complaints procedures that currently operate within the federal courts’.170 The justices of the High Court are exempted from this framework. When a head of jurisdiction receives a complaint (either directly or by referral from the federal Attorney-General), the head of jurisdiction can opt for one of the following actions: assess and dismiss the complaint; assess and resolve it to the satisfaction of the head of jurisdiction,

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following discussion with the judicial officer the subject of the complaint; establish a Conduct Committee when the head of jurisdiction assesses the complaint as ‘serious’ warranting further investigation; assess the complaint as very serious and refer it to the federal Attorney-General on the basis that it warrants parliamentary consideration of removal on grounds of proved misbehaviour or incapacity. The option of establishing a Conduct Committee is a distinctive feature of the Bill. A Conduct Committee would consist of three members and include two judicial nominees and one non-judicial nominee. A Conduct Committee would ultimately provide the head of jurisdiction with a report setting out what action should be taken. If it reports that the complaint is unsubstantiated, the head of jurisdiction may dismiss the complaint. If it finds the complaint substantiated but does not justify consideration of removal from office, the report may include recommendations for future action. If it finds that the complaint warrants parliamentary consideration of removal from judicial office, the head of jurisdiction may refer the complaint to the federal Attorney-General who in turn refers it to Parliament for consideration in accordance with s 72 of the Commonwealth Constitution and any procedures established under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. Under the Courts Legislation Amendment (Judicial Complaints) Bill 2012 a head of jurisdiction may temporarily restrict a judicial officer to non-sitting duties should the head of jurisdiction believe it reasonably necessary in order to maintain public confidence in the court. Overall, the new framework provides for an acceptable balance between transparency and accountability on one hand and judicial independence on the other hand. Resignation of judges The discussion so far has centred on the forced removal of judges. At this juncture it is appropriate to note that sometimes judges may choose to retire before reaching retirement age. In returning his or her commission as a judge, by way of resignation, a judge may avoid being subjected to the removal process.171 Justice J B Thomas disclosed that on a few occasions he was personally aware that the abilities of some judges had become seriously diminished; a fact which was obvious to others, but not to the judges themselves. Justice Thomas said: In some instances a trusted colleague has taken on the unpleasant task of speaking privately with the judge, telling him that it is the view of more than a few that he is no longer performing well, and suggesting that he might lose a fine reputation if he carries on. In each instance, this has been followed by a timely resignation.172

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The impetus behind a resignation by a judge is not restricted simply to situations where a judge may wish to avoid the prospect of being suspended or removed from judicial office. There are many other reasons a judge may choose to resign. A judge may resign in order to take up appointment to another court or to an executive post, or because of illness or impairment, or because of a desire to enter a parliament, return to the Bar, or take up alternative dispute resolution. Work-related stress or uncongenial work conditions are also reasons for early retirement. In a few instances, it may well be a sense of disappointment at having been ‘passed over’ for a position such as a chief justiceship. In Australia, there have been some instances where a judge has resigned to go back to the Bar. While this may pose an ethical dilemma, Justice Thomas said that, at least in Australia, this is permissible ‘provided that certain limitations are observed’.173 Notes 1 An Act passed in 1760 (Act 1, Geo III, c 23) provided that judges would continue to hold office during good behaviour, notwithstanding the demise of the monarch. For the background of the Act of Settlement 1701 (Eng), see T F T Plucknett (ed), Taswell-Langmead’s English Constitutional History (Sweet and Maxwell, 11th ed, 1960) 465–6. 2 Constitution Act 1934 (SA) s 75; Constitution Act 1889 (WA) s 55; Supreme Court (Judges’ Independence) Act 1857 (Tas) s 1. 3 Constitution Act 1934 (SA) s 74; Constitution Act 1889 (WA) s 54. 4 Constitution Act 1902 (NSW) s 53(2). 5 Constitution of Queensland Act 2001 (Qld) s 61(2). 6 Constitution Act 1975 (Vic) s 87AAB(1). 7 Supreme Court Act 1979 (NT) s 40. 8 Judicial Commissions Act 1994 (ACT) s 5(1). 9 These powers are designated to Parliament, which may then decide to convene a tribunal as provided in the Constitution of Queensland Act 2001 (Qld) s 61; and to the AttorneyGeneral in Victoria and the Australian Capital Territory: see Constitution Act 1975 (Vic) ss 87AAB(2), 87AAD; Judicial Commissions Act 1994 (ACT) ss 5, 16 as well as Part IV generally. 10 Constitution Act 1902 (NSW) s 7B. 11 Constitution Act 1975 (Vic) s 18(2)(fb). 12 See G Lindell, ‘The Murphy Affair in Retrospect’ in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 280–311; J B Thomas, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009) 220–31; H P Lee and V Morabito, ‘Removal of Judges – The Australian Experience’ (1992) Singapore Journal of Legal Studies 40. 13 See M Wilkinson, ‘Big Shots Bugged’, National Times (Sydney), 25 November – 1 December, 1983, 3. 14 Commonwealth, Parliamentary Debates, Senate, 28 February 1984, 30 (‘Opinion’, I Temby). 15 Commonwealth, Parliamentary Debates, Senate, 28 February 1984, 32–6 (‘In the Matter of Section 72 of the Constitution’, G Griffith). 16 The members of the committee were Senator Tate (Labor, Tasmania), Senator Bolkus (Labor, South Australia), Senator Crowley (Labor, South Australia), Senator Durack (Liberal, Western Australia, and the Shadow Attorney-General), Senator Lewis (Liberal, Victoria) and the leader of the Australian Democrats, Senator Chipp (Victoria). 17 Thomas, above n 12, 223.

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18 ‘Extract from transcript of evidence before the committee, p 448, 449’, Appendix to Commonwealth, Senate Select Committee on the Conduct of a Judge, Parl Pap No 168 (1984). 19 The committee was comprised of four Senators (Senators Tate, Lewis, Haines and Bolkus). Two former judges, John Wickham QC and Xavier Connor QC, served as commissioners assisting the inquiry. 20 That there was an intention by Murphy J to pervert the course of justice was found by Tate and Haines (‘on the balance of probabilities’) and by Lewis (‘beyond reasonable doubt’). Bolkus found in favour of Murphy J. The commissioners, Wickham and Connor, disagreed on whether the intention to pervert the course of justice had been proved beyond reasonable doubt. Except for Bolkus, all the other committee members and the commissioners found that there was conduct which could amount to misbehaviour. See Thomas, above n 12, 227. 21 R v Murphy (1985) 63 ALR 53. 22 Parliamentary Commission of Inquiry Act 1986 (Cth). The Commission was constituted by three retired judges: Sir George Lush, Sir Richard Blackburn and Andrew Wells QC. See Murphy v Lush (1986) 65 ALR 651 in which Murphy challenged the constitutional validity of the Act and sought to have one of the Commissioners (Wells) disqualified. The application for an interlocutory injunction was refused by the High Court. 23 Parliamentary Commission of Inquiry (Repeal) Act 1986 (Cth). This Act suppressed all proceedings of the commission for 30 years and the suppressed evidence would not be known until 2016: see Thomas, above n 12, 229–30. 24 Thomas, above n 12, 231. 25 Ibid. 26 Apparently, he was appointed a judge of the Supreme Court on 23 September 1983 but the minority National Party government rescinded the announced appointment four days later. See P Dickie, The Road to Fitzgerald and Beyond (University of Queensland Press, 1989) 328. 27 The commission was set up pursuant to the Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld). 28 Lewis was appointed assistant commissioner ‘over 122 equal and more senior heads by State Cabinet’ in November 1976. When Police Commissioner Ray Whitrod resigned in protest, Lewis was then appointed commissioner. See Dickie, above n 26, 321. 29 The significance of this evidence was explained as follows: Between August 1987 and October 1988 substantial parts of Sir Terence’s diaries were published as part of the evidence before that inquiry. Those diaries purported to record a number of telephone and personal contacts between Mr Justice Vasta and Sir Terence, and a number of communications between Sir Terence and Ministers and other prominent political figures in which Mr Justice Vasta’s name was mentioned. In the prevailing climate of opinion, these were regarded as reflecting gravely on Mr Justice Vasta. It also came to light that, in the hearing of one phase of a defamation action, in which he was the plaintiff, the Judge had given evidence which was regarded as minimising the extent of his friendship with Sir Terence.

30 31 32 33 34 35 36 37

See ‘Summary of the First Report’ in Queensland, Parliamentary Judges Commission of Inquiry, First Report (1989) i. Queensland, Parliamentary Judges Commission of Inquiry, First Report (1989) 14, para 2.1.4. See ‘Summary of the First Report’, above n 29, ii. Dickie, above n 26, 277. Cosco was a paper products company in which Justice Vasta had remained as a minority shareholder after resigning as a director before the abortive attempt to appoint him a judge of the Supreme Court. Thomas, above n 12, 157. See Griffith, ‘In the Matter of Section 72 of the Constitution’, above n 15. Ibid para 21. Ibid para 23. Opinion of Mr C W Pincus QC, set out as Appendix 4 to Commonwealth, Senate Select Committee on the Conduct of a Judge, Parl Pap No 168 (1984).

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38 Ibid 27. 39 ‘Parliamentary Commission of Inquiry Re The Honourable Mr Justice Murphy’ (1986) 2 Australian Bar Review 203, 221. 40 Ibid 230. 41 Ibid 210. 42 C Milburn, ‘Inquiry call on High Court judge’, The Age (Melbourne), 22 July 1998, 3; D Shanahan and M Bachelard, ‘Law cannot bid to unseat High Court judge’, The Australian (Sydney), 22 July 1998, 1. 43 (1998) 156 ALR 169. See T Di Lallo, ‘Personal Liability for Costs’ (1999) 73 (March) Law Institute Journal 48; I Ross, ‘Lawyers’ Tactics – New Ethics’ (2000) 74 (June) Law Institute Journal 37. 44 A R Blackshield, ‘The Appointment and Removal of Federal Judges’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 425. Professor Blackshield said:

45 46 47 48 49 50 51 52 53 54

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In the Callinan case the apparent outcome is that legal and professional guidelines for the conduct of litigation have now been tightened to make it clear that what seems to have happened in 1986 is no longer acceptable; but that any tentative questioning of Callinan’s fitness for office has quietly been put to rest. The tacit implication is that this is one of those cases where our reappraisal of past events should lead us to make clearer rules for the future, but where the very recognition that clearer rules are needed necessarily implies that, at the time, the relevant standards were too ambiguous to permit retrospective condemnation. Even if the decisive questions were answered adversely to Callinan, this would mean only that he had the misfortune to be ‘caught on the ebb-tide of a previously acceptable practice’. White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, 250. Ibid 251. Ibid 206. D R Williams, Commonwealth Attorney-General, ‘Justice Ian Callinan’, Press Release, 26 August 1998. J Waugh, ‘A Question of Capacity: The Case of Justice Bruce’ (1998) 9 Public Law Review 223. Judicial Commission of New South Wales, Conduct Division, Report of the Conduct Division to the Governor Regarding Complaints Against the Honourable Vince Bruce, 15 May 1998, para 3. Ibid para 4. Ibid para 24, ‘Table A’. Ibid para 80. See Justice B Beaumont, ‘Contemporary Judgment Writing: The Problem Restated’ (1999) 73 Australian Law Journal 743, 745 for a comment on the effect of excessive delay in delivery of judgment on judicial decisions. D Mahoney signed the report of the Conduct Division even though he wrote a dissenting opinion. The chairman of the Conduct Division (Justice Cole) had formed the view, later regarded as erroneous by the Judicial Commission, that in accordance with the Judicial Officers Act 1986 (NSW) ‘only one report should go to the Governor, comprised solely of the majority viewpoint’. See R Ackland, ‘Bizarre conduct in Bruce decision’ Sydney Morning Herald, 5 June 1998, 15. Justice Bruce was subsequently informed by the Judicial Commission that the decision of the Conduct Division was not unanimous and that he should be provided with a copy of Mr Mahoney’s reasons for his opinion. Judicial Commission of New South Wales, Conduct Division, Reasons of the Honourable D L Mahoney AO QC Re: The Honourable Justice Bruce, 14 May 1998, para 4. An attempt to have the report invalidated was rejected by the New South Wales Court of Appeal. See Bruce v Cole (1998) 45 NSWLR 163. Sydney Morning Herald, 17 June 1998, 1, 8. Sydney Morning Herald, 26 June 1998, 1. A Bennett, ‘NSW MPs reject motion to sack magistrate’ Sydney Morning Herald, 13 October 2011 available at: http://news.smh.com.au/breaking-news-national/nsw-mps-reject-motionto-sack-magistrate-20111013-1lmzj.; A Bennett, ‘NSW Magistrate Betts avoids sacking’, Sydney Morning Herald, 16 June 2011 available at http://news.smh.com.au/breaking-news-national/

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nsw-magistrate-betts-avoids-sacking-20110616-1g5rg.html. See: Report of an Inquiry by a Conduct Division of the Judicial Commission of NSW in relation to Magistrate Jennifer Betts, 21 April 2011; Report of an Inquiry by a Conduct Division of the Judicial Commission of NSW in relation to His Honour Magistrate Brian Maloney, 6 May 2011. See the Judicial Officers Act 1986 (NSW) s 40; Judicial Commissions Act 1994 (ACT) s 19. Magistrates Court Act 1987 (Tas) s 9. Magistrates Act 1983 (SA) s 10. Magistrates Court Act 2004 (WA) Schedule 1 s 14(5). Ibid Schedule 1 s 13(3). Magistrates Act 1991 (Qld) s 43(2). Judicial Officers Act 1986 (NSW) ss 40, 42, 43. Judicial Commissions Act 1994 (ACT) s 19(2)(a). Ibid s 19(2)(b). E Campbell, ‘Suspension of Judges from Office’ (1999) 18 Australian Bar Review 63, 68. J Priest, Sir Harry Gibbs: Without Fear or Favour (Scribblers Publishing, 1995) 111. Ibid 112. Ibid 113. King v The Queen (1986) 161 CLR 423; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556. See R Atkinson, ‘The Chief Justice and Mr Justice Murphy: Leadership in a Time of Crisis’ (2008) 27(2) The University of Queensland Law Journal 221, 236. Effected by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (No 117, 2009), Schedule 3 to the Family Law Act 1975, the Federal Court of Australia Act 1976 and the Federal Magistrates Act 1999. Interesting questions arise as to the competence of the federal Parliament to enact legislation to confer such a power and the ability of a court to review a decision to suspend a judge. These questions are explored in Campbell, above n 69, 74–6. Ibid 78. The ‘Staples affair’ is a good illustration of an ‘administrative suspension’. Justice Staples, a deputy president of the federal Conciliation and Arbitration Commission, was effectively suspended from office by managerial decree that he not be assigned work. Technically, Justice Staples was not a judicial officer of the Commonwealth, but the measures adopted in his case could be adopted to deal with judges of courts. See M Kirby, ‘Judicial Independence Reaches a Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187; ‘The Removal of Justice Staples: Contrived Nonsense or Matter of Principle?’ (1990) 6 Australian Bar Review 1; ‘Abolition of Courts and Nonreappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181. Campbell, above n 69, 78. See generally E Campbell, ‘Judicial Review of Proceedings for Removal of Judges from Office’ (1999) 22 University of New South Wales Law Journal 325. Ibid 333. Article 9 applies in all States and Territories either because of legislation adopting the privileges of the House of Commons or because it reflects an inherent privilege or because of State legislation on the application of Imperial statutes. Prebble v Television New Zealand Pty Ltd [1995] 1 AC 321; Laurance v Katter (1997) 141 ALR 447; Rann v Olsen [2000] SASC 83; see also Parliamentary Privileges Act 1987 (Cth) s 16; G Griffiths, Parliamentary Privilege: Use, Misuse and Proposals for Reform, NSW Parliamentary Library Research Service, Briefing Paper No 4 (1997) 24–45. See J Thomson, ‘Removal of High Court and Federal Judges: Some Observations Concerning Section 72(ii) of the Australian Constitution’ [1984] Australian Current Law [36033]. (1986) 60 ALJR 523; 65 ALR 651. See Bruce v Cole (1998) 45 NSWLR 163. See, e.g., Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld) s 4(3); Judicial Commissions Act 1994 (ACT) s 60. Campbell, above n 77, 341–7. The Ronald Wilson Lecture 1994, published as ‘Abolition of Courts and Nonreappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181, 183. Ibid. See also pp 131–3 below.

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88 Ibid. See also T Connolly, ‘Relations Between the Judicial and Executive Branches of Government’ (1997) 6 Journal of Judicial Administration 215. 89 Only one magistrate did not apply. 90 Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268. A detailed history of the matter is set out in the judgment of Priestley JA (287–302). Special leave to appeal to the High Court was refused. 91 Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Mason CJ, Brennan and Dawson JJ; Deane and Toohey JJ dissenting). 92 M Kirby, ‘Abolition of Courts and Non-reappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181, 192. 93 Ibid 193. 94 Ibid 192. 95 (1990) 170 CLR 1, 19. 96 Ibid 24. 97 An amendment to the Constitution Act 1902 (NSW) effected by the Constitution (Amendment) Act 1992 (No 106) now ensures that a person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in a court of equivalent or higher status when the judicial office has been abolished by the abolition of a court (Constitution Act 1902 (NSW) s 56). It is also worth noting that a subsequent consolidation of the local courts into a single court has been affected by the Local Court Act 2007 (NSW). Section 4 of that Act ensures the continuation of employment of all magistrates appointed under the 1982 Act. See also Constitution Act 1975 (Vic) s 87AAJ. 98 Kirby, above n 92, 199. Justice Kirby also referred to the treatment of Justice Staples, a deputy president of the Australian Conciliation and Arbitration Commission, which he described as a ‘discreditable tale’ (190). The federal government abolished that Commission in 1988 and created in its place the Australian Industrial Relations Commission; however, Justice Staples was not appointed to the new body. All other available members of the old body were appointed to the new one. The imbroglio involving Justice Staples could be traced back, according to Justice Kirby, to a speech he made in 1980 to an industrial relations conference and remarks he made while rendering decisions in the Conciliation and Arbitration Commission. Thereafter, he was side-lined in terms of carrying out his normal duties as a Deputy President of the Commission. Justice Kirby (‘Judicial Independence and Justice Staples’ (1989) Victorian Bar News 18, 19) explained: Although no public reason was ever given for this differential treatment, privately, this exclusion of a person with the rank of a Judge from the performance of his statutory duties was justified by various commentators as being based on Justice Staples’ tendency to be a ‘maverick’ and to express his opinions in colourful and unorthodox language. It was also pointed out that industrial relations, including the settlement of large national disputes, requires particular sensitivity and confidence in the decision maker on the part of both parties to the arbitration. It was suggested that neither the employers’ nor the employees’ national organisations supported the appointment of Justice Staples to the new Australian Industrial Relations Commission. The treatment of Justice Staples was widely criticised; however, the criticisms were dismissed by the then Prime Minister (Mr Hawke) as simply ‘contrived nonsense’: see ‘The Quasi Judges’ (1990) Australian Law News (Feb) 9. It is also interesting to note that both the Government and the Opposition combined to defeat a proposal moved by the Australian Democrats in the Senate calling for an investigation into the ‘Staples affair’. What eventuated was the establishment of a Joint Committee of the Commonwealth Parliament which subsequently came up with a report recommending procedures for the removal of holders of office in quasi-judicial tribunals (Joint Select Committee on the Tenure of Appointees to Commonwealth Tribunals). 99 See editorial comment in (1993) 67 Australian Law Journal 83. The dismissed judges brought an action against the government of Victoria, but just before the hearing of the case the parties reached an out-of-court financial settlement: The Age (Melbourne), 29 November 1996, 4.

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100 (1993) 67 Australian Law Journal 83. 101 Ibid 84. See also The Age (Melbourne), 2 December 1992, 18 which, in its editorial, said: ‘The mistake is to think of them as courts’. Justice Kirby described this view as ‘illconsidered’ in Kirby, above n 92, 200. 102 ‘Judicial Independence’ (1997–1998) 16 Australian Bar Review 212, 215. 103 Ibid. 104 Ibid 216. 105 R E McGarvie, ‘The Foundations of Judicial Independence in a Modern Democracy’ (Paper delivered at the Australian Bar Association Conference, Darwin, 8 July 1990) 12. 106 H Gibbs, ‘The Appointment and Removal of Judges’ (1987) 17 Federal Law Review 141, 147. 107 The Age (Melbourne), 2 August 1986, 5. 108 Constitutional Commission, Final Report (1988) 402. See also L J King, ‘Removal of Judges’ (2003) 6(2) The Flinders Journal of Law Reform 169. 109 Waugh, above n 49. 110 Judicial Officers Act 1986 (NSW) s 5(1). 111 Ibid s 5(3). 112 Ibid s 5(6). 113 Ibid s 5(3)(b). 114 Ibid s 5(5)(a). 115 Ibid s 5(5)(b). 116 Ibid s 18. 117 Judicial Officers Amendment Bill 2006 (NSW) Explanatory Memorandum 5. 118 Judicial Officers Act 1986 (NSW) s 13(1). 119 Ibid s 22(1). 120 Ibid s 22(2). 121 Ibid. 122 Ibid s 3(4). 123 Ibid s 21(2). 124 Ibid s 23(3). 125 Ibid s 32(1). 126 Ibid s 32(3). 127 Ibid s 24(2). 128 Ibid s 24(3). 129 Ibid s 26. A lengthy list of grounds for summary dismissal of a complaint is contained in s 20 (1). Briefly, these grounds encompass the following: (a) not required to deal with the matter; (b) frivolous, vexatious, not in good faith; (c) trivial; (d) occurred at too remote a time; (e) satisfactory means of redress available; (f) judicial function subject to adequate review/appeal rights; (g) person involved is no longer a judicial officer; (h) having regard to all the circumstances of the case. 130 Ibid s 28(1)(b). 131 Ibid s 28(1)(a). 132 Ibid s 35. 133 Ibid s 34(2). 134 Ibid s 29(1). 135 Ibid s 29(7). 136 Ibid s 29(8). 137 Ibid s 40(1). 138 Ibid s 41, as amended by Act No 112 of 1992. 139 See ‘New Formalised Judicial Accountability System Established in New South Wales’ (1987) 61 Australian Law Journal 157, 158. See also S Shetreet, ‘The limits of judicial accountability: A hard look at the Judicial Officers Act 1986’ (1987) 10 University of New South Wales Law Journal 4; J J Spigelman, ‘Dealing with Judicial Misconduct’ (2003) 6(3) The Judicial Review 241, 248–51. 140 M McClelland, ‘Disciplining Australian Judges’ (1990) 64 Australian Law Journal 388, 390. 141 See Australian Judicial System Advisory Committee, Report to the Constitutional Commission (1987) 84 (para 5.78 and note 72, regarding the relevant standing orders in the various Houses of the Australian parliaments).

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142 H Gibbs, ‘Who Judges the Judges?’ (1987) 61 Law Institute Journal 814, 817. 143 A Mason, ‘The State of the Australian Judicature’ (1987) 61 Australian Law Journal 681, 685. See also K Rozzoli, ‘Parliament and Judicial Accountability: Time for an Overhaul’ (2000) 15 Legislative Studies 42. 144 Current issues, ‘Annual Report of the New South Wales Judicial Commission’ (2012) 86 Australian Law Journal 79, 82. 145 Thomas, above n 12, 250. 146 R E McGarvie, ‘The Operation of the New Proposals in Australia’ in The Accountability of the Australian Judiciary: Procedures for Dealing with Complaints Concerning Judicial Officers (Australasian Institute of Judicial Administration, 1989) 38. 147 A Mason, ‘Judicial Accountability’ (Paper presented at the Judicial Conduct and Ethics Conference, Dublin, Ireland, 6 May 2000) 111, as cited in Senate Legal and Constitutional Affairs References Committee, Australia’s Judicial System and the Role of Judges, December 2009, para 7.55. 148 Senate Legal and Constitutional Affairs References Committee, Australia’s Judicial System and the Role of Judges, December 2009, paras 7.28–7.29. 149 See also D Karamicov, ‘Judicial Complaints and the Complaints Procedure: Is it Time for an Independent Judicial Commission in Victoria?’ (2010) 19 Journal of Judicial Administration 232–3. 150 Judicial Commission of Victoria Bill 2010 (Vic) s 28(a). 151 Ibid s 28(d). 152 See ibid ss 28(b), (c) for the equivalent misbehaviour provisions; and ibid ss 28(e), (f) for the equivalent capacity provisions. 153 Defined as ‘the abuse of entrusted power for personal or political gain’ by C Ross, B Merner and A Delacorn in their Current Issues Brief on the Independent Broad-based Anti-Corruption Commission Bill 2011 3–4. In this sense, it supposes a degree of malicious intention which may not be manifest in misbehaviour, and certainly is not found in an incapacity. This issues brief is available at: http://www.parliament.vic. gov.au/publications/research-papers/2243-independent-broad-based-anti-corruptioncommission-bill-2011/download. The Independent Broad-based Anti-Corruption Commission Act 2011 (Vic) (No 66 of 2011) was assented to on 29 November 2011. Section 3 was amended by the Independent Broadbased Anti-corruption Commission Amendment (Investigative Functions) Act 2012 (No 13 of 2012) to provide for the following definition of ‘corrupt conduct’: (1) For the purposes of this Act, ‘corrupt conduct’ means conduct – (a) of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or (b) of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or (c) of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or (d) of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or (e) that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c) or (d) – being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence. The definition of ‘public officer’ includes a judge or a magistrate and that of ‘public body’ includes a court. 154 In New South Wales, allegations of ‘corrupt conduct’ against a judge can be investigated pursuant to the Independent Commission Against Corruption Act 1988 (NSW). A similar system exists in Queensland whereby ‘official misconduct’ can be investigated by the Crime and Misconduct Commission pursuant to the Criminal Justice Act 1989 (Qld) – see

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esp s 29(4). The system in Western Australia is established by the Corruption and Crime Commission Act 2003 (WA). 155 Australian Judicial System Advisory Committee, Report to the Constitutional Commission (1987) 90–1 (para 5.106–5.111). 156 Australian Law Reform Commission, Discussion Paper 62, Review of the Federal Civil Justice System, 76, Proposal 3.5. It added:

157 158 159 160 161 162 163 164 165 166 167 168 169 170 171

172 173

The commission would report to the Governor-General. The commission could be established as a stand alone body or, preferably, as a conduct division of the proposed national institute for judicial education (again, following the model of the Judicial Commission of New South Wales). Consideration should be given as to whether the legislation establishing such a commission should include a range of options to make directions to deal with poor performance short of removal’. See Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000), paras 2.266–2.272. Ibid para 2.289, Recommendation 11. Ibid para 2.297. Ibid para 2.267. Ibid para 2.270. Department of Justice, Victoria, Investigating Complaints and Concerns Regarding Judicial Conduct, Discussion Paper (2009) 1. Senate Legal and Constitutional Affairs References Committee, Inquiry into Australia’s Judicial System and the Role of Judges (APH, 2009) 93–4. See below at pp 135–8. Senate Legal and Constitutional Affairs References Committee, above n 163, 75, citing Mason, above n 147, 112. No details of the new system were available at the time of writing. The speech is available at http://www.attorneygeneral.gov.au/Pages/Newsroom.aspx. Seconding Reading speech, House of Representatives, 14 March 2012. Ibid. Both Bills were passed by both Houses of the federal Parliament at the end of June 2012. Explanatory Memorandum to Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, para 8. Explanatory Memorandum to Courts Legislation Amendment (Judicial Complaints) Bill 2012, para 7. In the ‘Vince Bruce affair’ the Attorney-General of New South Wales also tabled in Parliament a report which contained adverse findings against a magistrate, Mr Ian McDougall. It was reported as follows: ‘The report found Mr McDougall was mentally ill and the Attorney-General said he would accept his resignation rather than proceed with parliamentary procedures to remove him from the job’. See Sydney Morning Herald, 27 May 1998, 8. In November 2000, the Victorian Chief Stipendiary Magistrate (Michael Adams QC) resigned following allegations of misconduct made by some other Stipendiary Magistrates against him. See S Butcher, ‘Adams resigns in anger’, The Age (Melbourne), 1 November 2000, 1. Thomas, above n 12, 56. Thomas, ibid 273, said that most bar associations have rules ‘which apply a sliding scale, requiring disqualification for a limited period only on the part of a former judge who wishes to return to professional practice’. He elaborated (274): Such rules generally require a two-year absence from appearance in a judge’s former court (if the judge held office for less than two years) up to a maximum of five years in the case of longer appointments. Similarly, some law societies adopted rules that a solicitor who has held judicial office may not appear in his or her former court for two years after retiring.

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CHAPTER 6

Judicial conduct

Introduction Judges are expected to observe high standards of conduct, in both their official and private capacities. Sir Gerard Brennan once said: ‘High standards of judicial conduct are rightly expected by the community, for public confidence in the Courts and Judges is essential to their authority and therefore essential to the rule of law’.1 This requirement is reiterated as a fundamental principle by international instruments. The most significant of these instruments, the Basic Principles on the Independence of the Judiciary, requires judges to ‘conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary’.2 Justice J B Thomas has said that: ‘It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations’.3 The question arises as to what these standards are. The conduct of judges, both on and off the Bench, is regulated by a combination of rules of law, conventions and ethics. The criminal law, whether expressed via the common law or by statutes, proscribes certain conduct that strikes at the heart of the system of administering justice. These forms of behaviour are so repugnant that they are, or should be, plainly obvious to holders of judicial office. There are other forms of behaviour, however, that do not amount to criminal offences but which, if engaged in by a judge, would affect the standing of the judiciary. A good example is when a judge insists on adjudicating on a matter where he or she has an undoubted vested interest. In such a case, the rule against bias operates to maintain public confidence in the judiciary.4 In relation to ‘judicial ethics’, Justice 152 Downloaded from https://www.cambridge.org/core. Universiteit Leiden / LUMC, on 17 Nov 2019 at 15:56:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139028431.007

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J B Thomas observed: ‘The term “ethics”, as understood in the practical sense, commonly refers to a collection of rules or standards of conduct expected of a particular professional group’.5 In the absence of a written code of ethics, many of the standards of conduct are simply ‘conventions’. This is illustrated by the observation of the Parliamentary (Judges) Commission of Inquiry into the ‘Vasta affair’ in Queensland that there ‘is a convention that judges do not make statements to the media’. They added: In the belief and acceptance of the Commissioners, this convention is accepted throughout Australia. It covers statements on all things pertaining in any way to the performance of the judge’s own judicial office and to the performance by other judges of their duties. It also covers statements in response to criticism of decisions or actions, and it prohibits criticism of other judges or other courts. The exact boundaries of the rule are difficult to define, but it is usually not difficult to determine whether any particular act or proposed act falls within it.6

The rule against bias A fundamental principle in our legal system, and others like it, is expressed in the Latin maxim nemo debet esse judex in propria causa – nobody may be a judge in his or her own cause. It means that a judge is automatically disqualified from adjudicating a case to which he or she is a party.7 In some Australian jurisdictions, a judge who violates this fundamental principle may be guilty of a criminal offence. Section 34(b) of the Crimes Act 1914 (Cth), for example, provides that: Any person who ... (b) being a judge or magistrate, wilfully and perversely exercises federal jurisdiction in any matter in which he has a personal interest: shall be guilty of an offence.

Section 136(b) of the Queensland Criminal Code and s 139(2) of the Western Australian Criminal Code are similar. However, under the common law the rule against bias goes much further. For some time the High Court of Australia has taken the view that a judge is also disqualified from adjudicating a case ‘if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in’ the case.8 We refer to this rule as ‘the reasonable apprehension of bias’ rule. It is a rule the application of which presents considerable practical difficulties, not the least of which are the knowledge to be imputed to the hypothetical member of the public and the reasonableness of the apprehension of bias.9 The High Court has nonetheless affirmed its preference for the

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‘reasonable apprehension of bias’ rule over the ‘real danger of bias’ rule adopted by the House of Lords, as the UK’s highest court of appeal then was.10 Australia’s High Court has done so because of the paramount importance it attaches to the maintenance of public confidence in the administration of justice. As Mason CJ and McHugh J observed in Webb v The Queen:11 [It is] important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case must be satisfied that justice has not only been done but that it be seen to be done.

The reasonable apprehension of bias test has been described by one judge as ‘a Spartan doctrine’.12 Its effect is certainly to require a higher standard of conduct on the part of judges than a test based on the danger or probability of bias.13 But it is also said to be a test which may lead litigants to ‘seize on any acerbic utterance by a trial judge as a basis for an appeal’.14 Nonetheless the High Court of Australia considers it the most appropriate test. Public confidence in the administration of justice, it has been said, is ‘more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public’.15 This approach is structured upon the assumption that ordinary members of the public are not privy to the ‘details of the substantive law and all relevant aspects of the practice and procedure of the courts’, and as such observe the court from a layperson’s perspective.16 The real likelihood or danger of bias test, in contrast, emphasises rather ‘the court’s view of the facts’.17 That test, one judge has suggested, goes a long way towards adoption of ‘a doctrine of disqualification for actual bias modified by the adoption of a new standard of proof’.18 Actual bias would be difficult to prove and efforts to establish its existence would, some think, seldom succeed.19 In practice, the results of applications of the English and Australian tests will often be the same. Australian courts may therefore continue to have regard to English decisions where courts have had to consider an issue about whether a particular judge was disqualified from adjudicating a matter. Enforcing the rule Responsibility for enforcing the rule against bias ultimately falls on the judges. In some cases judges have disqualified themselves without any suggestion from a litigant that they are disqualified.20 However, more often, judges rule themselves disqualified when a party objects to their

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sitting to adjudicate a particular case. Should a judge of an inferior court – for example, a magistrate – rule himself or herself disqualified, a party who protests against that ruling may ask the relevant superior court of supervisory jurisdiction to review the ruling. In the States and Territories this superior court would be the Supreme Court. If the superior court considers the ruling to have been wrong, it may order the judge of the inferior court to proceed to hear and determine the case.21 A superior court of supervisory jurisdiction may also be asked by a party to review a ruling by a judge of an inferior court that he or she is not disqualified from sitting in a particular case. Normally the remedy sought from the superior court will be an order that prohibits the judge of the inferior court from dealing with the case.22 There will be occasions when a litigant does not discover the circumstances which suggest that the rule against bias has been infringed until after the judge has delivered judgment. In a case of this kind the only remedy will be an appeal to a higher court or other proceedings to have the judgment set aside.23 Present arrangements for enforcement of the rule against bias in the superior courts are not altogether satisfactory. When a party to litigation before a superior court submits that the judge assigned to decide the case is, or has become, disqualified, it is that judge who has to rule on the objection. Should the judge rule that he or she is not disqualified, there will be no right to appeal against the ruling unless that ruling has been reflected in some formal court order which attracts the appellate jurisdiction of the relevant court of appeal.24 In the absence of such a formal court order the judge will be able to proceed to deal with the case, though his or her final judgment may be assailed on appeal on the ground that he or she was disqualified from deciding the case.25 The position is no different in cases where more than one judge of a superior court has been listed to hear and decide a case, whether at first instance or on appeal, and a party’s submission that one of the judges is disqualified is dismissed.26 Present laws do not enable parties to litigation to seek review of rulings by primary judges of superior courts that they are disqualified, again unless the ruling is reflected in a formal court order which attracts an appellate jurisdiction. There is no procedure by which a judge of a superior court can be compelled to hear and decide a case from which the judge has withdrawn on the ground that he or she is disqualified;27 however, if the judge makes some formal order (e.g., an order that the case be placed in the list of cases to be fixed for hearing), that order will provide a basis for an appeal.28 A litigant may well wish to appeal against a judge’s ruling that he or she is, or has become, disqualified when the ruling has been made after a lengthy trial but before final judgment

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has been delivered; for if the ruling stands, the case will have to be retried before a different judge. Determining the reactions of the ordinary reasonable member of the public In determining whether there is or was a reasonable apprehension of bias on the part of a judge, a court may have regard to the fears of the party who asserts that the judge is or was disqualified;29 however, the attitude of that party is not decisive. The task of the court is rather to put itself in the shoes of a hypothetical member of the public, presumed to be a reasonable and fair-minded person to whom certain features are imputed. According to Colin Campbell, the type of inquiry undertaken by this hypothetical person is comprised of three distinct elements. The first element is with respect to the matters that are to be taken into account by the person; the second element is with respect to the meticulousness of the person’s consideration of those matters; and the third element is with respect to the knowledge of the law and the legal system that is imputed to the person.30 The matters taken into account by this hypothetical person include ‘all the relevant circumstances’.31 Relevance is obviously determined with reference to the facts of the case.32 For example, in the recent High Court decision of British American Tobacco Australia Services Ltd v Laurie,33 French CJ (writing in dissent) held that the observer was aware of the ‘salient features’ of Curtis J’s interlocutory finding against British American Tobacco Australia Services Limited. This included: awareness of the nature of legal professional privilege, which was subject to dispute in the interlocutory hearing; that the interlocutory finding had been made in the course of a separate proceeding; that Curtis J’s interlocutory ruling was not a final determination of fraud with respect to those separate proceedings; and that Curtis J had qualified his findings by noting that they represented issues subject to determination at trial.34 In contrast, French CJ did not regard particular statutory provisions which governed how the tribunal subject to challenge was to deal with evidence as being pertinent to the hypothetical person’s apprehension of bias.35 The meticulousness with which these matters are considered by the hypothetical person is subject to ‘a difference of opinion’.36 In Campbell’s view, ‘the courts tend to attribute to the fair-minded lay observer . . . a significant degree of engagement with the details of the case at hand’.37 In the aforementioned case of British American Tobacco Australia Services Ltd v Laurie,38 French CJ (agreeing in his dissent with the judgment of Kirby J in Johnson v Johnson) observed that ‘a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias,

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take the trouble to inform himself or herself to the extent necessary to make a fair judgment’.39 The knowledge imputed to this hypothetical person includes the facts alleged to create the disqualification, but it does not include knowledge of the personal characteristics and habits of mind of the particular judge alleged to be disqualified. Indeed, knowledge of that kind is considered to be irrelevant.40 The hypothetical observer is presumed to be someone who is not well versed in the law. On the other hand, this person is attributed with some general knowledge of the legal system and how it operates, and should operate.41 For example, the observer will be assumed to know that those appointed to judicial office will have come from the legal profession and will often be acquaintances of the counsel who appear before them, and sometimes instructing solicitors.42 A contributor to the Australian Law Journal has drawn attention to variations in the kind and depth of general knowledge that Australian courts have been prepared to impute to the hypothetical lay observer or bystander.43 He suggests that the judicial construct of this person cannot be regarded as an average or typical or completely uninformed adult Australian. The judicial construct is, of course, an artificial one, but it is one that is a necessary part of the reasonable apprehension of bias test. Alternative tests and constructs have been rejected by Australian courts, and for good reasons. A purely subjective test that concentrates on the thoughts of a particular litigant would, in effect, allow litigants to veto assignments of particular judges to adjudicate causes whenever they fancied that a judge might be prejudiced. The real danger of bias test, as has already been pointed out, comes close to a requirement that actual bias on the part of a judge should be demonstrated in order to establish that the judge is or was disqualified.44 Circumstances which may give rise to reasonable apprehension of bias In Webb v The Queen, Deane J identified four categories of cases in which there may be reasonable apprehension of bias: (a) where the adjudicator has an indirect interest in the proceedings; (b) the adjudicator’s conduct before or during the hearing; (c) an association between the adjudicator and someone involved in the proceedings; and (d) ‘knowledge of some prejudicial but inadmissible fact or circumstance’.45 These categories are not mutually exclusive and there can be some overlap between them; they have been described as a ‘convenient frame of reference’.46 To the four categories identified by Deane J must now be added cases in which judges have a direct pecuniary or proprietary interest in the outcome of litigation before them. We deal with this fifth category separately because of the special problems it has presented in recent time.

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Indirect interest in proceedings

An example of disqualification of this kind is provided by Ex parte Qantas Airways Ltd; Ex parte Horsington.47 In this case a summons had been issued by a justice of the peace against Qantas. The justice was a member and an officer of the union which covered the employees of Qantas. The New South Wales Court of Appeal held that he was disqualified because, if monetary penalties were imposed on Qantas in consequence of the proceedings, they, or a proportion of them, would have to be paid to the union.48 Judges may also be disqualified from sitting in cases in which one of the parties is a charitable organisation with which they have close links. In 1999, Lord Hoffmann, for example, was held by the House of Lords to be disqualified from sitting in a case to which Amnesty International had become a party. The reason was that he was an unpaid director and chairman of Amnesty International Charity Ltd, a company controlled by Amnesty International and committed to its purposes.49 Neither organisation had any financial interest in the outcome of the litigation; nor did Lord Hoffmann. The interest of Amnesty International was simply to support an application to have a former President of Chile extradited from the UK to attend trial in Spain on charges of various crimes against humanity, among them torture, murder and hostagetaking. Lord Hoffmann had not disclosed to the parties his association with Amnesty International. He was one of the majority of the committee of Law Lords who, on an appeal from the Court of Appeal, had held that the former Chilean President, Senator Pinochet, did not enjoy any immunity from the applicable laws of extradition by reason of his status as Chile’s President and head of state at the relevant times.50 Lord Hoffmann’s association with Amnesty International was not discovered by Senator Pinochet’s legal advisers until after the House of Lords had delivered judgment. They promptly presented a petition to the House of Lords, on the Senator’s behalf, to have the Lords’ judgment set aside. A differently constituted committee of five of the Law Lords was assembled to deal with the petition. They decided, unanimously, that the prior judgment be set aside and that the appeal be reheard, but by a committee which did not include any of the Law Lords who had sat with Lord Hoffmann. Members of Australia’s ultimate court, the High Court of Australia, have on occasions not even been listed to sit in cases where they might be said to have an interest by reason of their association with a charitable organisation that was a party to litigation before the Court. A case from the mid-1970s is illustrative. It was an appeal against a decision of the Supreme Court of New South Wales on the question of whether

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universities had acted in breach of copyright. Two members of the High Court were, at the time, chancellors of Australian universities. Menzies J was chancellor of Monash University and Mason J was chancellor of the Australian National University. Neither was remunerated in respect of his services as chancellor and neither had any personal, financial interest in the outcome of the litigation. Both judges sat to deal with the application for special leave to appeal to the High Court.51 The application was granted, but neither Menzies J nor Mason J sat in the hearing of the appeal.52 Another Justice of the High Court, Kirby J, later absented himself from the Bench assembled to decide, at first instance, an important constitutional case – that of Kruger v Commonwealth.53 Proceedings in the case had been initiated in 1995. At that time, Kirby J was President of the New South Wales Court of Appeal. He was appointed to the High Court on 6 February 1996; but he was not on the Bench of judges which sat to hear arguments in Kruger’s case on 12, 13, 14 and 15 February 1996. His absence may be explained by the fact that, at these times, he was still Chairman of the International Commission of Jurists, and by the further fact that, on the first day of the hearing before the High Court, the Secretary of the Australian Section of this Commission had sought leave to appear before the Court as amicus curiae; that is, as a friend of the Court. The application was refused.54 Kirby J would, no doubt, have known that the application was to be made. (b)

Conduct

A judge may be disqualified from hearing a case because of something he or she has said or done prior to the commencement of the hearing, or because of something said or done in the course of the hearing. A judge is not necessarily disqualified because he or she has decided a prior case involving a party to the present proceedings or a witness to be called in the present proceedings; however, there may be reasonable apprehension of bias if the judge has, in the prior case, made observations questioning the credibility of a party or witness.55 A judge could also be disqualified by reason of prior opinions expressed, even off the Bench, which might suggest to a reasonable observer that the judge’s impartiality in the present case is questionable.56 Situations can arise where although a judge was not disqualified at the outset of a hearing, he or she becomes disqualified by reason of his or her conduct during the hearing; for example, by engaging in a private communication with one of the parties or a witness or a legal representative, or even a counsellor attached to the court, without the consent or knowledge of the other party.57 In such a case, subsequent disclosure by the judge of

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the communication and its effect will not always dispel any reasonable apprehension that the judge may be improperly influenced by the communication.58 Particular problems have arisen when, in the course of a hearing, it has become necessary for a judge to view a place outside the courtroom; for example, the site of a traffic accident. The decided cases strongly suggest that the travel arrangements for such views should ensure that the judge’s travelling companions do not include any of the parties, their legal representatives or witnesses.59 Nowadays it is accepted that it is not necessarily improper for a judge, in the course of a hearing, to express provisional or tentative views about the outcome of the litigation. Indeed, it is accepted that in some cases it is desirable that the judge disclose those views so as to give the parties an opportunity to address them;60 however, there have been instances in which judges have ‘crossed the line which divides permissible judicial questioning’ and permissible expression of tentative views from impermissible conduct which suggests prejudgment.61 A particular problem that judges may now need to consider is the extent to which they may play an active part in the conduct of hearings before them without serious risk of their conduct being the target of claims that they have disqualified themselves from adjudicating a case. In recent years, judges have been encouraged to be somewhat more active than they have been in past management of litigation brought before them, mainly in order to promote greater efficiency in the disposition of cases and reduction of associated financial costs to litigants and ultimately to taxpayers. Public funds appropriated to provide professional legal assistance to litigants are not sufficient to ensure that all litigants before the courts will enjoy more or less equal representation by legal counsel. In some cases, courts will be confronted with litigation in which one party is legally represented and the opposing party is not so represented. In Dietrich v The Queen,62 the High Court of Australia effectively ordained that a person cannot be tried on a serious criminal charge unless that person is legally represented. Dietrich was such a person and he had been denied legal aid from public funds. The criminal proceeding against him was stayed, by court order, on that account. However, the Dietrich principle will be of no avail to those individuals who initiate litigation and who choose, or are forced by their economic circumstances, to present their case without help from professional legal counsel. In such cases, judges cannot dismiss the proceedings simply on the ground that the person who has initiated them is not legally represented. In some cases it may be possible for the proceeding to be erased from the list of cases awaiting adjudication on the ground that the papers do not disclose a justiciable cause. But there will be other cases that cannot be so easily

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dismissed and that must be brought on for hearing, albeit before a court in which one party is represented by legal counsel and the other is not. In MacPherson v R,63 Brennan J said: . . . [T]here is, of course, a distinction between telling the players how to play and telling them the rules of the game. If the distinction is not observed, and an unrepresented accused is kept in ignorance of the rules, the procedural rules which are designed to protect an accused and to ensure a fair trial become a trap, for an unwitting failure to make objection would avoid the judicial duty to control the admission of evidence. The true role of the judge was stated by Wills J in Reg. v Gibson (1887) 18 QBD 537, at p 543: ‘It is sometimes said – erroneously as I think – that the judge should be counsel for the prisoner; but at least he must take care that the prisoner is not convicted on any but legal evidence’.64

He went on to say: . . . Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.65

(c)

Association

A judge may be disqualified by reason of a family relationship with a party to litigation before the judge.66 Close friendship with a party or a party’s legal representative may also be a disqualifying cause. In a case that came on appeal to a Full Court of the Family Court of Australia it was held that a judge of the Court had become disqualified from adjudicating a case because of an affair he had had with a solicitor for one of the parties. A judgment of that judge was set aside on that ground.67 In the days when magistrates were treated as public servants belonging to the executive branch of government, there were cases in which their qualification to hear criminal cases prosecuted by other officers of the public service was called into question, sometimes with success.68 The separation of magistrates from the executive arm of government has effectively resolved this problem. The fact that a litigant before a court happens to be a member of the court does not necessarily debar other members of the court from adjudicating the case. Justice O’Connor of the Federal Court was the plaintiff in O’Connor v Nationwide News Pty Ltd.69 She was also president of the federal Industrial Relations Commission. She had brought an action for defamation against the proprietor of a newspaper that had published

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statements about her capacity to discharge the functions of the latter office impartially. She instituted the action in the Supreme Court of the Australian Capital Territory. The defendant company applied to the court to have the action transferred to the Supreme Court of New South Wales, pursuant to legislation which allowed such a transfer. The company did so on the ground that all of the judges of the Supreme Court of the Territory were also judges of the Federal Court. The application for transfer was refused by Higgins J. In his opinion, no apprehension of bias could arise simply because O’Connor J was a member of the Federal Court and the judges of the Supreme Court of the Australian Capital Territory were also judges of the Federal Court. Note as a contrast, however, the controversy surrounding the elevation of John Dyson Heydon QC (as he then was) to the NSW Court of Appeal.70 Prior to his elevation, Heydon QC had acted as counsel for the firm then known as Allen, Allen and Hemsley, which was in turn advising NRMA Insurance regarding a proposed corporate restructuring. The consequent advice led the NRMA to issue a prospectus that was successfully challenged in the High Court of Australia for being misleading and deceptive.71 A tortious action alleging responsibility for the misleading and deceptive material was subsequently commenced against Heydon QC, as well as the law firms Allen, Allen and Hemsley and Abbotts Tout.72 Heydon QC was found liable and subsequently appealed the decision; however, Heydon QC was appointed to the NSW Court of Appeal prior to the case being heard. Consequently, it was decided by the Court of Appeal that judges from other jurisdictions would hear the case to avoid an appearance of bias.73 Cases have also arisen in which it has been claimed that a judge is disqualified because he or she previously acted as counsel for or as a solicitor to a party, or because he or she once worked closely with counsel involved in the present case. The latter form of association has seldom been accepted as a disqualifying cause.74 Whether a judge is disqualified on the former ground depends on a number of considerations, among them the relationship between the prior legal service rendered by the judge and the issues to be decided in the present case, and the period of time that has elapsed since the judge rendered the prior legal service.75 (d)

Knowledge of some prejudicial but inadmissible fact or circumstance

Judges are expected to decide the cases brought before them on the basis of the evidence that has been adduced in court and that is admissible under the rules of evidence. Occasions can arise when a judge has acquired knowledge pertaining to a case but outside the course of judicial proceedings. For example, a judge who is also a member of the governing

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body of a school may have acquired knowledge in that capacity about a teacher who is now suing the school for wrongful or unfair dismissal. That judge would be well advised to disqualify himself or herself from adjudicating the teacher’s suit. Less clear cut is the case where a judge, in an administrative capacity, has issued a warrant which has enabled law enforcement officers to search premises or use listening devices to gather evidence of criminal activity, and subsequently is assigned to preside at the trial of the person or persons whose criminal conduct is sought to be proved by evidence procured as a result of execution of the warrant. It would be advisable for the judge in such a case to disqualify himself or herself from presiding at the criminal trial on the ground that a reasonable observer would not appreciate that a judge who issued the warrant could nevertheless conduct the trial in an impartial manner.76 (e)

Direct pecuniary or proprietary interest in outcome

There are circumstances in which judges are automatically disqualified from adjudicating cases, without inquiry into whether the circumstances are such as to give rise to a reasonable apprehension of bias on their part. One such circumstance is when the judge is an actual party to the litigation. Courts in some foreign jurisdictions have taken the view that another circumstance is when the judge has a direct pecuniary or proprietary interest in the outcome of the litigation.77 After the High Court decision of Ebner v Official Trustee in Bankruptcy,78 however, the question of whether a direct pecuniary or proprietary interest merits automatic disqualification appears to have been resolved definitively. In early 1994 the corporate litigant, the Australian and New Zealand Banking Group Ltd, had instituted an action in Victoria’s Supreme Court to recover approximately $3 000 000, which it alleged was payable to it by the defendants under a loan contract. The defendants to the action resisted this claim and counter-claimed by seeking damages for alleged wrongs on the part of the bank. The damages awarded had the counter-claims succeeded could have been as much as $1 500 000. The trial of the action occupied 18 court sitting days between March and early May 1996. The trial judge reserved his judgment and did not deliver judgment until 9 October 1997 – 17 months after the conclusion of the hearing. His judgment was in favour of the bank. The defendants to the bank’s action appealed to the Court of Appeal, partly on the ground that the trial judge had become disqualified from adjudicating the case by reason of his having acquired shares in the bank. The judge had acquired the shares under the will of his mother. She had died in mid-July 1996; that is to say, two-and-a-half months after the judge had reserved

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judgment. Probate of the will had been granted on 12 September 1996. On 9 October 1996 the trial judge became registered as the holder of 2400 one dollar shares in the bank. He was clearly aware of his acquisition of these shares. He did not disclose his shareholding to the parties to the litigation. The fact that the judge was a shareholder was discovered by the defendants’ solicitors on a search of the bank’s register of shareholders the day after the judge had delivered his judgment. A majority of the Court of Appeal concluded that the trial judge had not become disqualified from adjudging the case by reason of his having acquired shares in the bank.79 That conclusion was reached after consideration of the number of shares held by the trial judge relative to the total number of shares in the bank, the total number of shareholders, the value of the bank’s assets, the bank’s recent annual profits (after tax), recent market values of shares, possible dividends for shareholders (after tax), and the sums of money involved in the litigation. After consideration of all these matters the majority found that the trial judge’s pecuniary interest in the outcome of the litigation was insubstantial, and the outcome of the case would have no effect on the market value of his shares or the dividends potentially payable to him. Callaway JA dissented in relation to the test to be applied in determining whether a judge’s pecuniary interest in the outcome of litigation was a cause of disqualification. In his opinion, a judge’s beneficial ownership of shares in a corporate litigant should be treated as an automatic disqualification, subject to the rules about waiver and necessity. He thought that the automatic disqualification principle ‘accords with well established practice and causes little inconvenience and no injustice’ when a judge’s shareholding in a corporate litigant ‘becomes apparent at the outset of the litigation’.80 The approach adopted by the majority, he argued: . . . gives rise to undesirable questions of fact and degree on which reasonable minds may differ. In particular an appellate court may differ from a judicial officer’s assessment as to whether the result of the case might affect the value of his or her shares.81

Nonetheless, Callaway JA held that the present case was not one in which a new trial should be ordered. It was an unusual case in that the trial judge had not acquired shares in the plaintiff bank until after the conclusion of a lengthy hearing. ‘The exigencies of a fair hearing meant that it was necessary’ that the judge ‘should decide the case’.82 Shortly before the Victorian decision, a Full Court of the Federal Court of Australia decided that a judge of that Court was not disqualified from trying an action brought by the Official Trustee in Bankruptcy to set aside a transfer of property from a bankrupt person to the person’s wife merely because the judge held 5000 shares in a bank that was a major creditor of

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the bankrupt.83 The bank was not a party to the action but it stood to gain if the action succeeded, which it did – the bank was indeed funding the action by the Official Trustee. The Full Federal Court assumed that had the bank been a party to the action, the judge’s shareholding in it would have been an automatic disqualification;84 but since the bank was not an actual party, the test to be applied in determining whether the judge was disqualified was whether the fact that he was a shareholder (a fact he had disclosed to the parties at the outset) created a reasonable apprehension of bias on his part. The Full Court concluded that the judge was not disqualified. The decisions of the Victorian Court of Appeal and the Federal Court were the subject of appeals to the High Court. The appeals were heard together before a Bench consisting of all seven Justices of the Court. Both appeals were dismissed.85 The significance of the High Court’s decision is that it has made it clear that, under Australian common law, a judge is automatically disqualified from adjudicating a case only if he or she is a party to the litigation before him or her. A majority were of the view that the fact that a judge has a direct pecuniary or proprietary interest in the outcome of litigation (otherwise than as a party) is not to be regarded as an automatic disqualification.86 Rather, the test to be applied in such a case is whether the judge’s interest gives rise to a reasonable apprehension of bias on the part of a fair-minded lay observer. If the interest happens to be ownership of shares in a listed public company that is party to the litigation (or is otherwise affected by the outcome), factors to be considered include whether the shareholding is not insubstantial,87 and whether there is a realistic possibility that the value of the shares may be affected by the outcome.88 It can now confidently be said that the reasonable apprehension of bias test underpins the entire mechanism of judicial recusal in Australia, as the approach in Ebner has since been confirmed on numerous occasions by the High Court. Exceptions to the rule against bias The rule against bias is not an absolute rule. It may be qualified by statute. It is also subject to the principle of necessity. Also, parties to litigation may waive the rule. (a)

Statutory exceptions

It would be unusual for a legislature to seek to exclude or qualify the operation of the rule against bias in relation to courts of law. Indeed, in Australia the federal Constitution may have, by implication, constrained the powers of the parliaments to enact legislation of this kind. Chapter III

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of the Constitution – the Judicature Chapter – has been interpreted by the High Court as prohibiting the federal Parliament from enacting legislation that impairs exercise by the courts of the judicial powers of the Commonwealth or that requires those powers to be exercised otherwise than according to essential elements of judicial process. Principles of natural justice are undoubtedly central to the concept of judicial process. A former Chief Justice of the High Court has observed: ‘A proper exercise of federal judicial power pre-supposes a court so constituted as to comply with the provisions of the law governing judicial impartiality’.89 (b)

The principle of necessity

The rule against bias has also been recognised by courts as having no application when it can be shown that it is impossible to constitute a court to decide a particular case without a judge or judges who would be disqualified under the general law.90 The principle of necessity, as it is known, would mean, for example, that the Commonwealth government could not invoke the rule against bias to preclude determination by the High Court of Australia of a challenge of the constitutionality of a federal statute which was alleged to contravene that part of s 72 of the federal Constitution which provides that the remuneration fixed by the Parliament for judges of the High Court and other federal courts ‘shall not be diminished during their continuance in office’.91 (c)

Waiver

In practice, the most important qualification of the rule against bias is that a party cannot rely on the rule in circumstances in which that party is shown to have waived the rule or acquiesced in its non-observance. A party is deemed to have waived the rule if he or she (or his or her legal representative) has not objected to the judge’s qualification to adjudicate upon being informed of the circumstances that suggest that the judge may be disqualified.92 Parties to litigation, it has been said, should not be given any encouragement to allow a case to proceed to final judgment and then challenge the judgment on the ground that circumstances known to them prior to judgment created a reasonable apprehension of bias.93 But a party cannot be held to have waived his or her right to object to a judge’s qualification to hear and determine a case unless it can be established that the party had ‘full knowledge of all the surrounding facts and circumstances’ at the relevant time.94 Sometimes those facts and circumstances will not emerge until after judgment has been delivered. Courts themselves have strongly counselled judges to disclose to the parties in litigation before them facts and circumstances that might

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prompt a party to assert that the judge is disqualified from adjudicating the case.95 It has been pointed out that parties to litigation cannot be expected to know or even inquire about circumstances that may potentially disqualify a judge, and that sometimes a failure on the part of a judge to disclose those circumstances may itself be evidence in support of a case that the judge was disqualified.96 One question which has not yet been resolved is whether the rule against bias can be waived in proceedings before an Australian court which is exercising a federal jurisdiction; that is to say, a jurisdiction involving exercise of any of the judicial powers of the Commonwealth. Constitutionally, the exercise of these powers is constrained by what judges have perceived to be fundamental features of judicial processes, such as court procedures that satisfy minimal requirements of procedural fairness. The rule against bias is commonly regarded as one of the pillars of the principles of natural justice. If that rule can be waived by parties to litigation, one of the basic features of judicial processes may be compromised.97 Some judges may be singularly discomforted by having to adjudicate cases in which they consider that a party (or parties) would have good grounds for contesting their qualifications to adjudicate, but parties have indicated that they wish the judge to handle the case before the court.98 Who should decide if a judge is disqualified? Some may think it strange that when a party to litigation submits that the judge listed to decide a case is disqualified, that judge should be the one who has to rule on whether he or she is disqualified. Parties who have submitted that a judge is disqualified may be aggrieved if that judge rules that he or she is not disqualified. They may think they are entitled to seek immediate judicial review of the ruling. Should the ruling have been made by a judge of an inferior court, it will be reviewable by a superior court having a supervisory jurisdiction in respect of the inferior court. It will be so reviewable on an application to the superior court for an order to prohibit the judge of the inferior court from proceeding to determine the case. However, as had already been pointed out,99 a party to litigation before a superior court will not always be able to obtain speedy review of a ruling by a judge of the court on the question of whether the judge is disqualified. Unless the ruling has been reflected in some formal court order, the jurisdiction of the relevant court of appeal will not be attracted. If there is no such order, the party whose submission that the judge is disqualified has been rejected will not be able to seek review of the judge’s ruling until the judge has produced some order which does attract the appellate

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jurisdiction.100 That order might be the final judgment in the case. Should the appeal against final judgment succeed on the ground that the judge was disqualified, the result may be that the case is reheard before a different judge. The Federal Court has said, the ‘inconvenience of submitting the parties to a trial conducted by a judge disqualified to hear it and only allowing the point to be taken on appeal after judgment’ is ‘obvious’.101 Objections to the qualification of a judge to adjudicate in a particular case may, of course, be made not only in cases to be determined by a single judge but also in cases to be decided by a court constituted of two or more members. Who is to rule on the objection in cases of this kind – all judges or only the judge whose qualification is in issue? This question arose in the High Court case of Kartinyeri v Commonwealth of Australia,102 a case in which a Full Court of all seven members of the High Court was scheduled to consider the constitutionality of the Hindmarsh Island Bridge Act 1997 (Cth), an Act which restricted the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). On 4 February 1998 the plaintiffs moved that Callinan J, who had been sworn in as a Justice of the High Court on 3 February 1998, be disqualified from participating in the case. The ground was that, as a barrister, he had previously tendered advice on the constitutionality of the Bill for the Act in issue.103 On 5 February, Callinan J announced that he had decided that he was not disqualified. He furnished written reasons for that opinion.104 The decision was entirely his and there had been no consultation by him with the other members of the Court.105 Argument on the substantive issues in the case was then heard before all seven Justices of the Court. Judgment was reserved. On 12 February 1998 the plaintiffs gave notice of motion to seek an order that Callinan J take no further part in the case. In other words, they were asking the Court to review Callinan J’s decision that he was not disqualified from sitting. This application for review was listed for hearing on 2 March 1998, but by a Bench that did not include Callinan J.106 In the event, there was no hearing of that application because, on 25 February 1998, Callinan J voluntarily withdrew from the case in light of further information brought to light by the Shadow Attorney-General. Had this not happened, the High Court would have had to decide, for the first time, whether it has any jurisdiction to review decisions of one of its members on their qualification to sit in a case, otherwise than on appeal against a judgment or order of a Justice. The plaintiffs in Kartinyeri had filed written submissions in support of their case for review of Callinan J’s decision that he was not disqualified.107 They pointed out that if one of the Justices composing a Bench of all seven members of the High Court was disqualified, there could be no appeal against the Court’s final judgment. However, they argued that

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the Court has an inherent jurisdiction to set aside its judgments when they have resulted from a breach of the principles of natural justice of which the rule against bias is one.108 They also relied on previous statements of several Justices of the Court about essential features of judicial power, including statements that the power must be exercised impartially.109 In an article published in August 1998, Sir Anthony Mason expressed the view that there are strong arguments favouring review by the High Court of a decision of one of its members to sit or not to sit.110 There are also strong arguments favouring the determination of a disqualifying objection by the High Court and appellate courts instead of leaving the resolution of the objection to the Justice or judge who is the target of the objection.111

The objective test to be applied in determining whether a judge is disqualified because of reasonable apprehension of bias is, Sir Anthony suggested, ‘a standard as susceptible of application by an appellate or collegiate court as by a member of that court who is the target of an objection on the ground of apparent bias, whether from pre-judgment or otherwise’.112 Sir Anthony went on to say: Indeed, it can be said with some force that the other members of such a court are in a better position to apply the standard impartially than the judge who is the target of the objection, notwithstanding any embarrassment they may feel in ruling upon the eligibility of a colleague to sit.113

Had this practice been adopted by the High Court in Kartinyeri, the objection to Callinan J’s sitting in the case would have been dealt with not by him but by the other Justices of the Court. It is perhaps time that consideration be given to whether legislation should be enacted to enable objections to a primary judge’s qualification to sit in a particular case to be referred promptly to a committee of judges of the same court for determination by them. Some judges might think it unnecessary to adopt a system under which such objections must be referred automatically to a committee of other judges. They may take the view that they should continue to have authority to rule on their own qualification to sit in a case, albeit under a regime that permits a party aggrieved by the judge’s ruling to seek immediate review of the ruling. The present system under which primary judges are expected to rule on objections to their qualification to sit to adjudicate particular cases is not entirely satisfactory. Sir Anthony Mason once remarked: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.114

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Cases will continue to arise in which a judge’s disqualification to sit will be so obvious that the judge will decline to sit and perhaps will not even be listed to sit;115 however, there will be other cases in which the question of whether a judge is disqualified is not easily resolved. In such cases it should surely be possible for the judge whose qualification has been challenged by a party to refer the question to a Full Court for determination by it. We think Sir Anthony Mason has made a convincing case in support of adopting a practice whereby objections to the participation of a particular judge in the adjudication of a cause to be adjudicated by more than one judge of the relevant court are dealt with not by the ‘target judge’, but rather by other members of the court. Sir Anthony Mason’s observations had been prompted by the events attending a very recent case that had come before the High Court in the exercise of its original jurisdiction. The case was one in which the constitutionality of a federal statute was contested. In such cases it is customary for all seven Justices of the High Court to be listed to sit, unless one of their number declines to do so on the ground that he or she is disqualified from sitting. However, a High Court constituted by an even number of its members may be equally divided on the outcome of the case before them. Provisions in the Judiciary Act 1903 (Cth) ordain that when the High Court is equally divided in a case that has come to it on appeal from a lower court, the decision of the lower court stands. Those provisions in the Judiciary Act 1903 (Cth) also ordain that when a collegiate Bench of the High Court is equally divided on a question to be decided in exercise of the Court’s original jurisdiction, the opinion of the court’s Chief Justice is to ‘tip the balance’, or if the Chief Justice is not one of the adjudicators, the opinion of the next most senior Justice of the Court.116 In the reasons given by Callinan J for his ruling on the plaintiffs’ objection to his participation in the case of Kartinyeri, he adverted to the fact that a number of decisions of the Court had ‘been decided by the narrowest of majorities’. Callinan J went on to say: As recently as last Monday, there was a decision in which the [High] Court was equally divided on a matter of great importance to the administration of justice in Australia. It is obviously desirable that the full complement of judges [of the High Court] sit on constitutional cases.117

Questions for the future No Australian legislature has found it necessary to enact legislation that specifies in detail the circumstances in which judges are disqualified from sitting to adjudicate cases. Nor has it been suggested that judges should be required to register their financial interests in any central register which may be inspected by parties to litigation. For the foreseeable future,

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Australian law regarding the rule against bias will continue to be shaped by the judges themselves and notably by the High Court. The High Court has ruled on the question of whether shareholding in a corporate litigant automatically disqualifies a judge but it has yet to be confronted with a case of the kind presented in England by Lord Hoffmann. In that case the House of Lords held that Lord Hoffmann’s status as director and chairman of an incorporated charity that had become party to an appeal to the House automatically disqualified him from sitting in the appeal, even though neither he nor the charity had a financial interest in the outcome of the litigation.118 While the Lords’ ruling on Lord Hoffman’s disqualification is not binding on any Australian court, it should prompt Australian judges to make full disclosure to litigants of their associations with charitable organisations that are parties to the litigation before them. The case of Lord Hoffmann was unusual and in his reasons for judgment Lord Browne-Wilkinson emphasised that the ruling did not mean ‘judges would be unable to sit on cases involving charities in whose work they are involved’.119 Lord Browne-Wilkinson observed: Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting as a party to the litigation should a judge normally be concerned either to excuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.120

Disclosure by judges of a possible personal interest in the outcome of litigation, whether the interest be financial or non-financial, allows parties to consider whether they are prepared to waive the possible disqualification. However, attention may need to be given to the question of whether restrictions should be placed on the circumstances in which parties are allowed to exercise a right of waiver. In the case of Lord Hoffmann, the House of Lords assumed that had Lord Hoffmann disclosed his interest to the parties, they could have waived his disqualification.121 But, as Lord Hewart CJ observed in a much cited dictum, if it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’,122 it may raise the question of whether it should always be open to litigants to waive a disqualifying cause. The cardinal principle in Australia is that a judge is disqualified if there is reasonable apprehension of bias on his or her part; and the test to be applied is an objective test which requires consideration of the likely perceptions of ordinary members of the public. The confidence of the public in the ability of judges to discharge their functions impartially could well be undermined if litigants are seen to have been permitted to consent to adjudication of causes by judges who, prima facie, are disqualified.

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Legislation enacted by the Congress of the United States of America has restricted the circumstances in which litigants before federal courts may waive disqualifying causes.123 The legislation requires federal judicial officers to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned’.124 It goes on to detail particular circumstances in which those officers are required to disqualify themselves,125 and in most of those particular circumstances the judge is not permitted to accept a waiver by the litigants of the disqualifying ground.126 Arguably, Australia’s federal Constitution has, by implication, modified common law regarding waiver of the rule against bias, at least so far as that rule operates in the conduct of proceedings before courts invested with federal judicial powers. Australia’s High Court might well accept the argument that the rule against bias is one of the rules which defines essential elements in the performance of judicial functions, and that in consequence, parties to litigation before courts exercising a federal jurisdiction cannot be allowed, by their agreement, to waive the rule. Judges today must surely recognise that the rule against bias may be invoked by litigants whose tactics include ‘shopping’ for a judge who they surmise will be more sympathetic to their cause than some other judges. The tactic of objecting to the assignment of a particular judge to adjudicate in a particular matter may be employed in the hope that the targeted judge will not sit, or perhaps even to prolong the time within which a case can be brought to a conclusion. However, there may be some cases in which parties to litigation, who are well aware of grounds on which a judge’s qualification to sit could be contested, choose not to make objections. Some may think it desirable that there should be a requirement for judges to register certain kinds of interests in a central public register or in a register maintained by the court to which they belong. In 1984 the House of Representatives resolved that its members should register specified kinds of interests – known as registrable interests – in a public register.127 The Senate passed a similar resolution in 1994.128 The administration of these two schemes is supervised by a standing committee in each House. There are, of course, already means whereby litigants can discover for themselves some of the personal interests of judges – for example, their shareholdings and proprietary interests in land. Sometimes a search of Who’s Who may reveal information about the organisations to which a judge belongs; however, search of public registers to do with corporate affairs and land transactions take time and may be very costly. A search may not even be made until after a judge has delivered judgment, and then only to ascertain whether an appeal could be made on the ground that the judge was disqualified. A public register of judges’ interests would

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save litigants the time and expense involved in searching other sources of information and would serve to remind judges of the kinds of personal interests that may, on occasions, disqualify them from sitting. It is unlikely that any Australian government would move the enactment of legislation to require registration of judges’ interests. Any such move might be seen as an illegitimate intrusion upon the affairs of the judicial branches of government. There would also be a question about what sanctions might be visited on judges who failed to fulfil the registration requirements. On the other hand, there is nothing to prevent the judges of a particular court agreeing to participate in a court-initiated scheme for registration of certain kinds of private interests. However, some judges could oppose adoption of such a scheme on the ground that they can usually be relied on to disclose to litigants what personal interests they have that may possibly disqualify them. Another objection could be that litigants might be given the false impression that the interests that had been registered would automatically disqualify a judge from sitting in a case when those interests were in any way involved. Yet another objection might be that there is uncertainty about what interests judges should disclose to parties before them. It apparently did not occur to Lord Hoffmann that he should disclose his association with Amnesty International, or for that matter his wife’s membership of that organisation. The question of what private interests judges may properly be expected to disclose to litigants is one that might be addressed in a code of judicial conduct endorsed by a voluntary association of judges. In Australia there is, as yet, no such code, although there is a Guide to Judicial Conduct,129 which is generally regarded as working well. A problem of a different order is the preconceptions judges may have about certain classes of persons that may affect their approach to cases before them. These may be preconceptions concerning people of a particular race or ethnic group or preconceptions regarding a person’s gender. In recent years, complaints have been made from time to time about remarks some judges have made in the course of their judicial work that have suggested bias in respect of gender. One response to such complaints has been the organisation of programmes of instruction that are designed to alert judges to the prejudices they may, unconsciously, bring to bear on their work. A senior judge of the Federal Court, North J, commented on the value of such programmes as follows: Some judges, including myself, who in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many wellmeaning judges, unaware of the assumptions or preconceptions which, in fact,

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governed their decision-making. Thus, actual bias may exist even if the decisionmaker did not intend or did not know of their prejudice, or even where the decision-maker believes, and says, that they have not prejudged a case.130

The rule against bias may not be sufficient to ensure disqualification of judges who are unaware of their prejudices, and who have said or done nothing that clearly reveals a prejudice that is a cause for their disqualification. It is nonetheless important that judges be encouraged to recognise preconceptions they may have on matters such as race and gender, which should not affect the discharge of judicial functions. But judges need not also accept with alacrity submissions by parties that they disqualify themselves simply on account of their race or gender or sexual orientation (if that is known).131 Public interest and private interest In 1979 a committee of inquiry appointed by the federal government, and chaired by the Chief Judge of the Federal Court of Australia (Sir Nigel Bowen), presented a report on situations in which the public duties of ministers and members of parliament might be in conflict with their private interests.132 The report did not deal at any length with the situation of the judiciary, but it noted the general principle that a judge is disqualified from hearing and adjudicating a case in which there is reasonable apprehension of bias on his or her part.133 The report also stated that it was ‘accepted that judges should not engage in business in any way or be associated with business institutions, for example, as director, trustee or adviser’.134 That statement was to be central to the arguments presented in 1980 in support of a motion before the Australian Senate for the establishment of a joint select parliamentary committee to inquire into and report on the association between the Chief Justice of the High Court, Sir Garfield Barwick, and a family company he had formed long before his appointment as a judge. It was a company which held shares in several other companies that had been party to litigation before the High Court during Sir Garfield’s term as Chief Justice. The motion was moved by a member of the Opposition, Senator Gareth Evans, and was opposed by the government. The motion was defeated, after debate, by 32 votes to 22.135 Within a few months Sir Garfield retired from office. It is worth recalling the circumstances of the case, for it is one that revealed differences of opinion among parliamentarians about activities judges should eschew after their appointment to judicial office. It was also the first time a House of the federal Parliament had been moved to appoint a parliamentary committee to inquire into the conduct of a member of the federal judiciary, with a possibility that the inquiry might establish grounds

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on which the removal of the judge from office might be sought. In 1984, the Senate appointed two select committees to inquire into the conduct of another of the Justices of the High Court, Justice Lionel Murphy, but the allegations that prompted those inquiries were very different from those that had prompted the motion in relation to Sir Garfield Barwick.136 They in no way related to matters of commerce or proprietary interest. Also, by 1984 the Government did not command the numbers in the Senate that would have enabled it to block the motions to have the conduct of Justice Murphy investigated by select committees of that House. Particular issues which Senator Evans and the Opposition sought to have investigated in 1980 by a joint select parliamentary committee were (a) Sir Garfield’s involvement in the affairs of a family company, Mundroola Pty Ltd, the formation of which he had initiated under the laws of New South Wales in 1946, long before his appointment as Chief Justice of the High Court of Australia in 1964; and (b) Mundroola’s shareholding in several other companies which had been party to litigation before the High Court and in which Sir Garfield had sat, without disclosure of that shareholding or of his role in the conduct of Mundroola’s affairs.137 Senator Evans gave notice of his motion shortly after publication of reports in several Australian newspapers concerning the Chief Justice’s association with Mundroola; however, the Opposition had gathered information about the Chief Justice’s ‘interests’ in Mundroola well before the Senator’s motion. The information had been obtained from public records. In June 1946 Sir Garfield had formed Mundroola Pty Ltd for the benefit of his two children. Most of the shares were held by his children and some by his wife. Sir Garfield had never held shares in the company, though until December 1974 he was one of the directors of the company, along with his wife and Mr J L Thompson, a businessman and family friend. From 1975 the directors were Lady Barwick and the children. According to Sir Garfield, Mundroola Pty Ltd confined its activities to investment in land and shares in other companies.138 The company owned the family home in Sydney (named ‘Mundroola’). Search of the records held by the Corporate Affairs Commission in New South Wales revealed that Mundroola Pty Ltd held shares in several companies which had been party to litigation before the High Court. Sir Garfield had been a member of the Bench in all these cases. Four of the six cases had been heard and decided at times when Sir Garfield was still a director of Mundroola Pty Ltd. Mundroola’s shareholding in one of the corporate litigants, CSR, had been relatively small ($4000). That case, decided in 1967, had concerned a company takeover.139 Mundroola’s shareholdings in Brambles

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Industries Ltd at the relevant times were more substantial. Brambles, or subsidiary companies wholly owned by it, had been party to four of the cases in which Sir Garfield had sat. The first of these cases, decided in 1966, concerned a claim by Brambles Constructions Pty Ltd for contribution by a joint tortfeasor to an award of damages for personal injuries.140 The second case, decided in 1972, raised a constitutional issue. It was whether s 92 of the federal Constitution protected Brambles Holdings Ltd against a Tasmanian law which made it a criminal offence to use an unlicensed vehicle. The High Court held that s 92 did afford protection when a vehicle was used to carry goods interstate.141 The third case, decided in 1977, concerned a claim against Brambles Industries Ltd for workers’ compensation. It succeeded.142 The fourth case, decided in 1978, concerned the tax liability of Brambles Holdings Ltd.143 Mundroola’s shareholdings in Brambles were $10 000 in 1966; $22 000 in 1972; $28 000 in 1977; and $21 000 in 1978. Its shareholding in another corporate litigant, Ampol Petroleum Ltd, was (in 1971) $22 000 at the relevant time. This case came on appeal from the Supreme Court of New South Wales and concerned an award of damages for malicious prosecution.144 On moving the motion for appointment of a joint select committee, Senator Evans tabled a bundle of documents which included not merely a list of the shareholdings of Mundroola Pty Ltd in the Brambles, Ampol and CSR companies, a list of its directors, its balance sheets and profit and loss accounts for the period from 1974 to 1978, but also documents recording the sales and purchases of land by Mundroola Pty Ltd and its current landholdings.145 The proposed terms of reference for the parliamentary committee went beyond inquiry into the hearing and adjudication by the Chief Justice of cases in which Mundroola Pty Ltd held shares in a corporate litigant. The committee would also be required to inquire into ‘the nature and extent of the involvement of the Chief Justice in the land, share and other business dealings of’ the family company and the extent to which he had ‘heard and adjudicated matters involving questions of law in taxation, real property, company law and the areas of relevance or potential relevance to the conduct of business activities by Mundroola Pty Ltd’. Additionally, the committee would be required to report on ‘whether in all the circumstances public confidence in the administration of justice . . . [had] been imperilled by the Chief Justice’, and ‘if so, what action should be taken by the Parliament by way of censure, proceedings pursuant to section 72 of the Constitution or otherwise . . . ’ A short time before Senator Evans moved his motion, the Prime Minister (Malcolm Fraser) presented a letter (dated 28 April) to the House of Representatives which he had received from the Chief Justice

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explaining the nature of his involvement in the affairs of the family company.146 In the course of the letter, the Chief Justice stated that he had ‘never had any proprietary interest, legal or beneficial, in the company or in any of its assets’. Nor had he ever ‘derived any income . . . [or] any personal advantage in taxation from the existence or the activities of the company’. He was sure that no decision of his had ‘been in the least influenced by the fact that Mundroola Pty Ltd had any shares in companies in litigation before’ the High Court. The Prime Minister also informed the House that the Solicitor-General (M H Byers QC) had advised that the Chief Justice could not be said to have any direct or indirect pecuniary interest in the family company, and that there could not have been any reasonable apprehension of bias on his part.147 These communications were subsequently disclosed to the Senate.148 The matters raised in the Parliament went beyond whether the Chief Justice may have been disqualified from sitting in certain cases before the High Court. Senator Evans and the Opposition were equally concerned about the Chief Justice’s involvement in the affairs of the family company after his appointment to the High Court in 1964. The Senator drew attention to a statement that had appeared in the report of the Bowen Committee of Inquiry on Public Duty and Private Interest. It said: ‘It is now accepted that judges should not engage in business or in any way be associated with business institutions, for example, as director, trustee or adviser’.149 Whether or not the Chief Justice could be said to have engaged in business was a matter for investigation. The government opposed the proposed inquiry and the Opposition in the Senate did not have the numbers that might have supported a motion to establish a select committee of that House alone. The issues raised in the Opposition’s motion were, as Senator Evans conceded, ‘of the utmost gravity’.150 And, he assured the Senate, they had not been raised lightly or casually . . .151 But he saw them as ones which raised ‘questions about the general administration of justice in this country at the highest level, the impartiality of that system and the public confidence of Australians in their courts’.152 Had the joint select committee sought by the Opposition been appointed, one of the matters on which it would have been required to report was ‘whether the Parliament should legislate and, if so, on what terms, to prescribe standards of behaviour in relation to the public duty and private interests of the Australian judiciary’.153 Guide to judicial conduct It seems to be an assumption that, upon appointment, a judge would display sufficient common sense to draw the line between what is and what

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is not appropriate behaviour, or that a judge would by a process of ‘osmosis’ imbibe from his or her fellow judges sufficient understanding of the standards expected of judges. In 1996, Dr David Wood, at the request of the Council of Chief Justices of Australia, prepared a discussion paper in which he canvassed some of the arguments that have been asserted for and against a code of judicial ethics. He observed: One view . . . is that a code is unnecessary, because judicial officers are chosen from the ranks of those individuals who are naturally disposed to conduct themselves according to high standards. More bluntly, some express the view that there simply are too few examples of unacceptable conduct to warrant a code. On the other hand, there is the suggestion that a code of judicial conduct, together with other writings on the subject, may in time lead to a better understanding of the principles of judicial conduct, both by ordinary members of the public and judicial officers themselves.154

In August of 1998, the Council of Chief Justices in Australia appointed two retired judges (the Hon Sam Jacobs and the Hon John Clarke) to prepare a draft statement of principles for the guidance of members of the judiciary.155 The Guide to Judicial Conduct was approved by the Council of Chief Justices and published by the Australian Institute of Judicial Administration.156 Although it does not purport to be a code, the guide is intended to offer some guidance on the ‘restraints that come with the acceptance of judicial office’.157 It provides that all judges must ‘uphold public confidence in the judicial office’, ‘enhance public respect for the institution of the judiciary’, and ‘protect the reputation of individual judicial officers and of the judiciary’.158 Judges are expected to comport their office impartially, which requires them to act without bias or prejudgment, and to avoid conflicts of interest. Drawing heavily upon Ebner, chapter 3 of the guide sets out in detail the kinds of matters to which a judge should be heedful if they are to avoid an appearance of bias and a compromise of their perceived impartiality. In the USA, in relation to the federal judiciary, a code of judicial conduct applies to ‘United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges’.159 The Code of Conduct for United States Judges contains five canons with an accompanying commentary on each canon. The canons are headed as follows: *

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CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY CANON 4: A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY

J B Thomas, in evaluating the merits of the Guide to Judicial Conduct as compared to a ‘rigid, complex binding code that sets out to cover every conceivable situation’ concluded: The Guide meets the current needs of the Australian judiciary. It is updated as necessary by the Council of Chief Justices . . . [T]he Guide expresses principles of conduct that have evolved over a long period, and it ranges widely across problem areas. It has the merit of openness and authority, as it reflects the views of a fairly wide cross-section of the judiciary.160

Notes 1 Sir Gerard Brennan, ‘Foreword to the Second Edition’ in J B Thomas, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009) vii. 2 United Nations, Basic Principles on the Independence of the Judiciary (1985) (endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985) Art 8. 3 Thomas, above n 1, 8. 4 See pp 153–65 above. See also Thomas, above n 1, ch 5. 5 Thomas, above n 1, 9. 6 Queensland, Parliamentary Judges Commission of Inquiry, First Report (1989) 90 (para 5.1.4). However, a few occasions have arisen in recent times in Australia where judges have made public statements which resulted in much controversy – see pp 290–92 below. 7 See H W R Wade and C F Forsyth, Administrative Law (Oxford University Press, 10th ed by C F Forsyth, 2009) 380–81. The question of when a judge can be regarded as a party to litigation was considered by Kirby J in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 388–90. 8 Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293–4; see also R v Watson; Ex parte Armstrong (1976) 136 CLR 248. For a fuller treatment of the rule against bias see M Aronson, B Dyer and M Groves Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009) ch 9 and Halsbury’s Laws of Australia, vol 8, Courts and the Judicial System [125–290]–[125–320]. The development of the reasonable apprehension of bias test is described by Kirby J in Johnson v Johnson (2000) 201 CLR 488, 498–9 [29]– [35]. At 500–04 [36]–[45] Kirby J provided an account of the basic principles. See also M Groves, ‘The Rule Against Bias’ (2009) 39 Hong Kong Law Journal 485. 9 See p 136 above. 10 R v Gough [1987] AC 646. See also Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) and Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA). 11 (1994) 181 CLR 41, 50. 12 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 448 (Meagher JA). 13 Ibid 419 (Kirby P). 14 Galea v Galea (1990) 19 NSWLR 263, 283 (Meagher JA). 15 Webb v The Queen (1994) 181 CLR 41, 51 (Mason CJ and McHugh J). 16 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 (French CJ, dissenting) 300 [33]. 17 Webb v The Queen (1994) 181 CLR 41, 50.

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18 Ibid 71 (Deane J). 19 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 601 (Kirby P). 20 See, e.g., Sankey v Whitlam [1977] 1 NSWLR 333, 343; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. 21 Sankey v Whitlam [1977] 1 NSWLR 333; Falconer v Howe [1978] WAR 81; R v Moss; Ex parte Mancini (1982) 29 SASR 385; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; cf Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45, 51, 52. It has been doubted whether such an order may be made against a judge of a superior court having general jurisdiction: Bainton v Rajski (1992) 29 NSWLR 539, 545 (Mahoney JA). 22 Commercial Banking Co v Balgarnie (1864) 3 SCR (NSW) 27; Ex parte Qantas Airways Ltd; Ex parte Horsington (1969) 14 FLR 414; R v Cavitt; Ex parte Rosenfield (1985) 33 NTR 29; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283. Prohibition may also be issued against a judge of a superior court of limited jurisdiction, e.g., the Family Court of Australia: R v Watson; Ex parte Armstrong (1976) 136 CLR 248. 23 R v Lowe; Ex parte Peterson [1912] QSR 138; R v Justices of Rankine River; Ex parte Sydney (1962) 3 FLR 215; Haldane and Transexecutive Airlines Pty Ltd v Chegwidden (1986) 41 SASR 546; Howard v Schreiter (1987) 87 FLR 295; Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 422; Humphrey v Wills [1989] VR 439; Tahmindjis v Brown (1989) 40 A Crim R 281. 24 Barton v Walker [1979] 2 NSWLR 740; R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 266; Yule v Junek (1978) 131 CLR 1, 14; Rajski v Wood (1989) 18 NSWLR 512; Bainton v Rajski (1992) 29 NSWLR 539; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, 300; Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 123 ALR 323, 332, 337; Bienstein v Bienstein (2003) 195 ALR 225 [34] (McHugh, Callinan and Kirby JJ); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 610 [112] (Kirby and Crennan JJ); Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13, [19]–[20], [26] (Basten JA). 25 Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13, [93]. 26 See pp 167–70 above. 27 Rajski v Wood (1989) 18 NSWLR 512, 578 (Kirby P). 28 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 123 ALR 323; Bienstein v Bienstein [2003] HCA 7 Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13, [41]. See also E Campbell, ‘Review of Decisions on a Judge’s Qualification to Sit’ (1999) 15 Queensland University of Technology Law Journal 1. 29 Branko Balic (No 2) (1994) 75 A Crim R 515, 519, 520; cf Eastman v Somes (No 2) (1992) 107 FLR 86; Re Judge Leckie; Ex parte Felman (1978) 52 ALJR 155; Willing v Hollobone (No 2) (1975) 11 SASR 118. 30 C Campbell, ‘Judges, Bias and Recusal in Australia’ in H P Lee (ed) Judiciaries in Comparative Perspective (Cambridge University Press, 2011). 31 Ibid; Johnson v Johnson (2000) 201 CLR 488, [53] (Kirby J). 32 Livesey v New South Wales Bar Association (1983) 151 CLR 288, 299–300 (Mason, Murphy, Brennan, Deane and Dawson JJ). 33 (2011) 242 CLR 283. 34 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 308 [50]–[51] (French CJ). 35 Ibid 297 [23]. 36 Johnson v Johnson (2000) 201 CLR 488, 509 [54] (Kirby J). 37 Cambpell, above n 30, 288. 38 (2011) 242 CLR 283 – see the observations of French CJ at 305–6 [46]. 39 (2011) 242 CLR 283, 306 [47]. 40 King v Strickland (1991) 56 SASR 225, 232 (King CJ); Livesey v New South Wales Bar Association (1983) 151 CLR 288, 299; Aronson, Dyer and Groves, above n 8, 662. In Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 the English Court of Appeal identified a variety of factors which they thought would not count as disqualifying causes. They thought it could ‘conceive of circumstances in which an objection [to a judge’s qualification to sit] could be based on the religion, ethnic or national origin, gender, age,

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class, means or sexual orientation of the judge’. Nor, they added, ‘at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family, or previous political associations, or membership of social or sporting associations; or previous judicial decisions; or extra-curricular utterances . . .’ (para 25). Smits v Roach (2006) 227 CLR 423, 456 (Kirby J). Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 276 (Priestley JA, with whom Hope and Glass JJA agreed); S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358. G Pesce, ‘Disqualification of Judges – The “Reasonable Man” Test Renamed’ (1996) 70 Australian Law Journal 484. See also Aronson, Dyer and Groves, above n 8, 659–65. See p 154 above. (1994) 181 CLR 41, 74. There are other ways in which disqualifying causes may be classified: see, e.g., Aronson, Dyer and Groves, above n 8, 665–701. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 349 [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ). (1969) 14 FLR 414. Ibid 432. R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119. See also K Malleson, ‘Judicial Bias and Disqualification after Pinochet (No 2)’ (2000) 63 Modern Law Review 119; A A Olowofoyeku, ‘The Nemo Judex Rule: The Case against Automatic Disqualification’ [2000] Public Law 456; C Forsyth, ‘Judges, bias and recusal in the United Kingdom’ in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 361, 370–71. The House of Lords held that Lord Hoffmann was automatically disqualified; however, the High Court of Australia has since taken the view that in such a case the test applied should be that of reasonable apprehension of bias: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 paras [33] and [54] (Gleeson CJ, McHugh, Gummow and Hayne JJ); para [182] (Callinan J); and para [161] (Kirby J). R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] 3 WLR 1456. Moorhouse and Angus and Robertson (Publishers) Pty Ltd v University of New South Wales (1974) 3 ALR 1. University of New South Wales v Moorhouse and Angus and Robertson (Publishers) Pty Ltd (1975) 133 CLR 1. (1997) 190 CLR 1. (1996) 17 (3) Legal Reporter 14. Livesey v New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 443 (Mahoney JA); Qantas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684. See also Plenty and Plenty v Pattinson (SCSA, 25 June 1998) (findings on credibility at an early stage in a proceeding). See also Aronson, Dyer and Groves, above n 8, 686–7. P W Young, ‘Bias from Extra-judicial Writings’ (2000) 74 Australian Law Journal 123; P W Young, ‘Extra-Judicial Writings May Disqualify Judge’ (2000) 74 Australian Law Journal 584; Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, paras [71]–[89]; Mann v Northern Territory News (1988) 88 FLR 194; Grassby v The Queen (1989) 168 CLR 1. See Aronson, Dyer and Groves, above n 8, 681–3. Ruffles v Chilman (1997) 17 WAR 1. See also J B Thomas, above n 1, 74–6. Emanuele v Emanuel Investments (in liq) (1996) 21 ACSR 83, 91 (Debelle J), and on appeal (1997) 139 FLR 36. R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122; Garrity v Wyatt (1975) 10 SASR 476; Haldane and Transexecutive Airlines Pty Ltd v Chegwidden (1986) 41 SASR 546, 555; cf R v Aitkin and Ellis; Ex parte Fites [1944] QSR 158. Re Lusink and Shaw; Ex parte Shaw (1980) 55 ALJR 12; Re Keeley; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495; Hinton v Mill (1991) 57 SASR 97, 100 (King CJ). See also Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310, 319; Galea v Galea (1990) 19 NSWLR 263, 275, 279. See also Johnson v Johnson (2000) 201 CLR 488, paras [13] and [46] (Kirby J).

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61 In the Marriage of Stiffle (1988) 93 FLR 206; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 608; R v Pirimona (Tas CCrA, 6 November 1998); Krincevski v Director of Public Prosecutions (1996) 93 ACrR 185. See also Aronson, Dyer and Groves, above n 8, 691–2. 62 (1993) 177 CLR 292. 63 (1981) 147 CLR 512. 64 Ibid 546. 65 Ibid 547. 66 See, e.g., Ex parte Blume; Re Osborn (1958) 58 SR (NSW) 334; cf Brooks v Upjohn Co (1998) 156 ALR 622. See also J B Thomas, above n 1, 55–7. 67 In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173. Cf Friends of Hinchinbrook Society Inc v Minister for the Environment (No 11) (1996) 69 FLR 1 in which Branson J of the Federal Court held herself not to be disqualified from adjudicating a case simply because she was acquainted with the Minister. She declared that she did not regard herself as a close friend of the Minister. 68 See R v Moss; Ex parte Mancini (1982) 29 SASR 385; R v Cavitt; Ex parte Rosenfield (1985) 33 NTR 29; cf Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27; Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 (distinguished in Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476). 69 (1995) 128 FLR 61. 70 John Dyson Heydon is now a Justice of the High Court of Australia. His term on the High Court ends in March 2013. 71 That case being Fraser v NRMA Holdings Ltd (1994) 52 FCR 1. 72 A more detailed overview can be found in A Abadee, ‘Professional Liability of Barristers’ (2003) Bar News: Journal of the NSW Bar Association, 21–2; B Baxt, ‘The foresight saga’ (2001) 72(4) Charter 54, 56–57. 73 Heydon QC’s successful appeal to the specially convened court is reported at Heydon v NRMA Ltd (2000) 51 NSWLR 1. The appointed judges were the then Chief Justice of Western Australia, David Malcolm; the then Judge of Appeal of the Supreme Court of Queensland, Bruce McPherson; and the then Judge of Appeal for the Supreme Court of Victoria, William Ormiston. 74 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. 75 R v Judge Russell; Ex parte Reid (1984) 35 SASR 417; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Western Australia v Watson [1990] WAR 248; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260, 264; Clarke v Ainsworth (NSWSC, 20 October 1998); Aronson, Dyer and Groves, above n 8, 675–81. See also A Bradford, ‘Casenote: Hurley v McDonald: Disqualifications and Associateships’ (2000) 10 Journal of Judicial Administration 69; P W Young, ‘A Judge and an Associate’ (2000) 74 Australian Law Journal 744. In Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 the English Court of Appeal (constituted by Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C) made several observations on the circumstances in which a judge’s associations, prior to appointment to judicial office, might render him or her disqualified to adjudicate particular cases (para 25). 76 David Harold Eastman (1994) 76 A Crim R 9; Grollo v Palmer (1995) 184 CLR 348, 366, 395. But the statute under which the warrant has been issued may prevent the judge from disclosing that he or she was the judge who issued the warrant. See Aronson, Dyer and Groves, above n 8, 681. 77 A rule with roots in the decision of Dimes v Proprietors of Grand Junction Canal Pty (1852) 10 ER 301. 78 (2000) 205 CLR 337. 79 Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] 2 VR 573 (Winneke P and Charles JA). 80 Ibid para [89c]. 81 Ibid para [89d]. 82 Ibid para [93]. See also para [9] (Winneke P). 83 Re Ebner (a Bankrupt); Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557. 84 Ibid paras [37] and [41].

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85 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 86 The Justices in the majority were Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. Kirby J dissented and presented extensive reasons for his opinion. 87 (2000) 205 CLR 337, 358 [58] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 88 Ibid 351 [37] and 357 [55]. 89 A Mason, ‘Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review’ (1998) 1 Constitutional Law and Policy Review 21, 26. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 362–3 (Gaudron J), 373 (Kirby J). 90 See Aronson, Dyer and Groves, above n 8, 705–9. 91 See Judges v Attorney-General of Saskatchewan (1937) 53 TLR 464. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 it was not necessary for the High Court to consider when the principle of necessity applied, but a majority of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) thought it might have applied in Clenae had the Court concluded that the trial judge was, prima facie, disqualified (359). Gaudron J, in contrast, thought that Australia’s constitutional requirements mean that the principle of necessity can be invoked only where, if the disqualified judge sits, a court cannot be constituted (368). 92 This test is thrown into particularly sharp relief after the judgment in Smits v Roach (2006) 227 CLR 423, in which the High Court imposed a heavy obligation upon counsel to make timely objections on the ground of apprehended bias. See also Aronson, Dyer and Groves, above n 8, 701–5. 93 In the Marriage of Murphy and Armstrong (1979) 35 FLR 482, 486; Vakauta v Kelly (1989) 167 CLR 568, 572; Hinton v Mill (1991) 57 SASR 97, 100. 94 In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173, 180; Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541. 95 Najjar v Haines (1991) 25 NSWLR 224, 228 (Kirby P). Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 360 [69]–[70] (Gleeson CJ, McHugh, Gummow and Hayne JJ), 393 [171] (Kirby J). 96 Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 13 ALR 753, 758–9. 97 See also M Groves, ‘Waiver of The Rule Against Bias’ (2009) 35 Monash University Law Review 315, 324–7. 98 The constitutional issue is discussed in E Campbell, ‘Waiver of the Rule against Bias – A Constitutional Issue’ (1999) 2 Constitutional Law and Policy Review 41. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, a majority accepted the possibility of waiver (359 [63]). Kirby J also accepted it, in deference to previous decisions of the High Court; however, he did draw attention (393 [170]) to reservations he had expressed in previous cases. 99 See p 154 above. 100 Barton v Walker [1979] 2 NSWLR 740; Rajski v Wood (1989) 18 NSWLR 512; R v Rogerson (1990) 45 A Cr R 253; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; Bainton v Rajski (1992) 29 NSWLR 539; Rogers v Wentworth (NSWCA, 21 October 1998); cf Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. See also Campbell, above n 28, 1. In Bienstein v Bienstein (2003) 195 ALR 225 there was a dispute in the Family Court between the appellant and the respondent as to whether the respondent was required to pay child maintenance. The appellant made an interlocutory application under s 40(1) of the Judiciary Act 1903 (Cth) to remove the proceedings to the High Court on the grounds that her matter involved questions of constitutional interpretation. When the application came before Hayne J for consideration, the appellant argued that he should disqualify himself by reason of apprehended bias. Her grounds were that Hayne J had associations and friendships within the Victorian legal community, and her case involved allegations against the Melbourne Family Court and the Victorian legal profession. Hayne J refused to recuse himself and proceeded to hear the removal application, which he also dismissed. The appellant proceeded to appeal from Hayne J’s decision. A bench comprised of McHugh, Kirby and Callinan JJ struck out the appeal as they determined that Hayne J’s refusal to grant the removal application was interlocutory, not of a final or conclusive nature, and as such was not reviewable by the High

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101 102 103 104 105 106 107 108 109 110 111 112 113

114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137

THE AUSTRALIAN JUDICIARY Court: paras [28]–[29]. Hayne J’s refusal to disqualify himself in Bienstein was subsequently characterised by McHugh ACJ, Gummow and Heydon JJ in Re Luck as being an interlocutory order that was non-reviewable: (2003) 203 ALR 1 [8]. Brooks v Upjohn Co (1998) 156 ALR 622, 630. (1998) 195 CLR 337. The advice had been sought by the federal government and was made available to a federal parliamentary committee which was considering the Bill. (1998) 156 ALR 300; 72 ALJR 1334. Mason, above n 89, 24. Kartinyeri v Commonwealth, Transcript of Proceedings, 18 February 1998, 2. These submissions were worked into an article published by two of the counsel for the plaintiffs: S Tilmouth and G Williams, ‘The High Court and the Disqualification of One of its Own’ (1999) 73 Australian Law Journal 72. On the setting aside of judgments by the court rendering those judgments, see E Campbell, ‘Revocation and Variation of Administrative Decisions’ (1996) 22 Monash University Law Review 30, 31–8. It was further argued that s 31 of the Judiciary Act 1903 (Cth) provided a statutory basis for review of Callinan J’s decision. Mason, above n 89, 27. Ibid. See G Hammond, Judicial Recusal (Hart Publishing, 2009) 148–50. Ibid 26. Ibid. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Callinan J expressed the view that when objection is made to a judge’s qualification to sit, it is desirable that the objection be dealt with by another judge (397 [185]). Other Justices of the High Court did not agree with this view (Gleeson CJ, McHugh, Gummow and Hayne JJ, 361 [74]). Re JRL; Ex parte CJL (1986) 161 CLR 342, 352. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294 (Mason, Murphy, Brennan, Deane and Dawson JJ). Examples were given by Callinan J in Kartinyeri v Commonwealth (No 2) (1998) 72 ALJR 1334, paras [29] and [36]. See s 23. (1998) 72 ALJR 1334, para [35]. Callinan J referred to Gould v Brown (1998) 72 ALJR 375, a case in which the Court had been evenly divided in a case of great constitutional significance. R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119. Ibid 136. Ibid. Ibid 136–7. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259. 28 United States Code s 455. Ibid s 455(a). Ibid s 455(b). Ibid s 455(e). House of Representatives, Standing and Sessional Orders (2010) 117–19, and SO 329. Senate, Standing Orders (2009) 149–51. See Appendix 2 – Guide to Judicial Conduct, below at pp 320–63. Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 563–4. See Aronson, Dyer and Groves, above n 8, 668–71. Commonwealth, Bowen Committee of Inquiry on Public Duty and Private Interest, Parl Pap No 353 (1979). Ibid para 11.6. Ibid. Commonwealth, Parliamentary Debates, Senate, 29 April 1980, 1941–2. See pp 117–20 above. Notice of motion was given on 28 April 1980. The motion is set out in: Commonwealth, Parliamentary Debates, Senate, 28 April 1980, 1800–01, and 29 April 1980, 1897–8.

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138 Letter to Prime Minister Fraser, 28 April 1980, incorporated in: Commonwealth, Parliamentary Debates, Senate, 29 April 1980, 1926. 139 CSR Ltd v Dilley (1967) 116 CLR 445. 140 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 214. 141 Brambles Holdings Ltd v Pilkington (1972) 126 CLR 524. 142 Whiting v Brambles Industries Ltd (1977) 134 CLR 464. 143 Brambles Holdings Ltd v Commissioner of Taxation (1978) 138 CLR 467. 144 Cullen v Ampol Petroleum Ltd (1971) 124 CLR 677. 145 Commonwealth, Parliamentary Debates, Senate, 29 April 1980, 1900–15. 146 Commonwealth, Parliamentary Debates, House of Representatives, 29 April 1980, 2346–7. 147 Ibid 2352. 148 Commonwealth, Parliamentary Debates, Senate, 29 April 1980, 1926–7, 1928. 149 Commonwealth, Bowen Committee of Inquiry on Public Duty and Private Interest, Parl Pap No 353 (1979) para 11.6. 150 Commonwealth, Parliamentary Debates, Senate, 29 April 1980, 1898. 151 Ibid. 152 Ibid 1899. 153 Ibid 1898. 154 D Wood, ‘Judicial Ethics: A Discussion Paper’ (Australasian Institute of Judicial Administration, 1996) 46. 155 See M Kirby, ‘World-standard ethics coming to a court near you’, The Age (Melbourne), 16 April 2001, 11; J B Thomas, ‘Guide to Judicial Conduct: A New Handbook for Judges’ (2003) 77 Australian Law Journal 240. Reliance was also placed on the Canadian Judicial Council, Commentaries on Judicial Conduct (1991); the Canadian Judicial Council, Ethical Principles for Judges; and J B Thomas, Judicial Ethics in Australia (LawBook, 2nd ed, 1996), now in its 3rd ed (LexisNexis Butterworths, 2009). 156 See Thomas, above n 1, 2. 157 Guide to Judicial Conduct (Australasian Institute of Judicial Administration, 2nd ed, 2007) 1. 158 Ibid. 159 It was initially adopted by the Judicial Conference on April 5, 1973, and was known as the ‘Code of Judicial Conduct for United States Judges’. See also W W Hodes, ‘Bias, the appearance of bias, and judicial disqualification in the United States’ in H P Lee (ed), Judicaries in Comparative Perspective (Cambridge University Press, 2011) ch 19; M Perry, ‘Disqualification of Judges: Practice and Procedure’ (Discussion paper prepared for the Australian Institute of Judicial Administration, 2001) 69–88. 160 Thomas, above n 1, 2–3. M Black (Chief Justice of the Federal Court of Australia 1991– 2010) has indicated to the author that the Guide has proved to be very useful in practice. In 2010, a pecuniary interest controversy engulfed Justice Bill Wilson of the Supreme Court of New Zealand. Following his resignation from the Court, a Private Member’s Bill establishing a judicial registry of financial interests passed its first reading on 27 June 2012. See also ‘Towards the New Courts Act’ (Issues Paper 21, New Zealand Law Commission, 2011).

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CHAPTER 9

The accountability of judges

The concept of accountability In 1995, an English judge, Lord Taylor of Gosforth, observed that the term ‘accountability has become one of the buzzwords of the age’.1 It is a term often used interchangeably with several other words and phrases, such as ‘being answerable’,2 ‘responsibility’3 and being the ‘subject of scrutiny’.4 Lord Taylor’s observation was made in the context of general remarks on what some had perceived to be a lack or insufficiency of accountability on the part of members of the judicial branch of government. In recent times, several Australian judges have found occasion to speak or write about the same subject. One can only speculate on why there have been charges of lack of appropriate judicial accountability. Sometimes the charges may have been generated by widely publicised episodes involving official inquiries into the conduct of individual judges,5 sometimes by judicial decisions which have re-shaped the law. Critics of such decisions may allege that it was wrong for the judges to have decided as they did, in that they exceeded their limited law-making functions and trespassed into a domain reserved for an elected legislature whose members are accountable to electors.6 Concerns about judicial accountability may even have been spawned by increased awareness among members of the general public about the operations of the courts. Chief Justice Doyle of the Supreme Court of South Australia seems to have recognised this possibility when he observed: There is a greater public awareness that judges suffer from the normal human frailties. This is a time in which there are high public expectations of government and of the professions, and the public are, as we all know, highly and rightly critical when acceptable standards are not met.7 249 Downloaded from https://www.cambridge.org/core. Universiteit Leiden / LUMC, on 17 Nov 2019 at 15:56:26, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139028431.010

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There is nothing wrong with the notion that judges should be accountable. As Justice McGarvie pointed out, ‘[i]n a good democracy, power is never exercised without accountability for it’.8 But if judges are to be held accountable, one needs to ask to whom are they accountable, for what and in what ways? There is the further question of what can and should be done when judicial accounting is found to be unsatisfactory. A consideration of these questions requires an understanding of the functions of judges. The essential task performed by a judge is the resolution of disputes by the application of existing law or by principles developed to resolve new issues.9 The disputes may be between individuals or between individuals and public bodies. To maintain the rule of law and promote social cohesion there needs to be an established system for dispute resolution that is respected by the disputing parties and by society as a whole. Confidence in the judicial system requires that the decisionmaker must be impartial, and the decision-making process must be transparent and fair.10 Viewed from such a perspective, a judge is accountable to the disputing parties and to the community for the manner in which his or her judicial tasks are performed. Apart from accountability in relation to the decision-making process, judges are also accountable in relation to their participation in public affairs and their private life. They are expected to conduct themselves in such a manner as not to undermine public respect for and confidence in the judiciary. The Hon John Doyle, who was Chief Justice of the Supreme Court of South Australia from 1995 to 2012, has argued cogently that the suggestion ‘that the judiciary is unaccountable is misconceived’.11 He has stated: ‘This misconception stems from the imprecision of the term accountability. In truth accountability is a concept the content of which varies according to the context in which it is being considered . . .’12 A fundamental difference between the judiciary and the executive arm of governments lies in the guarantee (provided for either by constitution or statute) of security of tenure for the former. The latter is answerable to Parliament and ultimately to the electors by means of the ballot box. Just because judges in Australia are unelected, and therefore cannot be voted out of office by the electors, does not mean that they are not accountable. The security of tenure provides for a counterbalance to the notion of judicial accountability and for the underpinning of the core value of judicial independence that is vital for the maintenance of the rule of law. Despite the guarantee of security of tenure, judges can be removed from office. They may be removed from office because of what have been adjudged to be serious shortcomings in their performance as judicial officers. This ultimate mode of accountability, as expressed in formal

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mechanisms of removal or disciplinary sanctions, has already been dealt with in chapter 5. Chief Justice Doyle explained the ways in which judges are accountable as follows: First of all, they sit in public and discharge their duties in public. They are open to complete scrutiny. Secondly, fair comment on what they do is protected, even if it is both inaccurate and defamatory. Thirdly, a judge must give reasons for decision. Fourthly, most decisions are subject to appeal, and so to scrutiny of other judges. Fifthly, judges are accountable to peer opinion, which is a particularly powerful form of scrutiny. Sixthly, the decisions of courts can be reversed by legislation, as long as it is not legislation aimed at a particular case. Finally, the judiciary is accountable for the public resources that it administers.13

There have been attempts to categorise the different forms of judicial accountability. In this regard, Professor Shetreet has identified three broad categories: legal accountability, public accountability and, finally, informal and social controls. He elaborated upon this classification as follows: The first category of public accountability includes supervision over judges, appellate review of their decisions, and their civil and criminal liability. The second category includes the controls over judges exercised by Parliament or the legislative body, the executive, the general press, and pressure groups. The third category includes the social and professional controls exercised informally and often in private, away from the public gaze. Such informal controls and professional pressures are exerted on judges by their judicial brethren and superiors, and by their professional colleagues.14

This chapter explores the various mechanisms that exist to ensure Australian judges are rendered accountable for the exercise of their adjudicative and other functions.15 Open hearings General rule The general rule at common law is that proceedings in a court of justice must be conducted in ‘open’ court.16 It is claimed that such a rule, described as ‘inveterate’17 and ‘immutable’,18 has existed in England ‘for some centuries’.19 Moreover, it is undoubtedly the case that ‘[t]his long line of English authority has found reflection in Australia’.20 It has been asserted that the separation of judicial power doctrine gives rise to an implication of ‘open justice’. In fact, McHugh J referred to this implication as ‘an essential feature of the federal judicial power’.21 According to Gaudron J, ‘open and public enquiry’ is an aspect of the judicial process.22 The open court

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principle was described as an ‘essential characteristic of courts’ by Chief Justice French in Hogan v Hinch.23 Furthermore, the principle of open justice has received recognition internationally, albeit in a heavily qualified form.24 A useful summary of the conflicting public interests involved in the operation of the open justice principle, and the way in which the law resolves this conflict, was provided by Lord Atkinson in the seminal case of Scott v Scott :25 The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or [a] deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to [be] found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.26

The justification for a relatively strict adherence to the general rule of public hearings has usually been based on one of two broad and related principles. In the first place, it is asserted that the exposure of the judicial system to publicity produces certain beneficial effects in the operation of the system. The dual nature of this beneficial (also described as ‘cathartic’27) effect was identified by Bentham: ‘[P]ublicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity’.28 We believe that the ‘spur to exertion’ refers to the tendency of publicity to ensure the maintenance of standards of formality, the conscientious performance of duties and a certain decorum of procedure.29 As Lord Widgery stated: The great virtue of having the public in our courts is that discipline which the presence of the public imposes on the court itself . . . [E]verybody is more careful about what they do, everybody tries just that little bit harder.30

Publicity constitutes a ‘guard against improbity’, in that exposure to public scrutiny and criticism is said to create an environment in which abuses are less able to flourish undetected.31 The proposition was stated by Lord Diplock thus: ‘If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy’.32 For these reasons, it has been said that the requirement of publicity in the administration of justice is ‘one of the surest guarantees of our liberties’.33 A second justification, adverted to in the passage of Lord Atkinson cited above, is that the rule regarding public hearings is essential to the maintenance and preservation of public confidence in the judicial system.34 As Justice Gibbs stated:

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This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials.35

In Hogan v Hinch, Chief Justice French, while recognising the open court principle as not an absolute principle, said: That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard.36

Meaning of an ‘open’ court What precisely constitutes an ‘open’ court has been examined in a number of cases. The common law rule appears to be that an ‘open’ court is one to which the public has a right to be admitted.37 The question of fact is whether the right has been denied, though this has been described as a task involving some difficulty.38 Relevant factors in determining this question include the character and purpose of the building, the layout, size and portion of the room devoted to the administration of justice, the extent of facilities for the accommodation of the public,39 the presence or absence of the press,40 and the extent to which the room contains the usual accompaniments, appurtenances and external signs to which people are normally accustomed.41 Where there has been a long practice to hold the court in a certain place, the length of the practice will not be material except insofar as this has resulted in public appreciation of the fact that they have a right to be admitted.42 It is not material that in fact no member of the public gained or sought to gain admission.43 However, it may be material that persons desirous of hearing proceedings are denied the right to be present. On the other hand, there is no general rule that all persons desirous of attending must be accommodated, so that failure to accommodate them all means that the court is ‘closed’. It has been well established that the ultimate responsibility for deciding whether to admit certain members of the public desirous of attending proceedings rests with the presiding judge or magistrate and involves a discretion to refuse entry, having regard to the facilities available (including considerations such as the desirability of

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allowing people to stand, the possibility of fire, etc.) and the need to maintain order and security.44 Furthermore, it has been held that if the relevant adjudicator has shown himself or herself to be conscious of the duty, and has reached a conclusion that is reasonable in the circumstances, it is not for another court to substitute its views as to whether the discretion was properly exercised.45 Exceptions to the general rule It has been stated that the exceptions to the general rule that proceedings be conducted in open court are ‘themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done’.46 The exception arises ‘where the exercise of the Court’s jurisdiction would be defeated or frustrated if the proceedings were held in public’.47 While courts have often emphasised that the exceptions recognised at common law are to be ‘narrowly’ 48 or ‘strictly’ 49 defined, other courts have been equally adamant that the category of exceptions is never closed and that the exceptions discussed in Scott v Scott 50 do not constitute a ‘code’.51 At common law, the notion of a judicial discretion to hold proceedings in camera, based on the view of the judge that a private hearing is desirable or expedient, has never been recognised.52 The burden of establishing an exception to the general rule lies with those seeking the displacement of the general rule.53 The circumstances in which an exception to the rule is made out are necessarily ‘incapable of definition’,54 and each application for privacy must be considered on its merits. Moreover, as the interest in open justice is a public one, an open hearing cannot be waived by the consent of the parties to the action.55 Sir John Donaldson MR explained: ‘[N]o one is more entitled than a member of the general public to see for himself that justice is done’.56 It has been consistently held that courts of justice have jurisdiction to order that a matter be heard in camera where the securing of justice would be rendered doubtful of attainment if the order were not made;57 however, the courts have tended to insist that such privacy is a matter of necessity rather than convenience. As a result, it has been held that it is insufficient, in order for the exception to apply, that the evidence to be given is of an unsavoury character,58 offends public decency,59 or will cause severe embarrassment60 or loss of reputation to particular persons.61 Furthermore, the decided cases prefer the view that it is likewise insufficient if the evidence is such as to deter either witnesses from giving testimony or parties from pursuing a cause of action.62 In camera proceedings have been ordered where they involve the protection of a secret process.63 Where the effect of a public hearing

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would be to destroy the very thing which one litigant has come to the courts seeking to protect, it is invariably the attitude of the court that appropriate orders, including an order that the action be heard in camera, be made to protect that thing. Cases of this kind typically involve trade secrets, or similar rights to confidentiality, and confidential communications.64 Authorities have shown some recognition of national security as a public interest prevailing over the openness principle.65 Chief Justice French said: ‘Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified’.66 The inherent jurisdiction of a court of justice to exclude the public is unquestioned, where necessary to prevent interruption to the orderly procedure of the court.67 The reach of the exception was summarised by Earl Loreburn in Scott v Scott as follows: Tumult or disorder, or the just apprehension of it would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general.68

Suits affecting wards and mental illness proceedings have been said to stand on a different footing,69 essentially for the reason that the role of the judge in such proceedings is as a representative of Her Majesty as parens patriae.70 The jurisdiction is therefore a paternal one and the role of the judge more akin to that of an administrator. However, it is necessary to keep in mind that the right of an infant litigant is no greater than that of an adult litigant unless the court is dealing with the infant in a parental or administrative capacity.71 The exercise of jurisdiction by a judge in chambers constitutes a clear exception to the public hearing rule.72 However, it has been asserted that it is not appropriate, and offends the rule in Scott v Scott, for a judge to receive in chambers information which is calculated to affect the sentence while considering the sentence to be imposed.73 The reasoning provided is as follows: If a private communication is permitted to affect the sentence so that it appears to be discordant with the facts publicly related to the court, the sentence will not be seen to be appropriate, the deterrent effect of punishment will be impaired, and public confidence in the process of sentencing will be diminished.74

Other mechanisms to protect confidentiality The conduct of proceedings, wholly or partly in camera, represents only one mechanism by which the interests, recognised in the various

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exceptions to the general rule, may be protected. However, it has been maintained that even where power exists to exclude the public and hold proceedings in camera, a court ‘would ordinarily exercise that power only in cases where lesser procedures are clearly inadequate to give the confidentiality which is seen to be necessary’.75 It has been held that one aspect of the wide inherent jurisdiction, possessed by courts to regulate the conduct of their own proceedings and to prevent the abuse of its own process,76 is the ability to direct that the name of a witness be concealed, or a pseudonym used, in order to preserve the anonymity of the witness.77 For practical reasons, such an order is usually coupled with an order prohibiting the publication of details tending to reveal the identity of the witness. It has been argued, and can little be doubted, that ‘[t]he making of a pseudonym order involves less infringement upon the open justice ideal than an order for proceedings in camera’.78 Putting the case even higher, Lord Widgery CJ has stated that there is a ‘total and fundamental difference’79 between the non-disclosure of the name of a witness and the exclusion of the public. For this reason, it has been contended that: ‘in the lesser situation of protecting the identity of witnesses at a hearing in public a somewhat less strict test is applicable in determining the inherent jurisdiction of the Court’.80 The applicable test, therefore, appears to be whether a direction of the type given is in the interests of the administration of justice.81 The cases suggest that the test is satisfied where there would be grave difficulty in coaxing witnesses to come forward without such a direction.82 Thus, the use of pseudonyms has been described as a ‘commonplace’ in the context of trials pertaining to charges of blackmail83 and those involving police informers. One accepted basis upon which a judge may exclude an individual from a courtroom is where the person so excluded is to give evidence in the proceedings.84 The clear justification for this inherent power is to prevent a future witness from modifying their testimony as a consequence of evidence given by other witnesses in open court. Similar power, derived from the court’s ‘wide inherent jurisdiction to control its own procedure’,85 exists for a court to order that part of a trial, for example, that part consisting of submissions in relation to the admissibility of evidence, be conducted in the absence of the jury.86 The lack of circumstances in which to exercise a jurisdiction to conduct proceedings in camera does not prevent a court from inviting the press and public to withdraw in the interests of public decency. Such an invitation, coming from the Bench, will presumably carry some weight. However, when exercised it is appropriate for the judge to impress upon those present that it is entirely a matter for them.87

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Statutory exceptions to the general rule Apart from the common law exceptions to the general rule of open justice, there are a plenitude of statutory provisions and regulations that exclude or empower the courts to exclude the general public on specified grounds.88 Furthermore, these provisions may also authorise the courts to restrict or prohibit the publication of reports pertaining to the proceedings in the courts. It is not within the scope of this book to deal comprehensively with these provisions from the statutes of the legislatures of the States and the Territories, as ‘[t]here is little consistency in the legislation between the various States and Territories or even between statutes dealing with different courts in the same jurisdiction’.89 Some broad categories of such legislation will be mentioned to illustrate the statutory restrictions imposed upon access to proceedings in the courts. Significant examples are family law and criminal law proceedings, and proceedings relating to children or children’s courts. Prior to 1983, the general rule embodied in s 97 of the Family Law Act 1975 (Cth) was that Family Court proceedings were to be heard in closed court. Professor Sally Waller observed: In 1980, a majority of members of a joint select committee concluded that the decision to close the Family Court went further than was necessary to protect the privacy of parties to the proceedings. The section was amended in 1983. Prima facie all proceedings are now heard in open court.90

However, the general rule of open court is qualified by the authorisation given to the Family Court to exclude specified persons from the court, or order that only certain persons (such as the parties to the proceedings, their legal advisers and specified persons) may be present during the proceedings in court.91 Publication by the media of reports of proceedings is prohibited where certain specified persons may be identified (such as parties and witnesses in the proceedings or persons related to a party to the proceedings or concerned in the matter of proceedings).92 Legislation in some jurisdictions allows magistrates to restrict public access to committal proceedings.93 In a committal hearing or, as it is sometimes called, a preliminary examination, a magistrate determines whether the evidence justifies a committal for trial in relation to an indictable offence.94 But in Queensland the power of the justice or magistrate to exclude the public can only be exercised if required by the ‘ends of justice’.95 When dealing with minor civil cases, some jurisdictions either provide that magistrates may close the court96 or require that the court be closed.97 The rationale underlying this procedure is to assist the magistrate to encourage the parties to settle their dispute without resort to litigation.98 Another category of proceedings in which the general rule of open justice is qualified relates to proceedings before children’s courts. In some

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jurisdictions (Victoria, Western Australia and the Northern Territory), the statutory frameworks provide for proceedings to be conducted in open court.99 However, the judge is empowered to close the court or impose restrictions on what can be published about the proceedings. In the other jurisdictions (New South Wales, Queensland, South Australia, Tasmania and the Australian Capital Territory), the proceedings are closed to the public except for specified or permitted persons.100 Restrictions are also imposed on what can be published about the proceedings. Other categories where the legislation provides for proceedings to be conducted in closed court relate to adoption proceedings and proceedings involving sexual offences. In Victoria, a number of broad grounds for closing the court are provided for in s 126 of the Magistrates’ Court Act 1989 (Vic), namely where the magistrate believes that an open court would: endanger the national or international security of Australia; prejudice the administration of justice; endanger the physical safety of any person; or cause undue distress or embarrassment to the complainant or a witness in a proceeding that relates, wholly or partly, to a charge for a sexual offence.

Reasons for judgment Introduction One important means by which judges account publicly for the exercise of their judicial functions is by giving of reasons for their judgments.101 Reasons for judgment also enable parties to assess whether they may have grounds for appealing against a decision, or seeking leave to appeal. They enable legal ‘practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future’.102 They may allay the sense of grievance likely to be felt by the party against whom judgment is given. A practice of giving reasons may even make for better decisions.103 In the New South Wales Supreme Court decision of Beale v GIO,104 Meagher JA offered some further reasons why judges should be required to provide reasons for their decisions. Such a requirement, he suggested: . . . can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way.

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The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals. Thus, any increase in judicial resources required at the trial level should be countered by a reduction in judicial resources required at the appellate level.105

Most judges today recognise the desirability of giving reasons for their judgments. But are they under any legal duty to furnish reasons? If so, what is required of them to fulfil the duty and by what means, if any, can the duty be enforced? These are some of the questions we examine in the following sections. A duty to give reasons? As a Justice of the High Court, Michael Kirby suggested that reasons for judgment are ‘always permissible, usually desirable and often obligatory’.106 Other judges have described the giving of reasons as a normal though not universal incident of judicial process.107 Writing extra-curially, Justice Pagone of the Supreme Court of Victoria proffered the following justification for the giving of reasons: [It is] the entitlement of the parties to know why their rights have been determined in a particular way. That reason is an aspect of the rule of law in a liberal democratic society which rejects the arbitrary or capricious exercise of power against members of society. Another reason is to enable an appellate forum to evaluate the correctness of a decision on appeal. Yet another is the desirability in our legal system for there to be predictability in the application of the law to different cases: reasons serve to explain and justify how the law is being applied equally to all and from one case to the next.108

It now seems to be generally accepted that when a judicial decision is subject to appeal to a higher court, albeit only with leave, the court rendering the decision is obliged to furnish reasons for the decision.109 In the absence of reasons for judgment, parties would not know whether there was any ground for lodging an appeal and the appeal court would find it difficult, if not impossible, to ascertain whether the court below had committed any reviewable error. On the other hand, there is no universal requirement that judges give reasons for the grant or refusal of applications for leave to appeal,110 for rulings on procedural or evidentiary questions arising in the course of a proceeding,111 or rulings in interlocutory matters.112 One judge has suggested that there is no duty to give reasons for a final order which proceeds from a finding on a simple question of fact.113 The difficulty in distinguishing between the types of decisions which require reasons and those which do not was acknowledged by Justices Gummow and Hayne:

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It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given. It suffices to say that cases in which a discretion must be exercised or the resolution of the issue depends upon some intermediate conclusion of fact or law will more likely warrant the giving of reasons than will an issue about the relevance of a question or the form in which it is posed.114

Fulfilling a duty to give reasons In all Australian jurisdictions, statutory duties have been imposed on administrative decision-makers to give written reasons for their decisions, at least upon request.115 Typically, the statutes imposing this duty require the decision-maker to state not merely the reasons for decision but also ‘the findings on material questions of fact, referring to the evidence or other material on which those findings were based’.116 There have been cases in which courts have held that a statutory duty of this kind has not been fulfilled.117 However, there are no statutes of general application that indicate what courts need to do to fulfil their duties to furnish reasons for judgment.118 It has thus been left to the courts themselves to decide what is required of them to fulfil the duty. Judicial pronouncements on that question are to be found principally in the written opinions of courts of appeal, in relation to the reasons for judgment delivered by a court whose decision has been the subject of an appeal. In those pronouncements the judges have stressed that the reasons must be adequate having regard to the purposes they are meant to serve.119 So in a case in which the judgment is subject to appeal, the reasons for judgment must be sufficient to enable the appeal court to determine whether the court has made an error of a kind that is reviewable by the appeal court.120 A minimum requirement of a duty to furnish reasons for judgment is identification of the rules and principles of law upon which the court relies. If the case before the court involves determination by it of questions of fact, the court must also record its findings on those questions.121 However, judicial pronouncements do not provide clear guidance on the extent to which reference should be made to the evidence that is relied upon in support of fact-findings, or on the extent to which judges need to indicate, in their reasons for judgment, the connections they make with the evidence presented to them and their ultimate findings on matters of fact.122 If reasons are required to be given for judgment, there is no universal requirement that the reasons be written reasons, though if the decision in the case is clearly subject to appeal it is essential there be some written record of the reasons.123 In the lower courts, reasons for decision are

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often delivered ex tempore, that is, orally and immediately or very soon after the conclusion of a hearing.124 In the higher courts, and particularly in cases on appeal, it is more usual for the court to reserve its judgment so as to allow the judge or judges time to consider the issues and the submissions and prepare written reasons for judgment.125 While the practice of reserving judgments has been commended by a number of Australian judges,126 its adoption can mean that many months may elapse before the parties learn of the result of the litigation. In one New South Wales case a delay of three months by the District Court in delivering judgment was considered by the Court of Appeal to be unacceptable.127 What is unreasonable delay will, of course, depend on the complexity of the case, and also on its general importance. When the High Court reserves judgment, which it usually does, many more than three months may elapse before the Court is ready to deliver judgment. Such delays have attracted criticisms though the criticisms are often ill-informed and unfair.128 Remedies for failure to comply with a duty to give reasons On a number of occasions, Australian courts have had to consider the legal consequences that flow from a failure by a tribunal to fulfil its statutory duty to furnish written reasons for decision. They have taken the view that a failure to fulfil this duty is an error of law and a ground on which a court may set aside the tribunal’s decision.129 Superior courts may also make orders to compel tribunals to fulfil their statutory duties to furnish written reasons.130 Australian courts have also taken the view that if a court does not fulfil its duty to furnish reasons for judgment (whether the duty be statutory or non-statutory) it commits an error of law.131 That error may be regarded by an appellate court as sufficiently grave to warrant the setting aside of the judgment and an order that the case be retried.132 However, in some cases it may be both possible and desirable for the court of appeal to avoid having to adopt such a drastic course of action by ordering instead that the court below furnish the reasons that are required.133 A failure to give any reasons at all for a judicial decision is not the same as a failure to give reasons that are entirely adequate. One judge of appeal has said that: . . . [i]t does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to these situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances

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where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.134

The judge later added: [A]n appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial . . .135

Matters of style It has generally been assumed that those appointed to judicial office do not need to be tutored in any formal way on how best to present reasons for judgment. Rather, the assumption has been that they will have learned this art, albeit by a process of osmosis, through their reading, over many years, of the written reasons for judgment that appear in the law reports. In recent years there have been signs that judiciaries recognise these assumptions are not entirely well founded and that there is a need to encourage judges to give more careful attention to ways and means of improving the manner in which written reasons for judgment are presented, having regard to the purposes those reasons are meant to serve. The Australian Institute of Judicial Administration has sponsored production of what may be described as a style guide for judges, designed mainly to produce uniformity in methods of citation, expressions of matters such as dates, and in use of abbreviations.136 Several senior and experienced judges have presented papers, that have been published in the journals, offering counsel to other judges about desirable and undesirable qualities in reasons for judgment.137 The counsels offered have included more extensive use of headings and subheadings to indicate the structure of an opinion. Despite these efforts to improve the quality of judicial opinion-writing, there continue to be concerns about what some perceive to be the undue length and prolixity of some judicial opinions, and the delivery of separate opinions by judges of a multi-member court, all or most of whom are agreed about the ultimate result of the case.138 The content and also the length of written reasons for opinion will obviously be greatly affected by the nature and complexity of the issues a court has to decide. In some cases, there may have been little or no dispute about the applicable law and the court’s principal task will have been to decide issues of fact. In cases of this kind, the reasons for judgment may consist mainly of explanations of how and why the court has

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decided the disputed issues of fact, having regard to the evidence. On the other hand, in courts of appeal the principal issues for decision will often be questions of law and the reasons for judgment will be directed mainly to those questions. It is not unusual in a number of cases which raised important constitutional issues or issues concerning native land title for the reasons for opinion reported in the Commonwealth Law Reports to occupy more than 100 pages.139 Multiple opinions When a court is constituted by two or more judges, each of them is entitled to deliver a separate statement of their reasons. They are so entitled even if all or a majority of them are agreed on both the terms of the judgment and the reasons in support of it. Judges are also at liberty to present joint opinions in the name of two or more of them, or to indicate that they concur with the opinion expressed by another or other of the judges in the case, with or without qualifications. Even when a majority of the judges agree on what the outcome of a case should be they may not be in complete agreement on the reasons for their conclusion.140 There may be differences between them about the legal significance of particular facts, or even about the applicable law. Occasionally, the reasons for opinion delivered by a dissenting judge may reveal agreement with some of the judges in the majority on, say, the applicable law. The view expressed by that dissenting judge may actually represent the opinion of a majority of the members of the court on what the relevant law means or requires. Judges may then divide on the application of ‘the law’ in the particular case. The end result may be that the version of the law represented in some of the opinions of the judges who formed the majority in the case do not, in fact, command the support of a majority of all of the judges.141 There has been debate about whether the judges of a multi-member court should deliver separate opinions when they are in agreement on both the outcome and their reasons for supporting that outcome. Some commentators (including some judges) have favoured separate opinions, presumably on the ground that they demonstrate that each judge has individually and independently considered the issues raised by the case.142 However, others have criticised the practice of delivering separate opinions, at least when those opinions cover much the same ground and in much the same way.143 It has been suggested that in cases of this kind it is preferable for the separate opinions to be collapsed to form a joint opinion. Unnecessary repetition in separate opinions may also be avoided by inclusion of certain material – such as statements of facts and issues –

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in but one of the separate opinions, with cross-referencing in the other opinions. Another practice which some have recommended is greater use of concurring opinions whereby judges express their concurrence with the opinion of another judge (or judges), perhaps with the addition of qualifications. There is surprisingly little information in the public domain about the practices actually followed in Australian courts in relation to the preparation of reasons for judgment. These practices may not be uniform and they may change over time.144 Some years ago the president of the New South Wales Court of Appeal explained that the practice in that Court – the ‘busiest appellate court in Australia’145 – was for the president to designate one of the judges to prepare a first draft of an opinion and for that draft to be circulated among the other judges in the case. This practice, the president observed, resulted in fewer multiple opinions and represented ‘an economic development of scarce judicial manpower’.146 Much of the discussion in Australia about the pros and cons of multiple opinions has, naturally, centred on the High Court of Australia, the ultimate court of appeal in the country and the court which often decides, at first instance, important cases arising under the federal Constitution.147 Some commentators have recommended that the High Court embrace the practice of the Supreme Court of the United States of America, which is that the majority of the judges in a case subscribe to but one opinion, with short additional statements by those judges who agree generally with that opinion but who wish to make further comments.148 In 1986 one of the Justices of the High Court, Sir Anthony Mason (later to become its Chief Justice), made the following observations on this counsel: Some say that we should follow the practice of the Supreme Court of the United States in producing a single majority and a single minority judgment, when we cannot produce a unanimous judgment. Although I would not wish to support a rigid practice, the High Court is moving away from the AngloAustralian tradition of delivering individual judgments. The proportion of the Court’s joint judgments is much higher than it used to be. There is scope for improvement, to use a non-neutral term. But in some cases we reach a point where the principles of the individual cannot be sacrificed to expedient compromise. The weakness of the single judgment or two judgment system is that the element of compromise blunts the point of principle, a defect which will be apparent to those lawyers who have compared the collective decisions of the Privy Council with the individual speeches in the House of Lords. Significantly, the Supreme Court of the United States no longer adheres to the practice of delivering one majority and one minority opinion.149

While joint opinions may promote certainty in the law and also reduce the time it takes readers of judicial opinions to read and digest those opinions, it cannot be denied that there will be occasions on which an individual

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judge cannot in good conscience subscribe completely to the reasoning of another judge or other judges, even though he or she agrees with those judges as regards the judgment to be made in the case. The judges who disagree with the result proposed by the majority must necessarily be afforded opportunity to express their reasons for dissent. That right is a necessary incident of judicial independence.150 The fact that there are dissenting opinions – and in the High Court sometimes divisions of opinion as narrow as 4:3151 – may perplex those who are not familiar with the ways of judicial systems. Some may think that majorities as slim as 4:3 tend to diminish the authority of a court and the respect accorded to its judgments.152 However, it does need to be borne in mind that the cases which reach the nation’s highest court are usually ones where there is genuine doubt about the law or its application. Dissenting opinions are not without value and may even assist in later development of the law. In the course of time, the interpretations of the law expressed in minority opinions may be endorsed by a majority of the court as the correct or preferable interpretations.153 A judge in dissent in one case may consider it necessary in a later case to defer to the majority opinion in the prior case as a matter of precedent, but at the same time explain why he or she thinks that the interpretation of the law previously expressed by him or her in the prior case was the ‘right’ interpretation.154 Again, it is possible that this judge’s interpretation may eventually be embraced by the court. In reiterating his or her prior view the judge is, above all, asserting an independence of mind, a quality supposed to be exhibited by all judges. Appeals and review It has been said by one judge: ‘The most obvious means of review of judicial performance is to be found within the court structure itself, in the ordinary appellate processes’.155 These processes are ‘the primary means by which the system provides for identifying and correcting judicial error’.156 The errors that judges may make in the course of adjudicating the cases brought before them are various. Judges may decide on the basis of evidence that is not admissible under the law of evidence, or they may reject evidence that was relevant and should have been admitted. What they decide may be against the evidence or against the weight of it. Inferences they draw from the evidence may be unsound. They may mistake the applicable law or misinterpret or misapply it. The damages they award may be excessive or inadequate; likewise the penalties they impose in criminal cases. There may have been procedural irregularities

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in the proceedings before them, in some cases in breach of the requirements of procedural fairness.157 The need for appellate processes by which judicial errors may be corrected is now generally recognised. What is often not appreciated is that appeals in the modern sense did not become a common feature of the English legal system, and systems based upon it, until the late nineteenth century.158 The common law of England did provide means whereby judicial decisions could be reviewed by a higher court, it is true, but only on the ground of legal error. And if the court of review found that an error of law had been committed, all it could do was quash the decision and perhaps direct a redetermination by the court below.159 Appeals as we now know them exist only by statute. They differ from the older forms of review in that the court of appeal is usually empowered to decide whether the court below committed any error, whether of law or fact, and to substitute its own decision for that of the lower court. One writer has suggested that whereas the system of review ‘serves primarily the “public interest” in upholding and protecting the legal order itself’, the purist form of appeal serves rather the ‘private’ interests of parties to litigation.160 However, the appellate processes established by statute are not uniform. There are various forms of appeal, and courts of appeal do, on occasions, construe their role as that of a court of review with limited powers to overturn the judgment of the court whose judgment is the subject of the appeal.161 Forms of appeal The most ample form of appeal from the judgment of one court to a higher court is that known as an appeal by way of a de novo hearing. As its name suggests, this type of appeal requires the court of appeal to decide the case as if it were the initial court of trial. The court of appeal must hear the evidence afresh and then make its own findings. Appeals from court to court are seldom appeals by way of de novo hearing.162 More commonly they are by way of rehearing. In an appeal of that kind, the court of appeal has to make determinations of fact and law. It re-decides the case, but it does so primarily on the basis of the evidence adduced at the trial.163 It may have power to allow fresh evidence to be adduced, but in practice this power is sparingly exercised.164 Appeals by way of rehearing are contrasted with what are called appeals in the strict sense.165 The only significant difference between these two types of appeal is that in an appeal by way of rehearing the court of appeal decides with reference to the law in force at the time of the rehearing whereas, in an appeal in the strict sense, the court has to decide with reference to the law in force at the time of the initial trial.

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In addition, there are appeals which are restricted in relation to the grounds on which an appeal may be made. Appeals may, for example, be restricted to questions of law.166 Appeals against conviction in criminal cases tried before judge and jury may also be restricted in relation to the grounds for appeal.167 In their administration of systems of appeal by way of rehearing, courts of appeal have adopted principles and practices that have tended to blur the distinction between appeal and review. They are reluctant to disturb the fact findings of the trial court, particularly when they depend on assessments of the credibility of witnesses.168 If the decision of the primary judge has involved the exercise of a discretion, the appeal court will normally not upset that decision unless it is satisfied that the primary judge applied the wrong tests, or ignored relevant considerations or took account of considerations which were entirely irrelevant.169 Limitations on the availability of appeals and reviews Statutory regimes that provide for appeals from court to court commonly include provisions which impose limitations on access to the appellate processes. The limitations are of various kinds, as are the justifications for imposing them. One common limitation relates to the time within which a party who seeks to appeal or seeks a review must lodge the document recording an intention to appeal.170 Limitations of this kind give expression to the general principle that litigious proceedings should be brought to finality within reasonable time. The legislation defining the kinds of decisions that are appealable may preclude appeals against judicial rulings made in the course of a case but before judgment; that is, rulings in interlocutory matters.171 The justification for limitations of this kind is that it is generally undesirable for proceedings before a court that have not yet been brought to finality to be disrupted by appeals against rulings made en route to ultimate decision. Legislation may also limit the number of times an aggrieved party may appeal in a case. In each Australian State there are statutory provisions that allow for appeals to courts against decisions of certain administrative agencies of government. Sometimes these provisions state that the decision of the court as to the availability of appeal is to be final (or final and without appeal). The clear intention of those finality clauses is that there is to be one opportunity to appeal, and one only.172 A more sophisticated mechanism for regulating access to appellate processes is that of requiring the leave of a specified court to appeal.

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This mechanism has been adopted in relation to appeals to Australia’s ultimate court of appeal, the High Court of Australia.173 One method of limiting access to appellate processes that was adopted in the past, but that has fallen into disfavour, is that which makes the wouldbe appellant’s qualification to appeal dependent on an amount of money at stake in the litigation, whether by way of damages claimed or value of property.174 Australian legislatures have generally accepted that the amount of money at stake should not be regarded as a decisive consideration in determining who has good claims to access to appellate processes. One aspect of appellate regimes which is of concern is the general inability of prosecutors to appeal against acquittals of criminal charges tried before judge and jury.175 The notion that acquittal of a criminal charge tried before judge and jury should not be assailable on appeal is deeply entrenched in our legal system. That notion is reinforced by the principle that a person who has been acquitted of a criminal charge cannot be tried for another similar offence arising out of the same events.176 The principle is less rigid with respect to an appeal to the High Court of Australia. That court has endorsed a principle to the effect that special leave permitting the prosecutor to appeal from an acquittal will be granted when it is in the interests of justice.177 Some Australian legislatures have responded to these concerns by enacting statutory exceptions that permit an appellate court to hear a prosecutor’s appeal against an acquittal premised on a question of law, in highly specific circumstances.178 Other provisions enable the officer who is principally responsible for prosecution of criminal offences179 to seek from the relevant superior court what is, essentially, an advisory opinion on the legal correctness of rulings made by the judge who presided at the trial which resulted in an acquittal of the defendant.180 The advisory opinion of the superior court does not affect the outcome of the trial; however, it may indicate that the trial judge made errors in material respects and that trial judges should not make the same or similar errors in the future. Appellate processes In most cases, the first appeal against a judicial decision will be to a higher court.181 However, in the superior courts (notably the Supreme Courts, the Federal Court and the Family Court of Australia) the first appeal will usually be to a Bench of three or more judges of the same court (a Full Court), or in New South Wales, Queensland and Victoria the State Court of Appeal.182 Full Courts of State Supreme Courts, the State Courts of Appeal, the Federal Court of Australia and the Family Court of Australia are but intermediate courts of appeal, for the ultimate court of appeal in Australia is the High Court of Australia.

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At the time the Australian federation was brought into being the ultimate court of appeal was the Judicial Committee of the Privy Council, an imperial institution which sat in Downing Street, London.183 The framers of Australia’s federal Constitution envisaged that the Judicial Committee would continue to be that ultimate court of appeal, and so it remained for many years after federation.184 But the framers of the Constitution also envisaged that the High Court would, unlike the Supreme Court of the United States, become the central court of appeal within Australia. Their intentions were recorded in s 73 of the Constitution. It provides as follows: The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (i) of any Justice or Justices exercising the original jurisdiction of the High Court; (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State; or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

There are several points to be noted about s 73. First, although the section authorises the federal Parliament to regulate appeals to the High Court, it does permit the Parliament to legislate to limit appeals from the courts to which it refers.185 Secondly, the section has been interpreted by the High Court to mean that the parliaments of the States cannot by their enactments prevent appeals being taken to the High Court from decisions of the State courts to which the section refers, notably the Supreme Courts.186 And thirdly, the High Court has upheld the constitutional validity of federal legislation, enacted in 1984, the object of which was to prevent appeals from other courts except by special leave of the High Court.187 The federal Parliament has provided the High Court with certain criteria, which it is expected to apply in determining applications for special leave to appeal. Section 35A of the Judiciary Act 1903 (inserted in 1984) provides:

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In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

This section, a former Chief Justice of the High Court has observed: . . . reflects a tension between the Court’s law-making and adjudicative function. Requirement for special leave, as a condition of appeal to the High Court, stems from acceptance of the proposition that litigants are entitled to one appeal from a judgment at first instance, but a second appeal to an ultimate court of appeal can only be justified if it serves the public interest. Public interest may be served by clarifying the law, or by insisting on procedural regularity, though, in the particular case, this might be said to relate more closely to the adjudicative functions of the courts.188

It is, of course, ultimately for the High Court to decide how the criteria laid down in s 35A of the Judiciary Act 1903 are to be interpreted and applied. The Court has recognised that the requirement of special leave to appeal has been introduced to enable it ‘to control in some measure or filter the volume of work requiring its attention’.189 In the exercise of its discretion to grant or refuse an application for special leave, it has recognised that a primary consideration is whether the case raises an issue of public importance and that therefore it should give ‘greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation’.190 The Court does not deliver lengthy reasons for its decisions on applications for special leave to appeal, but if it decides to refuse an application it will provide grounds. Careful study of the grounds offered in a series of cases will enable litigants to assess their prospects of obtaining the Court’s special leave to appeal.191 The annual reports of the High Court record statistics on the outcomes of applications for special leave to appeal. They make a distinction between civil and criminal cases. They show that applications in the civil cases have been somewhat more successful than those in criminal cases. On the other hand, statistics on the outcomes of the appeals actually entertained by the Court, following grant of special leave to appeal, indicate a high degree of success on the part of appellants. However,

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special leave to appeal would not have been granted had there not been good grounds for appeal. It should not be supposed that a successful appeal to the High Court always means that the court below was clearly in error. Many cases that proceed to the Court on appeal are ones in which the law is uncertain and in which the task of the Court is to clarify, and sometimes develop, the law. Certainly, statistics on successful appeals to the High Court cannot be read as reflecting adversely on the quality of justice administered in the lower courts. If the ordinary appellate processes of the courts are to be regarded as the most obvious means of reviewing judicial performance, attention must be focused rather on the outcomes of appeals at the lower levels of the judicial hierarchy; for example, appeals from decisions of magistrates’ courts, intermediate courts, and decisions of single judges of Supreme Courts. But, again, statistics on rates of success on appeal will not in themselves be indicative of unsatisfactory performance on the part of the judicial officers whose decisions are overridden on appeal. What the global statistics will not reveal are the reasons appeals have been successful or whether there are particular judges whose decisions have been frequently challenged on appeal and with a high rate of success. In discharging their judicial functions most judicial officers will be attentive to the need to avoid conduct on their part that would provide a litigant with clear grounds for appeal. In difficult cases, judges may also reflect carefully on what the relevant court(s) of appeal have said in prior cases which have an immediate bearing on the case at hand, and mould their conduct in accordance with the guidance offered by the appellate judges. Occasionally, judges may be aggrieved by reversals of their judgments on appeal, and especially when the reasons for judgment on appeal seem to reflect adversely on their competence as judges or their conduct of the case which was the subject of the appeal. Most judges, we suspect, accept reversal of their judgments or rulings on appeal as a normal occupational hazard and do not treat such a reversal as detrimental to their standing and reputation as judges. The judiciary and Parliament England’s Act of Settlement 1701192 went a long way towards securing the independence of the judges of the superior courts, for it removed from the Crown the power to dismiss them at will. However, it did enable a monarch to remove a judge from office upon address by both Houses of Parliament.193 A V Dicey observed that the result was that the judges had ‘been made by Parliament independent of every power in the State except

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the Houses of Parliament’.194 Dicey would, no doubt, have said the same about the position of the Australian judges who are removable from office only by a parliamentary process. However, parliamentary proceedings that could lead to the removal of a judge are likely to be rare.195 At the same time, parliamentarians are entitled to take an interest in the day-to-day workings of the courts. After all, the courts are funded by annual parliamentary appropriations, and expenditures from public funds must be accounted for. Parliaments may also be concerned about matters of court administration and with the use made by judges of the powers that have been delegated to them to make rules about court procedures. The following sections in this part of the chapter deal with parliamentary scrutiny of rules of court and accounting requirements which, by statute, have been imposed on courts. Rules of court Rules of court are those rules that deal with the practice and procedures of courts. Sometimes these rules are contained in statutes,196 but they are more commonly found in subordinate legislation; that is, legislation made by persons or bodies to whom a parliament has delegated rule-making powers. Those to whom power to make rules of court has been delegated may be the judges of a particular court,197 a rule-making committee that includes judges and some others,198 or officers of the executive branch of government.199 In Queensland the rules of the Supreme Court and District Courts are made by the Governor in Council, but only with judicial agreement.200 In Tasmania, the rules of the Supreme Court are made by judges, but must also be approved by a Rules Committee consisting of judicial and non-judicial members.201 Australian parliaments have, generally, been prepared to delegate power to the judges to make rules governing the practice and procedures of the court to which they belong, especially when the court happens to be a superior court. Parliaments have recognised that it is not appropriate for the details concerning court practices and procedures to be dealt with in statutes, and that those who are best equipped to make such rules are the members of the particular court, assisted perhaps by legal practitioners. Parliaments have also recognised that a court’s facility to make rules governing its own practices and procedures is instrumental in the maintenance of its independence of the executive branch of government. To give to the executive branch a power to make rules of procedure in respect of a court before which it is likely to be a frequent litigant has been seen as compromising judicial independence.202

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There is a fine line between matters of procedure which can properly be delegated to the courts themselves (or their rules committees) and matters of substance which ought to be dealt with in statutes. This has been demonstrated by the many cases in which courts have had to decide whether particular rules of court can be characterised as rules of a procedural kind which have been validly made in exercise of the legislative powers delegated by an empowering statute.203 A legislative power which Australian parliaments have not, in the main, been prepared to delegate to judges is a power to fix the fees payable by those who seek access to a court’s services.204 Typically, the power to prescribe fees of this kind is delegated to the executive branch. A common feature of the Australian statutes that delegate legislative powers to make rules of court is a requirement that rules made in purported exercise of those delegated legislative powers be presented to the Houses of the relevant parliament, within a certain time of their making or publication. Rules so tabled may be vetoed (disallowed) by either House of the Parliament, again within a certain time. Statutory provisions of this kind are, it should be emphasised, not peculiar to the rule-making activities of courts; they also apply to many other forms of subordinate legislation.205 Indeed, there is an increasing tendency to incorporate parliamentary oversight over judicial rule-making within the general provisions governing subordinate legislation.206 In some jurisdictions, however, judicial rules are still treated as separate for the purposes of parliamentary oversight.207 A main consequence of this is that judicial rules avoid the degree of consultation and reporting obligations that are placed upon administrative rule-makers. Once rules of court have been tabled in Parliament, they will usually be scrutinised by a parliamentary committee. The Senate was the first House of an Australian parliament to establish a committee of its members to scrutinise subordinate legislation. Its Standing Committee on Regulations and Ordinances was established in 1932; its terms of reference were revised in 1979. Similar committees have been established in other Australian parliaments. Some, like the Senate’s committee, have no statutory foundation, and exist merely by virtue of a standing order or a resolution.208 Some are joint committees whose members are drawn from both Houses;209 some are statutory committees.210 The criteria which the parliamentary committees are required to apply in reviewing subordinate legislation are defined in their terms of reference. They include whether the legislation is in accordance with the empowering statute and also whether it contains matter which is more appropriate for inclusion in a statute. From time to time, rules of court have been found not to conform with the prescribed standards, but there have been relatively few occasions when such rules have been formally

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disallowed. When rules are considered by the relevant committee to be defective, the committee will usually communicate its concerns to the authors of the rules and endeavour to persuade them to revoke or revise the rules.211 After the transition to the parliamentary scrutiny regime provided for in the Legislative Instruments Act 2003 (Cth), the rules committees of federal courts (other than the High Court) are required to consult with interested public bodies when formulating or amending their rules.212 Section 4 of the Act requires that the rule-maker provides in the rule’s explanatory statement an account of the consultation – or lack thereof – which was undertaken. However, the provisions state that a failure to consult does not invalidate the rule.213 Annual reports and audits Another form of accountability requires a court to make an annual report to Parliament. However, this reporting obligation is not found in respect of every judicial institution in Australia. This disparity is easily illustrated by a quick survey of the various courts at both federal and State levels. The High Court of Australia is empowered by s 17 of the High Court of Australia Act 1979 (Cth) to administer its own affairs. As soon as practicable after 30 June each year the High Court must submit a report relating to the administration of the Court and the financial statements of the Court prepared in a form approved by the Minister of Finance.214 The financial statements must be given to the Auditor-General before they are submitted to the Minister.215 The Minister must table the administration report, the financial statements and the Auditor-General’s report in each House of Parliament.216 A similar reporting requirement is imposed on the Chief Justice of the Federal Court and the Chief Justice of the Family Court pertaining to the administration of the affairs of their respective courts.217 Efficiency audits of various Commonwealth courts have been conducted by the Australian National Audit Office (ANAO). These audits have been performed on a ‘by agreement’ basis, as the ANAO does not have an express mandate under legislation to audit the courts for efficiency. The Family Court agreed to an efficiency audit in 1996–7 on the basis that the audit would only address the processes of the Court (such as how matters are listed and are to proceed). Review of the decisions of judges was not agreed to. In 2003–4, another audit of the Family Court and the Federal Magistrates Court was undertaken. The audit covered client service, the coordination between the courts with respect to their shared jurisdiction, and the effectiveness of the court’s dispute resolution

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services. The ANAO proposed another audit, which would include the Federal Court, in its 2011 Audit Work Program.218 Generally, no annual reporting requirements are imposed on the various courts in the Australian Capital Territory, New South Wales, the Northern Territory and Western Australia. However, it is the general practice of the New South Wales and Western Australian courts to provide an ‘annual review’ at the close of each year. The report contains information relating to the status of the Court, the aims of the Court and the judiciary, and case statistics of the Court. The report is made available to the public. The Courts and Tribunal Services Department, which operates as the financial and administrative arm of the New South Wales court system, also provides an annual report. This report provides statistics on clearance rates, quantitative data on the matters heard before each court and tribunal, and financial statistics. The Supreme Court of Queensland Act 1991 (Qld) imposes the following annual reporting requirements: the President of the Court of Appeal must give the Chief Justice a written report (prepared in consultation with the other judges of the Court of Appeal) about the operations of the Court of Appeal.219 The Senior Judge Administrator must present the Chief Justice with a report in respect of the Trial Division.220 The Chief Justice in turn must give the Minister a written report about the operations of the Supreme Court during the year.221 The Minister must table the report before the Legislative Assembly within 14 days of receiving it. Reporting requirements are imposed on the District Court,222 the Children’s Court223 and the Industrial Court.224 Section 194H of the Supreme Court Civil Procedure Act 1932 (Tas) provides that each financial year the Chief Justice must prepare and submit a report to the Minister. The section states that the report must provide details about the administration of the Supreme Court, as well as ‘any other matter that the Chief Justice considers appropriate’. Once the report is received, the Minister is required to table the report before both Houses of Parliament within 10 sitting days. Under the Supreme Court Act 1935 (SA), the judges of the Supreme Court of South Australia are required to meet at least once a year to consider the operation of the Act, the workings of the offices of the Court and the arrangements relating to the duties of the officers of the Court, and any defects which appear in the system of procedure or administration of the Court.225 The judges must report annually to the AttorneyGeneral in relation to recommendations for amendments to the Act or otherwise relating to the administration of justice, and what provisions it would be expedient for Parliament to enact for the better administration of justice.226 Reporting requirements are also imposed on the Industrial Relations Court.227

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Section 6 of the Courts Administration Act 1993 (SA) establishes the State Courts Administration Council, which consists of the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Magistrate of the Magistrates’ Court.228 The Council is responsible for providing the administrative facilities and services for ‘participating courts’ that are necessary for them to fulfil their judicial functions.229 ‘Participating courts’ remain responsible for their internal administration.230 The Council may lay down administrative policies and guidelines to be followed by ‘participating courts’, and such policies and guidelines must be published in the annual report of the Council.231 ‘Participating courts’ are the Supreme Court; the District Court; the Environment, Resources and Development Court; the Industrial Relations Court of South Australia; the Youth Court; the Magistrates’ Court; the Coroner’s Court; and any other court or tribunal as prescribed.232 Before 31 October each year, the Council must report to the AttorneyGeneral on the administration of justice in ‘participating courts’ during the previous financial year, and on any changes to the law or procedure of the ‘participating courts’ that may be necessary or desirable to improve the administration of justice.233 The Attorney-General must cause copies of the report to be laid before both Houses of Parliament within 12 sitting days of receiving the report.234 The Council must furnish further reports to the Attorney-General as are necessary to inform the Attorney-General of the administration of participating courts.235 The Council must also report on any matter that the Attorney-General requests.236 A member of the Council, if requested, must attend before a parliamentary committee to answer questions relating to the financial needs of ‘participating courts’, the expenditure of the Council, or any other matter affecting the administration of ‘participating courts’.237 However, a member of the Council cannot be required to answer questions about the exercise of judicial powers or discretions (as distinct from administrative powers and discretions).238 A number of financial accountability obligations are also imposed on the Council: (i) The Council must submit a budget of receipts and expenditures for the next financial year to the Attorney-General. The Attorney-General may approve the budget with or without modification. However, the Council cannot expend money unless provision for the expenditure has been included in a budget approved by the Attorney-General.239 (ii) The Council must ensure it keeps proper accounting records, and the records must conform with the instructions issued by the Treasurer under s 41 of the Public Finance and Audit Act 1987.240 (iii) The Auditor-General must audit the accounts of the Council at least once each year.241

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In Victoria, the Council of Judges of the Supreme Court is required by statute to meet at least once a year to consider the operation of the Supreme Court Act 1986 (Vic) and the Rules, the workings of the offices of the Court and the arrangements relating to the duties of the officers of the Court, and any defects which appear in the system of procedure or administration of the Court, or any court from which an appeal to the Court lies.242 The Council of Judges must provide an annual report to the Governor in relation to the operation of the Court.243 Such requirements are similarly imposed on the judges of the County Court244 and the Magistrates’ Court.245 Judges as witnesses before Parliament The Houses of the Australian legislatures have power to summon persons to appear before them to give evidence or produce documents.246 They may also delegate this power to committees of their members. Judges are not immune from liability to attend before a House or a duly authorised committee, upon summons.247 However, there is some doubt about the kinds of questions a judge can be compelled to answer. In 1984, Justice Lionel Murphy declined an invitation to appear before a select committee of the Senate which had been appointed to inquire into certain allegations that had been made about him; however, the judge tendered a written statement in which he claimed the rights of a person charged with a criminal offence, among them the right not to be compelled to give evidence. When the Senate appointed a second select committee to inquire into allegations concerning the judge, it made it clear that the judge should not be required to appear before the committee and that he was at liberty to make an unsworn statement. On this occasion Justice Murphy declined to give evidence or make any submission.248 It would probably be accepted that if a judge does appear as a witness before a House of Parliament or a parliamentary committee, it would be highly improper for that judge to be interrogated about his or her reasons for judgment in particular cases. That was the position adopted by the Chief Justice of England’s Court of King’s Bench in 1697 when summoned before the House of Lords to explain a judgment with which the House disagreed. The House may have been displeased with the Chief Justice’s response but it refrained from taking any punitive action against him.249 The questions a House or a parliamentary committee may wish to ask of a judge may, of course, relate to matters other than reasons for judgment. They may be questions relating to long delays in the disposition of cases heard by the judge, questions relating to the judge’s conduct in a non-judicial capacity, or questions to do with the judge’s mental or

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physical capacity to continue in office. Questions of these kinds must surely be allowable. Moreover, if the Houses are considering whether a judge should be removed from office, they would, in practice, give the judge an opportunity to present a defence. Justice Vincent Bruce appeared before the Legislative Council of New South Wales when that House was considering whether to move for his removal from office, but after hearing him the House decided not to seek his removal.250 On occasions, judges may be invited to appear before parliamentary committees, rather than being formally summoned to appear.251 A parliamentary committee which regularly reviews the annual reports of courts might, for example, invite the attendance of the chief judge of a court in order to question him or her about aspects of a report.252 There is also nothing to stop judges making submissions to parliamentary committees in a personal capacity. There are certainly recent UK precedents for judges appearing before or making submissions to parliamentary committees. During the 1995–6 session of the United Kingdom Parliament, the Master of the Rolls253 appeared before the Procedure Committee of the House of Commons in relation to an inquiry into the breach by a Member of Parliament of a court injunction forbidding disclosure of the name of a child involved in a court proceedings. The breach occurred in the course of parliamentary proceedings. This meant that no court could take any action against the Member of Parliament who had been responsible for the breach.254 Nevertheless, in his evidence before the parliamentary committee, the Master of the Rolls was able to express concern about the incident.255 The same judge, as Lord Chief Justice, expressed a similar concern to the Joint Committee on Parliamentary Privilege.256

The courts and the media Although the general rule is that proceedings in a court must be conducted in ‘open’ court, very few people attend court proceedings. Consequently it has been observed as follows: The great majority of the public relies on the media to provide them with reports of what has taken place in open court. In performing this role, the media act as surrogates for the public and give substance to the principle of open justice. However, it must be borne in mind that only those proceedings which are regarded as newsworthy will attract media attention . . .257

As Chief Justice Doyle of the Supreme Court of South Australia (1995– 2012) observed, because courts are required to function in public, ‘they are open to scrutiny and comment by the media’.258 According to

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Professor Shetreet, the press ‘plays an important role in checking judicial behaviour’.259 He later elaborated: ‘The press serves a significant role in maintaining public confidence in courts and judges, by reporting what is going on in the courts’.260 A newspaper reporter was described by Lord Denning as ‘the watchdog of justice’.261 The media provides a channel of communication between the courts and the community.262 The importance of this communication is that fair and accurate reports of court proceedings enable the public to understand what the judiciary is doing. If what is reported reveals that the judiciary is acting impartially, the media is facilitating public confidence in the administration of justice.263 On an even broader scale, this communication is necessary for the public acceptance of the law.264 Today the public has access to a number of sources for information on the courts and their work. The greatest coverage of publicity is provided by the so-called mass media, which generally encompass the newspapers, radio and television broadcasts and the internet. It is very common for the mass media to give extensive coverage to court proceedings involving ‘public figures’ or cases which are perceived to be of special interest to the public, such as the reporting of mass murders and trials of government officials on charges of corruption. The way in which a judge handles a case, the comments he or she makes and the sentence imposed in the case of a criminal trial are all open to scrutiny by reporters and newspaper commentators. Apart from the mass media, the work of judges is subject to critical analysis in professional law journals, university law reviews and a broad spectrum of publications catering for particular classes of persons and organisations. The media’s role in reporting court proceedings can be affected by the ‘complex tort’ of defamation which is available to protect a person’s reputation. However, the range and variety of defences available ‘seek to balance that interest against that cornerstone of democracy, freedom of speech’.265 Judicial proceedings constitute one of those categories of occasions which, because of the fundamental importance awarded to the administration of justice, are protected by the defence of ‘absolute privilege’. This means that ‘no action lies for those statements, providing they are relevant to the proceedings, however false or malicious they may be’. Balkin and Davies elaborated on this defence in the following way: The privilege is enjoyed by judges, parties, witnesses, counsel and solicitors and jurors. Judges are protected although their statements are known to be false or are irrelevant to the matter in hand. The others engaged in the proceedings retain the privilege although the statement is malicious, but not when the utterance is so irrelevant that it is no longer made by a person in the character of a participant in the proceedings.266

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While absolute privilege applies to the actual judicial proceedings, the common law also affords a defence of qualified privilege to ‘a fair and accurate report of those proceedings’.267 The statutory embodiment of this defence prior to 2006 was explained by Butler and Rodrick as follows: Privilege for fair and accurate reports of judicial proceedings can now be found in legislation in all Australian jurisdictions, although there are differences in relation to whether the privilege is absolute or qualified, as well as whether other limitations are imposed such as a requirement of ‘contemporaneous’ reporting, whether the privilege extends to reporting courts only or also extends to quasi-judicial tribunals, and whether there is a limitation to reports of a particular nature such as newspaper reports. However, where the statutory requirement is for ‘contemporaneous’ reporting and is not satisfied, the common law privilege for fair and accurate reports of judicial reports may still be available, provided the defendant has not acted maliciously.268

These differences have been removed by the introduction of uniform defamation legislation. The role performed by the media in reporting and critically appraising judicial proceedings does not give it carte blanche to denigrate the judiciary. The media is undoubtedly aware of the law of contempt that is designed to protect the public by ‘guarding the administration of justice from any obstruction or interference which might affect its purity, its impartiality or its effectiveness’, not the personal feelings of a judge nor the dignity of a court.269 This purpose must be reconciled with ‘the right of free speech and the right to criticize, and indeed the desirability of criticism of, public institutions’.270 The right to criticise applies to ‘every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest’.271 In Attorney-General for New South Wales v Mundey,272 Hope JA explained the parameters of permissible criticism: [T]he public should have the right publicly to criticize the public acts of judges and courts. This is particularly so where a judge has made some improper or unjustified statement . . . But criticism does not become contempt because it is ‘wrongheaded’, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticized than the acts of other public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of a community, they do not need the protection of special rules to shield them from criticism.273

Criticism becomes contempt when it ‘is merely scurrilous abuse’274 or may be contempt when it ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’.275 The dangers of allowing the judiciary to be subject to such have been outlined by Justice Geoffrey Eames.276 He notes as a particularly

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egregious example a campaign of the London Sun dedicated to ‘putting judges on trial’ for their supposedly lenient treatment of accused criminals.277 He also noted the campaigns run by the Australian Herald Sun and Daily Telegraph newspapers against alleged judicial leniency. Justice Eames suggested that such ‘intemperate and unbalanced attacks on the judiciary can create a false impression of a failed legal system’.278 He noted that some judges and commentators regard such attacks as being motivated by a media increasingly concerned with ‘entertainment and dissonance’, as opposed to ‘fairness and accuracy’.279 Justice Eames even suggested that an apprehension of prejudgment could arise in those instances where the media have placed pressure on a judge for the accused to be severely sentenced before the conclusion of the trial.280 Until 1992, the media functioned under the accepted position that it could report and comment on judicial proceedings so long as such reporting and commenting did not fall within the purview of restrictions imposed by legislation or by the common law. This was so because freedom of speech is not constitutionally guaranteed in Australia. However, two decisions of the High Court rendered in 1992 have established an implied freedom of political communication.281 Nationwide News Pty Ltd v Wills 282 was concerned with the validity of s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) which purported to forbid, under the sanction of fine and/or imprisonment, ‘every written or oral use of words, however justified and true, calculated to bring into disrepute either the [Australian Industrial Relations Commission] or any member of the Commission in his or her capacity as such a member’. In Australian Capital Television Pty Ltd v Commonwealth,283 Part IIID of the Broadcasting Act 1942 (Cth), which was introduced into the Act by the Political Broadcasts and Political Disclosures Act 1992 (Cth), was challenged. The thrust of Part IIID was to prohibit, subject to specified exceptions, the advertising by means of radio and television of political matter and matter on behalf of a government or government authority during an election period in relation to a federal election or referendum, a Territory election or a State or local government election. In both cases, the High Court invalidated the impugned legislation by a majority. The significance of these two cases lies in the reliance by a number of judges on a constitutional implication of a freedom of communication. These judges saw the Commonwealth Constitution as bringing into existence a system of representative government. The concept of representative government denotes the exercise of sovereign power on behalf of the Australian people. Accordingly, the representatives are accountable to the people for what they do and also have a responsibility to take account of their views. The High Court has also acknowledged that this implied freedom is not an absolute one. Thus, the Court has the ultimate role of

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weighing the competing interests and to determine whether there has been infringement of the freedom. The development of this implied freedom was taken a step further in the context of defamation laws in Theophanous v Herald & Weekly Times Ltd.284 In a joint judgment, Mason CJ, Toohey and Gaudron JJ summed up a new constitutional defence in the following terms: In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances.285

Deane J would have extended much further the boundaries of the implied freedom that would preclude completely ‘the application of State defamation laws to impose liability in damages upon the citizen for the publication of statements about the official conduct or suitability of a Member of Parliament or other holder of high Commonwealth office’.286 He would also extend the protection to ‘those responsible for the conduct of the press and other media outlets through which such public discussion and criticism must, in our society, largely take place’.287 However, in order to forge a majority view, Deane J expressed support in an ‘addendum’ for the approach of Mason CJ, Toohey and Gaudron JJ.288 In Lange v Australian Broadcasting Commission,289 the High Court shifted from the constitutional ‘Theophanous defence’ to an expanded common law defence of qualified privilege. The High Court unanimously affirmed the implied freedom of political communication. The Court also endorsed the following statement of Brennan J in Cunliffe v Commonwealth: ‘The implication is negative: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control’.290 The Court also said that the common law must be reshaped to conform with the implied freedom. In light of Lange, the general approach to be taken to determine the validity of a law which is claimed to have infringed the implied freedom is to pose two questions: First, does the law effectively burden freedom of communication about government or political matter either in its terms, operation or effect? Secondly, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people . . . If the first question is answered ‘yes’ and the second ‘no’, the law is invalid.291

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In 2004, the second limb of this test was modified in Coleman v Power 292 with the words ‘the fulfilment of’ replaced by ‘in a manner’.293 The High Court has endorsed this ‘reformulation’ of the Lange test.294 The freedom that is impliedly guaranteed by the federal Constitution relates to ‘government or political matters’. The parameters of the concept of ‘political discussion’ are not clearly defined. However, in Theophanous, Mason CJ, Toohey and Gaudron J J, in a joint judgment, remarked that ‘if a television personality were engaging in a comment on the legislative, executive or judicial process and the defamatory publication related to that comment, then the defamatory publication might well, depending upon the particular circumstances, amount to political discussion’.295 In Cunliffe v Commonwealth, Mason CJ (in dissent) said: ‘That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country’.296 However, in APLA Ltd v Legal Services Commissioner (NSW),297 McHugh J expressed the view that the implied freedom of political communication, as expressed in Lange and Coleman, did not extend to commentary on the exercise of power by the judicial branch of government: Lange refers to ‘political or government matters’. But those words must be read in the context of the decision. That context leaves no doubt that the term ‘government’ is used to describe acts and omissions of the kind that fall within Chs I, II and VIII of the Constitution. It refers to representative and responsible government. In a broad sense, ‘government’ includes the actions of the judiciary as the third branch of government established by the Constitution. But the freedom of communication recognised by Lange does not include the exercise of the judicial power of the Commonwealth by courts invested with federal jurisdiction or, for that matter, the judicial power of the States.298

In Hogan v Hinch,299 the High Court did not decisively resolve the issue of whether the implied freedom extended to the performance of the judicial function. In that case, a well-known media personality and journalist, Derryn Hinch, had undertaken a campaign to expose details of criminal proceedings in Victorian courts against a number of alleged paedophiles. This included publication of the names and other identifying features of the offenders. Those details were subject to suppression orders, and their publication was therefore a criminal offence under section 42 of the nowrepealed Serious Sex Offenders Monitoring Act 2005 (Vic). Section 42 provided that: (1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order – (a) that any evidence given in the proceeding; or

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(b) that the content of any report or other document put before the court in the proceeding; or (c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified – must not be published except in the manner and to the extent (if any) specified in the order. (2) An order under this section may be made on the application of a party or on the court’s own initiative. (3) A person must not publish or cause to be published any material in contravention of an order under this section.

One of the arguments raised by Hinch was that section 42 was contrary to the implied freedom of political communication. In so doing, Hinch suggested that the publication of the details suppressed by a court was a ‘political or government matter’ of the kind protected by Lange and Coleman. During their consideration of the implied freedom of political communication, the majority of the Court referred to McHugh J’s view in ALPA when considering whether the protection of commentary on ‘political or government matters’ extended to commentary about the performance of a federal judicial function.300 The majority left open the question of whether the implied freedom of political communication could apply to any communications about the processes of courts. They found against Hinch on the ground that the provision was in any case ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.301 Reporting disputes between politicians and the judiciary A greater latitude of freedom given to the media must entail a higher degree of responsibility and professionalism to ensure reports are fair. There is a tendency on the part of some elements in the media to provide news reports in a manner that is sensationalist or perceived by those affected by the reports to be unfair and partial. The media regards as particularly newsworthy ‘clashes’ between politicians and the judiciary. At times, the language employed conveys the impression of a major conflict – for example, if there is a perceived disagreement between a member of the judiciary and the government, the media frequently describes one party to the ‘dispute’ as ‘lashing’ or ‘attacking’ the other party. A classic example of media reports that illustrate this tendency was described by Justice Michael Kirby. He referred to a compensation appeal

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when he was sitting on the Court of Appeal of New South Wales which concerned the death of a worker on his way home and whether any fault of the worker precluded compensation as seemed to be the case, given s 10 (1A) of the Workers Compensation Act 1987 (NSW).302 In the course of his judgment, Kirby P had suggested that legislative reform was required to avoid this section causing injustice.303 A week later, an article appeared in The Sydney Morning Herald with the heading: ‘Appeal Judge Attacks Fahey Over “Unjust Law”’. The article contained the statement that, ‘[t]he President of the Court of Appeal, Justice Michael Kirby, has attacked the Premier, Mr Fahey, for being the architect of what he described as most unjust legislation’.304 Kirby P decided to correct this ‘distorted reporting’ by asking the Media Liaison Officer of the Supreme Court to contact her equivalent in the Premier’s office to point out that his criticism was of the legislation only.305 The Premier interpreted this statement as an apology by Kirby P, and he was invited to contact a television reporter with a view to repeating his apology.306 The editor of The Sydney Morning Herald apologised to Kirby P, but Kirby P would have preferred the apology to have extended to the Premier and to have been made public.307 Kirby P noted several points arising from this incident. The majority of his points indicate that he is not convinced the media provides fair and accurate reporting. For example, the media presents issues in a ‘personalised, politicised and trivialised’ fashion; the ‘media is often mischievous’ and has its own agenda directed at attacking public people; and the headline and opening paragraph of an article must be catchy rather than informative.308 Kirby P also notes that judges are unable publicly to correct wrong impressions gained through the media: it is better to say nothing than risk being further misinterpreted; when there is a ‘truly informative media’, judges may be able to explain via the media what they have done.309 Another example concerns comments made by Justice A J Southwell of the Victorian Supreme Court, which were considered noteworthy for being suggestive of gender bias. The first article published by The Age began with the headline: ‘“Worldly” women cope better with rape: judge’.310 The article arose from an interview between a law reporter and the judge, who was retiring on that day. He was asked about a statement made during a trial in 1991 of the rape of a prostitute, and Justice Southwell replied that, ‘I thought then and I think now that a mature worldly woman is, other things being equal, less likely to be traumatised by a rape than an 18-year-old virgin’. He commented that judges had to consider the individual circumstances of a crime when sentencing, and that sentencing was the hardest task for judges. However, the judge was critical of the reporting of this case. He was asked why he had not attended a gender awareness seminar in 1995. He replied that he did not regard himself as chauvinistic, and that it was too late for him to attend the

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seminar given his impending retirement. The following day, another article appeared by the same law reporter, along with an editorial concerning the judge’s views. The article summed up a number of adverse responses to the judge’s view that a worldly woman was less traumatised by rape than an 18-year-old virgin.311 The editorial was critical of the retiring judge, whose departure was ‘not before time’.312 He had ‘learnt nothing from the public furore that greeted the 1991 full bench ruling . . . Nor, apparently, did he learn anything from the 1995 gender awareness seminar arranged to counter sexism in the law, which he failed to attend’.313 His view of rape did ‘not help the cause of justice’ and ‘[i]t would be similarly dehumanising to suggest that murder could be regarded as more or less serious according to the victim’s age or lifestyle’.314 The editorial concluded by asserting that Justice Southwell ‘seems to have been insulated from contemporary realities by a long stint in the rarefied domain of the Supreme Court bench’.315 A few days later, a letter from Justice Southwell was published in The Age. He began by stating, ‘Your front page article (11/4) gave an entirely misleading impression of my views on questions of gender awareness and of the extent of trauma suffered by victims of rape’.316 This article was responsible for ‘wild statements’ having been made on an ABC radio programme and an editorial that was ‘both grossly unfair and in part gratuitously offensive’.317 Justice Southwell concluded his letter as follows: My experience as a trial judge led me to the view that, generally speaking, the more mature victim coped better with the trauma of the crime and the trial than did younger victims. It was that experience which in my part lay behind the comment that has now been so thoroughly misinterpreted.318

The Editor of The Age noted at the bottom of this letter that the newspaper stood by its report. For the media to play an effective role as an informal mechanism to ensure judicial accountability there needs to be an improved understanding of the legal process by the media. The judiciary can contribute to a better understanding of its work by facilitating the flow of information from the courts to the media and by actively assisting in educating the media about court operations. Traditional reticence In the past, courts have simply allowed the media to shape public perception of the courts and their functioning, unchallenged. As Chief Justice Doyle has said: [F]or many years now the judiciary as an institution has suffered in silence when it considered that it was the subject of inaccurate and ill informed

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discussion and criticism. If the price of public scrutiny was the occasional unfair barb, that would be of no consequence. However, I believe that the judiciary has failed to face up to the fact that more is at stake than protecting an individual judge from unfair criticism, or conceding the occasional mistake. What is at stake is, first, the question of whether the judiciary accepts a responsibility for doing what it can to inform the public about its work, and secondly whether it is content to leave largely in the hands of the media the shaping of the public understanding of its work, and the public perception of the judiciary.319

The traditional reluctance on the part of the judiciary to engage in a public discussion of its work was further reinforced by the ‘Kilmuir Rules’.320 The ‘Kilmuir Rules’ were set out in a letter written by Lord Kilmuir, the Lord Chancellor, on 12 December 1955 in response to a BBC request for judicial participation in a proposed series of radio programmes about great judges of the past. In his letter, Lord Kilmuir said: [T]he overriding consideration in the opinion of myself and of my colleagues, is the importance of keeping the Judiciary in the country insulated from the controversies of the day. So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism . . . My colleagues and I, therefore, are agreed that as a general rule it is undesirable for members of the Judiciary to broadcast on the wireless or to appear on television.

However, the Kilmuir rules of 1955 were subsequently no longer regarded in the UK as being fully appropriate.321 The change in position occurred in November 1987 when Lord Chancellor Mackay said that it should be left to individual judges to decide when they should speak.322 This statement, as observed by Sir Anthony Mason, was qualified because Lord Mackay ‘counselled caution and discouraged statements which would prejudice impartiality and deprecated “any involvement, either direct or indirect in issues which are or might become controversial”’.323 While it is right that judges should not leave unfair reports unanswered, a grave danger lies ahead for a judge who seeks to counter such reports publicly. The judge may not have the appropriate skills to deal with the media. In consequence, the judge may be drawn into a greater controversy if his or her response is reported in a distorted fashion. This leads to the question as to who should speak in defence of the judges. In pondering the question who should defend the judiciary, Professor Stephen Parker has said: The traditional position is said to be that the Commonwealth Attorney-General, as the first Law Officer of the Crown, is the defender of the federal judiciary. This ensured, in the Westminster system as applied in Australia, that there was some

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form of representation of the judicial arm of government with the political arms. Furthermore, a defence by the Attorney-General was thought likely to attract some media attention and be more effective than the alternatives.324

The then federal Attorney-General (Daryl Williams) rejected the notion that it is the Attorney-General’s responsibility to defend the judiciary in the face of public attacks on the judiciary. He had earlier staked out this position as an Opposition Member of Parliament when he addressed a conference organised by the Australian Institute of Judicial Administration in 1994. In his address he said that ‘the case for the Attorney-General of the Commonwealth, a State or a Territory being the defender of the judiciary in his or her jurisdiction is confusing and unconvincing’.325 He also found the analogy between the UK Attorney-General and an Australian Attorney-General as ‘not close’.326 He returned to this theme when the High Court was subjected to attacks by a number of politicians following the High Court’s decision in the native title case of Wik. His position was widely criticised by a number of members of the judiciary, both serving and retired, and the legal profession. The earlier refusal by the then Attorney-General to defend the High Court from the fierce attacks on the Court and its judges in connection with the Wik decision could be attributed largely to the fact that the ‘ignorant and uninformed comments were coming from his own political ranks’.327 On this score, Sir Anthony Mason said: Granted the existence of the difficulty, it is nonetheless the responsibility of the first law officer, a responsibility of the first importance, to uphold the rule of law. It is a responsibility that should not be subordinated to party political considerations when the integrity of judicial institutions is under challenge.328

Sir Anthony Mason acknowledged that there was no expectation that the Attorney-General must respond to every criticism of the judges; however, he emphasised that the Attorney-General had a responsibility to uphold the rule of law as administered by an independent judiciary. He added: That means that there will be occasions when he should respond to irresponsible criticisms which threaten to undermine public confidence in the judiciary . . . My belief is that nothing short of a defence by the Attorney will attract prominent media attention and counter-balance the adverse publicity.329

Daryl Williams did eventually acknowledge ‘that where sustained political attacks occur that are capable of undermining public confidence in the judiciary, it would be proper and may be incumbent upon an AttorneyGeneral to intervene’.330 On 4 December 2000, The Australian published a letter from Ross Lightfoot, a Senator for Western Australia, criticising the High Court and claiming that it was ‘above the law’.331 A few days later,

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The Australian published a letter from the federal Attorney-General rebutting the criticism.332 Many courts and individual judges have accepted the need for a greater, active role by the judiciary in the dissemination of information about its work. Two events in 1993 proved to be the turning point which marked the ‘beginning of a new era’.333 The first was the appointment of a media officer at the Supreme Court of New South Wales. The other event was a statement made by Sir Anthony Mason in his ‘State of the Australian Judicature’ address, in which he urged judges to depart from their traditional reticence.334 He suggested that on appropriate occasions judges ‘can explain publicly their work and the issues they faced’.335 As Dr David Wood pointed out, Sir Anthony led the way by granting a television interview on his retirement from the High Court.336 A number of judges have sought to disseminate information that explains the roles of judges and the nature of their work as widely as possible. The Australian Broadcasting Corporation (ABC) produces a weekly programme called ‘The Law Report’. Furthermore, each year it invites a prominent Australian to deliver a series of radio talks known as the ‘Boyer Lectures’. In 1983, Justice Michael Kirby’s Boyer Lectures dealt with ‘The Judges’. In the 2000 Boyer Lectures, Chief Justice Murray Gleeson spoke on ‘The Rule of Law and the Constitution’. Both lectures were later published in book form. Many judges now write articles for professional audiences. As a general policy, the courts in Australia do not permit televising or broadcasting of proceedings in the court. However, on a few occasions, televising of proceedings has been permitted, though on conditions imposed by the presiding judge or judges. In 1981, in respect of the coronial inquiry into the death of Azaria Chamberlain, the Coroner in the Northern Territory permitted the live televising of his findings. According to Christopher Lane,337 the Coroner did so ‘due to the intense public interest that the inquest had generated and in an attempt to dispose of public innuendo and suspicions surrounding the case’. In 1995, Teague J of the Supreme Court of Victoria allowed the televising of his sentencing decision in which he sentenced Nathan John Avent to life imprisonment with a non-parole period of 21 years. Today, the fact that a court has granted permission for a televising or broadcasting of some aspects of court proceedings no longer attracts controversy. Some courts have issued summaries of judgments when they are handed down, in order to assist the media and the public in comprehending the essential elements of a court judgment. Today, many courts in Australia employ public information officers. Apart from assisting the media in connection with the reporting of proceedings in court, they also play ‘an important community education role’. These public

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information officers ‘arrange and conduct guided tours of the courts by groups of interested people, prepare literature about the operations of the courts for public dissemination, and respond to enquiries from various sources’.338 The flow of information to the media and the public is reinforced by the existence of a number of court websites.339 An excursus on judicial involvement in public controversies Judges can encounter certain risks in striving to inform the public about how courts work. One such risk is that a judge might make an inadvertent remark about a particular case. However, the other and greater risk is when a judge gets involved in an area of public controversy. The advice of Chief Justice Doyle was that ‘[j]udges must, of course, avoid associating their office with public controversies, especially political ones, but with proper care that can be done’.340 However, at times, judges may find it difficult to gauge whether they have overstepped the mark as the line between acceptable and inappropriate involvement can be blurred. In 1997 two senior judges found themselves caught up in public controversies. Justice Ron Sackville, a Federal Court judge, was reported to have criticised a plan by the Howard federal government which sought to deal with the ramifications of the Wik case relating to native title. He was reported to have described the plan as ‘ambiguous and incomprehensible’ and that it ‘could be in breach of the Racial Discrimination Act’. In the other instance, Chief Justice Alastair Nicholson of the Family Court was reported to have criticised the federal government’s response to the report of the Aboriginal ‘Stolen Children’ inquiry. It was claimed the judge had, in his role as chair of the Second World Congress on Family Law and the Rights of Children in San Francisco, criticised the federal government for failing to apologise for forced assimilation policies.341 These two episodes pose the vexed question of what are the proper limits of extra-curial pronouncements. A Canadian episode may be instructive on this point. In 1982, the Canadian Judicial Council conducted an investigation into a complaint about the conduct of Justice Thomas Berger, who was at that time a judge of the Supreme Court of British Columbia.342 Justice Berger had criticised the decision of the Canadian Prime Minister and the Provincial Premiers to abandon native rights as one of the prices for agreement on the Canadian Constitution to be ‘mean-spirited and unbelievable’. He also criticised the loss of Quebec’s veto and expressed his own preference for a new formula for amendment of the Constitution. In essence, Justice Berger was commenting on two important issues (the place of Quebec in the constitutional framework, and native rights) at the height of great constitutional debate

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in Canada. Justice Berger’s comments were widely reported in both print and electronic media. Justice George Addy, a judge of the Federal Court of Canada, wrote a letter to the chairman of the Canadian Judicial Council (Chief Justice Bora Laskin) complaining about the conduct of Justice Berger. In his letter, Justice Addy said: The harm which pronouncements of this kind in such circumstances is capable of wreaking to the independence of the judiciary, the administration of justice and the maintenance of the principle of separation of powers is . . . incalculable. Had a minister of the Crown uttered statements of this nature concerning the actions of a judge or of a court while a matter was sub judice, one would expect him to be found guilty of contempt of court, and, in all probability, to be obliged to resign because of popular indignation.343

The Canadian Judicial Council found that the complaint of absence of ‘good behaviour’ was well founded, but on this occasion made no recommendation for Justice Berger’s removal from office. In its report, the Canadian Judicial Council observed: [I]t was unwise and inappropriate for Justice Berger to embroil himself in a matter of great political controversy in the manner and at the time he did. We are prepared to accept that he had the best interests of Canada in mind when he spoke, but a judge’s conscience is not an acceptable excuse for contravening a fundamental rule so important to the existence of a parliamentary democracy and judicial independence.344

The Council added: We say again, if a judge becomes so moved by conscience to speak out on a matter of great importance, on which there are opposing and conflicting political views, then he should not speak with the trappings and from the platform of a judge, but rather resign and enter the arena where he, and not the judiciary, becomes not only the exponent of those views but also the target of those who oppose them.345

In reaching its conclusion, the Council had earlier said: The history of the long struggle for separation of powers and the independence of the judiciary, not only establishes that the judges must be free from political interference, but that politicians must be free from judicial intermeddling in political activities. This carries with it the important and necessary concomitant result – public confidence in the impartiality of judges – both in fact and in appearance.346

The Council also expressed the following view: Judges, of necessity, must be divorced from all politics. That does not prevent them from holding strong views on matters of great national importance but they are gagged by the very nature of their independent office, difficult as that may seem. It can be argued that the separation of powers is even more

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emphatic here than in England. In England, High Court Judges have the right to vote. Here, federally appointed judges are denied the right both in federal elections and in a number of provinces. They have been deprived by statute of a right to vote in provincial elections, and in some cases, even in municipal elections.347

When he was a Justice of the High Court of Australia, Sir Daryl Dawson doubted whether a similarly strict view as the Canadian one would be taken in Australia. He also expressed the opinion that it was hardly likely that an adverse view would be taken of the public expression by a judge of his support for, or opposition to, the inclusion of a Bill of Rights in the Australian Constitution. He elaborated: Perhaps that subject is not really a matter of political controversy, at least in any partisan sense. On the other hand, there may be a distinction between expressing views on that issue and criticism of the present human rights legislation or the policy which lies behind it.348

Justice J B Thomas, in canvassing the extent to which judges should make public statements, said that the gist of the Guide to Judicial Conduct is that a statement by a judicial officer on controversial political subjects is inappropriate, ‘unless the issue directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice’.349 The fact that the subject matter of comments by judges falls within the ambit of ‘administration of justice’ does not necessarily preclude the judges concerned from being attacked, especially if the subject matter is of a highly contentious nature. Four judges of the Court of Appeal of New South Wales who wrote a letter to The Sydney Morning Herald criticising mandatory sentencing laws were strongly criticised by the federal Attorney-General. In a statement, the federal Attorney-General said that ‘[j]udges should refrain from commenting on politically contentious issues which are properly the domain of the democratic political process’.350 In a speech to the Judicial Conference of Australia on 7 April 2001, the federal AttorneyGeneral again criticised judges and magistrates who had spoken out against mandatory sentencing laws.351

Notes 1 Lord Taylor of Gosforth, ‘The Independence of the Judiciary in a Democracy’ (1995) 4 Asia Pacific Law Review 1, 5. 2 F M Coffin, The Ways of a Judge (Houghton Mifflin, 1980) 246. 3 M Gleeson, ‘Judicial Accountability’ (1995) 2 The Judicial Review 117, 118. 4 A Roden, ‘Judiciary and Accountability: The Restraints of Leadership’ (1994) 26 Australian Journal of Forensic Sciences 66, 68. 5 See chapter 5 above.

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6 See Roden, above n 4. 7 J Doyle, ‘The Well-Tuned Cymbal’ in H Cunningham (ed) Fragile Bastion – Judicial Independence in the Nineties and Beyond (Judicial Commission of New South Wales, 1997) 50. 8 R E McGarvie, ‘The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence’ (1992) 1 Journal of Judicial Administration 236, 275. 9 R M Purvis, Judiciary and Accountability, the Appointment of Judges’ (1994) 26 Australian Journal of Forensic Sciences 56, 59–60. 10 Gleeson, above n 3, 120. See also M Gleeson, The Rule of Law and the Constitution (ABC Books, 2000) 82, 107–8, 121, 129. 11 J Doyle, ‘Accountability: Parliament, the Executive and the Judiciary’ (Paper presented at the AIAL Forum, 18–19 June 1998) 3. 12 Ibid. See M Gleeson, ‘Judicial Accountability’ (1995) 2 The Judicial Review, who also said at 117: ‘[T]he concept of accountability is flexible and, in its practical application, varies according to the context in which it is being considered’. 13 ‘Judicial Independence’ (1997–8) 16 Australian Bar Review 212, 219. For a similar explanation of judicial accountability in the Canadian context see A Lamer, ‘The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change’ (1996) 45 University of New Brunswick Law Journal 3, 13. 14 S Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Martinus Nijhoff Publishers, 1994) 289. A different classification was devised by M Cappelleti in ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’ (1983) 31 American Journal of Comparative Law 1. 15 See generally V Morabito, ‘Are Australian Judges Accountable?’ (1994) 1 Canberra Law Review 73. 16 Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495, 520; Dickason v Dickason (1913) 17 CLR 50; R v Tait and Bartley (1979) 24 ALR 473. See J Spigelman, ‘Seen to be Done: The Principle of Open Justice – Parts 1 and 2’ (2000) 74 Australian Law Journal 290, 378; J Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29 University of New South Wales Law Journal 147. 17 Scott v Scott [1913] AC 417, 445 (Earl Loreburn). 18 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1, 13. 19 Scott v Scott [1913] AC 417, 440 (Earl of Halsbury). 20 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 53 (Kirby P). 21 Grollo v Palmer (1995) 184 CLR 348, 379. 22 Re Nolan; Ex parte Young (1991) 172 CLR 460, 496. 23 (2011) 243 CLR 506, 530 (French CJ). See also Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J J, 553. 24 International Covenant on Civil and Political Rights (1966) United Kingdom Treaties Series 6 (1977), Art 14(1); European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) United Kingdom Treaties Series 70 (1950), Art 6. 25 [1913] AC 417. 26 Ibid 463. 27 David Syme & Co v General Motors-Holden Ltd [1984] 2 NSWLR 294, 300 (Street CJ). 28 J Bentham, The Works of Jeremy Bentham, J Bowring (ed) (William Tait, 1843) Vol 4, 305, cited in R v Jackson (1986) 20 A Crim R 95, 98. 29 McPherson v McPherson [1936] AC 177, 202; Gannett Co v DePasquale 443 US 368, 383 (1979) (Stewart J). 30 R v Socialist Worker, Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 All ER 142. 31 Russell v Russell (1976) 134 CLR 495, 520; see also Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1, 18. 32 Attorney-General v Leveller Magazine [1979] AC 440, 450. 33 Scott v Scott [1913] AC 417, 476 (Lord Shaw). See also Sir Frank Kitto, ‘Why Write Judgments?’ in Judicial Essays (Law Foundation of New South Wales and Victorian Law Foundation, 1975) 9. 34 R v Tait and Bartley (1979) 24 ALR 473, 487. 35 Russell v Russell (1976) 134 CLR 495, 520.

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36 Hogan v Hinch (2011) 243 CLR 506, 530 [20]. 37 R v Hamilton (1930) 30 SR (NSW) 277; R v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254, 271. 38 R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759, 764. 39 Dando v Anastassiou [1951] VLR 235, 238. 40 R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759, 765. 41 Kenyon v Eastwood (1888) 57 LJQB 455; Lang v Warner (1975) 10 SASR 289, 295. 42 Dando v Anastassiou [1951] VLR 235, 237; Lang v Warner (1975) 10 SASR 289. 43 Dando v Anastassiou [1951] VLR 235, 237; McPherson v McPherson [1936] AC 177, 200. 44 R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759, 765; Daubney v Cooper (1829) 10 B & C 237, 240; 109 ER 438, 440; People v Hartman 37 Pac R 153 (1894). 45 R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759, 765. 46 Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC); see also R v Hamilton (1930) 30 SR (NSW) 277, 278 (Street CJ); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, 235 (Donaldson MR); Attorney-General v Leveller Magazine [1979] AC 440, 450 (Lord Diplock). 47 R v Tait and Bartley (1979) 24 ALR 473, 489. 48 Scott v Scott [1913] AC 417, 434 (Viscount Haldane LC). 49 McPherson v McPherson [1936] AC 177, 200. 50 [1913] AC 417. 51 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1, 12; see also the account of relevant Australian cases provided by French CJ in Hogan v Hinch (2011) 243 CLR 506, 531 [21], especially at n 161. 52 Scott v Scott [1913] AC 417, 435, 438 (Viscount Haldane LC); Russell v Russell (1976) 134 CLR 495, 533 (Stephen J); Hogan v Hinch (2011) 243 CLR 506, 534. 53 Scott v Scott [1913] AC 417, 438 (Viscount Haldane LC). 54 R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, 235 (Donaldson MR). 55 Scott v Scott [1913] AC 417, 438; Taylor v Attorney-General [1975] 2 NZLR 675, 681 (Richmond J). 56 R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, 235. 57 Scott v Scott [1913] AC 417. 58 Ibid 439 (Viscount Haldane LC). 59 Ibid 447, 463, 485. 60 R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, 235 (Donaldson MR); TK v Australian Red Cross Society (1989) 1 WAR 335, 338; Chambers v James Cook University (No 2) (1995) 61 Ind R 145, 148; cf Jamieson v Jamieson (1938) 30 WN (NSW) 159. 61 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 60, 62, 64. 62 Scott v Scott [1913] AC 417, 463, 485; B (otherwise P) v Attorney-General [1965] 3 All ER 253; Greenway v Attorney-General (1927) 44 TLR 124; R v Tait and Bartley (1979) 24 ALR 473, 490; cf Scott v Scott [1913] AC 417, 446 (Earl Loreburn); TK v Australian Red Cross Society (1989) 1 WAR 335. 63 Scott v Scott [1913] AC 417, 437, 443, 445, 450–1, 482. 64 Andrew v Raeburn [1874] LR 9 Ch 522. 65 Taylor v Attorney-General [1975] 2 NZLR 675, 680, 684, but cf dissenting judgment of Woodhouse J, 691. 66 Hogan v Hinch (2011) 243 CLR 506, 532 [21]. In Attorney-General v Leveller Magazine [1979] AC 440, 470–1 Lord Scarman observed that the interest of national security was not one of the exceptions mentioned by the House of Lords in Scott v Scott [1913] AC 417. 67 Scott v Scott [1913] AC 417, 445–6; R v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254; Ex parte Tubman; Re Lucas [1970] 3 NSWLR 41; R v Denbigh Justices; Ex parte Williams [1974] 1 QB 759. 68 [1913] AC 417, 445–6. 69 Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC). 70 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 54 (Kirby P); Scott v Scott [1913] AC 417, 437, 441, 445, 482–3.

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71 B (otherwise P) v Attorney-General [1965] 3 All ER 253, 256. 72 Medical Board of Victoria v Meyer (1937) 58 CLR 62, 97; Body Corporate Strata Plan No 4166 v Stirling Properties [1984] VR 307. 73 R v Tait and Bartley (1979) 24 ALR 473, 491; R v Warby [1983] 1 NSWLR 289; R v Page [1977] 2 NSWLR 173. 74 R v Tait and Bartley (1979) 24 ALR 473, 492. 75 Ibid 490. 76 Taylor v Attorney-General [1975] 2 NZLR 675, 678 (Wild CJ). 77 Attorney-General v Leveller Magazine [1979] AC 440, 458, 464; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, 472. 78 Chambers v James Cook University (No 2) (1995) 61 Ind R 145; see also Attorney-General v Leveller Magazine [1979] AC 440, 458 (Viscount Dilhorne). 79 R v Socialist Worker, Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 All ER 142, 150. 80 Taylor v Attorney-General [1975] 2 NZLR 675, 683 (Richmond J). 81 Taylor v Attorney-General [1975] 2 NZLR 675. 82 R v Socialist Worker, Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 All ER 142, 144; R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86, 106 (Williams J). 83 R v Socialist Worker, Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 All ER 142, . 84 Attorney-General v Leveller Magazine [1979] AC 440, 464 (Edmund-Davies J); Scott v Scott [1913] AC 417, 446 (Earl Loreburn); see also G Nettheim, ‘Open Justice Versus Justice’ (1985) 9 Adelaide Law Review 487, 491. 85 Attorney-General v Leveller Magazine [1979] AC 440, 464 (Lord Edmund Davies). 86 Ibid 449–50, 457–8, 464. 87 B (otherwise P) v Attorney-General [1965] 3 All ER 253; see also D v D [1903] P 144. 88 The most relevant probably being found in the Federal Court of Australia Act 1976 (Cth) ss 17(4), 23HC, 50; Criminal Procedure Act 1986 (NSW) s 56(3); Supreme Court Act 1986 (Vic) ss 18–19; Criminal Code Act 1899 (Qld) s 695A; Criminal Procedure Act 2004 (WA) s 171; Supreme Court Civil Rules 2006 (SA) s 9; Court Procedures Act 2004 (ACT) s 50; Supreme Court Act 1979 (ACT) s 17. 89 S Walker, Media Law – Commentary and Materials (LBC Information Services, 2000) 458. See generally A Kenyon, ‘Not Seeing Justice Done: Suppression orders in Australian Law and Practice’ (2006) 27 Adelaide Law Review 279; S Rodrick, ‘Open Justice, the Media and Avenues of Access to Documents on the Court Record’ (2006) 29 University of New South Wales Law Journal 90. 90 Ibid 459. 91 Family Law Act 1975 (Cth) s 97(2). 92 Section 121(1). 93 Justices Act 1886 (Qld) s 71; Magistrates Court Act 1991 (SA) s 18, and see: Evidence Act 1929 (SA) s 69; Justices Act 1928 (NT) s 61; Magistrates Court Act 1930 (ACT) s 310 – see also Court Procedures Act 2004 (ACT) s 50. Upon the issuing of a ‘preliminary proceedings order’ by the Supreme Court of Tasmania requiring the giving of evidence on oath, the Magistrates Court of Tasmania may ‘if satisfied that it is in the interests of justice to do so . . . order that a person, persons of a class or all persons may not enter, be in or remain in that room or place’: Justices Act 1959 (Tas) s 61(7). 94 Walker, above n 89, 459. 95 Justices Act 1886 (Qld) s 71. 96 Magistrates Court (Civil Division) Act 1992 (Tas) s 31AA. 97 Magistrates Court (Civil Proceedings) Act 2004 (WA) s 29(1). 98 See for example Magistrates Court (Civil Proceedings) Act 2004 (WA) s 27(1). 99 Juvenile Justice Act 1983 (NT) s 49; Children, Youth and Families Act 2005 (Vic) ss 330, 523. The Children’s Court of Western Australia Act 1988 (WA) is silent on the question of an open court, but provides the power in s 31(1) for the court to close proceedings ‘where the interests of a child may be prejudicially affected’.

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100 Children (Criminal Proceedings) Act 1987 (NSW) s 10; Children’s Court Act 1992 (Qld) s 20; Youth Justice Act 1997 (Tas) s 30; Court Procedures Act 2004 (ACT) s 72. 101 M Kirby ‘Reasons for Judgment: “Always Permissible, Usually Desirable and Often Obligatory”’ (1994) 12 Australian Bar Review 121, 133–4; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA). 102 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA). 103 MIEA v Taveli (1990) 94 ALR 177, 193 (French J). 104 (1997) 25 MVR 373. 105 Ibid 384. 106 Kirby, above n 101. 107 Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386; Gibbs CJ in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 667; McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278–9; Meagher JA in Beale v GIO (NSW) (1997) 25 MVR 373, 383. 108 G T Pagone, ‘Centipedes, Liars and Unconscious Bias’ (2009) 83 Australian Law Journal 255, 260–61. 109 Carlson v King (1947) 64 WN (NSW) 65, 66 (Jordan CJ); Pettitt v Dunkley [1971] 1 NSWLR 376, 387–8 (Moffitt JA); Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444, 450 (Hoare J); Watson v Anderson (1976) 13 SASR 329, 331–2 (Bray CJ); Commissioner for Railways v Peters (1991) 102 ALR 579, 587 (Kirby P); Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, 505 (Thomas J); T v Medical Board (1992) 58 SASR 382, 408–10 (Olsson J). See also CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505 (Winneke P) on reasons for assessment of damages. 110 Southern Cross Exploration NL v Fire All Risks Insurance Company Ltd (No 2) (1990) 21 NSWLR 200, 215 (Mahoney JA); Decor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621, 623 (Sheppard, Burchett and Heerey J J). 111 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 249 (McHugh JA); Evans v R (2007) 235 CLR 521, 531. 112 Apps v Pilet (1987) 11 NSWLR 350, 356 (McHugh JA); exceptional circumstances might necessitate otherwise, as concluded in this case by Priestley JA, 355 and by Kirby P, 354. 113 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 249 (McHugh JA). See also Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639. 114 Evans v R (2007) 235 CLR 521, 531–2. 115 Although it is not feasible to provide a comprehensive list of the duties imposed upon every administrative decision-maker, the following examples give an idea as to how broadly the duty to supply written reasons is imposed. For example, the following Acts impose a duty upon administrative decision-makers to supply written reasons, whether or not reasons are requested: Freedom of Information Act 1982 (Cth) ss 26, 51D; Ombudsman Act 1976 (Cth) s 12; Administrative Appeals Act 1975 (Cth) s 43; Building Professionals Act 2005 (NSW) ss 6, 8(4), 9(3), 22(2)(c); Retail Trading Act 2008 (NSW) s 11A; Regional Relocation (Home Buyers Grant) Act 2011 (NSW) ss 31(2), 44(3); Administrative Decisions Tribunal Act 1997 (NSW) ss 58, 89, 117; Freedom of Information Act 1982 (Vic) ss 27, 45; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 117; Mental Health Act 2000 (Qld) ss 228D, 228E, 228F; Freedom of Information Act 1991 (SA) ss 14A(4), 18(6), 23(2)(f), 313D(a); Freedom of Information Act 1992 (WA) ss 20(4), 30, 34(2)(c), 49(5), 67(2), 76(5), 77; Health Practitioners Tribunal Act 2010 (Tas) s 33(3); Ombudsman Act 1989 (ACT) s 15; Public Health Act 1997 (ACT) ss 23(4), 25(4), 34(2), 42E(4), 42G(4), 49(2), 56E(1), 58(4); 59(3), 60(4), 62(3), 65(4), 70(3), 72(4), 79(2), 84(2), 115(3), 117(4); ACT Civil and Administrative Tribunal Act 2008 (ACT) div 4A.2, s 60. Under the following Acts, a duty to supply written reasons arises only when reasons are requested: Administrative Appeals Tribunal Act 1975 (Cth) ss 28, 36, 36A–36D, 37, 38, 43; Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 13, 13A, 14 and sch 2; Pesticides Act 1999 (NSW) s 115(9); Administrative Decisions Tribunal Act 1997 (NSW) s 49; Administrative Law Act 1978 (Vic) ss 2, 8, 10; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 45, sch 1 s 11, sch 1 s 28HH, sch 1 s 76; Mental Health Act 2000 (Qld) s 234(3); Judicial Review Act 1991 (Qld) s 32 (but see also sch 2); Queensland Civil and Administrative

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Tribunal Act 2009 (Qld) ss 122, 148, 156, ch 3; Judicial Review Act 2000 (Tas) pt 5; Administrative Decisions (Judicial Review) Act 1989 (ACT) s 13. For example, in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13. For example, Soldatow v Australia Council (1991) 103 ALR 723; Muralidharan v MIEA (1996) 136 ALR 84; Dornan v Riordan (1990) 95 ALR 451; United Airlines v Department of Transport and Communications (1990) 21 ALD 484; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609; Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377; Davies v Australian Securities Commission (1995) 38 ALD 273; MIEA v Wu Shan Liang (1996) 136 ALR 481. Cf District Court Rules 1933 (NSW) pt 31, rr 9 and 10. According to Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 19, the content of the reasons must be adequate and adequacy depends upon the circumstances of the case. He also stated that reasons are inadequate when ‘the appeal court is unable to ascertain the reasoning upon which the decision is based’ or ‘justice is not seen to be done’, or both of these criteria are present. These criteria were applied by the Full Court of the Family Court in the case In the Marriage of Bennett and Bennett (1991) FLC 92–191. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 Mahoney JA suggested that the reasons ‘need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it’. (See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 273 (Mahoney JA).) A similar statement is to be found in Palmer v Clarke (1989) 19 NSWLR 159 by Kirby P. He stated that a judge need not ‘give a jurisprudential exposition’, or ‘regurgitate evidence or state every step in the reasoning process’, and that the most important purpose served by giving reasons is ‘so that the matter can be properly considered by the appellate court’ (170). There is a good overview in Beale v GIO (NSW) (1997) 25 MVR 373, 384–5 (Meagher JA). See P Bayne ‘The Inadequacy of Reasons as an Error of Law’ (1992) 66 Australian Law Journal 302–7; H Katzer ‘Inadequacy of Reasons as a Ground of Appeal’ (1993) 1 Australian Journal of Administrative Law 33–47; and H Smith ‘The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons’ (1992) 3 Public Law Review 258–65. Waterways Authority v Fitzgibbon (2005) 221 ALR 402, 428 (Hayne J). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259, Kirby P (dissenting) stated that the obligation to provide reasons requires ‘a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues’. As to the decisions of Mahoney and McHugh J JA in that case, Kirby P commented in the subsequent case, Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156, 160, that: the clear preference . . . was for a more limited judicial obligation to find and state the facts necessary to arrive at the order under challenge. The statement of the grounds for the decision, even if unpersuasive or perverse, was held sufficient to comply with the judicial obligation to provide reasons.

In Waterways Authority v Fitzgibbon (2005) 221 ALR 402, 429, Hayne J proposed a minimum standard, holding that ‘the absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge’s reasons reveals that the process of fact finding miscarried’. 123 There is scope for the revision of reasons. The published version of an oral judgment need not be identical to what was said by a judge, but the published decision is marked ‘revised’ to indicate that there are changes; this happened in Palmer v Clarke (1989) 19 NSWLR 159. However, any revision must not alter the substance of the decision or the orders contained in it: M Kirby, ‘Ex Tempore Reasons’ (1992) 9 Australian Bar Review 93, 106. Trial judges have limited scope for change, as it is improper to revise the transcript of a summing up to a jury, and any correction should be done promptly: ibid 107. Judges of superior courts have more scope, as they can even correct their orders if a mistake or

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THE AUSTRALIAN JUDICIARY slip is established, or if the orders do not properly reflect the reasons. However, the scope of this ‘slip rule’ may depend upon the rules of court: ibid. The accuracy or adequacy of a transcript may be challenged before a court: Palmer v Clarke (1989) 19 NSWLR 159, 162–3 (Kirby P), or be the subject of a complaint before the Judicial Commission of New South Wales: Annual Report 1991–1992, 26. Kirby, above n 123, 96. Ibid 93. F Kitto, ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787, 790–93, and H Gibbs, ‘Judgment Writing’ (1993) 67 Australian Law Journal 494, 496. Palmer v Clarke (1989) 19 NSWLR 159, 169 (Kirby P). There have been instances in which excessive delay in the delivery of reasons for decision has led a court of appeal to order a new trial: see B Beaumont, ‘Contemporary Judgment Writing: The Problem Restated’ (1999) 73 Australian Law Journal 743, 745. See the reply of Brennan CJ to Deputy Prime Minister Tim Fischer at pp 72–3 above. See Dornan v Riordan (1990) 95 ALR 451; United Airlines v Department of Transport and Communications (1990) 21 ALD 484; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609; Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377; Davies v Australian Securities Commission (1995) 38 ALD 273; MIEA v Wu Shan Liang (1996) 136 ALR 481. For example, Soldatow v Australia Council (1991) 103 ALR 723. In most cases it has been assumed that a judge who provides an inadequate statement of reasons commits an error of law: Beale v GIO (NSW) (1997) 25 MVR 373, 386 (Meagher JA); Fleming v The Queen (1998) 73 ALJR 1, 7. See Pettitt v Dunkley [1971] 1 NSWLR 376, 384 (Asprey JA), 384–5 (Manning JA) and 392 (Moffitt JA); Apps v Pilet (1987) 11 NSWLR 350, 355 (Kirby P), 356 (Priestley JA) (McHugh JA did not agree that the application for expedition should be reheard: 357); Palmer v Clarke (1989) 19 NSWLR 159, 173 (Kirby P, Samuels and Priestley J JA); and Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 20 (Gray, Fullagar and Tadgell J J). See De Iacovo v Laconale [1957] VR 553, 559 (Monahan J); and Palmer v Clarke (1989) 19 NSWLR 159, 164 (Kirby P in obiter dicta). Beale v GIO (NSW) (1997) 25 MVR 373, 386 (Meagher JA). Ibid. NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti [1994] NSWCA 21 was cited. See T Olsson, Guide to Uniform Production of Judgments (Australian Institute of Judicial Administration, 2nd ed, 1999). Some courts, among them the High Court, now adopt a practice of numbering the paragraphs of written reasons for judgment. This practice enables readers and writers to identify relevant passages in the reasons, regardless of the series of law reports in which the reasons have been published. The numbering of paragraphs also enables ready identification of passages in reasons which have initially been published ‘online’. Kirby, above n 123, 102; Gibbs, above n 126, 498–501; J Doyle, ‘Judgment Writing: Are There Needs for Change?’ (1999) 73 Australian Law Journal 737; and Beaumont, above n 137. See ‘The High Court – One Judgment or Several?’ (1939) 13 Australian Law Journal 257; ‘Multiple Judgments in the High Court’ (1975) 49 Australian Law Journal 156; Judicial Consensus and Multiple Judgments’ (1976) 50 Australian Law Journal 55; Roden, above n 4; Doyle, above n 137, 739. The constitutional cases were Street v Queensland Bar Association (1989) 168 CLR 461 (115 pages); Polyukhovich v Commonwealth (1991) 172 CLR 501 (200 pages); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (123 pages); Cunliffe v Commonwealth (1994) 182 CLR 272 (110 pages); and McGinty v Western Australia (1996) 186 CLR 140 (136 pages). The native title cases were Mabo v Queensland (No 2) (1992) 175 CLR 1 (202 pages) and Wik Peoples v Queensland (1996) 187 CLR 1 (198 pages). The other cases were Breavington v Godleman (1988) 169 CLR 41, a case about principles of conflict of laws in cases of tort (104 pages); Commonwealth v Verwayen (1990) 170 CLR 394, on principles of estoppel and waiver (104 pages) and Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, on contractual liability (106 pages).

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Chief Justice Doyle’s survey of the Commonwealth Law Reports for the years 1935, 1953, 1963, 1973, 1986 and 1997 revealed that over a period of 60 years the average length of judgments had almost tripled. A similar survey of the South Australian State Reports presented ‘the same broad picture’: Doyle, above n 137, 740. On the form of judgment when there are multiple opinions, see Hepples v Commissioner of Taxation (No 2) (1992) 66 ALJR 231. The multiple judgments delivered by the High Court in University of New South Wales v Moorhouse and Angus and Robertson (Publishers) Pty Ltd (1975) 133 CLR 1 prompted the comment in: ‘Judicial Consensus and Multiple Judgments’ (1976) 50 Australian Law Journal 55. Kitto, above n 126, 797; Gibbs, above n 126, 502; and ‘The High Court – One Judgment or Several?’ (1939) 13 Australian Law Journal 257. Roden, above n 4, 69–73. An attempt at organising conferences by the late Sir Garfield Barwick while Chief Justice is noted in D Marr, Barwick (Allen & Unwin, 1980) 233. Kirby, above n 101, 124. Kirby, above n 123, 106. Senior United States Circuit Judge, Ruggero J Aldisert comments in his book, Opinion Writing (West Publishing, 1990) that when a judge is assigned the task of writing the draft opinion of a court, this encourages ‘individual judges in a multi-judge court to concentrate only on the cases assigned to them, and conversely, to give too much deference, consciously or unconsciously, to the judge who has been assigned the opinion’ (34). Usually, all seven judges sit in constitutional cases. For example, in US v Mezzanatto 115 S Ct 797 (1995) Thomas J delivered the opinion of the Court, in which Rehnquist CJ and O’Connor, Scalia, Kennedy, Ginsburg and Breyer J J joined; Ginsburg J filed a concurring statement, in which O’Connor and Breyer J J joined; Souter J filed a dissenting opinion, in which Stevens J joined. In Schlup v Delo 115 S Ct 851 (1995) Stevens J delivered the opinion of the Court, in which O’Connor, Souter, Ginsburg and Breyer J J joined; O’Connor J filed a concurring opinion; Rehnquist CJ filed a dissenting opinion, in which Kennedy and Thomas J J joined; Scalia J filed a dissenting opinion, in which Thomas J joined. In Arizona v Evans 115 S Ct 1185 (1995) Rehnquist CJ delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Thomas and Breyer J J joined; O’Connor J filed a concurring opinion, in which Souter and Breyer J J joined; Souter J filed a concurring opinion, in which Breyer J joined; Stevens J filed a dissenting opinion; Ginsburg J filed a dissenting opinion, in which Stevens J joined. ‘The Role of a Constitutional Court in a Federation’ (1986) 16 Federal Law Review 1, 28. M Kirby ‘In Praise of Common Law Renewal’ (1992) 15 University of New South Wales Law Journal 462, 470. Examples of High Court cases in which the court has been split 4:3 include: Wik Peoples v Queensland (1996) 187 CLR 1; Ngo Ngo Ha v New South Wales (1997) 189 CLR 465; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Coleman v Power (2004) 220 CLR 1; and Rowe v Electoral Commissioner (2010) 243 CLR 1. M Fraser has commented in his article, ‘Judges should not complain of rough justice’ The Australian (Sydney), 24 April 1997, that, ‘[i]n today’s world, when matters of fundamental importance are determined by four opinions against three equally honourable opinions, it is inevitable that such matters will attract criticism and opposition’. To overcome this 4:3 divide, he suggests that ‘an amendment that required a 5:2 majority in constitutional matters may be desirable’. Dixon J’s dissent in In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 was endorsed by the majority in Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372. Stephen J’s dissent in Henry v Boehm (1973) 128 CLR 482 was endorsed in Street v Queensland Bar Association (1989) 168 CLR 461. See Dawson J in Victoria v Commonwealth (1996) 187 CLR 416 on the external affairs power. M Gleeson, ‘Judging the Judges’ (1979) 53 Australian Law Journal 330, 343. The author later became Chief Justice of the Supreme Court of New South Wales, and in 1998 was appointed as Chief Justice of the High Court of Australia.

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156 Ibid. 157 In cases tried before judge and jury, the error may be that of the jury rather than the trial judge. In an appeal against a conviction in a criminal case tried before judge and jury, the appeal court may order a retrial. 158 J Crawford and B Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004) 14–15, 138. 159 Review of judgments of superior courts was by way of proceedings on a writ of error. Review of judgments of the inferior courts was by means of application for the prerogative writ of certiorari. The remedy of certiorari survives in most Australian jurisdictions and is nowadays invoked most often in relation to decisions of administrative tribunals. Associated remedies are prohibition and mandamus. The effect of a writ or order of prohibition is to restrain an inferior court or tribunal from proceeding to exercise a jurisdiction it does not possess. Mandamus commands the performance of a public duty. It may be issued to command an inferior court or tribunal to proceed to exercise a jurisdiction it has wrongfully failed or refused to exercise. For detailed treatment of certiorari, mandamus and prohibition, see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009). 160 J A Jolowicz, ‘Appeal and Review in Comparative Law: Similarities, Differences and Purposes’ (1986) 15 Melbourne University Law Review 618, 620. 161 See pp 266–7 above. 162 A de novo hearing will very often be required when a statute invests a court with jurisdiction to hear and determine appeals against decisions of administrative agencies, e.g., decisions to cancel occupational licences. See Builders Licensing Board (NSW) v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616; Workers Compensation (Dust Diseases) Board v Veksans (1993) 3 NSWLR 221. 163 The evidence will have been recorded and transcribed. 164 See Australian Digest, title ‘Appeal and New Trial’. 165 The distinction is discussed in Victorian Stevedoring & General Contracting Co Pty Ltd v Meakes and Dignan (1931) 46 CLR 73, 107–10, 112–13; Paterson v Paterson (1953) 89 CLR 212, 219–24. 166 See, e.g., Magistrates’ Court Act 1989 (Vic) s 109. 167 Criminal Appeal Act 1912 (NSW) s 5; Criminal Code Act 1899 (Qld) s 668D; Criminal Law Consolidation Act 1935 (SA) s 352; Criminal Code Act 1924 (Tas) s 401(1); Criminal Procedure Act 2009 (Vic) s 272; Criminal Appeals Act 2004 (WA) s 30(3). A person convicted by a jury of a criminal offence cannot appeal against the jury’s fact findings, but can appeal against the verdict on the ground that it was against the evidence: Chamberlain v R (No 2) (1984) 153 CLR 521. 168 Edwards v Noble (1971) 125 CLR 296, 304; Da Costa v Cockburn Salvage and Trading Co (1970) 124 CLR 195; Warren v Coombs (1979) 142 CLR 531; Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53; Abalos v Australian Postal Commission (1990) 171 CLR 167; Dawson v Westpac Banking Corporation (1991) 66 ALJR 94; Louth v Diprose (1992) 175 CLR 621, 634–5; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599, 603. See however Fox v Percy (2003) 214 CLR 118, in which Gleeson CJ, Gummow and Kirby J J expressed support for the intervention of an appellate court where they find the trial judge’s conclusion to be ‘glaringly improbable’, notwithstanding ‘any ritual incantation about witness credibility’ (128). 169 House v The King (1936) 55 CLR 449, 504–5; Lovell v Lovell (1950) 81 CLR 513, 532–4; Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627; Gronow v Gronow (1979) 144 CLR 513, 519–20; Mallett v Mallett (1984) 156 CLR 605; Norbis v Norbis (1986) 161 CLR 513, 518–19; Concrete Constructions Pty Ltd v McNamara (1990) 92 ALR 427, 434–6; R v Glennon (1992) 173 CLR 592, 600. For more recent examples see Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 117; R v Edwards (2009) 255 ALR 399. See also F C Hutley, ‘Appeals within the Judicial Hierarchy’ in A E-S Tay and E Kamenka (eds), Law Making in Australia (Edward Arnold, 1980) 184.

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170 The legislation may give the appeal court a discretionary power to extend the time for appeal, even after the time for appeal has elapsed. 171 See, e.g., Supreme Court Act 1986 (Vic) s 17A. However, rulings made in interlocutory proceedings may be questioned in appeals against final judgments and orders. 172 The effect of these finality clauses is discussed in E Campbell, ‘Appeals to Courts from Administrative Decisions: Restrictions on Further Review’ (1997) 4 Australian Journal of Administrative Law 164. See also Stinson v Pharmacy Board (Qld) (1995) 1 Qd R 567. 173 See pp 269–70 above. 174 This form of limitation was adopted in relation to appeals to the Judicial Committee of the Privy Council from colonial courts, and also, for many years, in Australian federal legislation regulating appeals to the High Court of Australia: see A Mason, ‘The Regulation of Appeals to the High Court: The Jurisdiction to Grant Special Leave to Appeal’ (1996) 15 University of Tasmania Law Review 1, 1–2. 175 See Crawford and Opeskin, above n 158, 140. 176 This is the principle against double jeopardy. 177 R v Wilkes (1948) 77 CLR 511, 516–17; R v Lee (1950) 82 CLR 133, 138; R v Benz (1989) 168 CLR 110; R v Hillier (2007) 228 CLR 618, 640; R v Nguyen (2010) 242 CLR 491. 178 For example, s 401(2)(b) of the Tasmanian Criminal Code permits the Attorney-General, at the leave of the Court, to appeal an acquittal which was obtained on a point of law. Similarly, the Criminal Appeals Act 2004 (WA) s 24(2)(da) provides that an acquittal obtained in a jury trial is appealable on the grounds that a judge made an error of fact or law. A more narrow procedure is provided by chapter 68 of the Criminal Code 1899 (Qld), which allows the Director of Public Prosecutions to apply to the Court of Appeal for a re-trial of an acquittal from a murder charge (or other offence carrying a sentence of 25 years), subject to stringent preconditions with respect to the interests of justice and the availability of new evidence. A virtually identical process is provided for in division 2 of the Crimes (Appeal and Review) Act 2001 (NSW). Division 3 of that Act provides that the Court of Criminal Appeal may hear the appeal of a prosecutor and quash an acquittal which was obtained at the direction of a judge or otherwise in the absence of a jury. The Criminal Appeal Act 1912 (NSW) s 5B(2) provides that on the application of either party to a district court’s appellate proceedings, the Court of Criminal Appeal may hear a question of law which arose even where the appeal has otherwise been disposed of. Further, s 5B(3) provides that the Court of Appeal may, based upon its findings, ‘quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court’. 179 Usually a statutory officer called the Director of Public Prosecutions or the AttorneyGeneral. 180 Crimes (Appeal and Review) Act 2001 (NSW) s 108; Criminal Procedure Act 2009 (Vic) s 308; Criminal Code Act 1899 (Qld) s 669A(2); Criminal Law Consolidation Act 1935 (SA) s 351 (1a); Criminal Appeals Act 2004 (WA) s 47; Criminal Code Act 1924 (Tas) sch 1 s 388AA. 181 Australian appellate processes are described generally in Crawford and Opeskin, above n 158. 182 The Courts of Appeal are technically part of the Supreme Court of the State. Judges are appointed specifically to the Court of Appeal. New South Wales has a Court of Criminal Appeal the members of which are drawn from the Supreme Court. 183 The Judicial Committee was established by a UK statute in 1833 but it merely supplanted the King (Queen) in Council, which had traditionally heard appeals from colonial courts. 184 See Privy Council (Appeals from the High Court) Act 1975 (Cth) and Australia Acts 1986 (UK and Cth) s 11. 185 Cockle v Isaksen (1957) 99 CLR 135, 165–6; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529. 186 See Campbell, above n 172, 169–70. 187 Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194. Section 34 of the Judiciary Act 1903 (Cth) provides for appeals from judgments of the Justices of the High Court when exercising the original jurisdiction of the Court. Appeals to the High Court from the Federal Court, the Family Court of Australia and

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THE AUSTRALIAN JUDICIARY the Supreme Courts of the Australian Capital Territory and Northern Territory are also by special leave of the High Court: Federal Court of Australia Act 1976 s 33(3); Family Law Act 1975 s 95; Judiciary Act 1903 s 35AA. See Mason, above n 174, 4. Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194, 217. Ibid 218. The article referred to in n 174 above provides a succinct analysis. 12 & 13 Will III, c 2. See p 116 above. Introduction to the Law of the Constitution (MacMillan, 2nd ed, 1886) 339. See chapter 5 above. Rules of court may also be given the force of statutes. Judiciary Act 1903 (Cth) s 86; High Court of Australia Act 1979 (Cth) s 48; Federal Court of Australia Act 1976 (Cth) s 59; Family Law Act 1975 (Cth) s 123; Court Procedures Act 2004 (ACT) s 7; Industrial Relations Act 1996 (NSW) s 185; Land and Environment Court Act 1979 (NSW) s 74; Supreme Court Act 1979 (NT) s 86; Local Court Act 1989 (NT) s 21; Workers Rehabilitation and Compensation Act 1986 (NT) s 110A and the Work Health Administration Act 2011 (NT) s 31; Supreme Court Act 1935 (SA) ss 62H (Land and Valuation Court) and 72 (Supreme Court); District Court Act 1991 (SA) s 51; Magistrates Court Act 1991 (SA) s 49; Environment, Resources and Development Court Act 1993 (SA) s 48; Fair Work Act 1994 (SA) s 178; Youth Court Act 1993 (SA) s 32; Supreme Court Act 1986 (Vic) ss 25, 26; County Court Act 1958 (Vic) s 78; Magistrates’ Court Act 1989 (Vic) s 16; Children, Youth and Families Act 2005 (Vic) pt 7.11; Supreme Court Act 1935 (WA) s 167; District Court of Western Australia Act 1969 (WA) s 88; Children’s Court of Western Australia Act 1988 (WA) s 38; Family Court Act 1997 (WA) s 244; Industrial Relations Act 1979 (WA) s 113. Civil Procedure Act 2005 (NSW) s 8; Supreme Court Act 1970 (NSW) ss 123, 124; District Court Act 1973 (NSW) ss 18A, 18B, 161, 171; Local Court Act 2007 (NSW) s 25; Magistrates Court Act 1987 (Tas) s 15AC. Magistrates Court Act 1930 (ACT) s 22; Children’s Court Act 1986 (ACT) s 22; Children’s Court Act 1987 (NSW) s 23; Community Welfare Act 1983 (NT) s 28; Juvenile Justice Act 1983 (NT) s 18; Justices Act 1886 (Qld) s 266; Land Valuation Act 1971 (Tas) s 59; Local Courts Act 1904 (WA) s 158. Supreme Court of Queensland Act 1991 (Qld) s 118; District Courts Act 1967 (Qld) s 126; Land Court Act 2000 (Qld) s 21. See also Sustainable Planning Act 2009 (Qld) s 445 (Planning and Environment Court). Supreme Court Civil Procedure Act 1932 (Tas) ss 197, 202–3. Senate, Standing Committee on Constitutional and Legal Affairs, Parliamentary Scrutiny of Rules of Court, Parl Paper No 45 (1979) para. 3.8. See E Campbell, Rules of Court (LawBook, 1985) chs 3 and 4. Ibid 36, 104–6, 201, 236, 254. See Legislative Instruments Act 2003 (Cth); Legislation Act 2001 (ACT); Interpretation Act 1987 (NSW) ss 40, 41; Interpretation Act 1978 (NT) s 63; Legislative Standards Act 1992 (Qld) ss 49, 50; Subordinate Legislation Act 1978 (SA) s 10; Acts Interpretation Act 1931 (Tas) s 47; Subordinate Legislation Act 1994 (Vic) ss 15, 23; Interpretation Act 1984 (WA) s 42. Federally, this is put into effect via an amendment of the Act which empowers the exercise of rule-making functions by the court. See the Judiciary Act 1903 (Cth) s 86; Federal Court of Australia Act 1976 (Cth) s 59(4); and Family Law Act 1975 (Cth) s 123(2), which have implemented the Parliamentary scrutiny mechanisms contained in the Legislative Instruments Act 2003 (Cth) pt 5. See also Statutory Instruments Act 1992 (Qld) ss 49, 50; Subordinate Legislation Act 1978 (SA) s 10. See Supreme Court Act 1970 (NSW) s 124(12), which engages ss 40 and 41 of the Interpretation Act 1987 (NSW); Supreme Court Act 1986 (Vic) s 27; County Court Act 1958 (Vic) s 78; Magistrates’ Court Act 1989 (Vic) s 16; Supreme Court Act 1935 (WA) s 170; District Court of Western Australia Act 1969 s 89; Interpretation Act 1984 (WA) s 42; Interpretation Act 1978 (NT) s 63; Legislation Act 2001 (ACT). Rules made by the Supreme Court of Tasmania must be tabled, and may be annulled by the Governor on an address presented by either House of the Parliament (Supreme Court Civil Procedure Act 1932 s 204).

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208 Senate Standing Orders, Order 23(3); Standing Committee of the Legislative Assembly of the ACT on Scrutiny of Bills and Subordinate Legislation (established by resolution on 9 March 1995); Standing Committee of the Legislative Assembly of the Northern Territory on Subordinate Legislation and Publications; Joint Standing Committee of the Western Australian Parliament on Delegated Legislation (established by resolution on 2 June 1987). 209 In New South Wales, South Australia, Victoria and Western Australia. 210 In New South Wales the Legislation Review Committee (Regulation Review Act 1987 ss 4, 9); in Victoria the Scrutiny of Acts and Regulations Committee (Parliamentary Committees Act 2003 s 17(d); Subordinate Legislation Act 1994 pt 5). Tasmania has a joint statutory committee, but its terms of reference do not permit it to review rules of court made by judges (Subordinate Legislation Committee Act 1969 s 2). Until recently, Queensland made provision in the Parliament of Queensland Act 2001 (Qld) for a Scrutiny of Legislation Committee. However, at the time of writing, the Scrutiny Committee has been written out of that Act, and by virtue of section 171 has been dissolved as of 30 June 2011. It has been replaced by a series of ‘portfolio committees’, which attaches a committee’s responsibility for legislative scrutiny specifically to legislation which reflects the particular policy concerns of the executive. See Parliament of Queensland Act 2001 (Qld) ch 5 pt 3. Responsibility for the oversight of court rules would appear to therefore lie with the Legal Affairs, Police, Corrective Services and Emergency Services Committee. 211 See Senate Standing Committee on Regulations and Ordinances, Rules of the Federal Industrial Court (101st Report, June 1995 – Parl Pap No 97 (1995)). 212 Per pt 3 of the Legislative Instruments Act 2003 (Cth). 213 Section 19. 214 High Court of Australia Act 1979 (Cth) s 47(1). 215 Section 47(2). 216 Section 47(3). The following audit obligations are imposed on the Auditor-General by s 43: (i) the Auditor-General must inspect and audit the accounts and records of financial transactions relating to the administration of the Court and alert the Minister to any irregularity found; (ii) the Auditor-General must report the results of the inspection and audit to the Minister at least once in each financial year. 217 See Federal Court of Australia Act 1976 (Cth) s 18S, and Family Law Act 1975 (Cth) s 38S, respectively. 218 ANAO, Audit Work Program (Commonwealth of Australia, 2011) 15. 219 Supreme Court of Queensland Act 1991 (Qld) s 32A. 220 Section 61. 221 Section 119B. 222 District Courts Act 1967 (Qld) s 130A. 223 Children’s Court Act 1992 (Qld) s 22. 224 Workplace Relations Act 1997 (Qld) s 252. 225 Supreme Court Act 1935 (SA) s 16(a). 226 Section 16(b). 227 Fair Work Act 1994 (SA) s 45. 228 Courts Administration Act 1993 (SA) s 7. 229 Section 10(1). 230 Section 10(2). 231 Sections 10(3) and (4). 232 Section 4. 233 Section 13(1). 234 Section 13(2). 235 Section 14(1). 236 Section 14(2). 237 Section 29(1). 238 Section 29(2). 239 Section 25. 240 Section 26. 241 Section 27.

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Supreme Court Act 1986 (Vic) s 28(1). Section 28(3). County Court Act 1958 (Vic) s 87. Magistrates’ Court Act 1989 (Vic) s 15. Some Houses of Australian parliaments have this power by virtue of their having been given the same powers as the House of Commons as of a specified date: see Commonwealth of Australia Constitution s 49 (but note the Parliamentary Privileges Act 1987 (Cth)); Constitution Act 1934 (SA) s 38; Constitution Act 1975 (Vic) s 19; Parliament of Queensland Act 2001 (Qld) s 9(1)(b). Elsewhere the power derives from specific statutory provisions: see Parliamentary Evidence Act 1901 (NSW) s 4; Parliamentary Privilege Act 1885 (Tas); Parliamentary Privilege Act 1957 (Tas); Parliamentary Privileges Act 1891 (WA) s 4; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24; Legislative Assembly (Powers and Privileges) Act 1992 (NT). New South Wales’ parliamentary privileges also derive in part from the operation of the common law: see Kielly v Carson (1842) 13 ER 225. Houses of Parliament may impose penalties for disobedience to such a summons: see E Campbell, Parliamentary Privilege (Federation Press, 2003) 163–8. In New South Wales, a warrant may be issued by the Supreme Court in response to non-attendance. The warrant allows persons acting under its instructions to detain the person required for questioning. The maximum penalty for non-attendance is one month of imprisonment. See Parliamentary Evidence Act 1901 (NSW) ss 8, 9, 11. The proceedings before the committees are described in H Evans, Odgers’ Australian Senate Practice (Canberra: Australian Government Publishing Service, 12th ed, 2010) 35– 40, 512–16, 521–2. See also pp 277–8 above. R v Knollys (1694) 1 Ld Raym 10; 91 ER 901. The proceedings before the House of Lords are set out in 12 St Tr 1167; Lord Holt’s answers appear at 1179, 1182–3. The case is discussed in E Campbell, ‘Judges at the Bar of Parliament’ (1999) 18 Australian Bar Review 131. See pp 124–6 above. On 25 February 1988, the Australian Senate agreed to a series of resolutions on parliamentary privilege. The first of the resolutions advised Senate committees not to issue summons to witness unless they had made a decision that the circumstances warranted the issue of a summons. The resolutions have been reproduced as an appendix in editions of Odgers’ Australian Senate Practice. See pp 275–7 above on s 29 of the Courts Administration Act 1993 (SA). The Master of the Rolls heads England’s Court of Appeal. By virtue of Article 9 of the Bill of Rights 1689, courts cannot take any action against Members of Parliament in respect of what they have said in Parliament. See United Kingdom Parliament, Joint Committee on Parliamentary Privilege, First Report (HL 43–I, HC 214–I, Session 1998/99) para 209. Ibid. D Butler and S Rodrick, Australian Media Law (Thomson Reuters, 4th ed, 2012) 208–9. Doyle, above n 7, 42. S Shetreet, Judges on Trial (North Holland, 1976) 179. S Shetreet, ‘Judicial Accountability: A Comparative Analysis of the Models and the Recent Trends’ (1986) 11(2) International Legal Practititoner 38, 39. Lord Denning, The Road to Justice (Stevens and Sons, 1955) 64. R D Nicholson, ‘The Courts, the Media and the Community’ (1995) 5 Journal of Judicial Administration 5, 18. A W MacKay, ‘Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?’ (1993) 3 National Journal of Constitutional Law 159, 225. Nicholson, above n 262, 19. R P Balkin and J L R Davies, Law of Torts (LexisNexis Butterworths, 4th ed, 2009) 517. Ibid 597. Butler and Rodrick, above n 257, 75. Butler and Rodrick, above n 257 (1st ed, 1999), 59–60. Bell v Stewart (1920) 28 CLR 419, 428 (Isaacs and Rich J J). See also pp 181–2 above. Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887, 906 (Hope JA).

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252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270

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271 R v Metropolitan Police Commissioner; Ex parte Blackburn (No 2) [1968] 2 QB 150, 155 (Lord Denning MR). 272 [1972] 2 NSWLR 887. 273 Ibid 908. 274 Ibid 910. 275 R v Dunbabin; Ex parte Williams (1935) 53 CLR 434, 442. 276 Then of the Court of Appeal, Supreme Court of Victoria, now an acting judge of the Supreme Court of the Northern Territory. 277 G Eames, ‘The Media and the Judiciary’ (Speech delivered at the 2006 Annual Conference of the Melbourne Press Club, 25 August 2006) 1. 278 Ibid 4. 279 Ibid 5. 280 Ibid 14. 281 H P Lee, ‘The Implied Freedom of Political Communication’ in H P Lee and G Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) ch 16. 282 (1992) 177 CLR 1. 283 (1992) 177 CLR 106. 284 (1994) 182 CLR 104. 285 Ibid 140–41. 286 Ibid 185. 287 Ibid 186. 288 Ibid 187–8. 289 (1997) 189 CLR 520. 290 (1994) 182 CLR 272, 327. 291 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567–8. 292 (2004) 220 CLR 1. 293 Ibid 50. 294 Hogan v Hinch (2011) 243 CLR 506; Wotton v Queensland [2012] HCA 2. 295 (1994) 182 CLR 104, 123–4. 296 (1994) 182 CLR 272, 298. 297 (2005) 224 CLR 322. 298 Ibid 406. 299 (2011) 243 CLR 506. 300 Ibid 554 (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J J). French CJ expressed the view in a separate opinion that the term ‘political or government matters’ was a ‘broad’ test which extended to apply to many ‘social and economic features of Australian society’ (544 [49]). 301 Ibid 556 [97]. It is also worth briefly noting that in some decisions it has been suggested that Chapter III of the Constitution implies a separate ‘freedom of legal communication’. For example, McHugh and Kirby J J accepted in APLA that Chapter III could form the basis of a protection of unfettered legal communication between lawyers and prospective clients: see (2005) 224 CLR 322, 363–70 (McHugh J) and 438–44 (Kirby J). In Hogan v Hinch, a majority of the High Court were critical of the suggestion that Chapter III operated to imply a guarantee of compliance with the open court principle, suggesting that ‘any restriction drawn from Ch III which in absolute terms limits the exercise of the legislative power of the Parliament’ was inconsistent with the structure of the Constitution: (2011) 243 CLR 506, 554 [91]. 302 M Kirby, ‘Judiciary Media and Government’ (1993) 3 Journal of Judicial Administration 63, 67. 303 Ibid 68. 304 Cited at ibid. 305 Ibid 69. 306 Ibid 69, 70. 307 Ibid 70. 308 Ibid. 309 Ibid 71.

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11 April 1997, 1, 2. ‘Law body cautions against rape views’, The Age (Melbourne), 12 April 1997, A6. ‘A parting gaffe’, editorial, The Age (Melbourne), 12 April 1997, A26. Ibid. Ibid. Ibid. ‘Rape sentencing a complex affair’, The Age (Melbourne), 15 April 1997, A12. Ibid. Ibid. Doyle, above n 7, 42. See J B Thomas, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009) 128–30. J B Thomas noted that while Lord Irvine recognised the right of judges to make public statements, he also pointed to the wisdom of judges confining themselves to controversy about the administration of justice: ibid 129. R Cornes, ‘McGonnell v United Kingdom, the Lord Chancellor and the Law Lords’ [2000] Public Law 166, 170, n 22. A Mason, ‘The Courts as Community Institutions’ (1998) 9 Public Law Review 83, 86. S Parker, ‘The Independence of the Judiciary’ in B Opeskin and F Wheeler (eds), The Australian Judicial System (Melbourne University Press, 2000) 82. D R Williams, ‘Who Speaks for the Courts’ (Paper delivered at the National Conference on Courts in a Representative Democracy, Canberra, 11–13 November 1994) 13. Ibid 14. See L J King, ‘The Attorney-General, Politics and the Judiciary’ (2000) 29 University of Western Australia Law Review 155, 172. See also: D Williams, ‘The Roles of the AttorneyGeneral’ (2002) 13 Public Law Review 252; R McColl, ‘Reflections on the Role of the Attorney-General’ (2003) 13 Public Law Review 20. A Mason, ‘Address’ (1997) 35 Law Society Journal 51, 53. Ibid. D Williams, ‘Judicial Independence’ (1998) 36 Law Society Journal 50, 51. R Lightfoot, ‘Court the Heights’, Letters to the Editor, The Australian (Sydney), 4 December 2000, 12. D Williams, ‘High Court subject to government’, Letters to the Editor, The Australian (Sydney), 8 December 2000, 12. M Black, ‘Opening Address’ (1998) 1 University of Technology Sydney Law Review 7. A Mason, ‘The State of the Judicature’ (1994) 68 Australian Law Journal 125. Ibid 304. ABC Television, ‘The Chief Justice’, Four Corners, 3 April 1995. See D Wood, Judicial Ethics – A Discussion Paper (Australian Institute of Judicial Administration, 1996) 29. See C Lane, ‘On Camera Proceedings: A Critical Evaluation of the Inter-Relationship Between the Principle of Open Justice and the Televisation of Court Proceedings in Australia’ (1999) 25 Monash University Law Review 54. M Gleeson, The Rule of Law and the Constitution (ABC Books, 2000) 120. See, e.g.: www.courts.sa.gov.au; http://www.highcourt.gov.au/. Doyle, above n 7, 47. See also Gleeson, above n 338, 120–21. H P Lee, ‘Judicious to stay out of politics’, The Sydney Morning Herald, 19 June 1997, 17. ‘Report and Record of the Committee of Investigation into the Conduct of the Hon Mr Justice Berger and Resolution of the Canadian Judicial Council’ (1983) 28 McGill Law Journal 378. See also K Roach, ‘Judges and free speech in Canada’ in HP Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 175, 178–83. Ibid 395. Ibid 391. Ibid 391–2. Ibid 389. Ibid 391. Sir Daryl Dawson, ‘Judges and the Media’ (1987) 10 University of New South Wales Law Journal 17, 21. An Australian judge who publicly expressed his or her hostility to present human rights legislation (or indeed any legislation) might, by reason of the expression

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328 329 330 331 332 333 334 335 336 337 338 339 340 341 342

343 344 345 346 347 348

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of that opinion, have disqualified himself or herself from sitting in cases involving the application of that legislation. In a Scottish case (Hoekstra v Her Majesty’s Advocate, 9 March 2000) Lord McCluskey was held to have disqualified himself from sitting in a case because of a statement he had made in the course of a television programme. By that statement he had exhibited his hostility to UK legislation which sought to implement the nation’s obligations under the European Convention on Human Rights: see Cornes, above n 332, 170. 349 Thomas, above n 320, 84. 350 See The Sydney Morning Herald, editorial, 22 March 2000, 14. 351 The Sunday Age (Melbourne), 8 April 2001, 13.

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Appendix 1: Judicial statistics tables

[Note: More information was available with respect to some statistics, i.e. more data was available on the former legal occupations of judges on the Family Court than was available on the judges’ ages. The survey included Associate Judges, Trial Division Judges, Acting Judges and Appellate Court Judges.]

Age on appointment (as at July 2011) Court High Court Federal Court Family Court (Cth and WA) Supreme Court NSW Supreme Court Vic Supreme Court Qld Supreme Court SA Supreme Court WA Supreme Court Tas Supreme Court ACT Supreme Court NT