HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJWILLIAM ARTHUR FORGE & ORS PLAINTIFFS
AND
AUSTRALIAN SECURITIES AND INVESTMENTS
COMMISSION & ORS DEFENDANTSForge v Australian Securities and Investments Commission [2006] HCA 44
5 September 2006
C7/2005ORDER
1.The First and Second Defendants' Demurrers to the Statement of Claim dated 12 April 2005 are allowed.
2.Judgment for the Defendants with costs.
Representation
R J Ellicott QC with J L Glissan QC, S M Whybrow and W J Wilcher for the plaintiffs (instructed by Ken Cush & Associates)
S J Gageler SC with M R Pearce SC for the first defendant (instructed by Australian Securities and Investments Commission)
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick for the second defendant (instructed by Crown Solicitor for New South Wales)
D M J Bennett QC, Solicitor-General of the Commonwealth with N L Sharp for the third defendant (instructed by Australian Government Solicitor)
Interveners
W C R Bale QC, Solicitor-General of the State of Tasmania with S K Kay intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Solicitor-General of Tasmania)
W C R Bale QC, Solicitor-General of the State of Tasmania with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office (Western Australia))
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)
P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish, K L Walker and R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with R W Campbell intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJAUSTRALIAN SECURITIES AND INVESTMENTS
COMMISSION PLAINTIFFAND
WILLIAM ARTHUR FORGE & ORS DEFENDANTS
Australian Securities and Investments Commission v Forge
5 September 2006
C12/2005ORDER
1. The questions reserved are answered as follows:
1.As to the validity of the appointments under the Supreme Court Act 1970 (NSW) of the Honourable Michael Leader Foster to act as a Judge of the Supreme Court of New South Wales, and the capacity of his Honour to act in the cause:
None of the successive appointments of the Honourable Michael Leader Foster to act as a judge of the Supreme Court of New South Wales was invalid.
2.As to the construction and validity of the transitional provisions of Chapter 10 of the Corporations Act 2001 (Cth):
The proceedings commenced in the Supreme Court of New South Wales by the Australian Securities and Investments Commission against William Arthur Forge and others on 26 April 2001 and tried before Foster AJ constituted a matter arising under a law made by the Parliament within the meaning of s 76(ii) of the Constitution.
2.The Defendants (other than the Fifth Defendant) to pay the Plaintiff's costs.
Representation
S J Gageler SC with M R Pearce SC for the plaintiff (instructed by Australian Securities and Investments Commission)
R J Ellicott QC with J L Glissan QC, S M Whybrow and W J Wilcher for the first to fourth and sixth defendants (instructed by Ken Cush & Associates)
No appearance for the fifth defendant
Interveners
D M J Bennett QC, Solicitor-General of the Commonwealth with N L Sharp intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
W C R Bale QC, Solicitor-General of the State of Tasmania with S K Kay intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Solicitor-General of Tasmania)
W C R Bale QC, Solicitor-General of the State of Tasmania with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office (Western Australia))
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)
P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish, K L Walker and R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with R W Campbell intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJWILLIAM ARTHUR FORGE & ORS APPLICANTS
AND
AUSTRALIAN SECURITIES AND INVESTMENTS
COMMISSION & ANOR RESPONDENTSForge v Australian Securities and Investments Commission
5 September 2006
S301/2005ORDER
1.The time for the Applicants to file their application for special leave is extended.
2. Application for special leave dismissed.
3.Applicants to pay the costs of the First Respondent.
On appeal from the Supreme Court of New South Wales
Representation
R J Ellicott QC with J L Glissan QC, S M Whybrow and W J Wilcher for the applicants (instructed by Ken Cush & Associates)
S J Gageler SC with M R Pearce SC for the first respondent (instructed by Australian Securities and Investments Commission)
No appearance for the second respondent
Interveners
D M J Bennett QC, Solicitor-General of the Commonwealth with N L Sharp intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
W C R Bale QC, Solicitor-General of the State of Tasmania with S K Kay intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Solicitor-General of Tasmania)
W C R Bale QC, Solicitor-General of the State of Tasmania with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office (Western Australia))
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)
P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish, K L Walker and R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with R W Campbell intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Forge v Australian Securities and Investments Commission
Constitutional law (Cth) – Chapter III – State Supreme Courts – Acting Judges – Section 37 of the Supreme Court Act 1970 (NSW) provided for appointments to act as a judge, for a period not exceeding 12 months – Former Federal Court Judge appointed as an Acting Judge of the Supreme Court of New South Wales under a series of commissions pursuant to s 37 of the Supreme Court Act – Whether the appointments as an Acting Judge were validly made – Whether s 37 of the Supreme Court Act was valid – Whether Acting Judges, when appointed other than on an occasional and exceptional basis, substantially impair public confidence in the Supreme Court's institutional integrity and impartiality and prevent that Court from answering to the constitutional description of "Supreme Court of any State" – Distinctions between permanent Judges and Acting Judges – Significance of a substantial increase in the number of Acting Judges appointed to the Supreme Court, the incidence of reappointing such Acting Judges and the duration of such appointments since 1989 – Whether changes in appointments of Acting Judges amounts to a fundamental alteration of the character and composition of the Supreme Court – Relevance of the fact that Acting Judges are typically retired Judges.
Constitutional law (Cth) – No objection to the appointment of the Acting Judge in question taken at trial or on appeal to the New South Wales Court of Appeal – Whether parties contesting the validity of appointment prevented from doing so by reason of acquiescence or waiver – Opposing parties did not submit acquiescence or waiver, if any, prevented objection to validity of appointment – Whether High Court should consider effect of acquiescence or waiver.
Constitutional law (Cth) – Judicial power of the Commonwealth – Vesting in State courts – Federal character of the Commonwealth – Power of State Parliament to confer function incompatible with exercise by State court of federal judicial power – Whether appointments of Acting Judges in large numbers consistent with judicial process and Chapter III of the Constitution.
Judges – Acting Judges – Validity of orders made by Acting Judge – Whether such orders valid regardless of validity of appointment of the Acting Judge by reason of the de facto officers doctrine.
Corporations law – Transitional provisions of Ch 10 of the Corporations Act 2001 (Cth) – ASIC brought proceedings, in 2001, against the parties contesting validity of the appointment of the Acting Judge in question alleging contravention, in 1998, of civil penalty provisions of the Corporations Law of New South Wales – Whether, after the repeal of the relevant civil penalty
provisions of the State corporations law and the enactment of the Corporations Act, the proceedings alleging contravention could be brought.
Words and phrases – "Acting Judges", "court", "impartiality", "institutional integrity", "judicial independence", "Supreme Court of any State".
Constitution, ss 71, 72, 73, 75, 76, 77(iii).
Corporations Act 2001 (Cth), Ch 10.
Judiciary Act 1903 (Cth), s 39(2).
Supreme Court Act 1970 (NSW), s 37.
GLEESON CJ. There are three proceedings before the Court. The first was commenced in the original jurisdiction of the Court. The second was commenced in the Supreme Court of New South Wales and removed in part into this Court under s 40 of the Judiciary Act 1903 (Cth). The third is an application for special leave to appeal to this Court from a decision of the Court of Appeal of the Supreme Court of New South Wales, which substantially dismissed an appeal from Foster AJ. It is convenient to refer to the moving parties in all those proceedings as "the applicants".
All three proceedings relate to, or arise out of, litigation in the Supreme Court of New South Wales between the Australian Securities and Investments Commission ("ASIC") and the applicants. On 26 April 2001, ASIC commenced an action ("the ASIC proceedings") in the Supreme Court of New South Wales for civil penalties, declarations and orders pursuant to Pt 9.4B of the Corporations Law of New South Wales ("the State law"), alleging contraventions in 1998 by the applicants of the State law. The State law was repealed as from 14 July 2001. The Corporations Act 2001 (Cth) ("the Commonwealth law") came into force on 15 July 2001. On and from that date ASIC continued, or purported to continue, the proceedings pursuant to the transitional provisions of the Commonwealth law. The action came on for hearing before Foster AJ in March 2002. The hearing concluded on 1 May 2002. On 28 August 2002, Foster AJ delivered judgment. He found in favour of ASIC, made declarations and imposed penalties. The applicants appealed to the Court of Appeal. On 7 December 2004, the appeal was dismissed except in relation to penalty. The Court of Appeal ordered that the matter be remitted to the Equity Division of the Court for hearing on penalty only. That penalty hearing has not yet taken place.
At that stage, the applicants, for the first time, raised a question as to the validity of the appointment of Foster AJ. No objection had been taken to Foster AJ sitting, and no point about the validity of his appointment had been raised before the Court of Appeal. An application for special leave to appeal to this Court raised as one proposed ground of appeal "that the appointment under section 37 of the Supreme Court Act 1970 (NSW) of Foster AJ, the trial judge, was invalid". The other proposed ground of appeal was based on a point that had been argued before the Court of Appeal. It concerned the legislative validity of the transitional provisions earlier mentioned. In addition, the applicants instituted the first two proceedings referred to at the commencement of these reasons. In those proceedings, a Justice of this Court has reserved two questions for the decision of a Full Court. The first question concerns the validity of the appointment of Foster AJ. The second concerns the validity of the transitional provisions of the Commonwealth law. If both of those questions are answered unfavourably to the applicants, then that will be decisive of the special leave application.
I agree with the answers to both questions proposed in the reasons of Gummow, Hayne and Crennan JJ. I also agree with their reasons for the answer proposed to the second question, and have nothing to add to what is there said. My reasons for the answer to the first question are as follows.
The issue
It is important to be clear about the legal basis of the belated challenge to Foster AJ's appointment. It is that s 37 of the Supreme Court Act 1970 (NSW), the section that empowers the Governor of New South Wales to appoint acting Judges, is invalid.
The Honourable Michael Leader Foster was born on 27 November 1928. He served for a number of years as a Judge of the Federal Court of Australia. He reached the age of 70, at which age he was compelled by statute to retire from that Court, in November 1998. Under a series of commissions pursuant to s 37 of the Supreme Court Act he was appointed an acting Judge of the Supreme Court of New South Wales commencing on 31 May 1999 and ending on 26 November 2003, when he reached the age of 75, which is, by s 37(4A), the maximum age for an acting Judge of the Supreme Court. Each of those commissions except the last was for a period of one year. The appointments that were operative when the ASIC proceedings were heard and determined were the third and fourth of his appointments, commencing on 31 May 2001 and 31 May 2002 respectively. It is those two appointments that are challenged.
Subject to one qualification, the bare facts set out above constitute the only information before the Court concerning Foster AJ's appointments. He himself is not a party to any of the proceedings. The potential consequences for him, and for other litigants, if the challenge succeeds have not been explored. One of the arguments for the applicants countenanced the possibility that legislation could validly provide for the appointment of acting Judges to the Supreme Court in "special circumstances", but there is very little information about the circumstances in which Foster AJ was appointed, and, in any event, s 37 does not so provide. The nature of the case for the applicants is such that the circumstances of Foster AJ's appointments are irrelevant. If it were otherwise, it would be inappropriate to deal with the matter in its present form. This Court is in a position to decide, as a question of law, the validity of s 37 of the Supreme Court Act. It is not in a position to make any decision about the validity of Foster AJ's appointments on the hypothesis that the section stands, but that the validity of appointments made under the section depends upon the circumstances existing at the times of the appointments, or turns upon a judgment as to whether those circumstances were "special", whatever that might mean.
The qualification mentioned in the preceding paragraph is that reference was made in argument to some publicly available (and undisputed) figures about the numbers of people holding commissions as Judges, Judges of Appeal, Acting Judges and Acting Judges of Appeal, of the Supreme Court of New South Wales at annual intervals. The figures were taken from the Supreme Court's Annual Reviews. As at 31 December 2001, there were 45 permanent Judges (including Judges of Appeal) of the Supreme Court of New South Wales. During the preceding calendar year 20 persons (all of whom were retired Judges of either the Federal Court or the Supreme Court, or serving Judges of the District Court) had been appointed as acting Judges or Judges of Appeal for specified terms. Some of those terms were for a year; others were for shorter periods, typically three months. None of the persons appointed as acting Judges were practising barristers. 31 December 2001 fell approximately in the middle of the dates of the two appointments in question. The corresponding figures for 31 December 2002 are not materially different. There were 44 permanent Judges and Judges of Appeal. During the calendar year 2002 seven acting Judges of Appeal and 13 acting Judges held appointments. Again they were all retired judges, or serving District Court Judges, but for one, who was a Master of the Supreme Court. Self-evidently, in calculating the proportion of judge sitting-time occupied by acting Judges it would be necessary to take account of the periods for which any acting Judge actually sat. That information is not before the Court. What the figures show is that, at the times of Foster AJ's appointments, putting to one side full-time serving judicial officers who were brought up temporarily from within the court system itself, the acting Judges of the Supreme Court of New South Wales were retired judicial officers; not practising barristers. The legal significance which the applicants seek to attach to that information is not clear. Section 37 was enacted in 1970, and it was not materially different from earlier legislation enacted in 1900. Indeed, legislation providing for acting appointments to the Supreme Court of New South Wales has an even longer history. It is only the appointments of Foster AJ that are in question. If s 37 is invalid, then it was invalid in 1970, and the appointments of Foster AJ were invalid.
The validity of the two relevant appointments of Foster AJ is not said to turn upon any circumstances personal to Foster AJ, or upon any particular circumstances that might have had any bearing on the decision by the Executive Government to exercise, in the case of the appointments of Foster AJ, the power conferred by s 37. There is no evidence, or agreement, as to what those circumstances might have been, even if they were otherwise relevant to any decision which it is within this Court's capacity to make.
Relevant legislation
The Supreme Court Act 1970 (NSW) "continued" the Court "as formerly established as the superior court of record in New South Wales" (s 22). It provided, in s 25, that the Court shall be composed of a Chief Justice, a President of the Court of Appeal and such other Judges of Appeal and Judges as the Governor may from time to time appoint.
The Act imposed no limit on the number of Judges that might be appointed, and made no provision about the circumstances in which appointments might be made. It specified (in s 26) the qualifications of appointees. In s 27, it provided for tenure. Subject to the age of compulsory retirement (then 70 and now 72) Judges' commissions were to "continue and remain in force during ... good behaviour", subject to a power of removal by the Governor on an address of both Houses of Parliament. (The matter of tenure was later dealt with, to like effect, in the Judicial Officers Act 1986 (NSW), and later still by an amendment to the Constitution Act 1902 (NSW).) In brief, subject to the prescribed qualifications for appointment, the power to appoint Judges of the Supreme Court was left to the Executive Government in completely general terms. That is typical of legislation in all Australian jurisdictions.
It is necessary to say something more about the Constitution Act 1902 (NSW). Part 9 of that Act deals with the judiciary. It governs the removal of a holder of judicial office. By s 53, the holder of a judicial office can be removed from the office only by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. The provision extends to acting appointments to a judicial office, whether made with or without a specific term (s 53(5)). The provision applied to Foster AJ during the term of both the relevant appointments[1].
[1]Contrast Starrs v Ruxton; Ruxton v Starrs 2000 JC 208; and compare Kearney v HM Advocate 2006 SC (PC) 1.
In Valente v The Queen[2], Le Dain J said:
"The essence of security of tenure for purposes of s 11(d) [of the Canadian Charter of Rights and Freedoms] is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner."
[2][1985] 2 SCR 673 at 698.
The appointments of Foster AJ satisfied that requirement.
To return to the Supreme Court Act of 1970 in its original form, s 37 conferred a power to appoint acting Judges. It provided:
"(1)The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge for a time not exceeding six months to be specified in such commission.
(2)In subsection one of this section "qualified person" means a person qualified for appointment as a Judge.
(3)The person so appointed shall, for the time and subject to the conditions or limitations specified in his commission, have all the powers, authorities, privileges and immunities and fulfil all the duties of a Judge."
Section 37, in its form at the time of the appointments in question, is set out in the joint reasons. It accommodates the relatively recent development of appointing, as acting Judges, retired judges rather than practising barristers, as was the case during most of the history of the Supreme Court. However, save for the inclusion of a reference to Judges of Appeal in 1989[3], and the alteration of six months to 12 months, s 37(1) remains the same. That is the provision central to the present issue.
[3]Statute Law (Miscellaneous Provisions) Act 1989 (NSW), ss 2(1), 3 and Sched 1.
Legislation relating to the Supreme Court has long contained provision for the appointment of acting Judges. For example, s 13 of the Supreme Courtand Circuit Courts Act 1900 (NSW), which was in force at the time of Federation, empowered the Governor to issue a special commission to any Judge of the District Court, or to any barrister of not less than seven years' standing, appointing him to act as a Judge of the Supreme Court. Such appointments could be made for the purpose of sitting at any Circuit Court, or at any place or places at which a Judge of the Court could not attend without detriment to the ordinary business of the Court, or for the purpose of sitting and acting as a Judge of the Court at Sydney in any one or more jurisdictions of the Court to be specified in such commission, and for a time not exceeding six months.
Subject to the qualification in the 1900 Act concerning appointments to sit at places outside Sydney, legislation, in New South Wales and elsewhere in Australia, empowering the Executive Government to appoint acting judges, like legislation providing for the appointment of permanent judges, has usually been expressed in general terms, without attempting to confine the circumstances in which it might be considered appropriate to exercise the power.
This is consistent with constitutional principle. Judges are appointed by the Executive Government in the exercise of powers conferred by Parliament. Judges are not appointed by the judicial branch of government. They are appointed by the political branches of government, and decisions as to appointment are subject to political accountability. No doubt many judges have strong opinions about matters relating to judicial appointments, whether permanent or temporary. Many judges have opinions about the number of judges that ought to be appointed, the qualities that ought to be looked for in appointees, and the procedures of selection that ought to be followed. Their opinions may deserve weight, because of their personal knowledge and experience. Even so, judges do not appoint one another. The responsibility for making decisions about judicial appointments, including numbers and circumstances of appointments, rests with those who have the responsibility of paying the salaries, and providing the necessary resources, of the appointees, and who have political accountability for bad or unpopular decisions about appointments.
Assertions are sometimes made about possible abuses of the power to appoint acting judges. What would constitute an abuse of the power might be a matter on which opinions would differ. Two points should be made. First, such opinions concern matters which are decided by the political branches of government, not by the judiciary. If it is said (as it is in this case) that there is a justiciable issue concerning the appointment of acting judges, there is a need to identify that issue with precision, and to ensure that what is being decided is a matter within judicial, and not executive or legislative, authority. The validity of s 37 is a justiciable issue. The general desirability of acting appointments is not. Secondly, the possibility of abuse of the power to appoint permanent judges is just as obvious as the possibility of abuse of the power of appointing acting judges. It requires no imagination to think of ways in which an Executive Government, if so minded, could misuse its power to appoint permanent judges, yet it has never been suggested that legislation which confers the power in unconfined terms is invalid.
Before concluding on the subject of New South Wales legislation, further reference should be made to the Judicial Officers Act 1986. That legislation established a scheme for dealing with complaints against judicial officers. In that Act, a reference to the holder of any judicial office includes a reference to a person appointed to act in that office (s 3(3)). Furthermore, an acting Judge is within the definition of "public official" in s 3 of the Independent Commission Against Corruption Act 1988 (NSW) and is therefore subject to the regime of scrutiny imposed by that Act in respect of departures from the standards of "honest and impartial exercise of official functions". These two legislative regimes post-date s 37. They are, however, part of the circumstances in which the appointments of Foster AJ were made and would need to be considered if, in some way, reliance were to be placed on those circumstances.
As with permanent Judges, the remuneration of acting Judges of the Supreme Court of New South Wales is fixed by recommendations made by an independent statutory authority, which recommendations are subject to disallowance by Parliament[4].
[4]Statutory and Other Offices Remuneration Act 1975 (NSW), ss 13, 19A and Sched 1.
Finally, before an acting Judge enters upon the performance of duties pursuant to a commission, he or she must take the judicial oath or affirmation, which is a commitment to do right to all manner of people without fear or favour, affection or ill-will[5].
[5]Oaths Act 1900 (NSW), s 8 and Fourth Schedule.
In brief, an acting Judge of the Supreme Court of New South Wales is appointed by the same authority (the Governor-in-Council) as appoints a permanent Judge of that Court, takes the same oath of office binding him or her to impartiality, is subject to the same process of removal during a term of office (removal by the Governor on an address of both Houses of Parliament), is remunerated on the basis of recommendations of the same tribunal, is subject to the same system of complaints and discipline administered by the Judicial Commission of New South Wales, and is subject to the same scrutiny by the Independent Commission Against Corruption. It might be added that the last two statutory mechanisms for judicial accountability, which reinforce obligations of impartiality, go beyond any system that applies to federal judges, or to judges in most other parts of Australia. New South Wales judges, including acting judges, are subject to statutory regimes of scrutiny and accountability for misbehaviour (including bias) more extensive than those which apply to their counterparts elsewhere in Australia.
Acting Judges
In a perfect world, an Executive Government would appoint exactly the number of permanent judges required to enable all courts to operate efficiently and effectively, all courts would have consistent and predictable caseloads, there would be no temporary shortages of resources, there would be no need for delay reduction programmes, and the size of courts would expand to meet litigious demand. (What would happen in the event of a contraction of litigious demand is a question that raises its own problems.) No such world exists.
The appointment of acting judges, supplementing permanent judicial resources, has been an aspect of the administration of justice in New South Wales, and in other parts of Australia, from the beginning. Until fairly recently, most acting judges were practising barristers who agreed to accept judicial appointment for a limited term. Sometimes, judges of a lower court were appointed, temporarily, to a higher court. There are two main reasons advanced in opposition to appointments of the first kind. First, barristers who are appointed as acting judges are said to lack the necessary appearance of impartiality, especially if they are hoping for permanent appointment. Secondly, governments may be tempted to make acting appointments in order to avoid their responsibility to provide an adequately resourced, permanent, full-time judiciary. Depending on circumstances, there may be substance in such concerns. Anybody familiar with the practicalities of government funding will know that temporary accommodation has a way of becoming permanent. These, however, are matters that are generally the subject of political responsibility and accountability. As was noted above, there are sometimes concerns about aspects of government decisions on the making of permanent appointments. Such issues are usually fought out in the political arena. Resolution of justiciable issues requires identification of a legal norm and its application to established facts.
Earlier this year, the Privy Council, in Kearney v HM Advocate[6], applied the legal norm set out in Art 6(1) of the European Convention on Human Rights to the Scottish system of appointing practising advocates as temporary judges. The Article provides:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
[6]2006 SC (PC) 1.
Similar legal standards, usually based on constitutional provisions, or human rights instruments, have been applied by courts on a number of occasions, in deciding whether some aspect of a court, or a court system, complied with minimum requirements of independence and impartiality, and thus whether a decision-making authority answered the description of a "court". Decisions in those cases contain valuable analyses of the essential requirements of an independent and impartial court[7].
[7]See, for example, Valente v The Queen [1985] 2 SCR 673; R v Beauregard [1986] 2 SCR 56; R v Généreux [1992] 1 SCR 259; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3; Van Rooyen v The State 2002 (5) SA 246 (CC).
In Kearney v HM Advocate, the Privy Council concluded that the Scottish system complied with the requirement of Art 6(1). The reasons of Lord Hope of Craighead contain an account of the development in Scotland of the practice of appointing advocates as temporary judges. Lord Carswell, summarising the conclusions of the other members of the Privy Council, said that "there is no reason to doubt the independence or impartiality of temporary judges appointed from the Faculty of Advocates to act as judges in the High Court of Justiciary"[8]. Of course, that conclusion depended upon a close examination of matters of fact, and of the legal context in which the issue arose. The point is that what was addressed was a justiciable issue involving the application of a legal test to a particular system of appointing temporary judges. The system was held to satisfy the test.
[8]2006 SC (PC) 1 at 21 [63].
The use of part-time judicial officers in England and Wales is extensive. In the fourth edition of Halsbury it is said[9]:
"It is a feature of the judicial system in England and Wales that there are many part-time judicial office holders, such as deputy High Court judges, deputy circuit judges and recorders. These appointees are usually barristers or solicitors in practice. They do not enjoy the high degree of security of tenure applicable to the full-time judiciary."
[9]Halsbury's Laws of England, 4th ed reissue, vol 8(2), par 301.
It has not been unusual in Australia for practising barristers to be appointed acting judges. This is illustrated by the fact that two of the first three members of this Court, Barton J[10] and O'Connor J[11], had been acting Judges of the Supreme Court of New South Wales, and Dixon J[12], Rich J[13], Williams J[14], Owen J[15] and Jacobs J[16] had also been acting judges of State Supreme Courts.
[10]Bolton, Edmund Barton, (2000) at 131.
[11]Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 509.
[12]Ayres, Owen Dixon, (2003) at 48.
[13]Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 605.
[14]Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 713.
[15]Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 518.
[16]Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 365.
At the time of Federation, some of the State (formerly colonial) Supreme Courts were, by modern standards, very small. Each of the Supreme Courts of Tasmania[17], South Australia[18] and Western Australia[19] had only three members. An illness of a permanent judge could create a temporary need which governments might well be reluctant to meet by appointing another permanent judge. Similarly, departure of a permanent judge on a period of leave could result in a vacancy which a government might wish to fill by an acting appointment. Practical considerations of that kind were well understood by the Founders, who were familiar with the needs of States for systems that made it possible to appoint acting judges.
[17]Ely (ed), Carrel Inglis Clark: The Supreme Court of Tasmania, Its First Century 1824-1924, (1995) at 141, 159, 165.
[18][1900] South Australian Law Reports.
[19](1899-1900) 1 & 2 Western Australian Law Reports.
Quantitative analysis may be misleading. It was pointed out in argument that four of the ten Judges presently holding commissions in the Supreme Court of the Northern Territory are acting Judges. They perform a relatively small proportion of the Court's total work. That may vary from time to time. Depending upon the size of a court, a small number of acting appointments could influence strongly the proportion between permanent and temporary judges. From one point of view, the smaller the court the more necessary it may be to have some provision for acting judges. Again, however, the effective size of a court needs to be related to its workload. Comparison of the number of acting judges in a given court over a period of years without reference to changes in the number of permanent judges over the same period would be meaningless. According to the submissions of the parties, examination of the front pieces and memoranda in the State Reports of New South Wales and the New South Wales Law Reports shows that in 1907 there were seven permanent Judges, in 1929 there were nine, in 1935 there were ten, in 1952 there were 16, in 1969 there were 35, in 1988 there were 42, in 2001 there were 49 and in 2004 there were 50. The number of acting Judges fluctuated. In many years there were none. In several years (such as 1907, 1911, 1919, 1920, 1924, 1929, 1936, 1937, 1938, 1939 and 1952) the number of acting Judges was more than 20 per cent of the total number of Judges at the Court. That figure, in turn, is uninformative unless it is further refined by reference to the actual time for which individual Judges sat.
A change that has occurred in recent times in New South Wales has been a move towards the appointment of retired judges as acting Judges of the Supreme Court. At the time of his appointments, Foster AJ was not a practising barrister. None of the other acting Judges who held office at the same time as him were practising barristers. The age of compulsory retirement for a Federal Court Judge is 70. The corresponding age for a Judge of the Supreme Court of New South Wales is 72. The maximum age for an acting Judge of the Supreme Court of New South Wales is 75. If there are to be any acting judges at all, the reasons why governments might look to experienced, retired judges are plain. It may be added that retired Australian judges perform valuable service as judges, for limited terms, in a number of countries in the Pacific region and elsewhere.
Finally, it may be noted that, in 1999, this Court dismissed a challenge to the validity of an appointment of an acting Judge of the Supreme Court of the Australian Capital Territory, although the arguments advanced in that case were somewhat different from the arguments in the present case. In Re Governor, Goulburn Correctional Centre; Ex parte Eastman[20], a man who had been convicted of murder after a long criminal trial sought to challenge the conviction on the ground that the presiding judge, Carruthers AJ (a retired former member of the Supreme Court of New South Wales), had not been validly appointed. One of the grounds of invalidity was that he was appointed for a limited term only. If argument for the applicants in the present case is correct, it is difficult to see how the outcome in that case could be supported. Furthermore, the case provides a good example of the kind of circumstance that explains the existence of a power to appoint acting judicial officers. The Supreme Court of the Australian Capital Territory is a small court. The Eastman trial (which lasted for many months) placed a large, but temporary, strain on its limited resources. Hence the resort to what was described as "the facility regularly employed in many of the Australian States but with added practical justifications deriving from the circumstances of the Territories"[21].
[20](1999) 200 CLR 322.
[21](1999) 200 CLR 322 at 365 [110] per Kirby J.
The validity of Supreme Court Act, s 37
Australia has an integrated, but not a unitary, court system. As was pointed out in North Australian Aboriginal Legal Aid Service Inc v Bradley[22], there is no single ideal model of judicial independence, personal or institutional. Within the Australian judiciary, there are substantial differences in arrangements that bear upon judicial independence. Until a constitutional amendment in 1977, Justices of this Court, and other federal courts created by Parliament, were required to be appointed for life. No one ever suggested that, in that respect, Ch III of the Constitution provided a template that had to be followed to ensure the independence of State Supreme Courts, much less of all courts on which federal jurisdiction might be conferred. Indeed, for most of the twentieth century, many of the judicial officers who exercised federal judicial power, that is to say, State magistrates, were part of the State public service[23]. If Ch III of the Constitution were said to establish the Australian standard for judicial independence then two embarrassing considerations would arise: first, the standard altered in 1977; secondly, the State Supreme Courts and other State courts upon which federal jurisdiction has been conferred did not comply with the standard at the time of Federation, and have never done so since.
[22](2004) 218 CLR 146 at 152 [3].
[23]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 153 [4].
Nothing better illustrates the room for legitimate choice that exists in connection with arrangements affecting judicial independence than the removal in 1977 of the requirement of life tenure for federal judges. That requirement probably explained why, before 1977, the federal judiciary was so small, and why so much federal jurisdiction was exercised by State judges, who did not have life tenure. At the time of Federation, life tenure was seen as necessary to secure the independence of the federal judiciary and, in particular, of the members of this Court. In 1977, it was seen as inconvenient. This Court did not become less independent in 1977. Tenure is an important aspect of the arrangements that support the individual and personal aspects of judicial independence; but it is only one of a number of aspects all of which have to be considered in combination. Furthermore, the essence of tenure is that explained in the quotation from Valente v The Queen set out earlier in these reasons.
It is s 72 of the Constitution which, in its provisions as to judicial appointment, tenure and remuneration, deals with topics relevant to judicial independence. Those provisions are said, by s 72, to apply to the Justices of the High Court and of other courts created by the Parliament. There is nothing in the Constitution that says, either expressly or by implication, that State Supreme Courts, or other State courts that may be invested with federal jurisdiction, must be subject to like provisions relating to appointment, tenure and remuneration. At the time of Federation they were not; and they never have been since then. There are, of course, substantial similarities between the provisions applicable to State Supreme Courts and those found in s 72; but there are differences. In Re Governor, Goulburn Correctional Centre; Ex parte Eastman[24], it was held that s 72 did not apply to the Supreme Court of the Australian Capital Territory. Obviously, it does not apply to the Supreme Court of New South Wales. Its terms are such that it could not possibly do so.
[24](1999) 200 CLR 322.
The principal argument for the applicants, however, was less direct. It was acknowledged that the Constitution accepts the possibility that State courts, including State Supreme Courts, might be constituted differently from federal courts[25]. In Le Mesurier v Connor[26], Knox CJ, Rich and Dixon JJ cited the statement of Isaacs J in R v Murray and Cormie; Ex parte The Commonwealth[27] that "[t]he Constitution, by Chapter III, draws the clearest distinction between federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain 'State Courts.'" Their Honours went on to say:
"The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised."
[25]The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49.
[26](1929) 42 CLR 481 at 495-496.
[27](1916) 22 CLR 437 at 452.
The argument for the applicants invoked the principle in Kable v Director of Public Prosecutions (NSW)[28] that, since the Constitution established an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid. By parity of reasoning, it was said, s 37 is invalid. If, according to the principle invoked, a State Supreme Court may not have acting judges because they substantially impair its institutional integrity, then the institutional integrity of all State Supreme Courts has been impaired since Federation. This is not a case about a conferral of a function on a court; it is about State legislation providing for the constitution of a Supreme Court (and providing for it in a manner that has remained substantially unchanged since before Federation). Even so, it is argued, the same principle applies. If the conclusion for which the applicants contend truly followed from the principle, then the principle would require reconsideration.
[28](1996) 189 CLR 51.
It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of "courts". For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution. It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid. For the reasons given above, however, Ch III of the Constitution, and in particular s 72, did not before 1977, and does not now, specify those minimum requirements, either for State Supreme Courts or for other State courts that may be invested with federal jurisdiction.
State legislation which empowers the Governor of a State to appoint acting judges to a State Supreme Court does not, on that account alone, deprive the body of the character of a court, or of the capacity to satisfy the minimum requirements of judicial independence. Before and since Federation, such legislation has been common. Minimum standards of judicial independence are not developed in a vacuum. They take account of considerations of history, and of the exigencies of government. There are sound practical reasons why State governments might need the flexibility provided by a power to appoint acting judges.
Judicial independence and impartiality is secured by a combination of institutional arrangements and safeguards. It has already been explained that acting Judges of the Supreme Court of New South Wales are appointed by the same authority as appoints permanent Judges; they take the same judicial oath; they may be removed only by the Governor on an address of both Houses of Parliament; and their remuneration is fixed by an independent tribunal. They are now subject to the scrutiny of the Judicial Commission of New South Wales and the Independent Commission Against Corruption.
In the case of a retired federal judge such as Foster AJ, it is difficult to imagine what doubts might reasonably have been entertained about his independence or impartiality, except such as could arise from the renewability of his temporary appointment. This consideration must be evaluated in the wider context mentioned in the preceding paragraph. There are aspects of the position of many permanent judges that could raise questions of at least as much significance. Consider, for example, the matter of judicial promotion. Judges are commonly promoted (by executive governments) within courts or within the judicial hierarchy. Such promotions may involve increased status and remuneration. Throughout the history of this Court, most of its members have arrived here by way of promotion. There may be some people who would say that could erode independence and impartiality. There may be permanent judges for whom judicial promotion would have at least as much attraction as an opportunity to spend another year as an acting judge would have to a 73 or 74 year old former judge. The usual response to such concerns is that a ban on judicial promotion would result in inflexibility and inconvenience; and that the independence and impartiality of judges is shored up by so many systemic and personal factors that this is not, in practice, a decisive objection. The same may be said of the renewability of Foster AJ's appointments. It is not a matter to be dismissed lightly, but in the wider context it is not decisive. It is difficult to legislate against the pursuit of self-interest, and neither s 72 of the Constitution nor any State or federal Act seeks to do so. A permanent judge with prospects of advancement might be seen by some observers as being at least as likely to seek to please the executive as a temporary judge with prospects of re-appointment. Issues such as these are generally dealt with by standards of professional behaviour, not legislative prescription. As the Attorney-General of Queensland pointed out in written submissions, ultimately what stands between any judge and the temptation of executive preferment is personal character.
Views may differ on the circumstances in which appointments of acting judges are desirable or appropriate, but it is difficult to legislate for such circumstances. Let it be assumed, for example, that executive governments ought not to use the power of appointing acting judges to evade the responsibility of providing an adequately resourced court system. That proposition would probably command general acceptance; but it has large political and economic content, and corresponding uncertainty of application. Acceptance of that view does not lead to the conclusion that s 37 of the Supreme Court Act is invalid; indeed it raises issues that may not be justiciable. They are certainly not issues that are capable of being resolved on the information available to this Court as to the circumstances of the appointments of Foster AJ.
It is possible to imagine extreme cases in which abuse of the power conferred by s 37 could so affect the character of the Supreme Court that it no longer answered the description of a court or satisfied the minimum requirements of independence and impartiality. It is, however, a basic constitutional principle that the validity of the conferral of a statutory power is not to be tested by reference to "extreme examples and distorting possibilities"[29]. Possible abuse of power is rarely a convincing reason for denying its existence.
[29]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32].
The challenge to the validity of s 37, and thus to the appointments of Foster AJ, fails.
Conclusion
I agree with the answers to questions, and orders, proposed by Gummow, Hayne and Crennan JJ.
GUMMOW, HAYNE AND CRENNAN JJ. There are two issues that arise in the two matters in this Court[30], and also in an application for special leave to appeal to this Court that was heard at the same time[31]. The first issue raises fundamental questions about the operation of Ch III of the Constitution. It concerns the validity of the legislation permitting appointment of acting judges of the Supreme Court of New South Wales. It is with this issue that these reasons deal first.
[30]Matter No C7 of 2005 is a proceeding instituted in the original jurisdiction of this Court against Australian Securities and Investments Commission, the State of New South Wales and the Commonwealth and in which the first and second defendants demurred to the whole of the plaintiffs' statement of claim. In Matter No C12 of 2005, part of a matter pending in the Supreme Court of New South Wales was removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) and questions were reserved for the opinion of the Full Court.
[31]Against the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 December 2004 in Forge v Australian Securities and Investments Commission (2004) 213 ALR 574.
Acting judges
The Honourable Michael Leader Foster was, from 1987 until his retirement on 26 November 1998, a judge of the Federal Court of Australia. By successive appointments, each made by commission under the public seal of the State, Mr Foster was appointed to act as a judge of the Supreme Court of New South Wales for terms of 12 months commencing on 31 May 1999, 2000, 2001 and 2002. Between March and May 2002, during the third of these periods of appointment, he tried proceedings brought in the Supreme Court of New South Wales by the Australian Securities and Investments Commission ("ASIC") against Mr Forge and others in which ASIC alleged the commission of contraventions of certain civil penalty provisions of corporations legislation. On 28 August 2002, during the fourth period of appointment, Foster AJ delivered judgment in those proceedings. Were the appointments of Foster AJ that were in force when these proceedings were heard and determined validly made?
It will be necessary, later, to identify the relevant civil penalty provisions more precisely when considering the second of the issues that arise in this Court but that is a task that need not be undertaken in considering the validity of the appointments of Foster AJ. For the moment, it suffices to recognise that the trial was an exercise of federal jurisdiction, the proceedings instituted by ASIC being proceedings brought by or on behalf of the Commonwealth[32].
[32]Constitution, s 75(iii); Judiciary Act, s 39(2); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559.
Each appointment of Foster AJ was made in reliance upon the provisions of s 37 of the Supreme Court Act 1970 (NSW) which, in its terms, permits the appointment of a qualified person to act as a judge for a time not exceeding 12 months specified in the commission. Mr Foster was a "qualified person" because he had been a judge of the Federal Court of Australia[33]. Section 37 provides:
[33]Supreme Court Act 1970 (NSW), s 37(2)(b).
"(1)The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge, or as a Judge and a Judge of Appeal, for a time not exceeding 12 months to be specified in such commission.
(2)In subsection (1) qualified person means any of the following persons:
(a)a person qualified for appointment as a Judge of the Supreme Court of New South Wales,
(b)a person who is or has been a judge of the Federal Court of Australia,
(c)a person who is or has been a judge of the Supreme Court of another State or Territory.
(3)A person appointed under this section shall, for the time and subject to the conditions or limitations specified in the person's commission, have all the powers, authorities, privileges and immunities and fulfil all the duties of a Judge and (if appointed to act as such) a Judge of Appeal.
(3A)The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period.
(3B)The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975. The remuneration payable to an acting Judge is to be paid to the acting Judge so long as his or her commission continues in force.
(4)A retired Judge of the Court or of another court in New South Wales (including a retired judicial member of the Industrial Commission or of the Industrial Relations Commission) may be so appointed even though the retired Judge has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(4A)A person who is or has been a judge of the Federal Court of Australia or of the Supreme Court of another State or Territory may be so appointed even though that person has reached the age of 72 years (or will have reached that age before the appointment expires) but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(5)The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges' Pensions Act 1953) by the person.
(6)The provisions of section 36(4) and (5) apply to an acting Judge who acts as a Judge of Appeal in the same way as they apply to a Judge who acts as an additional Judge of Appeal."[34]
[34]Some questions about the construction and operation of sub‑s (3A) were touched on in oral argument. Those questions need not be and are not addressed in these reasons.
The parties who contended that the appointments of Foster AJ, for the terms ending 30 May 2002 and 30 May 2003, were invalid (Mr Forge and others) alleged that s 37 is wholly invalid. Their basic proposition was that the Supreme Court of New South Wales "as an institution must be made up of full‑time permanent judges with security of tenure". But, in the end, these parties did not appear to stake all upon acceptance of this basic proposition. Rather, recognising that both before and after federation, legislation establishing the Supreme Courts of all of the colonies, and later all of the States, made provision for appointment of acting judges[35], they accepted that some provision for acting appointments might be constitutionally valid. They contended, however, that the power given by s 37 was not limited "as to numbers and the circumstances in which acting judges may be appointed". They then further contended that s 37 could not be read down because, so they submitted, no satisfactory criterion could be devised which would sufficiently confine exceptions to the basic proposition that the court must be made up of full‑time permanent judges with security of tenure. In particular, the parties alleging invalidity contended that qualitative criteria governing the appointment of acting judges, like "in special circumstances", or "for temporary needs or purposes", should be rejected and could not be applied to read down s 37 and thus confine the power to appoint acting judges.
[35]See, for example, as to New South Wales: The Australian Courts Act 1828 (Imp) (9 Geo 4 c 83), s 1; Supreme Court and Circuit Courts Act 1900 (NSW), ss 13‑15. See also Supreme Court Act 1890 (Vic), s 14; Constitution Act 1975 (Vic), s 81; Supreme Court Act 1855-56 (SA), s 5; Supreme Court Act 1935 (SA), s 11; Supreme Court Act 1867 (Q), s 33; Supreme Court Act 1892 (Q), s 12; Supreme Court of Queensland Act 1991 (Q), s 14; Supreme Court Act 1880 (WA), s 12 (permitting the appointment of Commissioners); Supreme Court Act 1935 (WA), s 11. As to Tasmania, The Australian Courts Act 1828 applied to Van Diemen's Land. (The Supreme Court Act 1887 (Tas) made no provision for appointment of acting judges.)
The applicants downplayed this background by saying that they accepted that at the time of federation it was well understood that the full-time judges in the Supreme Courts of the Colonies were "sometimes assisted by an acting judge or judges to meet special circumstances". The possibility that State legislation could achieve the same result now without invalidity was one which the applicants' primary submission eschewed, although its fallback position accommodated it. In the very vague terms in which it is put, the exception cannot be correct. The question remains whether s 37 by itself, or s 37 in the light of the appointments made under it, is open to the criticisms advanced by the applicants.
Safeguards in the New South Wales legislation
The arguments of the applicants did not deal effectively with the similarities between permanent and acting judges of the Supreme Court of New South Wales, particularly the similarities between the safeguards affecting the two classes.
Like permanent judges, acting judges of the Supreme Court of New South Wales are appointed by the Governor on ministerial advice by commission under the public seal of the State[286]. Like permanent judges, acting judges are qualified for appointment if they are legal practitioners of at least seven years' standing, or if they hold or have held a judicial office of New South Wales or of the Commonwealth, or of another State or a Territory[287]. Like permanent judges, acting judges are obliged to take not only the oath of allegiance but also the judicial oath (to "do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will")[288]. These oaths are not seen as mere words. Acting judges have "all the powers, authorities, privileges and immunities and fulfil all the duties of" permanent judges[289]. Among those immunities is immunity from suit, and among those privileges is the protection afforded by the law relating to contempt of court. The protection and immunity of both permanent and acting Supreme Court judges performing duties as judges extends to judges when performing ministerial duties as judges[290]. The remuneration of acting judges, like that of permanent judges, is, subject to parliamentary disallowance[291], determined from time to time by the Statutory and Other Offices Remuneration Tribunal[292], is directly appropriated from the Consolidated Fund[293], is a statutory entitlement[294] and cannot be reduced during the term of the respective officers[295]. Both acting and permanent judges are only removable from office by the Governor after the Governor has received, first, a report of the Conduct Division of the Judicial Commission of New South Wales setting out its opinion that the matters referred to in the report could justify parliamentary consideration of the removal on the ground of proved misbehaviour or incapacity[296] and, secondly, an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity[297]. Both acting and permanent judges are subject to the same system of complaints and discipline administered by the Judicial Commission of New South Wales[298] and to the same capacity for scrutiny by the Independent Commission Against Corruption[299]. The intra-curial arrangements for the transaction of the business of the Court of Appeal apply indifferently as between permanent Judges of Appeal and acting Judges of Appeal, and the intra-curial arrangements for the transaction of the business of a Division apply indifferently as between permanent judges appointed or nominated to that Division and acting judges so appointed or nominated[300]. Hence the same practices in relation to the court administration apply – assignment of judges, sittings of the court and allocation of courtrooms.
[286]Supreme Court Act 1970 (NSW), s 37(1).
[287]Supreme Court Act 1970 (NSW), ss 26(2) and 37(2).
[288]Oaths Act 1900 (NSW), s 8 and Fourth Schedule.
[289]Supreme Court Act 1970 (NSW), s 37(3).
[290]Judicial Officers Act 1986 (NSW), s 44A (which did not commence operation until 7 July 2003, after Foster AJ began hearing the relevant proceedings in 2002, but which is illustrative of the regime of safeguards in place).
[291]Statutory and Other Offices Remuneration Act 1975 (NSW), s 19A.
[292]Statutory and Other Offices Remuneration Act 1975 (NSW), ss 13 and 20.
[293]Statutory and Other Offices Remuneration Act 1975 (NSW), s 11(3).
[294]Supreme Court Act 1970 (NSW), ss 29(1) and 37(3B).
[295]Statutory and Other Offices Remuneration Act 1975 (NSW), s 21(1) and Sched 1.
[296]Judicial Officers Act 1986 (NSW), s 41.
[297]Constitution Act 1902 (NSW), s 53.
[298]Judicial Officers Act 1986 (NSW), s 3(3).
[299]Independent Commission Against Corruption Act 1988 (NSW), s 3 (definition of "public official").
[300]Supreme Court Act 1970 (NSW), s 39.
Apart from those statutory provisions treating permanent and acting Supreme Court judges indifferently, both permanent and acting judges are subject indifferently to the general law and subject to the same duty to apply it. They are subject to the same possibilities and procedures of appeal and the same requirements of impartiality and of apparent impartiality. They must treat all parties equally, and protect the right of the parties to meet the case each is making against the other. They are bound by the same rules of natural justice. They are bound by the same duties to hear cases fairly, find facts accurately, and apply the law, correctly ascertained, to the facts found.
In addition, since the work of both permanent and acting judges takes place in public, and since the reasons for judgment of both permanent and acting judges are publicly available, acting judges are equally open to the same scrutiny by their peers, the profession and the public as permanent judges. Both acting and permanent judges share the same professional ethos, tradition and culture. They share the same concern for professional reputation. There is no legislative provision permitting interference by the executive or the legislature in the work of acting judges any more than there is in relation to permanent judges, and there are equally well-established customs precluding interference. It was not suggested by the applicants that the actual process and techniques by which acting judges tackle the issues thrown up for their decision differ from those employed by permanent judges.
Consequences of the statutory and other safeguards
From the considerations just outlined it follows that it is necessary to reject the following submissions made by the applicants:
(a)that "there is a vast difference both conceptually and as a matter of perception between a court ... constituted by a full time judge and one constituted by an acting judge appointed for a short term";
(b)that "[t]here is clearly a vast difference between a court constituted by full time Judges and one constituted by full time Judges and a substantial number of acting judges";
(c)that "acting judges must ... be seen as impermanent, possibly not qualified to be full time judges and not part of a stable structure";
(d)that acting judges "could ... be perceived variously as fill-ins or appointed to save costs or supernumeraries or not committed fully to the task because of their potential to have other interests"; and
(e)that the appointment of acting judges gives rise to "the existence or the perception of two classes of judges evincing two grades of justice".
Threats to actual and perceived independence and impartiality
So far as the applicants contended that the proportion of acting judges appointed to the Supreme Court of New South Wales placed the independence and impartiality of that Court under threat either as a matter of fact or as a matter of perception, there was no actual evidence of that fact or that perception. It may be a view that some lawyers, politicians and others hold, but it has not been shown that many other persons hold that view. In the absence of evidence, it is necessary to resort to estimations of how reasonable bystanders would probably view matters.
To start with, it must be remembered that a perceived tendency to undermine public confidence in the impartiality of a Supreme Court is not by itself a touchstone of invalidity[301].
[301]Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at 1525 [23] per Gleeson CJ, 1539 [102] per Gummow J, 1546 [144] per Kirby J; 210 ALR 50 at 58, 78, 88.
The applicants submitted that acting judges are perceived to lack independence, because of a desire for further appointment, because of work done for the executive in the past by the appointee or the hope of offers of work from the executive in the future, and because they "can become beholden to other interests". The argument based on these amorphously expressed concerns proves too much: permanent judges too can hope for promotion to a higher court or a higher judicial office; they too can receive acting appointments in those courts or those offices (as has happened since the first half of the 19th century); they too can hope for work at the hands of the executive; they too may have done work for the executive in the past; and they too can become beholden to other interests in hoping for work, whether from the government or from private interests, on leaving the bench. There are institutional, professional and ethical checks against these risks, and there are obstacles raised by personal integrity, but all these checks and obstacles operate as fully for acting judges as for permanent ones. Any specific suspicions of actual or apprehended bias can be dealt with by ad hoc applications which can be considered on their merits in the ordinary way[302].
[302]Barton v Walker [1979] 2 NSWLR 740 at 757-758 per Samuels JA (Reynolds and Glass JJA concurring).
The acting Supreme Court judges during the relevant period comprised ex-Federal Court judges whose career on that Court had been terminated on attainment of the retirement age of 70, other ex-Federal Court or Supreme Court judges, Masters and District Court judges. To the extent that estimations of likely public perceptions are relevant, an objective observer would be likely to see the acting appointments as, in the case of ex-judges, a continuation for a short time of an existing judicial career, and in the case of Masters and District Court judges, as service in a judicial role, different, but not radically different, from that in which they were already engaged; and would be likely to see the acting judges appointed as suitable and qualified persons whose circumstances and independence were indistinguishable from those of the permanent judges.
In short, the history of acting judges in the Colonies before federation points to the conclusion that Ch III contemplates the validity of State legislation permitting the appointment of acting judges. The arguments of the applicants concentrated on the numbers of acting judges as a proportion of the whole. Those are misleading figures, for not all acting judges work full-time during the period in which they are acting. To compare them with appointments of a single acting judge to a Colonial Supreme Court ignores the possible impact of even a single appointment of that kind on courts with the very low memberships of those days. But even apart from those qualifications, if the relevant criterion is the protection of judicial independence and impartiality, the conclusion of Gummow, Hayne and Crennan JJ[303] that the numbers of judges appointed alone cannot be decisive and that it is necessary to consider why they have been appointed and what safeguards are in place to protect judicial independence and impartiality must, with respect, be correct. There is no evidence as to why the acting judges were appointed. There are ample safeguards to protect judicial independence and impartiality. Section 37 of the Supreme Court Act 1970 (NSW) is not invalid.
Corporations Act 2001 (Cth) – Ch 10
[303]At [90].
I agree with the reasoning of Gummow, Hayne and Crennan JJ.
Orders
I agree with the orders proposed in relation to each of the proceedings by Gummow, Hayne and Crennan JJ.