Forge v Australian Securities and Investments Commission

1. The application of the European Convention to the municipal law of the United Kingdom[218] has required the courts of that country to consider directly the necessities of independence and impartiality of its courts in accordance with the jurisprudence that has grown around these basic concepts. In Australia, we cannot use the same legal material in an identical way in elaborating the requirements of our own Constitution and laws. Nevertheless, the many recent judicial decisions in the United Kingdom and elsewhere concerning acting and temporary judges, collected in the reasons of Lord Justice-Clerk Cullen in Starrs[219], bear out the conclusion in 1998 of the then United Nations Special Rapporteur on the Independence of the Judiciary (Dato' Param Cumaraswamy). This was that the growing understanding of the needs for the protection of judicial independence "send alarm bells to some jurisdictions where temporary judges are appointed as a matter of course without regard to the grave constitutional flaw in such appointment"[220].
2. It was considerations such as these that resulted in the conclusion of the High Court of Justiciary in Scotland that the institutional arrangements for the temporary sheriffs in that country (which had been in place for many years) should be declared incompatible with the right to trial by "an independent and impartial tribunal". In Starrs, that conclusion invalidated the conviction of the applicant by such a sheriff[221]. As Lord Reed observed[222]:

"[T]he United Kingdom practice of appointing temporary judges appears to be unusual within a European context: it appears that in almost all the other systems surveyed the appointment of a temporary judge by the executive for a period of one year, renewable at the discretion of the executive, would be regarded as unconstitutional".

1. In the elaboration of the Australian Constitution, this Court should maintain an awareness of international expositions of the requirements of judicial independence and impartiality, including in respect of judicial tenure. Each complaint of individual and institutional infractions must be judged on its own merits and in an Australian context. Considerations of practicality, economy and post-service desire for further judicial service may be given weight. Constitutional provisions, treaty obligations and institutional arrangements will inevitably vary as between different countries. However, the significance of the elaboration of international human rights standards in the context of acting and part-time judges is now clear. Increasingly, the defects of such appointments, when measured against the requirements of fundamental human rights, have been identified and given effect by courts and tribunals of high authority in many countries.
2. This Court should approach the resolution of the plaintiffs' challenge in the present proceedings with such worldwide developments in mind. The fact that they represent new criticisms of local judicial arrangements which may have lasted for some time is not a reason to reject them. The law is full of new insights. Kable itself was one of them. And in any case, the plaintiffs' institutional criticism concerns developments in the Australian judiciary, specifically the Supreme Court of New South Wales, that the evidence shows are less than twenty years old.
3. Other contextual considerations: The three remaining steps in the plaintiffs' submissions can be dealt with more briefly. They require a recognition of other contextual features that lend colour to the alteration of the judicial institution of which the plaintiffs complain; the accumulation of changes so that they may be perceived as an attempted institutional modification, specifically of the State Supreme Court; and a recognition of the obligation of this Court, as the defender of the Constitution (and specifically of its judicial Chapter), to be vigilant against such alterations[223].
4. The materials before this Court lend support to the plaintiffs' submissions. Of greatest importance was the factual material concerning the incidence of the acting appointments described. The shift in practice is arguably important because of the essential fragility of judicial power and authority; and also because of the special importance it enjoys in a federation[224]. Inevitably, the role of the judiciary in federations occasions criticism, and sometimes attack, from members of the other branches of government. Such attacks have increased in recent years[225], not only in Australia[226].

"It is one thing to tolerate the occasional acting appointment to this court for a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the discretion of the executive."

1. These remarks must be clearly understood against the background of recent experience in Australia. In New South Wales, the appointment of acting judges in large numbers was first justified to remove a specific backlog. However, the temporary expedient soon became a permanent feature of the affected courts[228]. The objections to such an institutional change are many, quite apart from the fact that they were accomplished without specific debate in, or new laws enacted by, the State Parliament. To the extent that practising lawyers are temporarily appointed, later or meantime returning to their individual practices, the defects in manifest independence and impartiality are obvious. They were noticed in Starrs[229] where Lord Reed cited some extra-curial remarks of Brennan CJ[230], as well as the following remarks of my own[231]:

"But what of the lawyer who would welcome a permanent appointment? What of the problem of such a lawyer faced with a decision which might be very upsetting to government, unpopular with the media or disturbing to some powerful body with influence? Anecdotal stories soon spread about the 'form' of acting judges which may harm their chances of permanent appointment in a way that is unjust. Such psychological pressures, however subtle, should not be imposed on decision-makers."

1. At a time of increased media and other attacks on judges in Australia, an institutional change that shifts a significant cohort of the State judiciary from permanent tenured judges to part-time judges is seriously threatening to the independence and impartiality of that judiciary. In the nature of such threats, their impact is difficult to prove. But they are not theoretical. Governments are excused from appointing adequate numbers of permanent judges (with implications for staff, facilities and pensions). Litigants are subject to the risk of judges of short tenure and with inappropriate distractions. The tenured judiciary is undermined by such an alteration in its basic composition. The part-time and acting judges inevitably ride on the reputation earned by the tenured judiciary[232]. And although during service the acting judge is immune from day-to-day executive interference, their desire for reappointment as an acting judge (or confirmation as a permanent judge) renders the temporary appointee dependent on a decision by the Executive. This is not a feature of the tenure of permanent judges. Such judges, once appointed, are not beholden to the Executive for any wished-for continuation in office. Typically, they serve for a long interval, terminating on a specified birthday known in advance or upon earlier death or upon resignation decided by the judge. In Australia, the changed practice, instanced in these proceedings, endangers the separation of the senior judiciary from the Executive won in the Act of Settlement 1700[233]. It should be nipped in the bud, although by now the bud is in full flower.
2. It is fair to say that the worst features of the short-term appointments of practising lawyers to the Supreme Court of New South Wales have given way, in more recent years, to the exclusive appointment of retired judges as acting judges of the Supreme Court. I accept that this reduces the institutional affront[234]. However, it does not remove it. If it is decided that the years of service of permanent judges should be extended, the course consistent with manifest independence and impartiality of the judiciary of the State is to extend (or remove) the age of mandatory retirement. Such an extension occurred when that age was altered in New South Wales from seventy years to seventy-two[235].
3. The objections of principle to the present arrangements for extension of such appointments include:

(1) That each extension is dependent in every case on the will of the Executive;

(2) That some retired judges clearly desire continuation in office and are thus beholden for this purpose, at regular and short-term rests, sometimes repeatedly, to the will of the Executive;

(3) That some acting judges mix intervals of judicial service with private professional activities on their own behalf, thereby breaking down the judicial culture of an exclusive, dedicated, tenured service that previously existed; and

(4) That acting judges lack the staffing, personal benefits and institutional resources of permanent judges and, as has been observed, in appellate courts, typically (but not always) appear to play a more limited role when compared with permanent appellate judges.

1. To suggest that an acting judge, desirous of reappointment, confirmation as a permanent judge or promotion in appointment would be wholly uninfluenced, on the basis of a possible reappointment, by the risk of upsetting government with a decision, may be correct in the individual case. But it makes a considerable demand on human nature. Not all reasonable observers will be persuaded that it is so[236].
2. What is at stake in these proceedings, as the plaintiffs submitted, is not the accretion of flexibility and post-judicial retirement activities congenial to some former judges. Doubtless arguments can be advanced on both sides on these grounds. The danger of the institutional shift that has occurred, including in the Supreme Court of New South Wales, is that the State judicial institution is thereby weakened by an alteration of its membership to include a significant number, in stable proportion, of persons intermittently reliant upon government for renewal, at relatively short intervals. It is a development fundamentally wrong in principle. It is alien to the previous arrangements for judicial appointments to superior courts that obtained in Australia since colonial days. It is inconsistent with the constitutional character of the Supreme Court of a State of the Commonwealth as existing at the time of Federation and for nearly ninety years thereafter[237].
3. In the nature of the accretions of executive power, once the process begins, it is likely to extend to other States[238]. Although the defendants argued that the law of disqualification for apparent bias was an adequate protection for judicial independence and integrity, that submission is unsound. That law exists to repair individual infractions in particular cases. The plaintiffs' challenge was more fundamental in character and concerned the validity of institutional arrangements. In Fardon v Attorney-General (Qld), McHugh J acknowledged that the Kable principle was more likely to be applied in the future "in respect of the terms, conditions and manner of appointment of State judges … rather than in the context of Kable-type legislation"[239]. So, in my opinion, it has proved in these proceedings.
4. To conform to the federal Constitution, the previous condition of things must be restored. This Court should hold that, in respect of the Supreme Court of New South Wales, the repeated appointment of acting judges in recent years, in the numbers and under the arrangements shown in the record, is constitutionally impermissible. With respect, it is not sufficient to hint that in some future, unidentified and uncertain time, such a ruling might be made[240].

1. Outcome of proceedings: By the foregoing analysis, Foster AJ had no legal authority to serve as an acting judge of the Supreme Court of New South Wales. To the extent that s 37 of the Supreme Court Act appeared to afford him such authority, and to sustain the commission that he received from the State Governor, it was invalid under the federal Constitution. The section should be read down so as to conform to the federal constitutional prerequisites.
2. Those constitutional prerequisites permit exceptional and occasional appointments of acting State judges, including to the Supreme Court. However, they do not permit appointments, en bloc, of such a number of acting judges, for such durations as would have the effect of altering the character of the Supreme Court as an institution suitable for the vesting of federal jurisdiction under the Constitution. In the result, the purported commission as an acting judge given to Foster AJ was invalid. It was of no legal effect. It follows that Foster AJ's purported orders imposed on the plaintiffs are of no legal validity. No argument of waiver or acquiescence stands in the way of giving effect to this conclusion. Nor, in the face of the Constitution, does the supposed de facto officers doctrine.
3. Orders: There are three proceedings in this Court: (1) an application commenced by writ in the original jurisdiction of this Court; (2) a cause removed from the Supreme Court; and (3) an application for special leave to appeal to this Court. I would dispose of the three proceedings in the following way:
4. The questions reserved for the opinion of the Full Court should be answered as follows:

1. All of the successive appointments of the Honourable Michael Leader Foster to act as a Judge of the Supreme Court of New South Wales were invalid; and

2. 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.

1. In the proceedings commenced by writ in this Court, the demurrers should be overruled. Judgment should be entered for the plaintiffs. The proceedings should be returned to a single Justice to be disposed of consistently with these reasons.
2. In the application for special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales, the necessary extension of time should be provided for the bringing of the application out of time; special leave should be granted; the appeal should be allowed; the judgment of the Court of Appeal should be set aside; in place of that judgment it should be ordered that the appeal to the Court of Appeal be allowed and the judgment purportedly made by Foster AJ on 28 August 2002 be set aside. The matter should be remitted to the Supreme Court of New South Wales for retrial. There should be no order for the costs of the proceedings in the Supreme Court.
3. The plaintiffs' costs should be paid by the unsuccessful parties in each proceeding.
4. CALLINAN J. I agree with the reasons for judgment of Gummow, Hayne and Crennan JJ with respect to the application of the relevant transitional provisions to these matters.
5. As to the validity of s 37 of the Supreme Court Act 1970 (NSW), the appointment of Foster AJ pursuant to it, and, in consequence, the validity of the proceedings before him, I would only wish to add a few observations to the reasons for judgment of Gleeson CJ, with which I agree. Before making those observations I should acknowledge my debt to Heydon J for his valuable history of acting judicial appointments in the colonies before federation.
6. As the Chief Justice points out, there are likely to be differing views held by judges about judicial appointments. Some of these are canvassed in his Honour's reasons and in the joint judgment. In 1997 however, the eight Chief Justices of the States and Territories agreed upon the principles which should apply to judicial appointments, and the exercise of judicial power by judges appointed to non-federal courts[246]:

"(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.

(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, or to an additional judicial office, in either case for a limited term provided that:

(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."

1. That agreement about those principles was reached by persons of such eminence and experience necessarily means that they should be accorded respect by those responsible for judicial appointments.
2. There are, of course, other matters to be weighed. Even though the population may be ageing, institutions, including courts, are likely to benefit from the infusion of younger appointees bringing with them enthusiasm and vigour, allied of course with suitable experience and qualifications. It would be unfortunate if any practice were to be adopted of obstructing that infusion by the widespread appointment of retired judges for long and repeated periods. There is also this consideration. The appointment of suitably qualified acting judges to the mainstream courts is likely to produce a better system of justice than the establishment of special tribunals outside that mainstream with restricted appeals from them, staffed by persons for relatively short terms, whether renewable or not, and therefore lacking the institutional history, traditions and protections found in the courts.
3. I too would join in the orders proposed in the joint judgment.
4. HEYDON J. The relevant circumstances and the key statutory provisions are set out in other judgments.

1. In Kable v Director of Public Prosecutions (NSW)[247] this Court invalidated a State law because it conferred a function on a State court which was inconsistent with the institutional integrity of that court as a repository of federal jurisdiction. The applicants seek to extend the principles stated in that case so as to invalidate a law on the ground that it creates in a State court a particular characteristic - acting judges as members.
2. Assumptions in the applicants' argument. Certain legal assumptions underlay, or were clustered about, the applicants' arguments. Some were supported by authority; some have been raised in the past, but only as possibilities. Among them were the following:

(a) the States must preserve a system of State courts to act as repositories of the judicial power of the Commonwealth[248];

(b) it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description "Supreme Court"[249];

(c) State legislation will be invalid where it compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction impartially and competently[250];

(d) it is necessary that a State court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal[251];

(e) the actuality and appearance of impartiality would be impaired if a Supreme Court were predominantly or chiefly constituted by acting judges;

(f) the actuality and appearance of impartiality would be impaired if a series of acting, rather than full-time, appointments were made in such numbers as to distort the character of a Supreme Court[252];

(g) if State legislation takes such a form as to make the State Supreme Court an unfit repository of federal jurisdiction, it is that legislation which is invalid rather than the Commonwealth legislation which confers federal jurisdiction on the unfit repository[253].

1. The competing arguments in these proceedings did not centre on attempts to demonstrate the correctness or falsity of these propositions, but tended rather to assume their correctness. It is not necessary, for the purpose of deciding the present controversy, to reaffirm any of those propositions so far as they are supported by authority, or to reach any conclusion as to their correctness so far as they are not supported by authority. The arguments in these proceedings proceeded on the basis that even if those propositions were assumed to be correct, the applicants could not succeed without establishing something more.
2. Concessions by the defendants and the interveners. The defendants and some of the interveners from time to time conceded that, accepting some or all of the assumptions of the applicants' arguments, there were some kinds of State legislation which might be invalid. Thus the Australian Securities and Investments Commission accepted "the possibility ... that the institutional integrity of a court as an independent and impartial tribunal might be undermined in practice by the manner or extent of the appointment of acting judges". New South Wales conceded that "a Supreme Court consisting entirely of acting judges, each appointed only for individual cases, would probably infringe the Kable principle." The Commonwealth made a similar concession. South Australia conceded that a court could not be composed entirely of acting judges but on the basis of construing s 37 of the Supreme Court Act 1970 (NSW) in the light of the power to appoint permanent judges in s 26.
3. While many allowances must be made for the tact, and the tactics, of advocates, it was not necessary to make these concessions. They were not in any way tested in argument because no counsel advanced argument against them. It is possible that they are sound, but it should not be assumed that they are sound, and the decision whether they are sound must abide some case the facts of which make it necessary to resolve those questions one way or the other.
4. Construction of s 37. It would be possible to undercut significant parts of the applicants' submissions by adopting a particular construction of s 37 as permitting the appointment of only limited classes of acting judge. But apart from South Australia, no party or intervener attempted to do this. It is better to proceed on the basis that s 37 is capable of being construed broadly without finally deciding what its true construction is.

1. The primary position of the applicants was that any legislation permitting the appointment of part-time judges to Supreme Courts was invalid. An alternative and more qualified position which they advanced was that an acting judge sitting for a short period to clear up a list or meet some emergency in the court system might pass muster because the reason for the appointment would be explicable to a member of the public knowing the facts. But the circumstances in which this would be permissible were said to be "very special" or "very, very limited".
2. The applicants submitted that references to "courts" in Ch III of the Constitution were references to courts that are manned by a full-time permanent judiciary whose tenure is fully secure and whose remuneration is secure. They submitted that by the time the present proceedings were dealt with by the trial judge, the appointment of acting judges as a part of the Supreme Court of New South Wales had become so extensive and so institutionalised that it had impaired the integrity of that Court or distorted its character. This had come about because the proportion of acting judges was so great that the Court's independence and impartiality "was placed under threat, if not in fact, then as a matter of perception." That was "a view traditionally held among lawyers, politicians and others" and any "ordinary member of the public informed of the relevant facts would justifiably perceive [the appointments of acting judges] as a threat to the independence and impartiality of the courts." The appointment of acting judges offends "the principle that there are not to be two qualities or grades of justice in relation to the exercise of the judicial power". The applicants also submitted that s 72 of the Constitution "is an affirmation ... that acting justices should not exercise the Judicial Power [of the Commonwealth]." The applicants submitted:

"acting judges must of their very nature be seen as impermanent, possibly not qualified to be full time judges and not part of a stable structure ... They could ... also 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. ... [T]he existence or the perception of two classes of judges evincing two grades of justice is antipathetic to the Constitution".

1. The applicants further submitted that the appointment of acting judges would carry the risk that they would be perceived to be likely to curry favour with the executive and not to be free of influence from the executive.

1. There is ample authority against the s 72 argument. It is clear that s 72 does not in terms require State judges to conform to its criteria. Chapter III refers several times to State courts, but s 72 is limited to federal courts[255]. Section 72 cannot be construed as requiring for State courts by implication what it does not require expressly. An acting judge in a Territory court may exercise the judicial power of the Commonwealth under s 71 of the Constitution while not being subject to the requirements of s 72, and in particular the proscription by s 72 of acting judges[256]. If so, given that a State court is as much one of the "other courts" mentioned in s 71 as a Territory court, the proscription by s 72 of acting judges does not apply to State courts either. This conclusion leaves open the question whether the quantity and character of the acting judges appointed under State legislation can cause it to be invalid.

1. The arguments of the applicants turn on the meaning of the expression "such other courts" in s 71 and "any court of a State" in s 77(iii) of the Constitution. Those words now bear the meaning "they bore in the circumstances of their enactment by the Imperial Parliament in 1900."[257] In 1901 the expression "court" in those provisions must have meant those courts which had been Colonial Supreme Courts and had just become State Supreme Courts in the sense referred to in s 73. The expression "Colonial Supreme Court" referred to courts which had for a long time had provision for the appointment of acting judges: for six of the Colonies legislation had been enacted permitting this, and it was still in force in all six of them in 1901[258]. That well-informed lawyers would have regarded the expressions "such other courts" and "any court of a State" as bearing the meaning of a court with the potential to contain acting judges is supported by the fact that it was Edmund Barton - a man deeply involved in the drafting of the Constitution and in the process by which it obtained popular acceptance - who as Attorney-General introduced into the New South Wales Legislative Assembly the Bill which became the Judicial Offices Act 1892. Indeed, both Edmund Barton[259] and Richard O'Connor[260], who played a comparable role in developing the Constitution and having it adopted, had served as acting judges of the Supreme Court of New South Wales before federation. There were other well-known appointments of acting Supreme Court judges before federation in New South Wales, for example Sir William Manning in 1848-1849[261]. Three Queensland illustrations are Sheppard DCJ[262], Ratcliffe Pring, a former Attorney-General[263], and Windeyer J, from the Supreme Court of New South Wales[264]. In Victoria, Sir Henry Wrenfordsley, who had been Chief Justice of Western Australia in 1880-1883[265], was appointed an acting Supreme Court judge in 1888[266] and Edward Hodges, "a leader of the Bar", in 1889[267]. In Western Australia, Edward Stone acted as Chief Justice in 1881 and as an acting puisne Supreme Court judge in 1883-1884[268] and Sir Henry Wrenfordsley was sworn in as Acting Chief Justice in 1890[269]. In Tasmania, Sir James Dowling, Chief Justice of New South Wales, was an acting judge in 1845[270], J W Rogers was an acting judge in 1884-1885[271] and Sir Henry Wrenfordsley was an acting judge in 1885-1887[272]. In South Australia, Henry Jickling, a barrister, served as an acting judge of the Supreme Court in 1837-1839[273]. Gresson J and Martin J were appointed temporary judges of the Supreme Court of New Zealand before they were appointed permanently, and four other temporary judges were appointed before federation (one after resignation as a permanent puisne judge)[274].

"'I wonder', remarked Sir Samuel, 'whether it has ever occurred to any one to doubt whether under the Constitution any one can be appointed temporarily a Judge of the Supreme Court? I know it has been done for a great many years, and I wonder whether it has occurred to any one to doubt whether it can be done.' His Honour, then recollecting his own political days, added: 'I admit I have done it myself, but I have made mistakes just the same as other people.'"

It is not clear which Constitution Griffith CJ had in mind.

1. 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.

1. 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.
2. 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.

1. 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

1. 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.
2. 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].
3. 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].
4. 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.

1. I agree with the reasoning of Gummow, Hayne and Crennan JJ.

1. I agree with the orders proposed in relation to each of the proceedings by Gummow, Hayne and Crennan JJ.

1. Contrast Starrs v Ruxton; Ruxton v Starrs 2000 JC 208; and compare Kearney v HM Advocate 2006 SC (PC) 1. ↑

3. Statute Law (Miscellaneous Provisions) Act 1989 (NSW), ss 2(1), 3 and Sched 1. ↑

4. Statutory and Other Offices Remuneration Act 1975 (NSW), ss 13, 19A and Sched 1. ↑

5. Oaths Act 1900 (NSW), s 8 and Fourth Schedule. ↑

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). ↑

9. Halsbury's Laws of England, 4th ed reissue, vol 8(2), par 301. ↑

11. Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia, (2001) at 509. ↑

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. ↑

17. Ely (ed), Carrel Inglis Clark: The Supreme Court of Tasmania, Its First Century 1824-1924, (1995) at 141, 159, 165. ↑

19. (1899-1900) 1 & 2 Western Australian Law Reports. ↑

23. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 153 [4]. ↑

25. The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49. ↑

29. Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32]. ↑

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. ↑

32. Constitution, s 75(iii); Judiciary Act, s 39(2); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559. ↑

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. ↑

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.) ↑

36. (2005) 79 ALJR 755 at 761 [32] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 214 ALR 92 at 99. ↑

37. (1956) 94 CLR 254 at 267‑268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. ↑

39. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268. ↑

43. Supreme Court and Circuit Courts Act 1900 (NSW), Matrimonial Causes Act 1899 (NSW) and Administration of Justice Act 1968 (NSW). ↑

45. (1982) 150 CLR 49 at 58 per Gibbs CJ, 59 per Stephen J, 64 per Mason J, 66 per Aickin J, 71 per Wilson J. ↑

46. The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 64 per Mason J. ↑

47. (1929) 42 CLR 481 at 495‑496 per Knox CJ, Rich and Dixon JJ. ↑

49. Le Mesurier v Connor (1929) 42 CLR 481 at 496, 498; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554; Peacock v Newtown Marrickville and General Co‑operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; Russell v Russell (1976) 134 CLR 495 at 516, 530, 535, 554; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 74 per Brennan J. ↑

50. Fardon v Attorney‑General (Qld) (2004) 78 ALJR 1519 at 1539 [101] per Gummow J; 210 ALR 50 at 78. ↑

51. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 124 per McHugh J, 134 per Gummow J. ↑

54. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 [3] per Gleeson CJ, McHugh, Gummow and Hayne JJ. ↑

55. (2000) 205 CLR 337 at 345 [7]‑[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. ↑

56. (2000) 205 CLR 337 at 345 [7]‑[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. ↑

57. The Oxford English Dictionary, 2nd ed (1989), vol 7 at 1066. ↑

62. Constitution Act 1902, s 53(5); Judicial Officers Act 1986 (NSW), s 41. ↑

67. D'Orta‑Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at 762‑763 [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 214 ALR 92 at 101‑102; Holdsworth, "Immunity for Judicial Acts", (1924) Journal of the Society of Public Teachers of Law 17; Holdsworth, A History of English Law, (1924), vol 6 at 234‑240. ↑

68. See, for example, Rajski v Powell (1987) 11 NSWLR 522. ↑

69. Austin v The Commonwealth (2003) 215 CLR 185 at 235 [72], 261 [155] per Gaudron, Gummow and Hayne JJ, 303 [288] per Kirby J. ↑

71. See, for example, Supreme Court Act 1958 (Vic), s 11. ↑

cf Kearney v HM Advocate 2006 SC (PC) 1 at 11 [30]. ↑

D'Orta-Ekenaike (2005) 79 ALJR 755 at 761 [32] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 214 ALR 92 at 99. ↑

Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 719; D'Orta‑Ekenaike (2005) 79 ALJR 755 at 761 [33] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 214 ALR 92 at 99‑100. ↑

Corporations Law of New South Wales, s 232(6B). ↑

Defined in Corporations Law of New South Wales, s 243D(2). ↑

Corporations (Commonwealth Powers) Act 2001 (NSW), s 4(1). ↑

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559. ↑

cf Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 30; The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 309 [57] per McHugh and Gummow JJ. ↑

(2000) 205 CLR 337 at 373 [116] (footnote omitted). See also at 363 [81] per Gaudron J. ↑

91. Bradley (2004) 218 CLR 146 at 164 [32]; cf Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at 1540 [104]; 210 ALR 50 at 79. ↑

92. Young, "Acting judges", (1998) 72 Australian Law Journal 653; Kirby, "Acting Judges - A Non-theoretical Danger", (1998) 8 Journal of Judicial Administration 69; Drummond, "Towards a More Compliant Judiciary?", (2001) 75 Australian Law Journal 304. ↑

93. See, eg, Ruddock, "Selection and Appointment of Judges", paper delivered at Sydney University, 2 May 2005 at [83]. ↑

94. New South Wales Bar Association, "Bar Tells NSW Government: No More Acting Judges", media release, 29 June 1997; Ray, "The Law and Order Bidding War", (2005) 132 Victorian Bar News 11 at 12. ↑

95. See Lee and Winterton (eds), Australian Constitutional Landmarks, (2003). ↑

97. Reasons of Gleeson CJ at [1]-[4]; reasons of Gummow, Hayne and Crennan JJ at [49]-[50]. The decision of the New South Wales Court of Appeal is reported: Forge v Australian Securities and Investments Commission (2004) 213 ALR 574. For convenience, I will refer to the parties challenging the validity of the legislation as the plaintiffs, which is their status in the first of the three proceedings before this Court. ↑

99. At the time of Federation, all Australian colonies provided for the appointment of acting judges. See Supreme Court and Circuit Courts Act 1900 (NSW), s 13; Supreme Court Act 1890 (Vic), s 14; Acting Judges Act 1873 (Q), s 1; Supreme Court Act 1855-56 (SA), s 5; Supreme Court Act 1880 (WA), s 12; Australian Courts Act 1828 (Imp) (9 Geo IV c 83), s 1. See generally reasons of Heydon J at [256]. ↑

103. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 21 January 1892 at 4426. ↑

104. See also s 15, providing for acting judges in special jurisdictions. ↑

105. See Walker, The Practice of the Supreme Court of New South Wales at Common Law, 4th ed (1958) at 707. ↑

106. A more recent instance of this class was the appointment of Mr E H St John QC as an acting judge of the Supreme Court of New South Wales: see (1995) 69 Australian Law Journal 307. ↑

107. Confirmed by the requirement, in the case of an Acting Chief Justice, for specially designated reasons to be fulfilled: see Supreme Court and Circuit Courts Act 1900 (NSW), s 12A, introduced in 1912. ↑

108. Reasons of Gleeson CJ at [15]; reasons of Gummow, Hayne and Crennan JJ at [52]. ↑

110. Acting appointments are taken from the State Reports (NSW) until 1971 and thereafter from the New South Wales Law Reports. The first figure in each cell indicates the number of commissions as acting judge of the Supreme Court issued during the year. The figure in round brackets indicates the number of acting judges appointed to the Supreme Court. The figure in square brackets indicates the number of acting judges of the Supreme Court who were subsequently appointed as permanent judges of the Supreme Court. Appointments as Acting Chief Justice and Acting President (which all came from permanent judges of the Court) have been disregarded. The appointment of acting judges of appeal is undifferentiated in this Table. From 1987, figures for appointments of acting District Court judges were published in the New South Wales Law Reports. The incidence of such appointments is recorded on the second line of each cell. ↑

111. Figure 1 was constructed from the data contained in Table 1. ↑

112. Like Table 1, Figure 2 was constructed using the authorised reports of the Supreme Court of New South Wales. The precise duration of a relatively small number of commissions of acting judges is not stated in the authorised reports. Such commissions have been omitted from Figure 2. Note that the Figure refers only to the years in which commissions have issued to acting judges. For most years in the period examined (56 out of 104 years) there were no acting judges. ↑

114. This table is compiled using memoranda in the New South Wales Law Reports, volumes 48, 50, 52, 55, 57 and 61. ↑

115. Table 3 is completed from data contained in the authorised reports of the Supreme Court of New South Wales. It records renewal of commissions given to acting judges and acting judges of appeal. ↑

116. The Australian Securities and Investments Commission ("ASIC") and the State of New South Wales. For convenience, I will refer to these parties as "the defendants". ↑

118. This Figure substantially reproduces a graphical representation of the identified years supplied by the State. ↑

119. This Figure is based upon statistics supplied by the State. ↑

121. The Supreme Court of New South Wales began to publish an Annual Review in 1990. Before that date, the number of appointments to that Court is to be found in the authorised reports and in the New South Wales Law Almanac, published annually. ↑

126. 2000 JC 208 at 231 per Lord Justice-Clerk Cullen; Lord Prosser agreeing at 231; Lord Reed agreeing at 257. ↑

129. See Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214 at 1218 [10], 1219 [16], 1230-1233 [82]-[101]. ↑

132. Gipp v The Queen (1998) 194 CLR 106 at 116 [23], 153-155 [135]-[138], 169 [184]; Crampton v The Queen (2000) 206 CLR 161 at 171-174 [12]-[21], 179-185 [38]-[57], 200-207 [105]-[123], 212-219 [145]-[165]. ↑

133. Dalton v NSW Crime Commission (2006) 80 ALJR 860 at 875-876 [73]; 226 ALR 570 at 588-589; cf Roberts v Bass (2002) 212 CLR 1 at 54-55 [143]-[144]. ↑

134. Which may be found in State v Carroll 9 Am Rep 409 at 427 (1871). ↑

136. (1999) 200 CLR 322; cf Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 655 [64]. ↑

(2005) 79 ALJR 1534 at 1561-1562 [170]-[174]; 221 ALR 32 at 69-70. ↑

See also Coleman v Power (2004) 220 CLR 1 at 63-64 [142]-[143] per McHugh J. ↑

(1999) 200 CLR 322 at 383 [155]. In Eastman, Western Australia joined in this submission. ↑

See Reference re Manitoba Language Rights [1985] 1 SCR 721 at 765. ↑

cf Dixon, "De Facto Officers", in Jesting Pilate, 2nd ed (1997) 229 at 230; Pannam, "Unconstitutional Statutes and De Facto Officers", (1966) 2 Federal Law Review 37; Campbell, "De Facto Officers", (1994) 2 Australian Journal of Administrative Law 5. ↑

See Glidden Co v Zdanok 370 US 530 at 535-537 (1962); Ryder v United States 515 US 177 at 182-184 (1995). ↑

As occurred following eg R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (invalidation of the Commonwealth Court of Conciliation and Arbitration), Cheatle v The Queen (1993) 177 CLR 541 (invalidation of majority jury verdicts in trials of federal indictable offences) and Ha v New South Wales (1997) 189 CLR 465 (invalidation of tobacco licence fees). ↑

146. See, eg, Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. ↑

147. (1999) 198 CLR 511 at 605 [199]; cf Ruhani v Director of Police (2005) 79 ALJR 1431 at 1463-1467 [173]-[199]; 219 ALR 199 at 240-246. ↑

150. Reasons of Gleeson CJ at [20]; reasons of Heydon J at [251]. ↑

154. Reasons of Gleeson CJ at [21]-[24]; reasons of Heydon J at [269]-[271]. ↑

157. Shetreet and Deschênes (eds), Judicial Independence: The Contemporary Debate, (1985) at xv. ↑

158. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193. ↑

159. Yougarla v Western Australia (2001) 207 CLR 344 at 378-380 [91]-[99]. ↑

160. R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452; Le Mesurier v Connor (1929) 42 CLR 481 at 495; cf reasons of Gleeson CJ at [36], [38]. ↑

161. See Boilermakers (1956) 94 CLR 254 at 276; cf Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 540-541; [1957] AC 288 at 315. ↑

163. Provisions existed for special appointments of acting judges in England prior to Australian Federation but always on a limited, special and ad hoc basis, or subject to specific requirements: see 13 & 14 Vict c 25; Supreme Court of Judicature Act 1884 (UK), s 7; County Courts Act 1888 (UK), s 18. ↑

165. Clancy v Caird 2000 SC 441; Kearney 2006 SC (PC) 1. ↑

166. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82 per Dixon J; cf Combet v Commonwealth (2005) 80 ALJR 247 at 306 [271]; 221 ALR 621 at 695-696. ↑

167. See, for example, the approach of the Constitutional Court of South Africa in Van Rooyen v The State 2002 (5) SA 246 at 326-327 [241]-[243]. As Chaskalson CJ states at 327 [244]-[245], s 175 of the Constitution of South Africa expressly permits the appointment of acting judges on the recommendation of the Minister acting with the concurrence of the Chief Justice of the Constitutional Court or the senior judge of the court concerned. See also In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744. ↑

170. It appears to have been accepted that acting or part-time federal judges would "of course" strike constitutional problems in Canada: see Friedland, A place apart: judicial independence and accountability in Canada, (1995) at 260. ↑

171. Constitution Act 1867 (Can), s 96; R v Lippé [1991] 2 SCR 114. ↑

174. Fardon (2004) 78 ALJR 1519 at 1545 [136]; 210 ALR 50 at 86. ↑

175. Wheeler, "The Kable Doctrine and State Legislative Power Over State Courts", (2005) 20(2) Australasian Parliamentary Review 15 at 30. ↑

176. Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 10; Spratt v Hermes (1965) 114 CLR 226 at 271-272; Eastman (1999) 200 CLR 322 at 332 [8]. ↑

177. Fardon (2004) 78 ALJR 1519 at 1540 [104]; 210 ALR 50 at 79. ↑

The criterion is stated in Kable (1996) 189 CLR 51 at 108 per Gaudron J, 118-119 per McHugh J, 133 per Gummow J. But see Fardon (2004) 78 ALJR 1519 at 1546 [144.3]; 210 ALR 50 at 88-89. ↑

In H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561-562 [14]. ↑

Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at 192-193 [32]; Fardon (2004) 78 ALJR 1519 at 1547 [144.4], 1562 [219]; 210 ALR 50 at 89, 110. ↑

Fardon (2004) 78 ALJR 1519 at 1547 [144.5]; 210 ALR 50 at 89. ↑

Fardon (2004) 78 ALJR 1519 at 1528 [36] per McHugh J; 210 ALR 50 at 62. ↑

Kotsis v Kotsis (1970) 122 CLR 69 at 110 per Gibbs J. ↑

As in Baker v The Queen (2004) 78 ALJR 1483; 210 ALR 1 and Fardon (2004) 78 ALJR 1519; 210 ALR 50. ↑

In The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 57. ↑

188. Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313. See also Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; Kotsis (1970) 122 CLR 69 at 107; Knight v Knight (1971) 122 CLR 114 at 137. ↑

189. See, eg, Bradley (2004) 218 CLR 146 at 152-153 [3]. ↑

193. Eastman (1999) 200 CLR 322 at 371-372 [127]; cf Ruhani (2005) 79 ALJR 1431 at 1465-1466 [189]-[191]; 219 ALR 199 at 244. ↑

Wheeler, "The Kable Doctrine and State Legislative Power Over State Courts", (2005) 20(2) Australasian Parliamentary Review 15 at 30. ↑

Including Nicholas v The Queen (1998) 193 CLR 173; H A Bachrach (1998) 195 CLR 547; McGarry v The Queen (2001) 207 CLR 121; Bradley (2004) 218 CLR 146; Silbert (2004) 217 CLR 181; Baker (2004) 78 ALJR 1483; 210 ALR 1; Fardon (2004) 78 ALJR 1519; 210 ALR 50. ↑

Wheeler, "The Kable Doctrine and State Legislative Power Over State Courts", (2005) 20(2) Australasian Parliamentary Review 15. ↑

Fardon (2004) 78 ALJR 1519 at 1523 [15] per Gleeson CJ, 1528 [37] per McHugh J, 1539 [101] per Gummow J, 1562 [219] per Callinan and Heydon JJ; 210 ALR 50 at 56, 62-63, 78, 110. ↑

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397. ↑

Al-Kateb v Godwin (2004) 219 CLR 562 at 622-624 [169]-[176]; cf at 589-595 [63]-[73]. ↑

(2006) 80 ALJR 1146 at 1154 [44] per Gummow, Hayne and Crennan JJ, my own reasons at 1158 [69]; 227 ALR 406 at 415-416, 420-421. ↑

[1975] Australian Treaty Series 46. In my reasons in Koroitamana (2006) 80 ALJR 1146 at 1157-1158 [66]-[68]; 227 ALR 406 at 420, I also referred to the provisions of the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child. ↑

Trop v Dulles 356 US 86 at 102-103 (1958); cf Roper v Simmons 73 USLW 4153 at 4160-4161 (2005); Hamdan v Rumsfeld Slip Opinion at 49-72 (2006) per Stevens J. ↑

cf XYZ v Commonwealth (2006) 80 ALJR 1036 at 1069-1070 [153]; 227 ALR 495 at 536-537; reasons of Heydon J at [266]. ↑

The process was stimulated by Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42. ↑

American Declaration of the Rights and Duties of Man, Art 26; American Convention on Human Rights, Art 8(1); European Convention, Art 6(1); African Charter on Human and Peoples' Rights, Arts 7(1), 26. ↑

Langborger v Sweden (1989) 12 EHRR 416; Bryan v United Kingdom (1995) 21 EHRR 342. ↑

Valente v The Queen [1985] 2 SCR 673 at 687. See also Richardson, "Defining judicial independence: A judicial and administrative tribunal member perspective", (2006) 15 Journal of Judicial Administration 206 at 206-207. ↑

R v Liyanage (1962) 64 NLR 313 (ministerial control); Law Society of Lesotho v Prime Minister of Lesotho [1986] LRC (Const) 481 (acting judges from office of public prosecutions); Starrs 2000 JC 208 (temporary sheriffs in Scotland); Mackin v New Brunswick (Minister of Finance) [2002] 1 SCR 405 (supernumerary provincial judges). ↑

Lippé [1991] 2 SCR 114 (part-time municipal court judges). ↑

See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 424-426 [169]-[173]. ↑

Such as whether the Supreme Court of New South Wales, when it includes a large and effectively permanent cohort of acting judges, answers the description of a "Supreme Court of any State" in s 73(ii) of the federal Constitution; whether "State courts", so constituted, answer the description of "courts of the States" or "any court of a State" in s 77(ii) and (iii) of the Constitution; and whether such courts are appropriately constituted to exercise federal jurisdiction as contemplated by s 77 of the Constitution. ↑

Joseph, Schultz and Castan (eds), The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, 2nd ed (2004) at 405 [14.30]. ↑

United Nations Human Rights Committee, Concluding Observations on Slovakia, UN Doc CCPR/C/79/Add.79, (1997) at [18]. ↑

cf Campbell and Fell v United Kingdom (1984) 7 EHRR 165; Lester and Pannick (eds), Human Rights Law and Practice, 2nd ed (2004) at 237 [4.6.55]. ↑

Findlay v United Kingdom (1997) 24 EHRR 221 at 244-245 [73]; Stafford v United Kingdom (2002) 35 EHRR 32 at 1143 [78]; Clark v Kelly [2004] 1 AC 681. ↑

Valente [1985] 2 SCR 673; Beaumartin v France (1994) 19 EHRR 485. ↑

By the Human Rights Act 1998 (UK), s 1, 3 and 4 and, in Scotland, by s 57(2) of the Scotland Act 1998 (UK). ↑

2000 JC 208 at 220-226. See also at 241-249 per Lord Reed. ↑

Report to the Seminar of the Commonwealth Magistrates and Judges' Association, Larnaca, October 1998 cited in Starrs 2000 JC 208 at 223. ↑

See also the reference in Starrs 2000 JC 208 at 242 by Lord Reed to the Universal Declaration on the Independence of Justice (June 1983), Annex IV, par 2.20: "The appointment of temporary judges and the appointment of judges for probationary periods is inconsistent with judicial independence." ↑

Starrs 2000 JC 208 at 242-243 (citations omitted). ↑

Willheim, "Review of Australian Public Law Developments", (2006) 30 Melbourne University Law Review 269 at 294-295. ↑

Drummond, "Towards a More Compliant Judiciary? - Part II", (2001) 75 Australian Law Journal 356 at 374-377. ↑

Kirby, "Attacks on Judges - A Universal Phenomenon", (1998) 72 Australian Law Journal 599. ↑

Ginsburg, "Judicial Independence", (1998) 72 Australian Law Journal 611; "Justice O'Connor Speaks Out on Inter-Branch Relations, Civic Education, and the State of the Federal Judiciary", (2006) 38(5) The Third Branch 6 at 6: "There is more intense criticism and concern about judges in the country than at any earlier time during my life." ↑

Phillips, "The corporatising of our courts", The Age, 24 March 2005. ↑

Sackville, "Acting Judges and Judicial Independence", The Age, 28 February 2005. ↑

230. "The State of the Judicature", (1998) 72 Australian Law Journal 33 at 34. ↑

231. Kirby, "Independence of the Judiciary - Basic Principle, New Challenges", address to the International Bar Association Conference, Hong Kong, 12 June 1998 at 12. ↑

232. Kirby, "Acting Judges - A Non-theoretical Danger", (1998) 8 Journal of Judicial Administration 69 at 74. ↑

234. Young, "Acting judges", (1998) 72 Australian Law Journal 653 at 653-654. The same may be said of the occasional deployment of visiting judges from other courts in Australia who hold permanent judicial commissions or the use of permanent trial judges in the appellate court of the same court: see French, "Judicial exchange: Debalkanising the courts", (2006) 15 Journal of Judicial Administration 142 at 155-156, 158-159. ↑

235. Judicial Officers Act 1986 (NSW), s 44. This section was relevantly amended by the Judicial Officers Legislation (Amendment) Act 1990 (NSW), s 3, Sched 1, Pt 1. ↑

236. Crock, "Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions", (2000) 24 Melbourne University Law Review 190 at 216. ↑

237. See the remarks of Alfred Deakin cited by Gleeson CJ on the centenary of the Court, (2003) 218 CLR v at vii: "Whatever is supreme in the State … ought to give a security to its justice against its power. It ought to make its judicature, as it were, something exterior to the State"; cf Re Macks; Ex parte Saint (2000) 204 CLR 158 at 265 [298]-[299]. ↑

238. As evident in the introduction of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005 (Vic) inserting s 80D into the Constitution Act 1975 (Vic) to provide for appointment to a pool of acting judicial officers. ↑

239. Fardon (2004) 78 ALJR 1519 at 1530 [43]; 210 ALR 50 at 65. It is institutional integrity that is important for Kable: see Kable (1996) 189 CLR 51 at 103; cf Fardon (2004) 78 ALJR 1519 at 1529-1530 [41]-[42]; 210 ALR 50 at 64-65. ↑

242. (1947) 74 CLR 31 at 83 per Dixon J. See Austin (2003) 215 CLR 185 at 299 [275]. ↑

243. Austin (2003) 215 CLR 185 at 293 [257], 302 [284]. ↑

244. Bennett, "'Dammit, Let 'em do it!' The High Court and Constitutional Law: The 2005 Term", (2006) 29 University of New South Wales Law Journal 167. ↑

245. Bennett, "'Dammit, Let 'em do it!' The High Court and Constitutional Law: The 2005 Term", (2006) 29 University of New South Wales Law Journal 167 at 181. ↑

246. Declaration of Principles on Judicial Independence Issued by the Chief Justices of the Australian States and Territories, reproduced in "Independence of the Judiciary", (1996-1997) 15 Australian Bar Review 175 at 177. ↑

248. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 139-140 per Gummow J. ↑

249. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 111 per McHugh J. ↑

250. Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at 1528 [37] per McHugh J; 210 ALR 50 at 62-63. ↑

251. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [29] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. ↑

252. This was a question posed, but a question which it was not necessary to discuss, in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 164 [32] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. ↑

253. This was assumed in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102-103 per Gaudron J. ↑

255. The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 63 per Mason J; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 80-81 per Dawson J, 101-102 per Gaudron J, 115 per McHugh J. ↑

256. Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163-164 [31] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. ↑

257. King v Jones (1972) 128 CLR 221 at 229 per Barwick CJ. ↑

258. For New South Wales, see Charter of Justice 1823 (Imp) (4 Geo IV c 96), s 1; Australian Courts Act 1828 (Imp) (9 Geo IV c 83), s 1; District Courts Act 1858 (22 Vic No 18), s 26; Judicial Offices Act 1892 (55 Vic No 26), s 3; Supreme Court and Circuit Courts Act 1900, s 13. For Victoria, see An Act to make provision for the better Administration of Justice in the Colony of Victoria 1852 (15 Vic No 10), s 5; Supreme Court Amending Act 1885 (49 Vic No 834), s 3; Supreme Court Act 1890, s 14. For Queensland, see Supreme Court Act 1867 (31 Vic No 23), s 33; Acting Judges Act 1873 (37 Vic No 5), s 1; District Courts Act 1891 (55 Vic No 33), s 19; Supreme Court Act 1892 (55 Vic No 37), s 12; Supreme Court Act (No 2) 1892 (56 Vic No 10), s 2. For Western Australia, see Supreme Court Ordinance 1861 (24 Vic No 15), s 11; Supreme Court Act 1880 (44 Vic No 10), s 12. For South Australia, see An Act for the Establishment of a Court to be Called the Supreme Court of the Province of South Australia 1837 (7 Wm IV No 5), s 5 and Supreme Court Act 1856 (Act No 31 of 1855-6), s 5. In Tasmania, the Australian Courts Act 1828 (Imp) (9 Geo IV c 83), s 1, was applicable. See also An Act for the effectual Administration of Justice in the Supreme Court of Van Diemen's Land 1831 (2 Wm IV No 1), s 3. ↑

Rutledge, "Richard Edward O'Connor", (1988) 11 Australian Dictionary of Biography 56 at 57. ↑

McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 55. ↑

McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 55-56. ↑

McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 56 and 184-185. ↑

McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 204; Windeyer, "A Presage of Federation", (1976) 61 Journal of the Royal Australian Historical Society 311 at 318-319. ↑

Louch, "Sir Henry Thomas Wrenfordsley", (1976) 6 Australian Dictionary of Biography 440 at 441. ↑

Bennett, Lives of the Australian Chief Justices: Sir Henry Wrenfordsley, (2004) at 94-98. ↑

Bennett, Lives of the Australian Chief Justices: Sir Henry Wrenfordsley, (2004) at 98. ↑

Castles, An Australian Legal History, (1982) at 343-344. ↑

Bennett, Lives of the Australian Chief Justices: Sir Henry Wrenfordsley, (2004) at 102. ↑

Ely (ed), Carrel Inglis Clark: The Supreme Court of Tasmania, Its First Century 1824-1924, (1995) at 180. ↑

Ely (ed), Carrel Inglis Clark: The Supreme Court of Tasmania, Its First Century 1824-1924, (1995) at 134. ↑

Bennett, Lives of the Australian Chief Justices: Sir Henry Wrenfordsley, (2004) at 79; Ely (ed), Carrel Inglis Clark: The Supreme Court of Tasmania, Its First Century 1824-1924, (1995) at 181. ↑

Whitfeld, Founders of the Law in Australia, (1971) at 142. ↑

Cooke (ed), Portrait of a Profession: The Centennial Book of the New Zealand Law Society, (1969) at 420-422. ↑

Bennett, Lives of the Australian Chief Justices: Sir Henry Wrenfordsley, (2004) at 94. ↑

Hague, Hague's History of the Law in South Australia 1837-1867, (2005), vol 1 at 112; Whitfeld, Founders of the Law in Australia, (1971) at 142. ↑

McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 55-56. ↑

Gibbs, "A Nineteenth Century Cause Célèbre: Queensland Investment and Land Mortgage Company Ltd v Grimley", (1987) 13 Royal Historical Society of Queensland Journal 73 at 74-76. ↑

Rutledge, "Sir Edmund Barton", (1979) 7 Australian Dictionary of Biography 194 at 196. ↑

See Windeyer, "A Presage of Federation", (1976) 61 Journal of the Royal Australian Historical Society 311 at 315-316. (Sir Victor inserted a corrigendum into the copy in the Joint Law Courts Library, Sydney, changing "Martin" to "Barton" in his transcription of Griffith's letter of 4 September 1892 to Windeyer J.) ↑

See Supreme Court Act 1867 (Q) (31 Vic No 23), s 8. ↑

Queensland Investment and Land Mortgage Co Ltd v Grimley (1892) 4 QLJ Supp 1. The proceedings before Lilley CJ were reported at 4 QLJ 224, and the argument before the Full Court is reported at 4 QLJ 243. See generally McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, (1989) at 203-205; Windeyer, "A Presage of Federation", (1976) 61 Journal of the Royal Australian Historical Society 311 at 313-314, 319-321; Gibbs, "A Nineteenth Century Cause Célèbre: Queensland Investment and Land Mortgage Company Ltd v Grimley", (1987) 13 Royal Historical Society of Queensland Journal 73. ↑

Gibbs, "A Nineteenth Century Cause Célèbre: Queensland Investment and Land Mortgage Company Ltd v Grimley", (1987) 13 Royal Historical Society of Queensland Journal 73 at 81-82. ↑

Gibbs, "A Nineteenth Century Cause Célèbre: Queensland Investment and Land Mortgage Company Ltd v Grimley", (1987) 13 Royal Historical Society of Queensland Journal 73 at 82. ↑

287. Supreme Court Act 1970 (NSW), ss 26(2) and 37(2). ↑

288. Oaths Act 1900 (NSW), s 8 and Fourth Schedule. ↑

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. ↑

299. Independent Commission Against Corruption Act 1988 (NSW), s 3 (definition of "public official"). ↑

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. ↑

302. Barton v Walker [1979] 2 NSWLR 740 at 757-758 per Samuels JA (Reynolds and Glass JJA concurring). ↑