Scanlon v Director-General, Department of the Arts, Sport & Recreation

Scanlon v Director-General, Department of the Arts, Sport & Recreation - [2007] NSWCA 204 - NSWCA 2007 case summary — Zoe

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Thursday 16 August 2007 PETER JOHN SCANLON v DIRECTOR-GENERAL, DEPARTMENT OF THE ARTS, SPORT AND RECREATION Mr Scanlon was the Principal Registrar of the Licensing Court of New South Wales. In October 2005 he was stood aside from that position whilst a disciplinary investigation was carried out. There were some 53 allegations made against him regarding decisions that he had made under the Liquor Act 1982 in exercise of the jurisdiction of the Court in his capacity as Principal Registrar between 1997 and 2005. An investigation was ordered by the Director-General of the Department of the Arts, Sport and Recreation (the Director-General) pursuant to the Public Sector Employment and Management 2002 (the PSEM Act). Some allegations were dismissed as unproven. Mr Scanlon contended with respect to the majority of the proven allegations that he was entitled to immunity from any disciplinary action under the PSEM Act either at common law or under s 44C of the Judicial Officers Act 1986 (the Judicial Officers Act). Section 17(1) of the Liquor Act provided that the Principal Registrar was appointed "under and subject to" what is currently the PSEM Act. Since 2003, s 44C of the Judicial Officers Act has provided that registrars were entitled to the "same protection and immunity as a Supreme Court Judge" when performing the duties of a judicial officer. HELD (per Tobias JA, Mason P and Beazley JA agreeing): a) Registrars have never been judicial officers and have always been subject to the disciplinary regime of the public service legislation under which they have been appointed to the public service. b) Once invested with judicial functions, Registrars became entitled to the immunity normally associated with those who exercise those functions. c) That immunity extends only to immunity from civil proceedings for damages and some criminal proceedings (such as for contempt) at the suit of dissatisfied litigants and their proxies. d) The fact that Registrars exercise limited judicial functions does not exempt their conduct whilst exercising those functions from the public service disciplinary regime to which they are otherwise subject.

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Thursday 16 August 2007 PETER JOHN SCANLON v DIRECTOR-GENERAL, DEPARTMENT OF THE ARTS, SPORT AND RECREATION Judgment 1 MASON P: I agree with Tobias JA. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: Peter John Scanlon, the appellant, is the Principal Registrar of the Licensing Court of New South Wales (the Licensing Court). As such he was employed in the Department of the Arts, Sport and Recreation. The respondent Director-General was the Department Head for the purposes of the Public Sector Employment and Management Act 2002 (the PSEM Act). On 26 October 2005 the respondent informed the appellant that he had received a complaint in which it was alleged that the appellant may have engaged in misconduct in that he had granted under delegated authority a number of temporary function licenses under the Liquor Act 1982 (the Liquor Act) notwithstanding that in each instance the application for the licence did not meet the relevant statutory requirements. 4 The respondent also informed the appellant that he had decided to deal with the allegations as a disciplinary matter under s 46(1)(a) of the PSEM Act and that he had requested Mr John Heagney to undertake an investigation into the allegations and to prepare a report for the respondent accordingly. 5 As the respondent considered it inappropriate for the appellant to continue with his usual duties pending the outcome of the investigation, he was stood aside from his position as Principal Registrar. 6 In early February 2006 Mr Heagney provided his report to the respondent relating to his investigation of approximately 53 allegations made against the appellant with respect to decisions that he made in his capacity as Principal Registrar between 1997 and 2005 (the Heagney report). Some allegations were dismissed as unproven but the majority were found proven to the requisite standard. 7 The respondent provided the Heagney report to the appellant under cover of a letter dated 23 February 2006. The letter informed the appellant that the respondent had formed the opinion that he had engaged in misconduct as detailed in the 50 allegations then set out. The respondent indicated that he was now considering imposing disciplinary action, observing that there were eight possible disciplinary actions available to him ranging from a caution or reprimand to dismissal. The appellant was requested to make any submissions that he wished the respondent to take into account in relation to the disciplinary action he was considering within 14 days of the appellant's receipt of the letter. 8 The appellant responded on 16 March 2006 by instituting proceedings against the respondent by way of summons in the Administrative Law List of the Common Law Division of the Court in which he sought declarations to the effect that

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Some background facts in the context of the relevant provisions of the Liquor Act 11 The appellant was appointed to the New South Wales Public Service on 5 February 1968 under the provisions of the then Public Service Act 1902 as a clerk of the Petty Sessions Branch of the Department of the Attorney-General. In the following years he worked extensively in that Department in positions including those of Coroner and Chamber Magistrate. On 12 December 1990 he was appointed to the position of Principal Registrar of the Licensing Court. Although the appellant was employed under the Public Service Act 1902, it was common ground that the effect of a series of statutes was that he was taken at all material times to be employed under the provisions of the PSEM Act. 12 The Licensing Court is established as a court of record by s 7 of the Liquor Act. It is comprised of licensing magistrates who are appointed under s 8 or by magistrates acting under delegation from a licensing magistrate under s 9. A licensing magistrate holds office for seven years (s 8(3)(a)) and is a "judicial officer" within the meaning of s 3 of the Judicial Officers Act 1986 (the JO Act) and s 52(1)(f) of the Constitution Act 1902 (the Constitution Act). 13 Section 17 of the Liquor Act provides for the appointment of registrars and a Principal Registrar of the Licensing Court in, relevantly, the following terms: "(1) The Governor may, under and subject to the Public Service Act 1979, appoint a Principal Registrar and a registrar of the court for each prescribed place other than Sydney. (2) … (3) The Principal Registrar is the registrar of the court at Sydney. (4) The regulations may provide for the exercise by the Principal Registrar of the jurisdiction of the court in relation to a matter to which there has been no objection. (5) A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act. (6) If a registrar grants a licence or exercises any other function of the court in accordance with this Act or the regulations, the registrar may impose any conditions that the court could impose in those circumstances, except as otherwise provided by this Act." 14 The reference to the Public Service Act 1979 was, by the time of the appellant's appointment in 1990, required to be read as a reference to the Public Sector Management Act 1988. It was common ground that after 2002 it should be read as a reference to the PSEM Act. 15 For the purposes of s 17(4) of the Liquor Act, the Liquor Regulation 1996 as amended on 30 June 2000, provided in cl 81A for matters to be dealt with by the Principal Registrar in the following terms: " 81A Matters that may be dealt with by Principal Registrar (section 17 (4) of the Act) For the purposes of section 17 (4) of the Act, the Principal Registrar may exercise the jurisdiction of the court in relation to the following matters, being matters to which there has been no objection:

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(a) the jurisdiction of the court under section 32 of the Act with respect to an application to vary the trading hours for licensed premises to which an on-licence (restaurant) relates, (b) the jurisdiction of the court under section 33 (b) of the Act with respect to an application for an order that fixes the trading hours in respect of licensed premises to which an on-licence (theatre) relates, (c) the jurisdiction of the court under section 34 of the Act with respect to an application for an order that fixes the trading hours in respect of licensed premises to which an on-licence (university) relates, (d) the jurisdiction of the court under section 35A of the Act with respect to an application for a variation of the trading hours for licensed premises to which an on-licence (vessel) relates, (e) the jurisdiction of the court under section 51 of the Act with respect to an application for a permanent on-licence (function), (f) the jurisdiction of the court under section 61 of the Act with respect to an application for the transfer of a licence, including the jurisdiction of the court under that section to make a provisional grant of the application, but only if: (i) the proposed transferee has completed a course of training approved by the Board that promotes the responsible sale, supply and service of liquor, and (ii) the proposed transferee has completed any course of training or instruction required by or under the Act or the court has determined that the proposed transferee is not required to complete such a course of training, (g) the jurisdiction of the court to allow additional periods in which the provisional grant of an application for the transfer of a licence has effect (as referred to in section 61 (4) (b) of the Act), (h) the jurisdiction of the court under section 69D of the Act with respect to an application for the approval of a person's appointment as the manager of licensed premises, including the jurisdiction of the court under that section to grant a provisional approval." 16 Apart from cl 81A, three further provisions of the Liquor Act are presently relevant to the judicial functions of registrars (and hence the Principal Registrar). Thus s 25(4) provides: "The court may, on application, vary the trading hours to permit the sale or supply of liquor for consumption on the licensed premises on a special occasion on a stated date and, if there is no objection to the variation, the jurisdiction of the court under this subsection may be exercised by the registrar." 17 Through the combined operation of s 14(1) and s 17(5), the Principal Registrar also has power to adjourn applications he or she is otherwise seized of. Section 14(1) provides: "The court may at any stage of proceedings adjourn the proceedings in an application or matter generally or to a specified time or place." 18 Section 17(5) provides: "A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act." 19 Finally, s 111B(3)(a) expressly confers on the Principal Registrar the power to deal with an unopposed application for a "minors functions authority" (that is, an authority permitting minors to be on parts of licensed premises at certain times). 20 It thus follows that the Principal Registrar may exercise the power of the Licensing Court with respect to unopposed applications under the following provisions of the Liquor Act: ss 14(1), 25(4), 32, 33(b), 34, 35A, 51, 61 and 111B(3)(a). As s 12(6)(a) provides that the business of the Licensing Court may be conducted in the absence of the public "in the case of an application to which no objection has been taken", each of the unopposed applications with which the Principal Registrar may deal may be determined in private.

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As the allegations were found proven, either individually or collectively they were capable of constituting misconduct justifying the taking of disciplinary action in the nature of any one or more of the actions referred to in sub-paragraphs (a), (b), (d), (e) or (f) of the definition referred to in [22] above. 24 Division 2 of Pt 2.7 is headed "Dealing with Misconduct". Section 46 relevantly provides as follows: "(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking." 25 "Procedural Guidelines" are relevantly defined in s 44(1): "(1) The Director of Public Employment may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct as a disciplinary matter, and (b) the taking of disciplinary action with respect to officers under this Division." 26 Guidelines under that provision had been issued (the guidelines). Item 9 required the disciplinary process to be conducted in four stages of which the first was the initial determination of the appropriate course of action regarding an allegation of misconduct and the second was its investigation. Pursuant to Item 11 of the guidelines, the Department Head is required to appoint a suitably qualified person to prepare an investigation report. Mr Heagney's investigation took place and his subsequent report was prepared under this regime.

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The relevant provisions of the Judicial Officers Act 1986 29 With limited exceptions, the allegations related to the appellant's performance of judicial duties or functions as the Principal Registrar of the Licensing Court. The appellant contended and the respondent disputed that the immunity extended to him by s 44C of the JO Act and/or the common law, exempted him from investigation and disciplinary action under the provisions of the PSEM Act. It is therefore necessary to consider the relevant provisions of the JO Act. 30 Part 8A of the JO Act comprises ss 44A-44C which provide as follows: " 44A. Immunity of Supreme Court Judges The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge. 44B. Immunity of certain judicial officers (1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court. 44C. Immunity of officers performing duties of judicial officers A registrar, an associate Judge of the Supreme Court, an assessor of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties." 31 "Judicial officer" is defined in s 3 of the JO Act to mean: "(a) a Judge or associate Judge of the Supreme Court, (b) a member (including a judicial member) of the Industrial Relations Commission, (c) a Judge of the Land and Environment Court, (d) a Judge of the District Court, (f) a Magistrate, or (g) the President of the Administrative Decisions Tribunal." 32 In turn "Magistrate" is defined in the same provision to mean, among others, a licensing magistrate. 33 It was common ground that a licensing magistrate of the Licensing Court is a "judicial officer" within the meaning of the JO Act but that the Principal Registrar of that Court is not. However, it was submitted that that did not matter as the immunity conferred by s 44C applies to a registrar "when performing the duties of a judicial officer (including ministerial duties)". The appellant thus contended that he was "performing the functions of a judicial officer" when exercising the jurisdiction of the Licensing Court in relation to his exercise of the powers under investigation. Those powers were exercisable by a "judicial officer' being in this case a licensing magistrate. 34 Accordingly, the appellant submitted that s 44C operated to confer upon him the same immunity that a licensing magistrate would have had under s 44B had the acts in question been performed by such a magistrate who, in turn, would be entitled to "the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge". 35 The statutory immunity conferred by s 44C could only apply, if it applied at all, to some of the appellant's conduct that was the subject of the investigation. Division 8A was inserted into the JO Act by Item 230 of Schedule 2 to the Justices Legislation Repeal & Amendment Act 2001 which took effect on 7 July 2003. The conduct the subject of the allegations ranges over the period 1997 to 2005. The primary judge was of the view (at [22]) that s 44C did not operate to confer any statutory immunity on the appellant with respect to conduct which occurred prior to that date: see s 30(1) of the Interpretation Act 1987. However, with respect to conduct prior to 7 July 2003, the appellant was entitled to common law immunity when performing the duties of judicial officer in his role as Principal Registrar: Wentworth v Wentworth (2000) 52 NSWLR 602; [2000] NSWCA 350 at 624 [58] per Fitzgerald JA with whom Davies AJA agreed. Heydon JA thought that this was correct but since there had not been full argument on the issue, considered it best to express no concluded view: at 638-639 [260]-[261]. The appellant sought to challenge the primary judge's view, asserting that s 44C applied to his conduct both before and after 7 July 2003. 36 Accordingly, the critical question both before primary judge and this Court was whether the common law immunity of the appellant before 7 July 2003 and/or his statutory immunity under s 44C on and after that date meant that he could not be subjected to the disciplinary process set out in, or the taking of disciplinary action against him under, Pt 2.7 of the PSEM Act. The primary judge answered this question in the negative.

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The primary judge's reasons 37 It was common ground that the immunity of judicial officers from suit protects those officers from actions for damages arising out of acts done in the exercise of their judicial function or capacity: Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 [30]; [1998] HCA 73. However, it was submitted, and his Honour accepted, that that immunity was confined to the consequences, if any, of the exercise of a judicial function. Thus even if a judge was influenced or bribed to make a particular decision, he or she could not be sued in damages although he or she would be amenable to prosecution under the criminal law for accepting a bribe and might be liable to be removed from office. 38 Likewise, a judge would not be liable for contempt if in the course of reasons for judgment remarks were made which might otherwise be contemptuous: Yeldham v Rajski (1989) 18 NSWLR 48. 39 His Honour then referred to Pt 9 of the Constitution Act of which s 53 relevantly provides: "(1) No holder of a judicial office can be removed from the office, except as provided by this Part. (2) The holder of a judicial office can be removed from the office 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. (3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office. (4) This section extends to term appointments to a judicial office, but does not apply to the holder of the office at the expiry of such a term. (5) This section extends to acting appointments to a judicial office, whether made with or without a specific term." 40 "Judicial officer" is defined in s 52 to mean the office of any of the following: "(a) Chief Justice, President of the Court of Appeal, Judge of Appeal, Judge, Associate Judge or Master of the Supreme Court, (b) Chief Judge, Deputy Chief Judge or Judge of the Industrial Court or member of the Industrial Relations Commission in Court Session, (c) Chief Judge or Judge of the Land and Environment Court, (d) Chief Judge or Judge of the District Court, (e) Chief Judge or Judge of the Compensation Court, (f) Chief Magistrate, Deputy Chief Magistrate or Magistrate of the Local Courts; Senior Children's Magistrate or Children's Magistrate of the Children's Court; Chief Industrial Magistrate or Industrial Magistrate; Chairman, Deputy Chairman or Licensing Magistrate of the Licensing Court." 41 As the primary judge observed (at [29]), the foregoing provisions make clear that a judicial officer may be removed from office or suspended. The JO Act provides that a judicial officer may be subject to complaint, investigation, suspension and a recommendation for removal under Pt 6 of that Act. Neither the common law nor s 44B prevent this. The primary judge thus observed (at [30]) that "…the immunities conferred upon a registrar by the common law and by s 44C, could not extend to the processes which may be activated to remove or suspend such a person from office. If it were otherwise, then, although a judge of the Supreme Court may be investigated for misconduct and/or removed in the performance of his or her duties under Part 6 of the Judicial Officers Act 1986, a registrar, performing the same function, will not be amenable to any form of investigation or discipline. This would be surprising." 42 His Honour then referred to the provisions of s 17 of the Liquor Act (set out in [13]) above) observing (at [34]) that the appellant's appointment as Principal Registrar was made by the Governor not only "under" but also "subject to" the PSEM Act. At the same time s 17(4), which was inserted into the PSEM Act in 1990, provided for the possibility of the Principal Registrar exercising some of the jurisdiction of the Licensing Court. Yet there was no provision in s 17 or otherwise in the Liquor Act providing for the Principal Registrar's removal from office. Accordingly, he concluded that unless the Principal Registrar's removal from office could be achieved under the provisions of the PSEM Act, there was no provision dealing with his or her removal from office at all. This was because the JO Act only applied to "judicial officers", a category from which the Principal Registrar was excluded. 43 The primary judge (at [35]) then compared s 17(1) with s 8 of the Liquor Act which governs the appointment of licensing magistrates. In contrast to the appointment of the Principal Registrar under s 17(1), s 8(4) specifically provides that the Public Service Act 1979 (now the PSEM Act) does not apply to or in respect of the appointment of a licensing magistrate or to a licensing magistrate during his or her term of office as such. 44 To further cement the exclusion of the application of the PSEM Act to a judicial officer, including a licensing magistrate, thus reinforcing the difference between the appointment of such an officer on the one hand and the appointment of the Principal Registrar of the Licensing Court "under and subject to" that Act on the other, s 4 of the PSEM Act relevantly provides: "This Act does not apply to any of the following positions or to any person holding such a position (except to the extent that a provision of this Act otherwise expressly provides): (a) any position of a judicial officer within the meaning of the Judicial Officers Act 1986, (b) …" 45 The primary judge therefore accepted (at [38]) that the position was as follows: "(a) s 17 of the Liquor Act 1982 provided for the appointment of the Principal Registrar under and 'subject to' the current public service legislation, in this case, the Public Sector Employment and Management Act 2002.

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The nature and extent of judicial immunity at common law 52 The nature and extent of judicial immunity at common law was the subject of an extensive analysis by Fitzgerald JA with the concurrence of Heydon JA in Wentworth v Wentworth at 609-624 [20]-[59]; 639 [261]. In that analysis his Honour cited extensively from the relevant authorities including, in particular, Sirros v Moore [1975] QB 118 at 132 per Denning MR; Rajski v Powell (1987) 11 NSWLR 522 at 534 et seq per Kirby P; at 538-540 per Priestley JA, with whom Hope AJA agreed; Yeldham v Rajski (1989) 18 NSWLR 48 at 58F-G; at 66, 69 per Hope AJA, with whom Priestley JA agreed; Najjar v Haines (1991) 25 NSWLR 224 at 233-234 per Kirby P; at 248-251 per Clarke JA; at 269-270 per Rogers AJA; Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; at 388-389 per Kirby J. 53 The classic statement of the doctrine of judicial immunity referred to in all modern authority on the subject is that of Lord Denning MR in Sirros where his Lordship said (at 132): "Ever since the year 1613, if not before [in fact in 1607 by Lord Coke in Floyd v Barker (1607) 77 Eng. Rep. 1305 at 1306-1307], it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ or error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear." 54 Taking that statement as the starting point of Fitzgerald JA's discussion of the doctrine of judicial immunity, in my opinion the following propositions relevant to the present case can be deduced from his Honour's analysis in Wentworth:

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(d) Thus, s 53 of the Constitution Act as supplemented by Pt 6 of the JO Act expressly provides for the removal from office of a " judicial officer " (as defined) for proven misconduct or incapacity. It has never been suggested that any such removal from office or the prospect of being so removed upon complaint being made with respect to a judicial officer's conduct is inimical to the independence of the judiciary: on the contrary, removal for proven misbehaviour and incapacity can only be beneficial to, and protective of, the public interest. 55 More recently, the policy of the common law with respect to judicial immunity was the subject of some discussion by the High Court in Fingleton v The Queen (2005) 79 ALJR 1250; [2005] HCA 34. As Gleeson CJ observed (at 1259 [36]), most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. 56 After referring to the general principle stated by Lord Denning MR in Sirros (see [53] above, the Chief Justice continued in the following terms (at 1260): "[38] This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White , 14 that court on a number of occasions has ' emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have '. She said that '[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits'.

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The position of the Magistracy 58 A magistrate in this State, including a licensing magistrate, is by definition a "judicial officer" and, therefore, subject to removal from office in accordance with the provisions of s 53 of the Constitution Act and Pt 6 of the JO Act. But it was not always so. Originally, magistrates were appointed under s 49 of the Public Service Act 1902 by the Governor on the recommendation of the Public Service Board. The appointee was an officer of the Department of Justice and the Under-Secretary of Justice was the permanent head of that Department. As such an officer, a magistrate was liable under s 56(1) of the 1902 Act to be dismissed from office for breaches of the Act or the regulations made thereunder as well as where he was guilty of any misconduct, or was negligent or careless in the discharge of his duties, inefficient or incompetent or guilty of any disgraceful and improper conduct including "habitually using intoxicating beverages to excess". Section 56 originally empowered the permanent head of the officer's Department to deal with charges against a magistrate where he had committed one or other of the offences referred to in s 56(1). 59 If the charges were found proven, the offending magistrate was subject to being reduced to a lower classification or position in the Public Service, to a reduction of his salary, to a fine, caution or reprimand, or to dismissal from the Public Service: see North Australian Aboriginal Legal Aid Service Inc v Bradley & Anor (2004) 218 CLR 146 at 165 [37]; [2004] HCA 31. 60 The subjection of magistrates to a State's public service legislation did not escape criticism. Thus in Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530, Bray CJ observed (at 537): "To some minds, it might seem anomalous that a Magistrate shall be subject to the Public Service Act [1967 (SA)] at all and that in view of the important functions he has to perform, touching so nearly and so often the ordinary life of the citizen in so many aspects, he should be given the same independence and freedom from administrative control as are enjoyed by the Judges of this Court. "

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What then is the position of registrars? 64 The legislative provisions relating to the appointment of registrars to the Local Court, the District Court, the Supreme Court and the Licensing Court are common to each. I have already referred to the relevant provisions of the Local Courts Act. Under s 18G of the District Court Act 1973, the Principal Registrar and the registrars for any proclaimed place specified for the purpose of s 18G(2) by the Minister by order published in the Gazette, shall be appointed subject to and in accordance with the Public Service Act 1979 (now the PSEM Act). 65 The position of Judicial Registrars in the District Court is different. Pursuant to s 18FA the Minister may appoint any qualified person to be a Judicial Registrar of that Court. Section 18FA(4) is essentially in the same terms as s 12(4) of the Local Courts Act. It provides that the PSEM Act does not apply to or in respect of the Judicial Registrar. Although an officer of the District Court, the Judicial Registrar is not a "judicial officer" within the meaning of the JO Act. However, Schedule 1A to the District Court Act provides in cl 4(2) that the Minister may remove a Judicial Registrar from office at any time for incapacity, incompetence or misbehaviour. It should be noted that cl 1 of Schedule 1A provides that a Judicial Registrar holds office for such period not exceeding five years as is specified in his or her instrument of appointment but is eligible, if otherwise qualified, for re-appointment. 66 As to the Supreme Court, s 119(1) of the Supreme Court Act 1970 provides that there are to be such registrars as may be appointed from time to time including a Principal Registrar of the Court, a Registrar of the Court of Appeal and a Registrar of each Division. Section 120 provides that persons may be employed under Ch 2 of the PSEM Act to fill the offices mentioned in s 119. Being employed under Ch 2 of the PSEM Act renders a registrar of this Court subject to the provisions of that Chapter including Pt 2.7. It should be noted that the current s 120 was substituted in 2005 for s 120 as originally enacted which provided as follows: "The Governor may, under and subject to the Public Service Act 1902 - (a) appoint persons to fill the offices mentioned in s 119." 67 The reason for the change is obscure: it may be that the legislature considered that only Chapter 2 of the PSEM Act which is headed "The Public Service" was relevant to the appointment of registrars so that only its provisions should apply to them. I see nothing untoward in this. 68 What is clear is that the public service legislation has always excepted judicial officers from its operation. Thus as originally enacted in 1902, s 5 of the Public Service Act of that year provided that nothing in that Act should apply to Judges of the Supreme Court or District Courts, Presidents and Commissioners of the Land Appeal Court or the Master in equity or lunacy. The 1902 Act was replaced by the Public Service Act 1979, s 9(1) of which provided that nothing therein applied to any position specified or referred to in Schedule 4. The latter referred to Judges of the Supreme and District Courts. 69 Section 4 of the PSEM Act follows suit providing that the Act is not to apply to any person holding any position of judicial officer within the meaning of the JO Act. 70 There is no provision in the Supreme Court Act or the District Court Act equivalent to s 12(4) of the Local Courts Act or s 8(4) of the Liquor Act, each of which specifically provides that the PSEM Act is not to apply in the one case to the appointment of a magistrate and in the other to the appointment of a licensing magistrate or otherwise to those judicial officers during his or her term of office as such. 71 The point I seek to make is that whereas a "judicial officer" (as defined) has been expressly exempted from the provisions of the PSEM Act, whether pursuant to s 4 of that Act or provisions of the Act under which the judicial officer has been appointed, registrars (apart from the Judicial Registrar appointed under the District Court Act) owe their appointment to the public service legislation at the time of their appointment, presently the PSEM Act. They are appointed under that Act (or its predecessor) and subject to it including, relevantly, Pt 2.7. 72 Thus the appellant was appointed pursuant to s 17(1) of the Liquor Act under and subject to, at the time of his appointment in 1990, the Public Sector Management Act 1988, now the PSEM Act. Why, therefore, is he not subject to Pt 2.7 of that Act? 73 The appellant submits that first, the central issue in the appeal is not the meaning or effect of s 17(1) of the Liquor Act but the meaning and operation of s 44C of the JO Act. Although it is true that the appellant, by virtue of s 17(1) of the Liquor Act is subject to the provisions of PSEM Act, he is also subject to the provisions of s 44C. 74 Second, the appellant eschewed any argument that the existence of the prerogative power of removal of the appellant from the Public Service preserved by s 60 of the PSEM Act, has anything relevant to say about s 17 of the Liquor Act. Nevertheless, he submits that that power exists with respect to him so that there is no lacuna with respect to his removal as Principal Registrar for misconduct in the exercise of his judicial functions. It therefore does not matter that by reason of s 44C, Pt 2.7 of the PSEM Act has no application to him. 75 Third, the nature of the sanctions to which the appellant would be exposed under Pt 2.7 (other than that of dismissal) is inconsistent with the combined operation of the provisions of ss 44B and 44C which endow him with the "protection and immunities" of a Judge of the Supreme Court. As the latter is only liable to be removed from office for proven misbehaviour, it must follow that the provisions of Pt 2.7 of the PSEM Act can have no application to the appellant as it would place him in an inferior position to a Judge of the Supreme Court with respect to the imposition of an array of sanctions upon him for proven misconduct which are otherwise inapplicable to a Judge. 76 In my opinion the appellant's submissions are unsustainable. I would therefore, respectfully agree with and adopt the submissions of the respondent which I have set out in [50] above. In essence:

[81]

(f) Alternatively, s 44C does not extend to providing any level of "protection" to registrars from disciplinary proceedings to which they are otherwise subject under the regime enacted by the PSEM Act. This section does not so provide expressly and should not be construed to do so impliedly. Registrars are therefore subject to one regime while judicial officers (as defined) are subject to a different regime. 77 The third and more substantial argument of the appellant is based upon those provisions of s 42(1) of the PSEM Act that define the expression "disciplinary action". Dismissal of a registrar from the Public Service may be said to be equivalent to the removal of a judicial officer from office pursuant to the Constitution Act and the JO Act. There is no equivalent in that legislation to directing an officer to resign, reducing his or her salary or demoting him or her to a lower position in the judicial hierarchy, or imposing a fine, caution or reprimand. None of those sanctions can apply to a "judicial officer" as defined. In particular, it is well established that security of tenure and security of salary or other remuneration without arbitrary interference by the Executive are essential conditions to judicial independence: Valente v The Queen (1985) 24 D.L.R. (4th) 161. 78 The difference, however, between the appointment of a judicial officer on the one hand and the appointment of a registrar under and subject to the PSEM Act on the other, is that the former has security of tenure whereas the latter does not. Thus, under s 23 of the PSEM Act every person admitted to the Public Service as an officer must, in the first instance, be appointed to a position on probation for a period of six months or such longer period as the Department Head directs. By s 25, the appropriate Department Head may cause an officer found to be unfit to discharge or incapable of discharging his duties to be retired. 79 As to financial security, it is to be remembered that registrars perform administrative functions and fairly limited judicial functions. Relevantly, under s 17(4) of the Liquor Act the appellant may only exercise the jurisdiction of the Licensing Court in relation to a matter to which there has been no objection. Accordingly, he has no jurisdiction with respect to a contested application: he cannot, therefore, choose between disputants. He is basically confined to ex parte applications in respect of which there is no contest. As such he is in a rather different position to a "judicial officer" as defined whose task it is in most if not all cases to determine issues between disputing parties. 80 True it is that the registrars of other courts such as the Supreme Court are called upon to determine contested applications. But without in any way seeking to denigrate the important work that they perform, the fact remains that they do not determine substantive disputes or even substantive interlocutory disputes. Their judicial functions are in many respects, such as in the case of direction hearings, are more administrative than judicial in character. 81 Furthermore, it is not suggested by the appellant that he and other registrars are not subject to the sanctions set out in s 42 of the PSEM Act with respect to the performance of his (or their) administrative functions. Although it is true that if Pt 2.7 applies to the appellant with respect to proven misconduct in the performance of his judicial functions, he may have his salary reduced, that is simply a product of his appointment to the office of Principal Registrar under s 17(1) of the Liquor Act being expressly subject to, inter alia, Pt 2.7 of the PSEM Act. In the circumstances referred to in [79] and [80] above, it would be difficult to make a case that his independence would be jeopardised by the possibility of disciplinary action by way of salary reduction for proven misconduct. 82 Although ss 44B and 44C of the JO Act provide the appellant with the same protection and immunity as a Judge of the Supreme Court, that immunity does not in my opinion extend to exempting judicial officers from disciplinary processes where misbehaviour is alleged. Nor is there any principled justification to extend the immunity to the investigation of the appellant for misconduct pursuant to the provisions of Pt 2.7 of the PSEM Act relating to the investigation of allegations of misconduct as defined in s 43. Once it is accepted that there is no protection or immunity against a charge of misbehaviour or misconduct against the appellant in the performance of his judicial functions, it matters not that once the charges are proven, the array of sanctions available under s 42(1) of the PSEM Act are broader than those available with respect to a Judge of the Supreme Court - at least where those sanctions are less draconian than the ultimate sanction of dismissal or removal from office. 83 Just as judicial officers have been subjected by the legislature to the processes provided in Pt 6 of the JO Act, so registrars have been subjected to the processes provided in Pt 2.7 of the PSEM Act. The legislative policy is the same: only the details differ in accordance with the legislature's perception of the range of sanctions available to deal with proven misbehaviour or misconduct depending on whether the relevant officer falls within one class of persons exercising judicial functions or another. 84 Finally, were it not for s 44C of the JO Act, there could be little doubt that by virtue of s 17(1) of the Liquor Act, the appellant when exercising his judicial functions would be liable to disciplinary action (as defined) for proven misconduct under Pt 2.7 of the PSEM Act. The effect of s 17(1) is that his appointment to the specific office of Principal Registrar of the Licensing Court renders him subject to those provisions. Section 44C of the JO Act is general in its application to a number of identified officers who perform judicial functions. It is therefore a provision of general application. 85 Relevantly, s 8(4) of the Liquor Act provides that the public service legislation is not to apply with respect to the appointment of licensing magistrates. Precisely the contrary is provided in s 17(1) with respect to the appointment of the Principal Registrar. Parliament has thus made it clear that the current public service legislation, the PSEM Act, is to apply to the appellant in his capacity as Principal Registrar of the Licensing Court. To the extent to which s 44C of the JO Act is to be construed as affording to the officers nominated the same protection and immunity as a Judge of the Supreme Court, it is in direct conflict with s 17(1) of the Liquor Act insofar as it has the effect (which in my opinion it does not) of protecting a registrar from any sanction for misconduct other than dismissal from office. 86 If that conflict exists, as in my opinion it does, then the appellant does not suggest that the primary judge erred in his application of the principle that an earlier specific statute will prevail over a later general statute. 87 In deference to the appellant's submission I have written more than is necessary to fully explain my reasons for rejecting them. Those reasons could have been truncated to the following propositions. First, Registrars have never been judicial officers and have always been subject to the disciplinary regime of the public service legislation under which they have been appointed to the public service. Second, once invested with judicial functions, they became entitled to the immunity normally associated with those who exercise those functions. Third, that immunity extends only to immunity from civil proceedings for damages and some criminal proceedings (such as for contempt) at the suit of dissatisfied litigants and their proxies. Fourth, the fact that they exercise limited judicial functions does not exempt their conduct whilst exercising those functions from the public service disciplinary regime to which they are otherwise subject.

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Parties

Cases Cited (18)