KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
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An article in today's Australian newspaper raises serious issues concerning the capacity of the Federal Magistrates Court to deal with Commonwealth litigation and the impartiality of Federal Magistrates in dealing with that litigation.
Fifty eight Federal Magistrates have taken proceedings against the Commonwealth in order to seek to resolve an issue which has troubled the members of the Court for a decade, namely whether it was within the legislative competence of the Commonwealth to exclude Federal Magistrates from the application of the Judges Pensions Act 1968 (Cth) while maintaining the operation of that Act in respect of all other Federal Justices. A further issue raised in the litigation is whether Chapter III of the Constitution carries any implication for the provision of any particular retirement benefits for Federal Justices. The parties have recently exchanged correspondence relating to that litigation. The correspondence was at least in part written on a without prejudice basis and was, in any event, only intended to be seen by the parties to the litigation and their legal advisors. It is, to say the least, unfortunate that some of that correspondence has been disclosed to a wider audience.
The public commentary that has ensued as a result of that disclosure raises a question about the validity of any and every decision made by the Court since its inception. There is now public debate also about the validity of the establishment of the Court and of the commissions of appointment of all Federal Magistrates. Certain public statements raise an implication that the Commonwealth is threatening the commissions of Federal Magistrates in an attempt to force them to terminate the litigation.
In these circumstances, there is an issue whether Federal Magistrates can or should continue to deal with any litigation involving the Commonwealth or its officers. The issue arises both because of the question concerning the validity of any orders that might be made by the Court and because of a risk of an apprehension of bias of the Federal Magistrates dealing with those matters.
I can only speak for myself. The Federal Magistrates Court makes approximately 80,000 decisions a year and the total number of decisions made by the Court since its creation is likely to now approach 1 million. Regardless of any issue concerning the validity of the establishment of the Court and regardless of any issue whether the commissions of Federal Magistrates may be constitutionally infirm, I am confident that orders made by the Court would stand by reason of the application of the doctrine of necessity.
Further, the outcome of the litigation between Federal Magistrates and the Commonwealth will be what it will be. I intend to continue to perform the duties of my office consistently with my oath of office.
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I will continue to deal with litigation involving the Commonwealth and its officers without fear, favour, ill will or prejudice notwithstanding the present notoriety of the proceedings between Federal Magistrates and the Commonwealth. I do not propose to excuse myself from these proceedings or other proceedings involving the Commonwealth and its officers.
[4]
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM