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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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My theme h a s relevance to t h i s conference because of the c o n s t r a i n t s imposed on S t a t e legislatures, by C h a p t e r III of the Commonwealth C o n s t i t u t i o n, in relation to t h e s t r u c t u r e and j u r i s d i c t i o n of S t a t e courts. A n u m b e r o f c a s e s h a v e e m p h a s i z e d t h e p r i m a c y o f t h e s t r i c t l y j u d i c i a l function, in the context of legislative and Executive attempts to embellish it, for example by requiring a Judge to perform an a d m i n i s t r a t i v e role. Grollo v. Palmer a f f i r m e d t h a t n o non-judicial function can be conferred which is incompatible with the performance of t h e j u d i c i a l function. 1 The H i g h C o u r t spoke t h e r e o f m a i n t a i n i n g t h e “ i n t e g r i t y ” a n d “ l e g i t i m a c y ” o f t h e j u d i c i a l a r m. T w o of t h e Justices adopted the United S t a t e s Supreme Court’s reference to courts’ “ r e p u t a t i o n for i m p a r t i a l i t y and non-partisanship”, warning t h a t t h a t reputation “may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action”. 2 On two comparatively recent occasions, the High Court h a s stopped governments from infringing in that way upon the institutional integrity of the courts. The f i r s t c a s e was Wilson v. M i n i s t e r f o r A b o r i g i n a l a n d T o r r e s S t r a i t Islander A f f a i r s. 3 The M i n i s t e r had, under legislation, nominated a Federal Court Judge to enquire into whether c e r t a i n l a n d w a s a s i g n i f i c a n t A b o r i g i n a l area deserving of protection, and to report to the Minister. The Court held that the function of reporting to t h e M i n i s t e r w a s incompatible w i t h the j u d i c i a l function under Chapter III: discharging that function would place the Judge into the echelons of administration, with the Judge effectively a ministerial adviser.

The second instance was the celebrated case of Kable v. The Director of Public P r o s e c u t i o n s f o r t h e S t a t e of New S o u t h Wales, 4 where the High C o u r t struck down New South Wales legislation empowering the Supreme Court of that State to order the detention of a specific, named person, beyond the expiration of a previously i m p o s e d f i n i t e t e r m o f i m p r i s o n m e n t, i n order to protect t h e community. McHugh J described i t a s ad hominem legislation. The m a j o r i t y view was that the exercise of that jurisdiction would be incompatible with the integrity, independence and i m p a r t i a l i t y o f t h e S u p r e m e C o u r t, a s a court in which federal jurisdiction also had been invested under Part III. The vice of the l e g i s l a t i o n w a s t h a t i t w a s d i r e c t e d t o M r K a b l e alone, and contemplated t h e court’s proceeding very d i f f e r e n t l y f r o m t h e w a y in which i t would o r d i n a r i l y proceed. It was t h e e x t r e m e n a t u r e o f t h a t l e g i s l a t i o n w h i c h led to i t s being

invalidated. McHugh J said that it made the Supreme Court:

“…..the i n s t r u m e n t of a legislative plan, i n i t i a t e d by the executive government, to imprison the appellant by a process f a r r e m o v e d f r o m t h e j u d i c i a l process t h a t is ordinarily involved when a court is asked t o imprison a person”. 5 Chapter III leaves State legislatures with considerable scope in relation t o t h e n o n - f ederal j urisdiction of t h e i r c o u r t s, a l t h o u g h i n other extreme cases, j u r i s d i c t i o n would be w a n t i n g. M c H u g h J w e n t t o t h e l i m i t, and interestingly instanced legislation purporting to appoint the Chief Justice as a member of the C a b i n e t, o r a l a w r e q u i r i n g t h e S u p r e m e C o u r t to determine how much of t h e State budget should be spent on child welfare. Let this be clear: I have no such pretension; and my court has no such inclination.

While at the Bar I appeared for the State of Queensland in the High Court, with I should concede but patchy success, over a phase in which Queensland saw itself as the victim of Commonwealth expansionism. It was deliciously ironic for m e t o w i t n e s s t h e H i g h C o u r t in Kable interpreting t h e C o n s t i t u t i o n s o a s, i n effect, to buttress the Supreme Courts of the S t a t e s a g a i n s t l e g i s l a t i v e i n t r u s i o n into their traditional jurisdictions.

N o t w i t h s t a n d i n g Kable, S t a t e legislatures plainly r e m a i n alive to t h e utility of invoking the reputations of their Supreme Courts to lend authority to w h a t c o u l d be described broadly a s a d m i n i s t r a t i v e decisions in controversial a r e a s. In recent decades, legislation h a s broadened the j u r i s d i c t i o n of S t a t e Judges to authorize covert police operations. Grollo c o n f i r m s t h e l e g i t i m a c y o f such authority.

Politically, it is obviously attractive to have those potentially controversial decisions made by Supreme Court Judges, and in fairness, I note t h a t governments have been ready to ensure t h a t Judges, a c t i n g a d m i n i s t r a t i v e l y, have the necessary immunity. 6 B u t a s a n t i - t e r r o r i s m l e g i s l a t i o n, e s p e c i a l l y, w i l l increase the frequency of such interventions, one may fairly ask whether there is risk of eroding the “public confidence” in t h e j u d i c i a l process, rightly and so o f t e n p r o c l a i m e d a s c e n t r a l t o t h e l e g i t i m a c y o f t h e c o u r t s o f law. One sees in Wilson and Kable frequent reference to the need for the courts to be seen to be “acting openly, impartially and in accordance with fair and proper procedures”. 7 In issuing those w a r r a n t s, Judges invariably a c t behind closed doors and e x p a r t e, a process most Judges would not relish.

As every f a i r - m i n d e d observer would i m m e d i a t e l y acknowledge, t h e

j u d i c i a r y i s a b s o l u t e l y t h e m o s t a c c o u n t a b l e o f a n y o f t h e a r m s o f government:

almost invariably conducting its business in open court; regularly subjected t o t h e g l a r e o f intense publicity, n o t a l w a y s k i n d ; a n d predictably moderate a n d most courteously restrained in any response.

I move from Kable to Fardon v Attorney-General (Qld), 8 where the H i g h Court last year upheld Queensland legislation which endows the Supreme Court w i t h j u r i s d i c t i o n to order the indefinite detention of a prisoner, beyond t h e expiration of the finite term to which he has been sentenced, on the ground he is a s e r i o u s d a n g e r t o t h e c o m m u n i t y. T h a t l e g i s l a t i o n w a s d r a f t e d carefully – in characteristically Queensland style, not in relation to any named person, and by c o n t r a s t w i t h t h e Kable l e g i s l a t i o n, s o a s t o a v o i d i n c o m p a t i b i l i t y w i t h C h a p t e r III. It was held not substantially to impair the Supreme Court’s “institutional i n t e g r i t y ”, or to jeopardize the court’s role a s a repository of federal

jurisdiction. As put by McHugh J:

“…..nothing in the Act might lead a reasonable person to conclude that the Supreme Court of Queensland, when exercising f e d e r a l j u r i s d i c t i o n, m i g h t not be an impartial tribunal free of governmental or legislative influence or m i g h t not be capable of a d m i n i s t e r i n g invested federal j u r i s d i c t i o n according to law”. 9 The j u r i s d i c t i o n conferred by t h i s legislation r e m a i n s controversial, however.

Undoubtedly it is exercised judicially. Equally, the Executive will be relieved of a n a r e a o f necessary decision-making which i t may otherwise find immensely troublesome.

My point t h i s evening is not to c r i t i c i z e governments for c a s t i n g these potentially controversial jurisdictions on to courts. Governments have power t o do so, and courts have an undoubted reputation for the independent d i s c h a r g e of all of t h e i r j u r i s d i c t i o n s. I t is unsurprising governments see courts a s attractive decision makers in those areas. My point is simply to urge the need for circumspection. Governments m u s t be a s t u t e to the inherent f r a g i l i t y of public confidence, and also, to the pivotal importance to society of a j u d i c i a r y considered “legitimate”. Governments must be careful not to embellish the core judicial function in such a way as to blur it, and thereby erode the confidence on which its authority depends. I suggest S i r S a m u e l G r i f f i t h would have agreed.

As Sir Harry Gibbs has observed:

“Griffith was resolute in resisting any encroachment on the jurisdiction or power of the Court, whether from above or below”. 10 I make i t c l e a r t h a t my reservation does not extend to the j u r i s d i c t i o n j u d i c i a l l y to r e v i e w a d m i n i s t r a t i v e decision-making. If c a r r i e d out w i t h i n t h e strictures delineated by the legislation, which focuses on l a w f u l n e s s n o t m e r i t, the discharge of that jurisdiction should enhance, not diminish, perceptions of t h e a u t h o r i t y o f c o u r t s, i n their role a s c us t odia ns of l e g a l r i g h t s a s between citizen and S t a t e – and t h a t r e m a i n s so, I believe, n o t w i t h s t a n d i n g t h e wounding suffered by the Federal Court t h r o u g h i t s own exercise of t h a t jurisdiction. Fortunately we have not in this country experienced the antipathy between Parliament and courts such as, in post-revolution France, provoked the decree forbidding courts from exercising jurisdiction in administrative matters.

The Conseil d’État i s a h i g h l y effective and respected i n s t i t u t i o n, but here we have no need for such a body.

I have spoken of the need for care as governments invest courts of law with administrative functions, albeit legitimately notwithstanding Chapter III. But contemporary courts and Judges m u s t themselves be careful to avoid any blurring of that essentially judicial function, and some things have occurred in recent years which may warrant reflection.

This issue arose d r a m a t i c a l l y for me in 2000, when the then Chief M a g i s t r a t e of t h i s S t a t e, s i t t i n g w i t h other M a g i s t r a t e s in a c o u r t r o o m, formally apologized to indigenous people for w h a t were s a i d to be p a s t injustices. I do not r a i s e t h i s to reopen old wounds, but a s an effective illustration of my point. The “apology” involved the presentation of a “deed of apology and commitment” from the Magistrates Court. Having earlier informed the Chief Magistrate of my opposition to what she then proposed doing, and in the face of her d e t e r m i n a t i o n nevertheless to proceed, I was constrained eventually to issue a media release, which was published, in which I made these


“The core j u d i c i a l function is to determine cases in court. E x p r e s s i n g a n apology for past treatment of Aborigines and Torres Strait Islander people, or any p a r t i c u l a r section of the community, falls outside t h a t j u d i c i a l function. The obligation of the courts and j u d i c i a l officers is to render justice according to law to all people, in the inclusive sense. It is c r i t i c a l, to preserve the necessary perception of independence and impartiality, that judicial officers not be seen as acknowledging one section of the community more than others.

“There is also t h e r i s k t h a t s u c h a n i n i t i a t i v e may be interpreted a s a n a t t e m p t to p u t pressure on the executive government, on a m a t t e r f o r which the executive, not the j u d i c i a r y, c a r r i e s the relevant public responsibility……..It is not part of the role of the courts to venture publicly into contentious policy areas. Doing so could imperil the precious heritage of absolute judicial neutrality in political controversy”.

T h o u g h s u b s t a n t i a l l y c r i t i c i z e d i n s o m e q u a r t e r s, I r e m a i n o f t h o s e views, e x p r e s s e d I s h o u l d s a y w i t h t h e s u b s t a n t i a l support of the then Judges of t h e Supreme Court. That was in my view an instance of a court, or a body of judicial officers, moving i n a p p r o p r i a t e l y and unhelpfully beyond the j u d i c i a l c h a r t e r.

However one m i g h t personally share those sentiments, i t was completely inappropriate they be presented as an expression of judicial view.

Individual Judges are sometimes criticized f o r t h e i r p u b l i c s t a t e m e n t s o n m a t t e r s of essentially Executive concern, even s o m e t i m e s i n a r e a s which have nothing a t all to do w i t h the workings of courts. I t is not my intention t o develop that this evening, or to enter generally into t h e d e b a t e a b o u t so-called “judicial activism”. But obviously the public could find bewildering the concept of a Judge more widely published a s social c o m m e n t a t o r t h a n a s c o u r t r o o m adjudicator; or a Judge lapsing from applying the statute and common law into realms of social engineering. By experience and disposition, Judges are astute to those dangers.

There are two other p a r t i c u l a r avenues of d e p a r t u r e from the s t r i c t l y judicial core function which should, I suggest, be approached with care.

The f i r s t is involvement of Judges in Commissions of Inquiry. Generally speaking t h i s will not create conflict w i t h C h a p t e r III, and so much w a s confirmed in Wilson’s Case. 11 Nevertheless the issue can be of concern, in t h e general context I have been advancing. For many years – indeed since 1987 – the Judges of the Supreme Court of Queensland have proceeded on the basis it would be inappropriate for a serving Judge to accept a position to head a Commission of Inquiry conducted under the auspices of executive government. The r a t i o n a l e for that view has been the recognition that the core function of the judiciary is the determination of matters in court, by the delivery of judgments enforceable by process of law; and the fundamental importance of preserving the confidence of the public in the j u d i c i a r y ’ s discharge of t h a t function, which could be i m p a i r e d were Judges to be unnecessarily involved in the p o l i t i c a l controversy which often surrounds such inquiries. A similar approach h a s for a long t i m e been taken by the Supreme Court of Victoria.

T h e F i t z g e r a l d I n q u i r y i n t h i s S t a t e i l l u s t r a t e s t h i s concern. As i t t u r n e d out, the subject matter of the inquiry was highly contentious and controversial, and the findings undoubtedly contributed to a change of State government. I am relieved responsibility for that non-judicial exercise was not cast upon a serving Judge, for two reasons: the s t r i c t l y j u d i c i a l role was thereby not blurred or compromised, in the context of public perception; and the prospect of reasonable continuing relations between the Executive and j u d i c i a l a r m s of government was not unnecessarily jeopardised.

By way of c o n t r a s t, in the exercise of i t s s t r i c t l y j u d i c i a l function, t h e Supreme Court of Queensland in recent decades made rulings on the validity of electoral results – with substantial public ramification. Yet that did not erode public confidence in t h e c o u r t s, which the people accepted was simply doing what they were constitutionally charged to do.

When I speak of E x e c u t i v e / j u d i c i a l r e l a t i o n s, of course the s e p a r a t i o n of powers and the independence of the non-elected judiciary spawn tensions. But if relations can be comfortable, the public is the beneficiary, and I have found a s u b s t a n t i a l p a r t o f my role a s C h i e f J u s t i c e i s seeking responsibly to m a n a g e that interface.

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