FEDERAL COURT OF AUSTRALIA

North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297

COURTS AND JUDGES – validity of appointment of Chief Magistrate of Northern Territory – whether appointment invalid as failing to secure judicial independence - where remuneration and allowances fixed by Special Determination for two years.

ADMINISTRATIVE LAW – judicial review – application by North Australian Aboriginal Legal Aid Service Inc for declaration that appointment of Chief Magistrate of Northern Territory invalid – whether appointment of Chief Magistrate made for an improper purpose – whether purported exercise of power to appoint Chief Magistrate was ultra vires.

STATUTES – legislation conferring power upon Administrator to determine remuneration and allowances for magistrates – whether power of appointment limited to an appointment for which there is a valid determination – whether valid determination cannot be limited as to time – whether legislation manifests intention on part of legislature to secure judicial independence – Magistrates Act 1977 (NT).

CONSTITUTIONAL LAW – judicial power of the Commonwealth – whether Territory courts exercise federal jurisdiction – whether implication in Chapter III of the Constitution that Territory courts be perceived to be free from legislative or executive interference – whether implication applies to the remuneration and tenure of Territory magistrates – application of principles in Kable v Director of Public Prosecutions (NSW) to Territory courts.

COSTS – whether primary judge erred in failing to consider that factual claims of appellant arguable – whether primary judge erred in failing to consider that resolution of claims a matter of public interest and not assisted by failure of respondents to call appropriate evidence.

Constitution s 51(xxxix), Chapter III, ss 71, 72, 111, 122

Judiciary Act 1903 (Cth)

Magistrates Act (NT)ss 2, 4(3), 5, 6, 7(1), 8, 10, 11, 13, 13A(1)(b), 13A(2), 13A(3), 19A

Interpretation Act (NT) ss 34(1), 61

Remuneration Tribunal Act (NT) s 10

Act of Settlement 12 and 13 Will. III c 2

Supreme Court Judges Act 1858 (NZ) ss 2, 6

Justices Ordinance 1928-1957 (NT) ss 10(2), 10(3), 11

Justices Ordinance 1973 (NT) s 10(3)

Magistrates Ordinance 1976 (NT)

Supreme Court Act (NT) ss 41, 41(3)

Public Service Acts 1916-1925 (SA) s 27

NAALAS v Bradley (2000) 10 NTLR 103 at 117 and 120 referred to

Buckley v Edwards [1892] AC 387 distinguished

In re Aldridge (1893) 15 NZLR 361 referred to

Spratt v Hermes (1965) 114 CLR 226 applied

Manitoba Provincial Judges Association v Manitoba (Minister of Justice) [1997] 3 SCR 3 at [134], [313] and [349] - [352] referred to

Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 followed

Capital TV & Appliances Pty Ltd v Falconer (1970) 125 CLR 591 applied

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 at 25 referred to

Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 537 and 548 referred to

Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at [22] referred to

Mills v Meeking (1990) 169 CLR 214 at 235 applied

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 followed

Director-General of Education v Suttling (1987) 162 CLR 427 at 437 applied

Day v Hunkin (1938) 61 CLR 65 applied

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233 applied

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 distinguished

R v Moffatt (1998) 2 VR 229 at 249 approved

John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81 at 84 and 87 referred to

Bruce v Cole (1998) 45 NSWLR 163 at 167 referred to

Northern Territory v GPAO (1999) 196 CLR 553 considered

Berwick v Gray (1976) 133 CLR 603 considered

Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 considered

Kruger v Commonwealth (1997) 190 CLR 1 at 170 referred to

Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207 applied

R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 referred to

Harris v Caladine (1991) 172 CLR 84 at 135 and 159 – 160 applied

Pike & Reidel, “Epilogue”inGolder High and Responsible Office - A History of the New South Wales Magistracy (1991)

Lowndes, “The Australian Magistracy: From Justices of the Peace to Judges and Beyond – Part I” (2000) 74 ALJ 509

Lowndes, “The Australian Magistracy: From Justices of the Peace to Judges and Beyond - Part II” (2000) 74 ALJ 592

Gleeson CJ, “A Changing Judiciary” (2001) 75 ALJ 547

Winterton, Judicial Remuneration in Australia (1995)

NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY AND NORTHERN TERRITORY OF AUSTRALIA

D 28 OF 2001

BLACK CJ, DRUMMOND & HELY JJ

27 SEPTEMBER 2002

MELBOURNE (HEARD IN DARWIN) (VIA VIDEO-LINK TO DARWIN)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BLACK CJ AND HELY J:

1                     This is an appeal from an order made by a Judge of this Court, Weinberg J, dismissing an application by the appellant, the North Australian Aboriginal Legal Aid Service Inc (“NAALAS”) for an order declaring as invalid the appointment of the first respondent, Hugh Burton Bradley, to the Office of Chief Magistrate of the Northern Territory.  NAALAS also appeals against a subsequent decision by the primary judge by which he ordered that NAALAS pay seventy percent of the respondents’ costs of the principal proceeding.

2                     The background and history of this proceeding are outlined in the reasons for judgment of the primary judge at [1] – [10], but we should note here that the proceeding was commenced in the Supreme Court of the Northern Territory and was subsequently transferred to this Court pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NT).

3                     The Magistrates Act (NT) (“the Act”) provides for the office of Chief Magistrate, and so many other offices of Deputy Chief Magistrate and Stipendiary Magistrate as the Attorney-General thinks fit:  s 4(1).  The Administrator may appoint eligible persons to hold those offices: s 4(3).  Subject to the Act, a Magistrate appointed under s 4(3), including the Chief Magistrate, holds office until he or she attains the age of 65 years: s 7(1).  A Magistrate appointed under s 4(3) may resign his or her office by writing signed by him or her and delivered to the Attorney-General: s 8.  A Magistrate appointed under s 4(3) may only be removed from office in the circumstances referred to in s 10 of the Act.

4                     Section 6 of the Act provides as follows:

“Unless and until express provision is made in relation thereto, by or under an Act, a Magistrate appointed under section 4(3) –

(a)               shall be paid such remuneration and allowances; and

(b)               holds office on such terms and conditions,

as the Administrator, from time to time, determines.”

5                     On 30 January 1998 the Administrator made a Determination of Remuneration and Allowances of Magistrates under s 6 of the Act, by which the salary payable to the Chief Magistrate was determined at $156,674 per annum (“the January Determination”).

6                     On 27 February 1998 the Administrator of the Northern Territory, on the advice of the Attorney-General of the Northern Territory (“Mr Stone”), executed two instruments:

(i)                  an instrument styled “Appointment of Chief Magistrate”, purporting to be made under s 4(3) of the Act, appointing Mr Bradley “to hold the office of Chief Magistrate on and from 9 March 1998”; and

(ii)                an instrument styled “Determination of Remuneration, Allowances and Terms and Conditions of Chief Magistrate”, purporting to be made under s 6 of the Act:

(a)                revoking the Determination of Remuneration and Allowance of Magistrates dated 30 January 1998 insofar as it relates to the Chief Magistrate; and

(b)               determining the salary ($193,602 per annum), allowances and terms and conditions of appointment of the Chief Magistrate “for the period on and from 9 March 1998 to and including 8 March 2000” (the “Special Determination”).

7                     The questions that arise on this appeal are whether the purported appointment of Mr Bradley as Chief Magistrate of the Northern Territory which, by force of the Act subsists to age 65, in circumstances where at the time of his appointment his remuneration was determined for the first two years of his appointment only, was:

(i)                  beyond the power conferred by the Act;

(ii)                for a purpose foreign to the Act; or

(iii)               constitutionally invalid.

8                     Written submissions were filed on behalf of the first respondent, Mr Bradley, but the appellant having indicated at the hearing of the appeal the basis upon which it proposed to argue, counsel for Mr Bradley stated that he did not wish to make oral submissions and that his client would submit to such orders as the Court might make.

The background to the appointment

9                     The following account of the background leading up to the appointment of Mr Bradley as Chief Magistrate is taken from, and is essentially a summary of, the findings made by the primary judge.  With one possible exception, to which it will be necessary to return later, the appellant accepted the findings of primary fact made by the primary judge as to the events leading up to the execution of the two instruments on 27 February 1998.

10                  On 20 November 1997, Mr Ian Gray, the then Chief Magistrate of the Northern Territory, tendered his resignation.  The circumstances which led to the resignation were widely publicised.  They had to do with his views regarding the regime of mandatory sentencing which came into force in the Northern Territory on 8 March 1997.

11                  At the time of Mr Gray’s resignation, the Northern Territory was considering the introduction of contract appointments for magistrates.  These were seen as having advantages over the existing provisions for tenure.

12                  After Mr Gray’s resignation, Mr Stone spoke to Mr Bradley in early December 1997 and offered him the position of Chief Magistrate.  Mr Bradley was at that time the managing partner of a firm of solicitors in Darwin.  The primary judge considered that Mr Stone seems to have been prepared to offer Mr Bradley the position upon the basis that he would serve until he reached retirement age.  It was Mr Bradley who said that he would only commit himself to serve for two years.  That, in the view of the primary judge, appears to have been the genesis of the two year appointment discussed thereafter with the Chief Executive Officer of the Office of Courts Administration, Mr Flynn.

13                  After Mr Stone offered Mr Bradley the position of Chief Magistrate, and Mr Bradley indicated that he would accept the appointment, Mr Stone instructed Mr Flynn to negotiate the terms and conditions with him.  Both Mr Bradley and Mr Flynn understood that the appointment would be on a contract for a term of two years.  Mr Bradley’s letter to Mr Flynn of 11 December 1997 referred to his understanding that he was to commence employment as Chief Magistrate commencing on 8 March 1998 “for an anticipated term of approximately 2 years”, which might be extended by mutual consent.

14                  Between 11 and 15 December 1997 Mr Bradley sought the advice of Mr Riley QC regarding the nature of any appointment.  Mr Riley cautioned Mr Bradley against any “contract” appointment.  Mr Bradley accepted that advice, and at a second meeting with Mr Stone, indicated that he now wished to be appointed “in the ordinary way” until he reached the age of 65 years.  According to Mr Stone, Mr Bradley said that his appointment “would have to be an ordinary one but he would only stay for two years”.  Mr Stone replied that an appointment on that basis would be perfectly acceptable.

15                  On 15 December 1997 Mr Stone wrote to Mr Bradley to thank him for accepting the position of Chief Magistrate.  As Mr Stone was leaving Darwin that day, he had instructed the appropriate officers to “progress the matter” in his absence.

16                  Mr Flynn was not, at that stage, apprised of the development that Mr Bradley was to be appointed “in the ordinary way”.  For whatever reason, Mr Stone did not inform Mr Flynn that the earlier discussions regarding a two year contract had been overtaken by events, and that any negotiations which ensued should be conducted upon the basis that Mr Bradley would receive a normal appointment.

17                  During the initial discussions between Mr Bradley and Mr Flynn, there was broad agreement in principle that Mr Bradley would be appointed on a two year contract.  It was expected, at that stage, that the Act would be amended to allow for appointments of that type for all new magistrates.  That agreement remained nothing more than a loose arrangement which was soon overtaken by the events referred to above, although Mr Stone did not pass that information on to those who needed to have it.

18                  On 7 January 1998 Mr Flynn wrote to Mr Bradley indicating the terms and conditions of the contract which he proposed to recommend to the Attorney-General.  The contract was to be for a period of two years and six weeks commencing on 9 March 1998 and terminating on 19 April 2000.  The contract would not be able to be entered into until such time as the Act was amended to provide for appointments on a contract basis.  Provision was made for a special remuneration package designed to compensate Mr Bradley for the short term nature of the position.

19                  Mr Stone approved those terms and conditions on 15 January 1998.

20                  After Mr Stone returned from leave, arrangements were put in place to have the Act amended.  Initially it was proposed that magistrates would be appointed by the Attorney-General on contract.  However, the term “contract” caused concern amongst departmental officers, and was replaced by what was seen as the less controversial expression “fixed - term appointments”.

21                  At about this time (and until about mid-February), there was a perception among departmental officers that Mr Bradley’s appointment and the proposed amendments to the Act were linked.  It was thought that Mr Bradley was still to be appointed for a term of two years, on a special remuneration package, and that the Act was to be amended in order to enable that to occur.  Departmental officers who had this understanding were not made privy to Mr Bradley’s changed position regarding the basis upon which he would accept the appointment. 

22                  Expressions of concern about the proposed amendments were received in February 1998 from various quarters, including the Chief Justice, the Judges of the Supreme Court, the President of the Law Society, and the Judicial Conference of Australia.  The proposed amendments were criticised on the basis that they were in conflict with fundamental principles of judicial independence.  This was particularly so in circumstances where those who were given fixed-term appointments were eligible to have them renewed.

23                  Mr Bradley did not receive a copy of Mr Flynn’s letter of 7 January 1998 until early February 1998.  On 6 February 1998 Mr Bradley responded to Mr Flynn’s letter.  He wrote:

“Thank you for your letter of 7 January, which you handed to me earlier this week.

When the Attorney-General offered the appointment it was an offer of a permanent appointment in accordance with the present provisions of the Magistrates Act.  On accepting the appointment I advised the Attorney as a courtesy that I could not guarantee more than two years.  The purpose of advising him of this fact was to ensure that he was not being misled.  He confirmed his wish to appoint me in the usual way and advised that it was up to me to decide how long I would stay.

From my personal part I am not concerned with the question of a ‘term’ as distinct from a ‘permanent’ appointment however, I am aware that there is concern within this profession and in judicial ranks that a term appointment is inappropriate for reasons relating to the separation of powers and independence of the judiciary.

I am also aware that some have alleged that the Attorney has specifically offered me a limited term appointment and that his motivation for the same is to seek to influence the Magistracy.  I have assured those who have spoken to me that that was not in any way the affect of my discussions with the Attorney.

Given the above I am concerned that neither the Attorney nor I be seen to be acting to the detriment of the standards expected in the appointment of people to judicial office.  In such circumstances I recommend that the appointment be made in the usual fashion with the suggested terms and conditions (if agreed) being determined by the Administrator.”

24                  Between 10 and 12 February 1998, the proposed amendments to the Act were deferred, or more likely, abandoned.  That meant that Mr Bradley could only be appointed in accordance with the requirements of the Act until he reached the age of 65 years.  The complicating factor was that the Special Determination had already been negotiated to compensate him for what had originally been understood to be a short term appointment. 

25                  Instead of telling Mr Bradley (as the primary judge considered the Northern Territory ought to have done) that since he was now to be appointed in the ordinary way, his remuneration would have to revert to the January Determination, arrangements were set in train for the Administrator to make the Special Determination.  The primary judge commented that these arrangements may have been put in place because Mr Stone believed, as did his departmental officers, that Mr Bradley would resign after two years (at [275]). 

26                  Some consideration was given to what would happen with regard to Mr Bradley’s remuneration were he not to resign after that period.  Mr Stone’s view was that the Special Determination would simply “roll over”.  Others expressed the view that Mr Bradley would simply have to renegotiate his terms and conditions with the government of the day. 

27                  Throughout this entire period, Mr Bradley was under the impression that, having accepted Mr Riley’s advice, and communicated his changed position to Mr Stone, he would be appointed “in the ordinary way”, until he reached the age of 65 years.  For reasons which were not apparent to the primary judge, Mr Bradley considered that he was still entitled to a special remuneration package, originally designed to compensate him for the short term nature of his appointment.

28                  Once the decision to amend the Act was abandoned or deferred, and it was clear that Mr Bradley was to be appointed not for a fixed term, but until he reached the age of 65 years, there was no justification, in the view of the primary judge, for his receiving the remuneration under the Special Determination.  The primary judge concluded that the package contained in that Determination had been negotiated entirely upon the basis that Mr Bradley was to be appointed on a short term contract, and that the Act would be amended to allow that to occur. 

29                  The fact that Mr Bradley had, from the outset, signalled that he expected to retire after two years did not, the primary judge concluded, warrant any “top up” of the type agreed with Mr Flynn.  Of course Mr Bradley was entitled to retire at any time after his appointment.  The consequences of early retirement were that he would not receive the superannuation benefits which accrue to magistrates who serve for the requisite period.  Mr Bradley could not legitimately have expected that he would receive additional salary to compensate him for any failure to qualify for those benefits.  We should mention that in his Notice of Contention, as to which, in the circumstances, no oral argument was advanced at the hearing of the appeal, Mr Bradley submitted that there was no evidence, or no sufficient evidence, to justify a finding that the first respondent considered that he was entitled to a special remuneration package.

30                  The evidence, in the view of the primary judge, suggested confusion, perhaps bordering upon incompetence, on the part of those responsible for implementing Mr Bradley’s appointment and arranging for his remuneration, rather than some contrived and deliberately orchestrated scheme to influence him improperly in the performance of his duties.  The judge observed that Mr Stone was somewhat casual in his attention to detail and that he did not devote anything like the attention required to Mr Bradley’s appointment.  He appeared to have given the matter only the most cursory attention and he, and some of his departmental officers, failed to appreciate that the decision to abandon amendments to the Act made the remuneration package in the Special Determination inappropriate.

31                  The primary judge was of the opinion that the decision to limit Mr Bradley’s remuneration to a period of two years, as set out in the Special Determination, manifested an administrative error.  His Honour said at [483]: “No judge or magistrate should be put into the position of having to negotiate with the executive the terms of his or her remuneration.  The perception that this may create in the minds of litigants who confront the government in court has serious consequences for the administration of justice”. 

The appellant’s case at first instance

32                  The appellant alleged that the appointment of Mr Bradley on 27 February 1998 by the Administrator in Council was made for improper purposes.  Several improper purposes were alleged as set out in [12] of the Statement of Claim:

(i)                  defeating the measure of judicial independence implicitly required by the Act;

(ii)                giving effect to an agreement or arrangement entered into on or prior to 27 February 1998 between the Northern Territory and Mr Bradley, pursuant to which Mr Bradley agreed to accept the office of Chief Magistrate for a limited period of two years upon certain terms and conditions;

(iii)               securing a short-term special appointment to the office of Chief Magistrate;

(iv)              creating what was, in effect, a two year appointment subject to review at the expiration of that time;

(v)                securing an appointee who would, at the expiration of two years, be dependent upon the executive government for remuneration and allowances;

(vi)              subverting the purpose of s 7 of the Act requiring magistrates’ appointments to be to age 65; and

(vii)             defeating a fundamental objective of the Act, namely that magistrates should enjoy secure tenure to the age of 65 free from the influence of, and appearance of influence by, the executive government.

33                  The appellant also alleged that the purported exercise of the power to appoint Mr Bradley was ultra vires the Act.  The particulars of this allegation were provided in [13] of the Statement of Claim:

(i)                  upon the true construction of s 6 of the Act, the Special Determination, insofar as it purported to fix the remuneration and other allowances to be paid to the Chief Magistrate, and to determine the terms and conditions upon which he was to hold office, was beyond power.  This was because it determined those matters, or some of them, for a period of two years only, limited to expire before Mr Bradley reached the age of 65 years, and made no provision for his remuneration and allowances at the end of those two years;

(ii)                at the time of Mr Bradley’s purported appointment, there was no valid and subsisting determination of his remuneration and allowances as required by s 6 of the Act; and

(iii)               upon the proper construction of ss 4 and 6 of the Act it was beyond the power of the Northern Territory to appoint Mr Bradley to the office of Chief Magistrate at a time when there was no valid and subsisting determination providing for his remuneration and allowances.

34                  Finally, the appellant contended that if contrary to its claims of improper purpose and ultra vires, as pleaded in [12] and [13] of the Statement of Claim, the Act purported to authorise Mr Bradley’s appointment, ss 4 and 6 were pro tanto invalid by reason of ss 122, 111, 51(xxxix) and Chapter III of the Commonwealth Constitution.  Alternatively, ss 4 and 6, it was contended, must be read down so as to conform with the requirements of the Constitution with the result, in either case, that those sections did not authorise the appointment.

Factual findings as to improper purpose

35                  The appellant’s case as to impropriety of purpose was largely based on inference.  The primary judge held that the inference for which the appellant contended was open on the primary facts which had been established but that other inferences were also open on those facts.  His Honour said at [313]:

“For example, there is a distinct possibility that once the government decided not to proceed with the amendments to the Act, the implications of that decision for Mr Bradley’s remuneration were simply overlooked.  Another possibility is that no steps were taken to jettison the Special Determination because Mr Stone believed, as did the officers involved, that Mr Bradley would resign at the end of two years in any event.  A third possibility is that the government considered itself obliged to honour its commitment to pay him the “top up” figure which had been negotiated.  A fourth possibility is that bureaucratic inertia set in, resulting in the Special Determination being implemented rather than embarking upon the difficult process of renegotiating with Mr Bradley his terms and conditions.  Some of these possibilities seems to me to be at least as likely as that for which NAALAS contends.  Even when full weight is given to the rule in Jones v Dunkel, the inference for which NAALAS contends has not, in my opinion, been established.”

36                  His Honour continued:

“314                I am unable to accept NAALAS’ submission that the government proceeded with the Special Determination as a method of circumventing the requirements of the Act in order to create what was, in effect, a two year fixed term appointment.  That submission requires me to find that the government, having succumbed to pressure from various quarters to give up its plans to introduce fixed term appointments for magistrates, decided that it would seek to achieve indirectly what it could not achieve directly, at least in relation to the Chief Magistrate. 

315                                    One difficulty with that conclusion is that I cannot discern any reason why the government would be so concerned to fetter Mr Bradley’s independence as to put him in the position of being entirely beholden to it for his future remuneration.  He was, after all, Mr Stone’s choice for the position of Chief Magistrate, and the person regarded as having all of the skills required for the job.  Mr Stone seems to have been prepared to offer Mr Bradley the position upon the basis that he would serve until he reached retirement age.  It was Mr Bradley who said that he would commit himself to serve for only two years.  That appears to have been the genesis of the two year appointment discussed thereafter with Mr Flynn. 

316                        It seems to me to be unlikely that Mr Stone and his officers decided, after 12 February, that they could keep Mr Bradley on some sort of leash with the unspoken threat that if he did not do the government’s bidding, his negotiations for future remuneration would become difficult.”

37                  His Honour concluded as follows:

“324                Mr Stone, and some of his departmental officers, failed to appreciate that the decision to abandon the proposed amendments had profound consequences so far as Mr Bradley’s appointment was concerned.  That decision rendered the remuneration package contained within the Special Determination inappropriate.  The insensitivity of the Attorney-General of the Northern Territory, and some of his advisers, towards the need to secure judicial independence reflects little credit upon those individuals.

325                                    Nonetheless, NAALAS’ allegations of improper or extraneous purpose require it to establish that Mr Bradley’s appointment was actuated by one or more of the purposes particularised in its statement of claim.  It is not sufficient to establish that the appointment may reasonably have been perceived as having some or all of those undesirable consequences. 

326                                    I am not persuaded that, when the decision to appoint Mr Bradley was taken, on 27 February 1998, the Northern Territory was actuated by any improper or extraneous purpose.  The fact that such a purpose may have driven the earlier proposals to introduce contract or fixed term appointments for magistrates, and the initial discussions regarding Mr Bradley’s appointment, does not, on the evidence, lead to the conclusion that it subsisted, and operated upon the impugned decision.”

38                  The facts as found by the primary judge did not sustain the pleaded case which the Court of Appeal of the Supreme Court of the Northern Territory regarded as “fairly arguable” in Northern Australian Aboriginal Legal Aid Service Inc v Bradley (2000) 10 NTLR 103 at [37] and [49], in consequence of which an application for summary judgment was dismissed. (This, of course, was before the case had been transferred to this Court under the cross-vesting legislation.)

The “improper purpose” case on appeal

39                  The case based upon improper purpose was put substantially more highly at first instance than on appeal.  On appeal the appellant did not persist with the contention that the Special Determination was implemented in order to effect an appointment that for all practical purposes was for a fixed term of only two years.  Nor did it persist with the contention that the Special Determination was made for the purpose of imposing improper constraints upon Mr Bradley during (at least) the first two years of his appointment.  On appeal, the factual basis for the alleged improper purpose was confined to a contention that the inevitable consequence of the Special Determination was that Mr Bradley would be forced to renegotiate the terms and conditions of his continued appointment if he chose not to resign after two years, and that this was a consequence known to and intended by those advising the Administrator, including Mr Stone. 

40                  In the appellant’s contention, whilst the primary judge rejected the broadly-based claim of improper purpose, he did not deal with the attenuated claim which was the subject of argument on appeal.  In the appellant’s contention, the primary judge accepted the factual basis for the alleged improper purpose and the appeal should be allowed accordingly; but if the primary judge had not accepted that factual basis, then his failure to do so constituted an appellable error.  This is the “possible exception” to the appellant’s acceptance of the findings of fact by the primary judge referred to at [9] above.

Whether the “inevitable consequence” was known and intended by Mr Stone

41                  On 12 February 1998 Mr Flynn prepared a document known as a “Ministerial” for submission to Mr Stone to obtain his approval for the attached Executive Council Submission recommending that the Administrator appoint Mr Bradley as Chief Magistrate.  Under the heading “Background” the following appears:

“The position of Chief Magistrate fell vacant on the resignation of Mr Ian Gray in December 1997 and Mr Hugh Burton Bradley has been offered that position and has accepted.

You approved remuneration and a set of conditions for Mr Bradley on 15 January 1998.  The proposed determination takes account of the remuneration and three conditions.  There are some other conditions approved by you which are not included in the determination as they can either be handled administratively or are included in general stipendiary magistrates’ conditions.

The determination applies for two years.  If Mr Bradley were not to resign after that period, his remuneration and allowances should be renegotiated.  I have fully appraised Mr Graham Nicholson of the matter and in his opinion there is no difficulty in respect of any part of this process.”

42                  Mr Nicholson was the Crown Counsel.  Mr Stone marked the “Ministerial” as approved, and signed it on 18 February 1998.  He also signed the attached Executive Council Minute.

43                  It was an inevitable consequence of the fact that the Special Determination was limited in its operation to a period of two years, that if Mr Bradley did not resign at the end of that period, the Administrator would need to make a further determination under s 6 if Mr Bradley was to be entitled to receive a salary and allowances for the balance of his term of office.  The Administrator acts on the advice of the Executive Council:  Interpretation Act (NT)s 34(1).  A determination under s 6 is a unilateral act on the part of the Administrator.  There is no legal requirement that the terms of a determination reflect a consensus between the Government and Mr Bradley as to the terms on which he would continue to hold office, although, in practice, consultation and consensus are likely to occur.  There is a Remuneration Tribunal in the Northern Territory, but it is unclear whether the Remuneration Tribunal would be asked by the Administrator to make any recommendation in relation to the proposed determination.  There is no requirement that the Remuneration Tribunal have any such involvement:  Remuneration Tribunal Act (NT) s 10.  In fact the Remuneration Tribunal provided a report and recommendation in relation to the January 1998 Determination, but not in relation to the Special Determination.

44                  In his affidavit evidence, Mr Stone said:

“On or about 18 February 1998, I received and approved a Ministerial from the Chief Executive Officer of the Office of Courts Administration to myself in my capacity as Attorney-General of the Northern Territory …

The comments in the Ministerial … which stated that the determination applied for 2 years and that if Mr Bradley were not to resign after that period, his remuneration and allowances should be renegotiated, were not given any detailed consideration by me because the Ministerial indicated that Mr Nicholson, who was then Crown Counsel, had given his opinion that there were no difficulties with respect to any part of the process.  Mr Nicholson was a man whose advice I respected and relied upon and, if there was an indication from him that the proposal was appropriate, I accepted his advice.

…

At the time of Mr Bradley’s appointment as Chief Magistrate on 27 February 1998, I understood that his appointment was to the age of 65 years.

…

I expected at the time of the appointment that Mr Bradley would resign after about two years because he had told me in December 1997 that he could only give us two years.”

45                  The primary judge summarised Mr Stone’s evidence on this point as follows:

“216.   Mr Stone said that on or about 18 February, he had approved Mr Flynn’s Ministerial of 12 February concerning Mr Bradley’s appointment.  He agreed that the attached Special Determination indicated that Mr Bradley’s remuneration was fixed for two years.  He also agreed that he understood that if Mr Bradley were not to resign after that period, his remuneration and allowances would need to be renegotiated.

217.     Mr Stone said that he gave no detailed consideration to that Ministerial because it indicated that Mr Nicholson had expressed the view that there were no difficulties regarding any aspect of Mr Bradley’s appointment.  He said that he respected Crown Counsel’s advice, and that he had relied upon it.

218.     Mr Stone said that, as at the date of Mr Bradley’s appointment, on 27 February 1998, he believed that Mr Bradley had been appointed in accordance with the normal provisions of the Act, to the age of 65 years.  However, he expected that Mr Bradley would resign after two years because that was what Mr Bradley had told him when they first discussed the matter.” 

46                  A little later in the reasons for judgment (at [248]-[249]), the primary judge quoted the following passages from the cross-examination of Mr Stone by the appellant’s then counsel, Mr Walker SC:

“Mr Walker asked:

‘What you had decided was that his remuneration would stop after two years, you agree with that?---Well, clearly that is what I have approved.’

Shortly afterward, Mr Walker continued:

‘Now, did you suggest this morning to his Honour, that you expected that his top-up would continue beyond 2 years?---I thought probably just roll-over’.

‘I’m sorry?---I thought it would probably just roll-over.  I didn’t expect him to be there beyond the two years.’”

It is these passages which we take to be the source of the observation of the primary judge in [276] of the judgment that Mr Stone’s view was that the Special Determination would simply “roll over”.

47                  It is clear from the matters to which we have referred that Mr Stone knew that an inevitable consequence of the Special Determination was that if Mr Bradley did not resign after two years his remuneration and allowances would have to be renegotiated in the sense to which we earlier referred: see [43].  Mr Stone’s advice to the Administrator to make the Special Determination leads to the conclusion that he intended that this should be so.  However, the primary judge rejected the appellant’s case that the provision made for Mr Bradley’s remuneration in the Special Determination meant that for all practical purposes, his appointment became one for a fixed term of only two years (at [314]).  His Honour also rejected the case that the Special Determination was limited in its operation to two years so as to put Mr Bradley in a position of being entirely beholden to the executive government of the Northern Territory for his future remuneration so as to fetter Mr Bradley’s independence in the meantime (at [314] – [315]).

48                  The primary judge did not find that Mr Stone intended, in approving the Special Determination structured in the way it was, that Mr Bradley would be forced to renegotiate if he chose not to resign after two years if “forced” is intended to convey that it was Mr Stone’s intention that, for whatever reason, Mr Bradley would be exposed to some pressure in that respect.  We are not persuaded that the appellant has made out a case to that effect.

49                  The record by the primary judge of the view expressed by Mr Stone in cross-examination that the Special Determination would simply “roll over” if he did not resign at or before the expiry of the two year period does not negate the earlier finding at [216] of the judgment that Mr Stone understood that a consequence of his actions was that if Mr Bradley were not to resign after the two year period, his remuneration and allowances would need to be renegotiated.  “Roll over” might or might not be the outcome of the negotiation process, but it was not the only possible outcome.

50                  It is convenient to defer considering whether, in the light of these findings, the appellant’s contention that the appointment was for a purpose foreign to the Act can be sustained, until after the ultra vires issue has been determined, as the issues are interrelated.

51                  Before the primary judge, the Northern Territory and Mr Bradley submitted that the appellant’s allegation that the appointment of Mr Bradley was made for an improper or extraneous purpose was not justiciable.  That contention was rejected by the primary judge.  It was raised again in notices of contention filed by the Northern Territory and Mr Bradley in the appeal but the arguments raised in the notices were not developed at the hearing.  We take the Northern Territory’s reliance upon its written material in this respect as being formal only and we see no reason to deal with that matter here other than to say that nothing has been said to persuade us that the conclusion of the primary judge on this point was incorrect.

The ultra vires claim

52                  The appellant contends that Mr Bradley’s appointment as Chief Magistrate exceeded the power of appointment granted by s 4(3) of the Act.  The steps in the argument are as follows:

(i)                  the power of appointment under s 4(3) of the Act is limited to an appointment to an office for which there is in force a valid determination under s 6 of the Act and an appointment made beyond power is invalid;

(ii)                the power under s 6 of the Act is limited to determining remuneration and allowances, terms and conditions, without restriction as to time;

(iii)               the Special Determination was invalid because it was confined in its operation to a fixed period of two years; and

(iv)              because there was no valid determination under s 6 in force, the purported appointment of Mr Bradley under s 4(3) was also invalid. 

53                  The primary judge rejected the ultra vires claim.  His Honour found that:

·                    section 6 should be given its ordinary and natural meaning; and

·                    the power it confers upon the Administrator to determine the remuneration and allowances for magistrates is couched in the widest terms.  (It was common ground at first instance and on appeal that s 6 allows for a reduction as well as an increase in remuneration.  Whether that common ground reflects the true position is a matter that we do not have to determine on this appeal.)

54                  His Honour noted (at [339]) that s 6 of the Act is in stark contrast to s 72(iii) of the Constitution, which provides that the Justices of the High Court and of the other Courts created by Parliament shall receive such remuneration as Parliament may fix, but the remuneration shall not be diminished during their continuation in office.  His Honour noted that s 72(iii) was derived from the Act of Settlement (12 and 13 Will. III c. 2) (“Act of Settlement”), and that s 6 of the Act does not have any such ancestry.  In addition, his Honour said at [340] that “it is difficult to discern a legislative intent to secure judicial independence in the provisions of the Act”.  The Act of Settlement provided that “after the said Limitation shall take Effect as aforesaid, Judges Commissions be made Quandiu se bene gesserint, and their Salaries ascertained and established; but upon the Address of both Houses of Parliament it may be lawful to remove them”.  Although it does not affect the point, reference should also be made to the fact that s 72(iii) is also from the Act 1 George III c. 23 s 3 and Art. III s 1 of the Constitution of the United States of America. 

55                  His Honour expressed his conclusion as follows (at [341]):

“In my opinion, it would do violence to the language in which ss 4 and 6 are drafted to construe them in the manner for which NAALAS contends.  The language leads intractably to a different construction.  I acknowledge this construction results in what most independent observers would regard as a manifestly unsatisfactory state of affairs.  The Act, as drafted, may be thought to offend fundamental principles, and to be seriously deficient in failing to secure judicial independence.  That does not, however, permit me to introduce into the Act words which are not there, and which in my view cannot be the subject of any implication, necessary or otherwise.”

56                  It is implicit in this passage that his Honour rejected the appellant’s claim that the validity of Mr Bradley’s appointment as Chief Magistrate was dependent upon valid arrangements then being in place for his remuneration and allowances.

57                  In the appellant’s submission it is wrong to treat the Act as failing to manifest a legislative intention to secure judicial independence.  The appellant contends that the structure of the Act suggests otherwise, in that it exhibits features addressed to security of tenure akin to those which have come to characterise judicial appointments in common law countries since the Act of Settlement.  In the appellant’s submission the legislative history of the Act shows that it was enacted for the very purpose of securing judicial independence.  The appellant contended that an interpretation of the Act to promote the objective of judicial independence was mandated by reference to the context in which the Act was enacted and the objectives identified at the time of its enactment.  The appellant also submitted that such a construction was mandated by the principles that a statute should be interpreted and applied, as far as its language permits, so as not to abrogate fundamental principles of the common law and in conformity with Australia’s international obligations.  Hence, in the appellant’s submission, s 6 should be construed as requiring a determination of remuneration and allowances that is in force at the time of appointment, and which is to remain in place throughout the period of tenure of the office for which s 7 provides, unless and until there is a re-determination.

58                  The appellant also placed particular reliance on the decision of the Privy Council in Buckley v Edwards [1892] AC 387 (“Buckley”).  In that case a person was appointed to a public office that, in the view of the Government, was of such importance that its holder should have the status of a judge of the Supreme Court, hence he was appointed to that office also.  No salary was provided for the appointee in his judicial capacity, and the issue was the validity of his appointment as a judge of the Supreme Court.  Section 2 of the Supreme Court Judges Act 1858 (NZ) (“NZ Supreme Court Act”) provided for the constitution of the Supreme Court of New Zealand that, in addition to the Chief Justice, was to include “… such other judges as His Excellency … shall from time to time appoint”.  It was contended that this section enabled the Governor to appoint as many additional judges as he pleased without salary or, as in the case under consideration, with a salary temporarily provided by Parliament for other services.  Section 6 of the NZ Supreme Court Act provided that “a salary equal at least in amount to that which, at the time of the appointment of any judge, shall be then payable by law, shall be paid to such judge so long as his patent or commission shall continue and remain in force”.  The Privy Council held that the general words of s 2 could only be construed consistently with other parts of the NZ Supreme Court Act, especially s 6, as vesting in the Governor the power of appointment of judges to whom an ascertained salary was payable by law at the time of their appointment.

59                  Whilst their Lordships’ conclusion is consistent with the result for which the appellant here contends, their Lordships acknowledged that the question before the Court was one of construction of the relevant New Zealand statute.  If that statute, properly construed, authorised what was done, then effect had to be given to the enactment irrespective of the consequences in terms of the principle of judicial independence (at 397).  The terms of the Act in question here are quite different from the NZ Supreme Court Act.  In particular there is no counterpart in the present Act of s 6 of the NZ Supreme Court Act.  The decision of the Privy Council does not establish any point of principle that is of assistance to the appellant.  As an aside, we note that although the judge was ousted from office on the ground that his appointment was invalid as having been made in violation of the relevant statutory provisions, decisions given in the meantime were protected by the de facto officer doctrine:  In re Aldridge (1893) 15 NZLR 361.

60                  It may now be true to say that the modern magistrate is “a judge in all but name”: Pike & Riedel “Epilogue”,inGolder High and Responsible Office - A History of the New South Wales Magistracy (1991) at 215; Lowndes “The Australian Magistracy: from Justices of the Peace to Judges and Beyond” (2000) 74 ALJ 509, 592 at 592.  But it has not always been so.  The magistracy in Australia has evolved over time from honorary justices of the peace to paid magistrates.  The paid magistracy was transformed from “police magistrates” to “stipendiary magistrates” who were initially subsumed into the public service and later separated from it.  The evolutionary process is summarised by Lowndes at 510, and at 598 Lowndes accepts that the recognition that magistrates are judicially independent officers is a relatively recent event in the history of the Australian magistracy.  He notes, however, that except in the Australian Capital Territory, there is no statutory guarantee that a magistrate’s salary cannot be reduced while the magistrate holds office, and so long as the power exists to alter magistrates’ emoluments to their detriment during their term of office, “they cannot be said to be judicially independent” (at 603).  In an article “A Changing Judiciary” (2001) 75 ALJ 547 Gleeson CJ makes the point that it is easy for modern judges to forget how recent are the developments in the independence of the State magistracy and that some of these developments are continuing to work themselves out.  The members of the newly established Federal Magistrates Court, a court created by the Parliament under Chapter III of the Constitution, necessarily have the security of tenure and of remuneration for which ss 72(ii) and (iii) respectively provide.

61                  In Spratt v Hermes (1965) 114 CLR 226 (“Spratt”)at 271 Windeyer J observed that “the rule that judges hold their offices during good behaviour, and not at pleasure, is not of general application.  It is not part of the common law.  It described an exceptional tenure, one which judicial officers of subordinate courts, for the most part, did not enjoy”, notwithstanding the judicial character of their office.  His Honour said that “[i]t is therefore not surprising, nor is it contrary to tradition or principle,” that the Ordinance under which magistrates for the Australian Capital Territory were then appointed provided that they should be paid such remuneration, and should hold office on such terms and conditions as the Governor-General determined (at 272). 

62                  The independence and impartiality of inferior courts, and the appearance thereof, was historically secured by means of the prerogative (constitutional) writs: see Manitoba Provincial Judges Association v Manitoba (Minister of Justice) [1997] 3 SCR 3 (“Manitoba Provincial Judges Association”)at [313].  In Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; [1999] HCA 44 (“Eastman”)at 332 ([8]) Gleeson CJ, McHugh and Callinan JJ said:

“A suggestion, in 1915, that the magistrates and judges of all territories, internal or external, in whatever stage of development, were required to have life tenure, would have been regarded as startling by people who were familiar with the tenure of office of magistrates and judges in the various Australian States.”

63                  In Capital TV & Appliances Pty Ltd v Falconer (1970) 125 CLR 591 (“Capital TV & Appliances”)at 611-612 Windeyer J observed that “[a] completely sovereign legislature, as the Commonwealth Parliament is with respect to the Territories, can provide for appointments that are held during good behaviour for life subject to removal in any manner it chooses to prescribe, or it can make them for a term of years, or it can adopt the common law by which offices under the Crown are held at the pleasure of the Crown.”

64                  Impartiality and the appearance of impartiality may be defining features of judicial power: Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 (“Wilson”) at 25 per Gaudron J.  But in the case of legislatures unconstrained by s 72 of the Constitution, or other controlling constitutional provisions, whether and to what extent the security of tenure of judges or magistrates should be established or enhanced as a means of buttressing judicial impartiality or the public perception of judicial independence is a matter for the legislature to determine.  This is not to deny, however, the importance of interpreting the language the legislature has employed in the light of the objects it has sought to achieve in establishing a court or a magistracy.

Legislative history

65                  Under the Justices Ordinance 1928-1957 (NT) provision was made for the appointment of Justices of the Peace, Special Magistrates and Stipendiary Magistrates: s 10.  The Administrator was authorised to appoint persons to the office of Justice of the Peace, and to appoint any Justice of the Peace to the office of Special Magistrate: s 10(1)(a) and (b).  Those appointments were required to be “temporary” (s 10(2)) and might be determined by the Administrator or the Governor-General.  The Governor-General was also authorised to make those appointments, and to appoint any Special Magistrate who was a lawyer of not less than five years standing to be a Stipendiary Magistrate for the Northern Territory.  Appointments made by the Governor-General pursuant to the Ordinance were “during pleasure” (s 10(3)).  The Ordinance did not contain any provision in relation to the remuneration of persons appointed to the office of Stipendiary Magistrate.  Provision was, however, made for the taking of oaths of office (s 11).  The Justices Ordinance 1973 (NT) amended s 10(3) of the Justices Ordinance 1928-1957 by making provision for the appointment of a Chief Magistrate.

66                  The decision of the Full Court of the Supreme Court of South Australia in Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 is important in the legislative history of the Act.  In that decision, delivered in August 1976, the Full Court of the Supreme Court held that a Special Magistrate was disqualified by bias from hearing a complaint when, as a result of an amalgamation of departments, the Special Magistrate and the prosecutor had become members of the same department of the Public Service and subject to the same departmental head.

67                  At 537, Bray CJ said:

“To some minds it might seem anomalous that a magistrate should be subject to the Public Service Act at all and that in view of the important functions he [sic] 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.  That is a matter of policy as to which, I suppose, I ought not to express any opinion in a judicial capacity.”

68                  At 548 Wells and Sangster JJ said:

“We congratulate ourselves daily upon living in a free society.  We have learnt to acknowledge the necessity for, and to bow voluntarily to, some regulation of that freedom.  But whatever liberties men and women retain, controlled or uncontrolled, and whatever are the duties, responsibilities and limitations that they must discharge or accept to ensure that those liberties are retained, they are all as nothing if courts do not have their complete independence assured to the extent that they own no master save that of the law, and are subject to no external influence save that exerted upon them by the principles and precepts of intellectual and personal integrity.  But courts cannot perform their task effectively if they are not respected and their decisions are not accepted without question – save, of course, by appeal in due course of law.  Courts are today generally respected, but that respect cannot be taken for granted, or expected to survive facts or circumstances that prove, or even lead reasonably to the suspicion, that a court is biased.”

69                  On 17 November 1976, Miss Andrew delivered the Second Reading Speech for the Magistrates Bill (NT).  She said that the Bill had two objectives:

·        “[to] make it clear that magistrates are to be appointed and are to hold office independently of the public service…[and]

·        giving them [magistrates] a degree of independence and a security of tenure they do not presently enjoy.”

70                  Urgent passage was sought for the Bill, the need for urgency arising from the decision in Fingleton, which, because of the similarity between the position in South Australia and the position as it then was in the Northern Territory, was seen as having possible consequences for the Northern Territory.

71                  The Act (then called the Magistrates Ordinance 1976 (NT)) was assented to on 10 February 1977.  It provided for the Administrator in Council to appoint eligible persons to the offices of Chief Magistrate and Stipendiary Magistrate to hold office until age 65, and to be paid such remuneration and allowances, and to hold office on such terms and conditions, as the Administrator in Council from time to time determined.  Section 10 provided for the Administrator to remove a magistrate from office on a resolution requesting his removal on the ground of proved misbehaviour or incapacity being presented to the Administrator by the Legislative Assembly.

72                  On 21 August 1980 the Attorney-General of the Northern Territory delivered the Second Reading Speech for the Magistrates Amendment Bill (NT).  The Bill repealed s 10, and substituted a provision that the Administrator could remove magistrates on the advice of the Executive Council.

73                  The Attorney-General said:

“In almost all other jurisdictions, magistrates are recruited locally.  There is usually, therefore, adequate opportunity to assess their competence and suitability for appointment.  The Territory is in a somewhat different position.  Whilst the government is anxious to recruit magistrates of sufficient calibre from the ranks of the local profession, it will obviously be necessary to recruit some magistrates from interstate for some time.  All possible care is taken with such recruitment but the lack of opportunity to see prospective appointees in action can make assessment difficult.  In these circumstances, the government believes that the ancient and uncertain procedures associated with removal by resolution of parliament are inappropriate in the Territory.  The government does [not] believe, however, that magistrates should be removable at will.  Their independence must be seen to be preserved.  Clause 4 of the bill therefore provides that they shall not be removed except on certain grounds.  The safeguards built in to preserve the independence of the judiciary will also operate to provide some job security for Territory magistrates.”

74                  Section 10 of the Act now provides as follows:

“10.     Removal from office

A Magistrate appointed under section 4(3) shall not be removed from office unless –

            (a)        he or she has failed to comply with a direction given by the

                        Chief Magistrate under section 13A(1)(b); or

            (b)        the Administrator is satisfied that the Magistrate is –

                        (i)         incapable of carrying out his or her duties;

                        (ii)        incompetent to carry out his or her duties; or

                        (iii)       for any other reason unsuited to the performance of his or her duties.”

The structure of the Act

75                  A person is not eligible for appointment as a Magistrate unless admitted to practise as a legal practitioner for not less than five years in the courts or places listed in s 5(a), or has held the position of magistrate or its equivalent in one of those jurisdictions and has the educational qualifications prescribed for admission as a legal practitioner of the Supreme Court of the Northern Territory: s 5.  Magistrates are precluded from undertaking other work without the consent of the Attorney-General and from engaging in practice as a legal practitioner during the term of their appointment: s 11(1) and (2).  The Attorney-General, may, after consultation with the Chief Magistrate, appoint the places in the Northern Territory where Magistrates “shall hold courts or sit in the exercise of jurisdiction conferred on them” by a law in force in the Northern Territory: s 13.  The Chief Magistrate must assign and apportion duties to Magistrates (s 13A(1)(a)) and may give any directions in respect of the performance of those duties as may be necessary, including a direction as to the places in the Northern Territory where a Magistrate is to perform his or her duties (s 13A(1)(b)) but the Chief Magistrate may not give a direction for the purpose of affecting the exercise by a Magistrate of his or her judicial discretion (s 13A(2)).  A Magistrate must comply with a direction given by the Chief Magistrate (s 13A(3)) and failure to comply with such a direction is a ground for removal from office under s 10(a).  A Magistrate has, in the performance of his or her duties as a Magistrate, the same protection and immunity as a Supreme Court Judge: s 19A.  A Magistrate is required to take an oath in the form of the Schedule (s 20), that “… I will do right to all manner of people according to law, without fear or favour, affection or ill-will.”  This is relevantly the same oath taken by the judges of the Supreme Court of the Northern Territory and by the judges of federal courts: Supreme Court Act (NT) s 37; High Court of Australia Act 1979 (Cth) s 11; Federal Court of Australia Act 1976 (Cth) s 11; Family Law Act 1975 (Cth) s 26.

76                  Although the earlier provision for removal of a magistrate from office on address of the Legislative Assembly was removed, s 10(b), set out earlier, is a substantial measure to support the independence of the magistracy of the Northern Territory.  The condition that must exist in order for a Magistrate to be removed from office is that the Administrator is “satisfied” of one of the matters in sub-section (b).  The power to remove a Magistrate is not attracted or validly exercised if the Administrator is not so satisfied:  see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 per Gummow J and the cases there cited.  Moreover, the satisfaction referred to in s 10(b) does not exist if the Administrator’s satisfaction is not formed reasonably upon the material before the Administrator (see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150) or is formed on the basis of a misunderstanding of the meaning of the law under which the Administrator acts, or by taking into account irrelevant considerations (see R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432 per Latham CJ).  See generally Foley v Padley (1984) 154 CLR 349 at 353 per Gibbs CJ and 370 per Brennan J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 275 – 276.  The purposes of the Act will illuminate the concepts, for example of “unsuitability”, in s 10(b)(iii).

77                  This review of the history and structure of the Act demonstrates a legislative intention that an independent and impartial magistracy should exist in the Northern Territory, supported by some provisions directed to its institutional independence.  The evident purpose of the provisions to which we have referred is to secure that outcome.  A Magistrate has tenure until the age of 65 years, and holds office essentially during good behaviour and continued competence (s 10).  Measures of that type are traditionally put in place to buttress the independence of the office holder.  The immunity created by s 19A of the Act reflects the need to preserve the independence and impartiality of persons holding judicial office, including the office of magistrate.  If and insofar as the primary judge treated the Act as failing to manifest a legislative intention to secure judicial impartiality and “at least a measure of independence”, then we respectfully disagree.  The question that remains, however, is how far the legislature has gone in supporting the position of Magistrates as members of the intended independent magistracy.

78                  It is a fundamental principle that cases before the courts, civil or criminal, must be decided by an independent and impartial tribunal.  The principles that determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of that fundamental principle: Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 650 ([22]).  But the issue that falls for determination here is whether Mr Bradley was invalidly appointed, an issue which turns on the proper construction of ss 4 and 6 of the Act having regard to the purpose and object of the Act: see Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.  That is not the same question as whether the terms of the Special Determination were such as might have resulted in Mr Bradley’s disqualification on the ground of apprehended bias in, for example, proceedings to which the Northern Territory was a party whilst ever his entitlements remained regulated by the Special Determination, although there may be some interrelationship between the two questions. 

79                  The Legislative Assembly of the Northern Territory had before it the model provided by s 72 of the Constitution.  It also had the model provided by s 41 of the Supreme Court Act (NT) (“the NT Supreme Court Act”).  Section 41 provided:

“(1)     A Judge shall receive –

            (a)        salary at a rate;

            (b)        such allowances and at such rates; and

(c)                such other benefits

as are determined from time to time by the Administrator.

…

(3)               The salary, allowances and other benefits to which a Judge is entitled under subsection (1) shall not be altered to his detriment during his term of office.

(4)               The Consolidated Fund is appropriated to the extent necessary for the payment of salaries, allowances and benefits payable under subsection (1).”

80                  In its express terms, the Act does not follow either of those models.  There are of course other possible models as well.  In his comprehensive and scholarly examination of the subject in Judicial Remuneration in Australia (AIJA, 1995), Professor George Winterton, having observed that security of tenure and security of remuneration are the two great constitutional guarantees upon which the independence of the judiciary rests, observed that security of remuneration is “clearly the weaker of the two guarantees, since even when the reduction of judicial salary is constitutionally prohibited (as in the Commonwealth and the United States), the actual quantum is left in the hands of the political branches, with obvious implications for judicial independence” (Preface at (v)).  As Professor Winterton then points out, many different methods of providing for security of remuneration, with differing degrees of security, are to be found in Australia and in comparable jurisdictions elsewhere. 

Whether a valid appointment under s 4 is dependent on a valid determination under s 6

81                  Section 4 is a power to appoint a person to an office.  The appointment is effected by a unilateral act on the part of the Administrator, rather than by means of a contractual engagement, although as a practical matter an appointment is hardly likely to be made unless the person to be appointed signifies a willingness to accept the office and, at least implicitly, the terms and conditions applicable or proposed to be applicable to it.  The duration of the appointment thus made is fixed by, or by reference to, ss 7, 8 and 10 of the Act, there being no power to make an appointment for a period other than that for which the Act provides: cf Director-General of Education v Suttling (1987) 162 CLR 427 at 437.

82                  Clearly enough, s 5 of the Act (eligibility) is a statutory condition which regulates the power of appointment, such that an appointment made in breach of that condition will be invalid.  However, neither s 4 nor s 6 of the Act is couched in terms that convey that a valid determination under s 6 of the Act is a condition precedent to the making of an appointment under s 4(3), or that a purported appointment under s 4(3) will be invalid unless accompanied by a valid determination under s 6. As a matter of language, a consequence of a person’s appointment as a magistrate is that he or she becomes entitled to be paid such remuneration and allowances as the Administrator from time to time determines.  By necessary implication, the Administrator will be under a duty to make such a determination on the appointment of a magistrate, and s 6 will require that there be a determination in place at all times during a magistrate’s tenure of office.

83                  Those duties may be enforceable by action in the nature of mandamus, and the Administrator’s duty would not be discharged by the making of an invalid determination.  But it does not follow that a failure on the part of the Administrator to discharge that duty will result in the invalidity of the appointment that generated the duty in the first place.  If the duty to make a determination is enforceable, then this assumes the validity of the appointment to which the duty relates.

84                  In Buckley the Privy Council concluded on a reading of the statute as a whole that there was a legislative intention that there should be no appointment of a judge unless at the time of the appointment there was a fixed salary payable by law in respect of the office of that judge.  The same result would probably follow in relation to a judge whose tenure of office was regulated by s 72(iii) of the Constitution, or by legislation such as s 41 of the NT Supreme Court Act which prohibits detrimental alteration to a judge’s salary during the term of office.  It is implicit in such provisions that the salary will be fixed at the time of the judge’s appointment.

85                  However, as earlier indicated, the Act does not follow those models.  Although providing for an impartial and independent magistracy, the legislature has evinced an intention not to underpin the independence of Northern Territory magistrates by provisions that secure their entitlement to remuneration at the level applying at the time of appointment, or at any particular level.  The Court cannot, by any legitimate process of construction, imply into the Act a provision similar to s 41(3) of the NT Supreme Court Act.

86                  The inability to imply into the Act a provision similar to s 41(3) of the NT Supreme CourtAct, and the absence of any express provision to like effect, has the result that there is no foundation in the Act for an implication that the exercise of the power to appoint a magistrate is conditional upon there being in force at the time of the appointment a valid determination under s 6 applying to the appointee.

Whether the Special Determination was valid

87                  The power given by s 6 of the Act to the Administrator to determine remuneration and terms and conditions for Magistrates is at large, although - very importantly - subject to any implications which flow from the scope and purpose of the Act, and subject to general administrative law principles which govern the exercise of all statutory powers.  The power to alter the remuneration and other terms and conditions for magistrates to less favourable terms and conditions than those applicable at the time of appointment is inconsistent with the Act of Settlement notion that judicial salaries should be “ascertained and established” at the time of appointment, although it is not invalid for this reason.  However, an alteration of those terms for an improper or colourable purpose would be invalid on general administrative law grounds.  Thus, for example, an alteration made to punish or to reward a magistrate for decisions given or anticipated would be invalid as being beyond the purpose for which the power to make determinations was conferred.

88                  Section 6 contains no express provision as to the nature or quantum of the remuneration, allowances, terms or conditions that the Administrator may determine, nor about the frequency of such determinations, nor about the period in which a determination is to apply.  Section 6 clearly authorises the Administrator simply to determine that a magistrate’s remuneration shall be a specified figure.  By force of the Act, that determination will apply until altered or replaced by a subsequent determination.  But the question is whether a power couched in the terms of s 6 authorises only a determination for the time being, or whether it also authorises a determination to operate for a fixed and specified time.

89                  In Day v Hunkin (1938) 61 CLR 65, s 27 of the Public Service Acts 1916-1925 (SA) provided that a First Division officer who held office for a fixed term of 5 years, “shall be paid such salary as is determined by the Governor on the advice of the board”.  The officer was notified of his appointment at the salary of ₤1,000 per annum, and the issue was whether that salary could be reduced during the term of office by subsequent determinations. Section 37 of the applicable Interpretation Act provided that the power given by any Act to do any act or thing shall be capable of being exercised from time to time, as occasion requires, subject to any indication of a contrary intention.

90                  The High Court held that the power contained in s 27 of the Public Service Acts was not exhausted by the first determination of an officer’s salary, and that the first determination of Day's salary at ₤1,000 per annum did not fix it unalterably at that rate for the period of five years.  At 77-78 Dixon J said:

“It is evident that it is not the intention of sec. 27(1) to require or empower the Executive to fix once [sic] for all the rate of salary which an officer of the First Division shall receive throughout the rest of his service or during his tenure of a particular office.  I take it to mean that, on the recommendation of the Public Service Classification and Efficiency Board, the Governor in Council may give a determination of the rate of salary which shall operate until he gives another determination.  In other words, the provision means to authorize the determination from time to time of the salary payable to a First-Division officer.

…

The expression ‘such salary as is determined’ may perhaps be susceptible of a meaning which would include not only a determination for the time being but also a determination of the salary to which the officer shall be entitled during a fixed and specified time.  That is to say, the words are not necessarily incompatible with a determination expressed as deciding what throughout a definite time shall be the rate of pay.  But to understand them as including such a determination would mean that they confer on the Executive a power to invest any officer of the First Division with a right to an unalterable salary for a fixed term of any length.  Such a meaning should not be ascribed to a general provision dealing with the Service at large unless the intention is clearly expressed, and I do not think that it is the meaning of sec. 27(1).  It is perhaps worth remarking that, upon such a construction, the determination for a fixed period would preclude an increase as well as a reduction of salary.”

91                  Thus, as a matter of language, a provision such as s 6 may be compatible with a determination which operates for a fixed time, as well as with a determination which operates for the time being.  Whether the section should be seen as only authorising a determination for the time being has to be decided upon a consideration of the Act as a whole, including its scope and purpose.

92                  The Act leaves it to the Executive Government to determine the terms and conditions on which a magistrate holds office, including terms as to remuneration and allowances.  The Act provides for a professional, paid magistracy, hence it is implicit in the legislative scheme that a valid determination under s 6 will be in force in relation to a magistrate throughout the magistrate’s tenure of office.  That result could be achieved by means of a series of fixed-term determinations, for periods which in total cover the magistrate’s term of office, as well as by a determination which operates for the time being unless and until altered or replaced by later determination(s).  Provided that it is recognised that the making of a determination having effect only for a limited time does not exhaust the Administrator’s duty in this respect there is no conflict, as the appellant’s submission suggests, between the imperative in s 7 (to hold office to age 65) and the imperative in s 6 (to be paid while remaining in office).

93                  Had the Administrator made a determination under s 6 without specification of any period during which it was to operate, then it would have been open to the Administrator to make a fresh determination to operate after, for example, the first two years of the magistrate’s term.  Why then is a determination expressed so as to operate for the first two years of the term only outside the scope and purpose of the Act if the Administrator is bound to make a further determination, and one not tainted by any improper purpose, to take effect on the expiry of the first?

94                  In the appellant’s submission, a determination for a fixed term upon the expiration of which the magistrate, if he or she does not resign, would have to negotiate with the Executive Government for the terms on which the office will be held thereafter might compromise or be seen as compromising the impartiality and independence of the magistrate, at least in relation to matters involving the Northern Territory, when an objective of the Act is the establishment of an impartial and independent magistracy for the Northern Territory.

95                  As we have already indicated, it does not necessarily follow that a determination will be the product of negotiation.  There is no legal requirement that the Executive discuss, consult or negotiate with the affected magistrates before making a s 6 determination.  Even if some form of dialogue with the Executive in relation to a proposed determination is likely to occur in practice, there are at least two answers to the appellant’s submission.  First, whilst the Act provides for an impartial and independent magistracy, structural independence from the Executive in terms of the magistrates’ emoluments, and terms and conditions of office, is not an objective which the Act seeks to promote.  Models which, to a greater or lesser degree, would assist in the promotion of that objective have not been followed.  Rather, the Act puts the magistrates in a position of being dependent upon the Executive in relation to their remuneration, allowances and the terms and conditions on which they hold office.  Second, limiting the s 6 power to a determination that operates for the time being will not avoid the risk of perceived compromise which the appellant’s submissions identify.  Whether or not the initial determination operates for the time being, the risk may recur whenever the Executive, from time to time, directs its attention to possible changes in these arrangements, whether in response to a request made on behalf of the magistrates or otherwise.

96                  In Manitoba Provincial Judges Association the Supreme Court of Canada engaged in an extensive discussion as to whether it was permissible for the judiciary to have negotiations over remuneration with the executive or legislature.  The majority expressed the view that in the Canadian constitutional context, such negotiations, at least if they took the form of “horse trading”, would be fundamentally at odds with judicial independence: see the judgment of Lamer CJ, L’Heureux-Dube, Sopinka, Gonthier, Cory and Iacobucci JJ at [134].  In his dissenting judgment, La Forest J concluded that there was no constitutional prohibition against salary discussions between the judiciary and government provided the government did not attempt to use those discussions to attempt to influence or manipulate the judiciary: see [349] – [352].

97                  The decision was greatly influenced by the provisions of the Canadian Charter of Rights and Freedoms and by the provisions of the Constitution Act 1867.  It is therefore not of direct assistance in the resolution of the present problem.

98                  It was not contended on behalf of the appellant that a determination that was operative for a two year term involved any unlawful fetter on the discretion conferred on the Administrator by s 6.

99                  For the reasons given, the validity of Mr Bradley’s appointment was not dependent on the validity of the Special Determination, and in any event it has not been established that the Special Determination was invalid.  It is therefore unnecessary to consider the alternative case put on behalf of the Northern Territory that if the Special Determination was not supported by s 6 of the Act, and was therefore invalid, then the revocation of the January Determination, being integral to it, must also fail, leaving Mr Bradley with an entitlement to the remuneration, allowances, and other terms and conditions fixed by the January Determination.

Whether the appointment was for a purpose foreign to the Act

100               The appellant contends that Mr Stone’s intention in procuring the Special Determination was to achieve a result, and if that result is one that is not within the subject matter, scope or purposes of the Act, then the Special Determination is invalid as it was made for an improper purpose, even though Mr Stone may have believed, on the advice of Mr Nicholson, that the Special Determination was within power: see R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233 per Aickin J.  In principle, we agree that this would be so if the premise on which the argument is founded were established.

101               We have concluded, however, that s 6 of the Act authorises successive short term determinations of a magistrate’s emoluments.  If we are correct in that conclusion, the result intended by Mr Stone is not one that is outside the subject matter, scope and purposes of the Act.  The purpose which Mr Stone sought to achieve is one contemplated and authorised by s 6 of the Act, and is therefore not an extraneous or improper purpose.

Constitutional validity

102               If the appointment of Mr Bradley was authorised by the Act, then the appellant contends that the Act is pro tanto invalid as beyond the power of the Legislative Assembly of the Northern Territory, in that it infringes the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (“Kable”).  Alternatively, the appellant contends that s 4 and s 6 of the Act must be read down so as to conform with both the Constitution and the Judiciary Act 1903 (Cth) (“the Judiciary Act”) with the result, in either case, that those sections did not authorise the appointment.

103               Two issues arise:

(i)                  whether the Kable principle applies in the Northern Territory; and

(ii)                if so, whether that principle is infringed by the circumstances of Mr Bradley’s appointment.

104               The primary judge determined the first issue adversely to the appellant as his Honour regarded himself as bound by the decisions of the High Court in Spratt, Capital TV & Appliances,and Eastman to conclude that the Kable principle does not apply to Territory courts as the principle is confined in its operation to courts which exercise federal jurisdiction.  In Eastman at 333 ([12]) Gleeson CJ, McHugh and Callinan JJ said that the invitation to overrule the decision in Spratt, and to refuse to follow the holding in Capital TV & Appliances, should be declined. 

105               The primary judge noted that the question whether Kable has any application to the requirements of security of tenure and remuneration in State courts (and, by extension, Territory courts as well) has not yet been resolved in this country.  His Honour did not answer the question whether Kable operates so as to require minimum guarantees of tenure, financial security and administrative independence.  His Honour said at [474] that even if, contrary to his earlier finding, Kable is applicable to the Territory courts, “it is at least doubtful that it imposes limitations upon the powers of Territory legislatures to determine the appointment, tenure and remuneration of Territory judges”.

The Kable principle

106               The principle established in Kable is that courts exercising federal jurisdiction cannot be invested with functions or powers which are incompatible with the court’s exercise of the judicial power of the Commonwealth.  This principle flows by implication from Chapter III of the Constitution.

107               Whilst the members of the Court who comprised the majority expressed their views in different ways, the essential steps in the process of reasoning, as identified in the appellant’s submission, were as follows:

·        s 71 of the Constitution (read with s 77(iii)) provides for the judicial power of the Commonwealth to be vested in such State courts as the Commonwealth Parliament invests with federal jurisdiction;

·        in so providing, the Constitution assumes and requires that those courts will be capable of accepting and exercising the judicial power of the Commonwealth invested in them;

·        that capacity is dependent on them not being repositories of non-judicial power the exercise of which is “incompatible” with the exercise of the judicial power of the Commonwealth; and

·        the exercise of non-judicial power is “incompatible” with the exercise of the judicial power of the Commonwealth if it is of such a nature that public confidence in the integrity of the judiciary as an institution is diminished.

108               In considering the notion of “incompatibility”, each of the members of the majority in Kable regarded public confidence in the administration of justice, and the appearance of impartiality and independence of the judiciary from the legislature and the executive, as significant at 98 per Toohey J, 107 per Gaudron J, 117-119 per McHugh J, and 133-4 per Gummow J.  At 118, under the heading “Courts exercising federal jurisdiction must be perceived to be free from legislative or executive interference” McHugh J said:

“… it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts.”

And at 119:

“But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.”

109               In Kable it was accepted that State courts are the creatures of the States, and that when the Commonwealth invests the judicial power of the Commonwealth in a State court, it must take that court “constituted and organised as it is from time to time” (at 67 per Brennan CJ; see also Kable at 96 per Toohey J).  At least in that sense, the Commonwealth must take the State court “as it finds it”: R v Moffatt [1998] 2 VR 229 at 249 per Hayne J.

110               In Kable at 102 Gaudron J said:

“Once it is accepted that State courts are the creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State judges and the structure, organisation and jurisdictional limits of State courts.  In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them.”

111               McHugh J made observations to similar effect at 110, and said at 115:

“… the Constitution does not protect the appointment, remuneration and tenure of the judges of State courts invested with federal jurisdiction although it protects the judges of federal courts in respect of those matters.”

112               However, in Eastman at 340 ([34]) Gaudron J said:

“If it is not necessary for a [Territory Court] to conform to the requirements of s 72 of the Constitution, a question could arise as to whether, in accordance with the principles recognised in Kable v Director of Public Prosecutions (NSW), there is not some implicit requirement in Ch III with respect to the nature of the matters that may be dealt with by it and perhaps, also, with respect to the manner in which it is constituted before federal jurisdiction can be vested in it.” (emphasis added)

113               In the judgment of Gummow and Hayne JJ in Eastman at 353 ([81]) it was recognised that implications and limitations may arise from the provisions of the Constitution other than s 72 in relation to Territory courts, including implications which may arise from Kable.

114               Whilst Kable was concerned with the compatibility of a specific non-judicial function (to order imprisonment without any finding of criminal guilt) with the exercise by a State Supreme Court of the judicial power of the Commonwealth, as indicated above, the reasoning of members of the Court involved principles of broader application.  In John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 at 84 ([15]), Spigelman CJ observed that some of the reasoning in Kable encompasses the “manner” in which a function or power is to be performed.  The Chief Justice said at [31] that the reasoning in Kable extends to issues of “impartiality” and “independence” of the judicial process and to public confidence in that process.  In Bruce v Cole (1998) 45 NSWLR 163 at 167 Spigelman CJ expressed the opinion that the reasoning in Kable indicates that the legislative power of the State may not be used to alter fundamentally the independence of a Supreme Court judge, or the integrity of the State judicial system.

115               In the appellant’s submission:

·        a Territory court created or sustained under s 122 of the Constitution falls within the category of “other courts” capable of being vested with federal jurisdiction, and exercising the judicial power of the Commonwealth, within the meaning of s 71 of the Constitution.  Section 68 of the Judiciary Act confers on the several courts of the Northern Territory, including the Magistrates’ Court, “jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth”; 

·        the Kable principle is that a court in which is invested the judicial power of the Commonwealth under s 71 of the Constitution cannot be the subject of any legislation, or the exercise of a power pursuant to legislation, that threatens in fact or appearance the institutional impartiality or integrity of that court;

·        the Kable principle is not limited to State or Territory courts actually exercising federal jurisdiction.  It is sufficient if the court is capable of being vested with federal jurisdiction; and

·        the terms of Mr Bradley’s appointment, if authorised by the Act, threatens in appearance if not in fact the institutional impartiality or integrity of the Magistrates’ Court.  An appointment to a judicial office that is required to be renegotiated with the Executive contravenes the principle in Kable in that it is incompatible with the exercise by the occupant of that office of the judicial power of the Commonwealth.

116               In the Northern Territory’s submission:

·        prevailing High Court authority is opposed to the proposition that Territory courts are “other courts” within s 71 of the Constitution; and

·        the Kable principle does not require that the judges of “other courts” within s 71 of the Constitution be given security of tenure or remuneration.  The Kable principle does not extend to the terms and conditions of appointment of judicial officers.  In Eastman, the High Court decided that the express provision in Chapter III of the Constitution, s 72, prescribing security of tenure and protecting the level of remuneration for judges of federal courts does not apply to the courts of a Territory.  Given that s 72 of the Constitution does not apply to State (or Territory) courts, there is no room in principle for a requirement derived from the structure or text of Chapter III that State (or Territory) courts be constituted by judges or magistrates having a security of tenure and remuneration that replicates the requirements of s 72.

Does Kable apply to a Northern Territory court?

117               Spratt decided that s 72 of the Constitution does not apply to Territory courts created under s 122.  Accordingly, the fact that a Territory magistrate was appointed to hold office during the pleasure of the Governor-General, rather than in accordance with the requirements of s 72, did not mean that he lacked jurisdiction to hear and determine a charge brought against a defendant for breach of a Commonwealth Act.  Barwick CJ noted that “ [s]ome would support that result upon the fundamental view that Chap. III as a whole is inapplicable to or in respect of Territories” (at 243), a view apparently held by Kitto J (at 251) and by Taylor J (at 260), but one which neither Barwick CJ (at 243), nor Windeyer J (at 277) felt able to accept.

118               The other basis on which the result in Spratt could be and was supported flowed from the proper construction of s 72.  The words “created by the Parliament” in s 72 denote the courts described as “such other federal courts as the Parliament creates” that are referred to in s 71.  Territory courts are not federal courts; “federal” in s 71 signifies courts created by laws made in pursuance of the federal legislative powers contained in s 51 of the Constitution: cf Spratt at 242-243 per Barwick CJ and at 274 per Windeyer J.  Territory courts created pursuant to s 122 are not of that character.

119               Spratt was later affirmed in Capital TV & Appliances, in which the High Court held that the ACT Supreme Court was not a federal court or a court exercising federal jurisdiction within s 73(ii) of the Constitution.  Accordingly, there was no constitutionally entrenched right of appeal from the ACT Supreme Court to the High Court. The source of the Court’s authority in that respect is s 122 of the Constitution.

120               These decisions are authority for the following propositions:

·        section 72 of the Constitution does not apply to a Territory court;

·        a Territory court is not a federal court;

·        a Territory court is not exercising federal jurisdiction even in deciding a matter arising under the Constitution or under a law made by the Parliament.  The source of the court’s jurisdiction in that respect is s 122 of the Constitution; and

·        it would be inappropriate to use the word “federal” to describe that jurisdiction.

121               In Eastman, the High Court rejected a challenge to the validity of the appointment of an acting judge of the Supreme Court of the Australian Capital Territory based on the fact that the acting judge was appointed for a limited term.  Eastman reaffirmed that s 72 had no application to Territory courts.

122               Gleeson CJ, McHugh and Callinan JJ expressly declined the invitation to overrule the decision in Spratt and to refuse to follow the holding in Capital TV & Appliances.  Their Honours endorsed the construction of s 72 adopted by Barwick CJ in Spratt noting that it gives a negative answer, not to a wide question as to the relationship between Chapter III and s 122, but to a particular question as to whether s 72 addresses the position of courts created pursuant to s 122.

123               In the view of Gaudron J, the preferable course, if the question were free of authority, would be to give the words of s 72 what her Honour considered to be their ordinary and natural meaning so as to include courts created pursuant to s 122 of the Constitution:

“However, given that contextual considerations provide a basis for reading s 72 down so as to apply only to federal courts created pursuant to s 71 and given, also, that s 72 has twice been so interpreted by this Court and that the Parliament has acted on the Court’s decisions in that regard, it should, in my view, continue to be read in that way.” (at 340, [36])

124               Gaudron J reiterated the views she had previously expressed in Northern Territory v GPAO (1999) 196 CLR 553 (“GPAO”)that there is no reason why a court created pursuant to s 122 cannot be invested with federal jurisdiction as, where it applies in relation to a Territory, a Commonwealth law of general application.  However, s 72 would have no application to a Territory court even where that court was invested by the Parliament with federal jurisdiction.  But, as earlier noted, her Honour said that a question could arise as to whether in accordance with Kable principles there is not some implicit requirement in Chapter III with respect to the manner in which a court is constituted before federal jurisdiction can be vested in it.

125               Gummow and Hayne JJ decided that s 72 had no application to the Supreme Court of the ACT because it was a court created by a law of the Legislative Assembly of the Territory, not by a law of the Parliament.  In their Honours’ view, the preferable construction of the Constitutional provisions is that a court created by the Parliament for the government of a Territory is not a federal court created under ss 71 and 72, but may answer the description of one of the “other courts” which are invested by laws made by the Parliament with federal jurisdiction within the meaning of s 71 and thus are recipients of the judicial power of the Commonwealth (at 348, [63]).  Their Honours said that s 72 has no necessary operation with respect to such a court, which is created under s 122 of the Constitution.  This would be so, even though the Parliament invested the Court with federal jurisdiction.

126               Gummow and Hayne JJ recognised that the construction they described as preferable would involve departures from existing authority in that the construction:

·        “would deny” the proposition in Spratt that a Territory court hearing and determining a matter arising under a Commonwealth law operating throughout the Commonwealth was not one in which the judicial power of the Commonwealth was vested within the meaning of s 71 of the Constitution; and

·        “would accept” the proposition denied in Capital TV & Appliances that a Territory court may be a court exercising federal jurisdiction, although it is not a federal court.

127               Kirby J dissented.  In his Honour’s view, Spratt and Capital TV & Appliances should be overruled.  Kirby J was of the view that a Territory court is a Chapter III court and is subject to the Constitution as a whole, including s 72.

128               It is clear, as the primary judge accepted, that four Justices of the High Court favoured the position that a Territory court, even if not a federal court, may nevertheless be an “other court” which may be invested with federal jurisdiction in terms of s 71 of the Constitution.  The appellant contends that this Court can and should hold that this position represents the law, as the reasoning of the Justices in Spratt and Capital TV & Appliances by which the broad proposition that a Territory court may not exercise federal jurisdiction was reached, has been rejected in later decisions of the High Court.

129               In particular, the appellant contends that the broad proposition necessarily involves two subsidiary propositions.  First, that a Commonwealth law of general application is supported in a Territory by s 122 alone, and not by s 51.  That proposition is said to have been rejected in Berwick v Gray (1976) 133 CLR 603 at 605 per Barwick CJ, 608 per Mason J and 611 per Murphy J, and at least by a majority in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, at 560-561 per Toohey J, 566-567 per Gaudron J, 601, 614 per Gummow J, and 661-662 per Kirby J.  Second, that the jurisdiction to hear and determine a matter arising under a Commonwealth law supported by s 122 alone is not federal jurisdiction.  That proposition is said to have been rejected by a majority in GPAO at 575, 589, 591 per Gleeson CJ and Gummow J, 604-605 per Gaudron J and 650-651 per Hayne J.  The appellant points to the fact that the minority in GPAO specifically pointed out that the reasoning of the majority could not be reconciled with the view of “federal” jurisdiction taken in Spratt and Capital TV & Appliances at 621-623, 624-625 per McHugh and Callinan JJ.

130               In GPAO at 651 Hayne J observed that the decided cases in this area do not speak with a single and compelling voice.  But Capital TV & Appliances is a unanimous decision of the High Court which holds to the contrary of the proposition which the appellant submits is now the law.  In Eastman, the High Court was invited not to follow that decision but declined the invitation proffered.  In Eastman Gummow and Hayne JJ recognised that Spratt and Capital TV & Appliances stood in the path of the construction which their Honours preferred.  And in Kruger v Commonwealth (1997) 190 CLR 1 at 170 Gummow J referred to the need for reconsideration to be given to these decisions, a process which is the prerogative of the High Court.

131               In Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207 Barwick CJ held that it is not for a Supreme Court of a State to decide that a decision of the High Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case.  If the decision of the High Court is to be overruled, it must be by the Judicial Committee, or by the High Court itself.  That principle applies, mutatis mutandis, here.

132               None of the High Court cases to which the appellant refers have overruled Spratt or Capital TV & Appliances. 

133               It follows that the primary judge was correct in finding that he was bound by decisions of the High Court to conclude, as this Court is bound by those decisions to conclude, that Kable does not apply to Territory courts.

Is Kable applicable to the remuneration and tenure of Territory magistrates?

134               It was contended that in any event, there is room for disagreement as to whether Kable applies to Territory courts.  If it does, there is a further question as to whether Kable can operate so as to invalidate the appointment of a magistrate to a Territory court.  As earlier noted, the primary judge said that “it is at least doubtful” that the Kable principle imposes limitations upon the powers of Territory legislatures to determine the appointment, tenure and remuneration of Territory judges.

135               Kable will in certain circumstances invalidate legislation that operates to undermine public confidence in the independence of courts which are invested with the judicial power of the Commonwealth.  In the appellant’s submission, judges who are to exercise the judicial power of the Commonwealth must be, and be perceived to be, independent of the legislature and the executive government: R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 per Jacobs J; Harris v Caladine (1991) 172 CLR 84 (“Caladine”) at 135 per Toohey J, 159 per McHugh J; Wilson at 11, 13-15.  The appellant submits that legislation that allows for a short term determination of a magistrate’s remuneration, with the terms on which the office is to be held thereafter to be renegotiated, would undermine publicly confidence in the independence of the magistracy, and be invalid on Kable principles.

136               In Caladine McHugh J said at 159-160:

“It was to ensure the independence and impartiality of the Justices of the High Court and the judges of the federal courts that the framers of our Constitution enacted s. 72 so as to give security of tenure and remuneration to the federal judges who were to exercise the judicial power of the Commonwealth.  It is plain that the framers intended that the judicial power of the Commonwealth should be exercised only by courts composed of Justices and judges appointed in accordance with s. 72 or State courts invested with federal jurisdiction under s. 77(iii) of the Constitution.  Though the Parliament might confer federal jurisdiction on a State court whose members did not have the security of tenure and remuneration afforded by s. 72, this result would ensue only because the State concerned did not want its judicial officers to have the same security of tenure as given by s. 72.  But the exercise of the judicial power of the Commonwealth by federal courts was another matter.”

137               Thus the proposition that the federal judiciary and other judges who are to exercise the judicial power of the Commonwealth must be, and be perceived to be, independent of the legislature and the executive government, overstates the constitutional position if it is intended to convey that the “other judges” must be appointed on terms which give them security of tenure equivalent to that given to the federal judiciary under s 72.

138               The proposition that the federal judiciary must be, and be perceived to be, independent of the legislature and the executive government does not exist in the air.  It is a proposition that is grounded in the doctrine of separation of powers and Chapter III of the Constitution, particularly s 72.  Once it is recognised that s 72 of the Constitution does not apply to Territory Courts (or, for that matter, to State Courts) there is no room for any implication regarding tenure and remuneration of Territory judges or magistrates which replicates the precise requirements of s 72.  If the express provision in Chapter III, s 72, prescribing security of tenure and protecting the level of remuneration for judges has no application to Territory Courts and judicial officers, there is no basis on which an implication to the same or some similar effect can be drawn from Chapter III.

139               In Kable, in the passages earlier quoted, Gaudron and McHugh JJ held that it is for the States alone to determine the appointment, tenure and remuneration of State judges.  By parity of reasoning it is for the Northern Territory to determine those matters in relation to Northern Territory judicial officers.

140               In Eastman, Gaudron J raised as a possibility that the Kable principle might have some implications as to the manner in which a Territory court is constituted before federal jurisdiction can be vested in it.  No other member of the Court pursued this question.  Even if there is an impediment to the investing of federal jurisdiction in a court in which the magistrate held office on the terms of the Special Determination, that would not result in the pro tanto invalidity of Territory legislation which authorised an appointment on those terms.

Costs

141               Although the appellant failed to secure any of the relief which it sought before the primary judge, it was ordered to pay only 70 per cent of the respondents’ costs of the proceedings.  An unidentified part of the 30 per cent reduction reflected the fact that the appellant succeeded on certain issues.  An additional reduction was found to be appropriate by reason of the fact that:

“… some aspects of this proceeding may be characterised as “public interest litigation”, including in particular, the constitutional arguments and the attempt to invoke the principles in Kable.” (at [106])

At pars [95] to [97] of the costs judgment the primary judge said:

“95.     I accept that there are features of the present proceeding which can fairly be described as having the hallmarks of ‘public interest litigation’.  At the same time, there are absent from this case a number of the factors which led Stein J, and the majority in Oshlack, to hold that there should be no order for costs in that case.  The same may be said of the factors identified by the majority in Ruddock as warranting the conclusion that there should be no order for costs in that case.

96.              Not all of the matters raised in this proceeding involved novel questions of law.  Nor are all of the matters raised of high public importance.  Much of the case turned upon a series of factual allegations regarding the circumstances underlying Mr Bradley’s appointment which NAALAS was unable to prove.  In addition, the constitutional arguments that NAALAS advanced were unsuccessful, as was its attempt to invoke the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

97.              There is a case for making an adjustment to the amount of costs ordered against NAALAS to reflect some of the considerations referred to in Oshlack and Ruddock.  There is no justification, however, in the present case, for an order that the parties bear their own costs.”

142               The case undoubtedly involved novel questions of law and matters of high public importance. 

143               The appellant contends that the primary judge erred in treating those considerations as diminished by the fact that much of the case “turned upon a series of factual allegations regarding the circumstances underlying Mr Bradley’s appointment which [the appellant] was unable to prove”.  In adopting that approach, the appellant contends that the primary judge failed to have regard to the considerations that:

·        the factual claims of the appellant were plainly arguable;

·        the resolution of those claims was itself a matter of public interest; and

·        the resolution of those claims was not assisted by the failure of the respondents to call appropriate evidence, leading the primary judge to have remarked that it was “almost certain that the best evidence of what lay behind Mr Bradley’s appointment was not adduced ‘leaving’ a great deal … to conjecture.”

144               A further consideration that is or may be relevant is that the primary judge found that whilst the primary facts established by the appellant were capable of sustaining the inference for which the appellant contended, they were also consistent with other and innocent inferences which the primary judge preferred.

145               The appellant contends that the primary judge erred in principle in treating factual claims which, in the result, were not substantiated, as being outside the concept of public interest litigation.

146               His Honour accepted that the fact that the litigation had been brought in the public interest was relevant on the question of costs, but was not decisive.  That is a correct approach.

147               The appellant has not established any error in principle in the reasoning of the primary judge.  Rather, as his Honour noted at [58] of the costs judgment, there was a degree of hostility in the appellant’s camp to Mr Bradley, and the appellant made claims involving the integrity and honesty of Mr Bradley and Mr Stone which the appellant failed to prove.  It was open to his Honour to take that failure into account on the question of costs.  The relative weight to be given to that failure was a matter within the discretion of the primary judge.

148               The appeal should be dismissed with costs.

Associate:

Dated:              27 September 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

drummond j:

149               I have had the advantage of reading the reasons in draft of the Chief Justice and Hely J.  I agree with what their Honours say on all save the issue whether the appointment of Mr Bradley as Chief Magistrate was ultra vires the powers conferred on the Administrator by the Magistrates Act 1977 (NT).  By an instrument dated 27 February 1998, the Administrator, acting under s 4(3) of the Act, appointed Mr Bradley “to hold the office of Chief Magistrate on and from 9 March 1998”.  By force of s 7, Mr Bradley was appointed to hold that office until age sixty-five.  By his Special Determination of the same date, the Administrator dealt with Mr Bradley’s remuneration, among other things, but only determined what it was to be for a two year period between the date of his appointment as Chief Magistrate, 9 March 1998, and 8 March 2000.  In my opinion, an appointment under s 4(3), as was Mr Bradley’s, will not be valid unless there is then in existence a determination under s 6 that, subject only to subsequent alteration, fixes the appointee’s remuneration throughout the entire period of the appointee’s tenure of office.

150               Whether Mr Bradley’s appointment was ultra vires the Magistrates Act is governed by the construction of ss 4(3) and 6.

The proper approach to interpretation

151               Section 62A the Interpretation Act (NT) provides:

“In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.”

152               In Mills v Meeking (1990) 169 CLR 214, Dawson J said of such a provision:

“… the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act.  Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open.  The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction.  …  The approach required by s. 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction.  …  However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman.  Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.”  (at 235)

153               In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, the High Court described the proper approach to statutory construction at common law, ie, without reference to provisions like s 62A the Interpretation Act (NT):

“Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy ….  Instances of general words in a statute being so constrained by their context are numerous.  In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd…, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.”  (at 408)

154               In explaining what is involved in the purposive construction of a statutory provision that is now required, the High Court, in MacAlister v The Queen (1990) 169 CLR 324, approved this statement by Lord Reid:

“The general principle is well settled.  It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.”  (at 330)

155               The object of the Magistrates Act is to provide for the establishment of an independent and impartial magistracy for the Northern Territory.  In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Gleeson CJ, McHugh, Gummow and Hayne JJ, at [3], said of the principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal:  “[i]t is fundamental to the Australian judicial system”.

156               That this is the chief purpose or object underlying the Magistrates Act is not a matter of speculation.  It is readily discernible and, in my opinion, has a decisive impact on the construction of the provisions of the Act central to the issue whether Mr Bradley’s appointment was ultra vires.

157               Not only must the provisions of the Magistrates Act here in question be given the purposive construction required by s 62A the Interpretation Act (NT) and the modern approach to construction at common law, ie, one that promotes its object in preference to a construction that does not promote it, but the provisions must also be interpreted having regard to the settled rule that a statute is not to be construed as abrogating or interfering with fundamental common law principles, which include that referred to in Ebner, unless that legislative intent is clearly manifest “by unmistakable and unambiguous language”.  See Coco v The Queen (1994) 179 CLR 427 at 437 and Eastman v The Queen (2000) 203 CLR 1 at 23.  This rule reinforces the necessity for the Court in construing the relevant provisions of the Magistrates Act to avoid a construction that would compromise the principle identified in Ebner and central to the Magistrates Act unless the language of that Act is too intractable to permit reading it in that way.

158               The Northern Territory Legislature is the ultimate arbiter of the extent to which the object of the Magistrates Act is to be implemented.  If the Legislature, by language that is so clear as not to admit of any other construction, makes provision for the conditions of service of magistrates which fall far short of those traditionally conferred on judicial officers to ensure their independence and impartiality, then the legislative statement must be faithfully respected by courts which have to interpret the relevant provisions.  As will appear, s 10 the Magistrates Act is such a provision.  But, if the Legislature uses language in making provision for the conditions on which magistrates are to hold office which is not so clear as to admit of only one reading, then the fact that the object of the Act is to provide for an independent magistracy is a consideration which a court charged with construing the provision must take into account.  That consideration justifies the court adopting a construction that gives the provision in question an operation that detracts from the judicial independence of magistrates to the smallest extent consistent with the language used.

159               The second respondent submitted that the Court should seek the true meaning of ss 4(3) and 6 of the Magistrates Act by discovering from the wording of the Act just what degree of judicial independence the Northern Territory Legislature intended to confer on magistrates appointed under the Act.  That, in my opinion, is the wrong approach, given what the Legislature has identified as the object of the Act.  The Court should instead construe these provisions in the way which will give magistrates the greatest degree of judicial independence by way of security of tenure and financial security that is consistent with the language used by the parliament.

160               In order to explain why I think Mr Bradley’s appointment was ultra vires the Magistrates Act, it is first necessary to explain why the object of thatAct can be so clearly identified.  It will then be necessary to identify some of the implications involved in the fundamental principle to which the Act gives effect before the question of construction of the relevant provisions of the Act can be dealt with.

The purpose or object underlying the Magistrates Act

161               Prior to 1976, stipendiary magistrates in the Northern Territory were members of the Commonwealth Public Service, just as magistrates elsewhere were, until quite recently, members of the particular State Public Service.  But, by convention, they exercised a considerable degree of independence in the performance of their judicial functions.  See, by way of example, Ex parte Blume; re Osborn (1958) 75 WN(NSW) 411 at 415 for the position in New South Wales in 1958, and Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 546 for the position in South Australia in 1976.

162               The magistracy in the Territory was reorganised by the Magistrates Ordinance 1976.  This was provoked by the decision in Fingleton:  in the second reading speech on the Bill for this Ordinance, the Ministerial officer said that the urgent passage of the Bill was made necessary by that decision.  She also said of the objectives of the Bill:

“The office of magistrate is at present created under Part II of the Justices Ordinance.  Although that part does not require magistrates to be members of the Australian Public Service, they are presently appointed within that service and come under the Attorney-General’s Department subject to public service rights.  They hold their statutory office at the Governor-General’s pleasure.  The amendments proposed in this bill have 2 objectives.  Firstly, it will make it clear that magistrates are to be appointed and are to hold office independently of the public service, except for the purposes of preserving the rights and entitlements of the existing magistrates.  Secondly, it will create a satisfactory basis for the appointment of magistrates, giving them a degree of independence and a security of tenure they do not presently enjoy.

… It is appropriate that this Assembly should be given the opportunity to legislate in this area as it is hoped at some future time the Territory court structure will be one of the matters to be transferred to local executive control.  At the same time, it gives it the opportunity of legislatively expressing its support for the principle of judicial independence.”

163               The 1976 Ordinance gave Territory magistrates a high degree of judicial independence.  They were appointed to age sixty-five and were only removable by the Administrator in Council on a resolution of the Legislative Assembly requesting “removal on the ground of proved misbehaviour or incapacity”.  Notwithstanding the power vested by s 10(2) of the 1976 Ordinance in the Administrator in Council to suspend a magistrate pending consideration of his or her removal by the Legislature in accordance with s 10(3) to (5), their security of tenure closely approximated that of Supreme Court judges in the Territory, who then held their appointments under Ch III of the Commonwealth Constitution:  see ss 7(1), (4), (6) and 9 the Northern Territory Supreme Court Act 1961 (Cth).  Magistrates were not, however, given the same high level of financial security of Supreme Court judges whose remuneration was, at the time, protected from reduction by s 72(iii) of the Constitution.  The 1976 Ordinance did not, in terms, subject magistrates to direction in any respect; but by s 13, responsibility for “the administrative allocation and co-ordination of the work of magistrates” was vested in the Chief Magistrate.  Even if s 13 had not been enacted, the Chief Magistrate would, by virtue of the functions of the office, have necessarily had that same power:  see Rees v Crane [1994] 2 AC 173 at 187 - 188.

164               Upon the Northern Territory achieving self-government, the Ordinance of 1976 was transformed into the Magistrates Act.  By 1979, the Northern Territory Legislature had enacted the first Supreme Court Act (NT).  Magistrates’ remuneration was provided for by s 6 of the Magistrates Act, in terms that did not materially differ from s 41(1) the Supreme Court Act (NT), which made provision for the remuneration of Supreme Court judges.  But magistrates continued to have financial security inferior to Supreme Court judges:  for example, by s 41(3) the Supreme Court Act (NT), the salaries of the judges could not be altered to their detriment.  Magistrates did not have this protection.

165               By the Magistrates Amendment Act 1980, the independent position of magistrates established in 1976 was significantly eroded.  Though the Attorney-General, in his second reading speech on the 1980 Magistrates Amendment Bill, expressly recognised the need to ensure that the independence of magistrates “must be seen to be preserved”, the 1980 changes diminished the degree of judicial independence they were given in 1976, principally by reducing the security of their tenure.  By a new s 13, the Minister was empowered to appoint the places in the Territory where magistrates were to hold courts, though only after consultation with the Chief Magistrate, and the Chief Magistrate was given express power to “assign and apportion their duties to Magistrates”, including power to give “such directions, including directions as to the places in the Territory where they shall perform those duties, as may be necessary”.  By a new s 10, the general power of removal was vested in the Administrator, without any requirement for a request for removal from the Legislative Assembly, on much wider grounds than those provided for by s 10 of the 1976 Ordinance.  These grounds included failure to comply with a direction given by the Chief Magistrate under s 13 and upon the Administrator being satisfied “for any other reason”, ie, other than incapacity or incompetence, that a magistrate was “unsuited to the performance of his duties”.

166               However, the independence of magistrates was later strengthened in some respects.  The Local Court (Consequential Amendments) Act 1989 (NT) introduced s 19A, which gave magistrates the same absolute immunity possessed by a judge of the Supreme Court.  Section 13, the 1980 provision that conferred on the Chief Magistrate the power to give directions to magistrates, was re-enacted as s 13A by the Magistrates Amendment Act (No 2) 1998 (NT), but with a new sub-section making it clear that that power did not extend to giving directions with respect to how a magistrate was to exercise his or her judicial discretion.

167               The Magistrates Act, in the form in which it has stood at all presently material times, incorporates the 1980, 1989 and 1998 changes.  It is necessary to set out some of the provisions of this legislation.  The offices of Chief Magistrate and Stipendiary Magistrate are established by s 4(1).  The Administrator is empowered by s 4(3) to appoint persons eligible within s 5 to those offices.  (In exercising all his powers under the Act, the Administrator can act only on the advice of the Executive Council:  s 34(1) the Interpretation Act (NT).)  A person so appointed holds the office of Chief Magistrate or Stipendiary Magistrate:

·                    until age 65 - s 7(1); or

·                    earlier resignation - s 8 - or removal in accordance with s 10, which provides:

10.       Removal from office

A Magistrate appointed under section 4(3) shall not be removed from office unless -

(a)    he or she has failed to comply with a direction given by the Chief Magistrate under section 13A(1)(b); or

(b)   the Administrator is satisfied that the Magistrate is –

(i)                  incapable of carrying out his or her duties;

(ii)                incompetent to carry out his or her duties; or

(iii)               for any other reason unsuited to the performance of his or her duties.

168               Remuneration and other matters are dealt with by s 6, which provides:

6.         Terms and conditions of appointment

Unless and until express provision is made in relation thereto, by or under an Act, a Magistrate appointed under section 4(3) -

(a)                                        shall be paid such remuneration and allowances; and

(b)                                       holds office on such terms and conditions,

as the Administrator, from time to time, determines.

169               Section 11 contains an extensive prohibition against a magistrate, during the period he or she holds office, earning income from other activities.  It provides:

11.       Magistrates not to undertake other work

(1)        A Magistrate appointed under this Part shall not engage in practice as a legal practitioner during the term of the appointment.

(2)        A Magistrate appointed under this Part shall not, without the consent of the Attorney-General, engage in paid employment outside the duties of his or her office under this Act or any office or appointment held by him or her in the Defence Force.

(3)        …

170               Section 13 provides:

13.       Appointment of courts, &c.

The Attorney-General may, after consultation with the Chief Magistrate, appoint the places in the Territory where Magistrates and Justices shall hold courts or sit in the exercise of jurisdiction conferred on them under this Act or any other law in force in the Territory.

171               Section 13A provides:

13A.    Directions by Chief Magistrate

(1)        The Chief Magistrate -

(a)                must assign and apportion duties to Magistrates and Justices; and

(b)               subject to subsection (2), may give any directions in respect of the performance of those duties as are necessary, including a direction as to the places in the Territory where a Magistrate or Justice is to perform his or her duties.

(2)        The Chief Magistrate may not give a direction for the purpose of affecting the exercise by a Magistrate or Justice of his or her judicial discretion.

(3)        A Magistrate or Justice must comply with a direction given by the Chief Magistrate.

172               Section 19A provides:

19A.    Protection of Magistrates

A Magistrate has, in the performance of his or her duties as a Magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.

173               Section 20 provides:

20.       Oath, &c. of office

(1)        Subject to subsection (3), a person appointed under section 4(3), 9, 9A or 14(1) shall not exercise or perform any of the powers, functions or duties conferred or imposed upon him or her by any law of the Territory unless he or she has taken an oath in accordance with the form in the Schedule.

174               The form of oath prescribed includes an oath of allegiance and the following oath:

“…  that I will well and truly serve in the office of [Chief Magistrate or Stipendiary Magistrate] and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will.”

175               It is the same judicial oath sworn by all judges of Australian superior and other courts on their appointment.

176               Notwithstanding the limitations on security of tenure in s 10, it is clear from the provisions of the Act as now in force and its legislative history that the object of the Magistrates Act is to provide for the establishment of an independent and impartial magistracy.  The requirement imposed by the Legislature in s 20 of the Act, that before a magistrate can perform any function or duty he or she must take the traditional form of judicial oath to act independently and impartially in discharging the duties of the office, is sufficient, without more, to show this.  The oath is a promise to comply with “one of the most fundamental principles underlying the administration of justice”, viz, to adjudicate “without partiality or prejudice”.  Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 471.  Further evidence of the legislative objective is provided by s 19A.  The purpose sought to be achieved by conferring on magistrates the extraordinary immunity referred to in s 19A is to ensure their independence in the discharge of their judicial functions:  “The ground … on which this rule [of absolute judicial immunity] rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice”.  Anderson v Gorrie [1895] 1 QB 668 at 670, cited in Rajski v Powell (1987) 11 NSWLR 522 at 528.  See also Gallo v Dawson (1988) 63 ALJR 121 at 122.  It is unnecessary to refer to the other indicators in the Act to the same effect.

The essential requirements for an independent and impartial judiciary

177               In Ebner, it was said:

“[3]    Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal.  Perhaps the deepest historical roots of this principle can be traced to Magna Carta (with its declaration that right and justice shall not be sold …) and the Act of Settlement 1700 (UK) [12 and 13 Wm III, c 2] (with its provisions for the better securing in England of judicial independence [cf as to the colonies Terrell v Secretary of State for the Colonies [1953] 2 QB 482 at 492 - 493, per Lord Goddard CJ]).  …  It is unnecessary, however, to explore the historical origins of the principle.  It is fundamental to the Australian judicial system.”

178               The provisions of the Act of Settlement 1700intended to better secure judicial independence provided that:  “Judges’ commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them”.  As the Oxford English Dictionary, 2nd ed, shows, the word “ascertain” was used in the early eighteenth century as meaning:  “to make (a thing) certain, definite, or precise, by determining exactly its limits, extent, amount, position, etc.; to decide, fix, settle, limit”.  The word “establish” was then in use as meaning:  “to fix, settle, institute or ordain permanently, by enactment or agreement” and “to set up on a secure or permanent basis”.  Judges’ salaries were to be both “ascertained”, ie, fixed in amount, and “established”, ie, made payable to them permanently throughout their time in office.

179               The Act of Settlement, so far as it related to judges’ salaries, was not made fully effective until 1760, by the statute of 1 Geo III, c 23.  It enacted that:  “such salaries as are settled upon Judges … by Act of Parliament, and also such salaries as have been or shall be granted by His Majesty … to any Judge or Judges, shall, in all time coming, be paid and payable to every such Judge and Judges for the time being, so long as the patents or commissions … shall continue and remain in force”.  This provision was reproduced in s 17 the Constitution Act 1867 (Qld).  Of it, O’Connor J said, in Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304:

“… the words of the Constitution are incapable of being construed in any other way than as enacting that the independence of the Supreme Court Judge in regard to his remuneration was intended to be secured only by conferring on him the right to be paid the statutory salary attached to the office at the time when the commission was issued to him so long as the commission should remain in force.”  (at 1323 - 1324)

180               (The word “only” in this passage is explained by the fact that O’Connor J was rejecting the argument that s 17 exempted a judge’s salary from a general income tax law.)  As Cooper shows, provisions reflecting the Act of Settlement protections for securing judicial independence by way of giving judges financial security are understood as providing for two things:  firstly, the fixing by Parliament of the amount of the salary a judge is to be entitled to upon his or her appointment and, secondly, the maintenance by Parliamentary direction of that salary throughout the entire period of the judges’ tenure of office.

181               The Act of Settlement protections for judicial independence never automatically became the law of any of the Australian colonies.  The principle is stated in Terrell v Secretary of State for the Colonies [1953] 2 QB 482:

“It is for the Crown by exercise of the Prerogative, or Parliament by statute, to set up courts in acquired territory whether the acquisition be by cession, conquest or mere settlement, and the conditions under which judges of those courts are to hold their office must depend upon the terms on which the Crown or Parliament established them.”  (at 493)

182               The two Act of Settlement provisions dealing with security of judicial remuneration were, however, commonly reproduced in legislation governing the establishment of the Supreme Courts of those colonies.  Economic pressures, notably periods of inflation, have meant that the provision “establishing” judges’ remuneration has, commencing from about 1950, been departed from to permit judges’ salaries to be increased from time to time:  see the table at p 37 of Winterton, Judicial Remuneration in Australia, AIJA, 1995.  Periods of depression and financial stringency have also led, on occasion, to various of the Australian Parliaments acting to reduce judicial salaries; it appears, however, that only the Tasmanian Parliament has legislated (as recently as 1986) to reduce, on a temporary basis, the salaries of serving Supreme Court judges, as opposed to future appointments.  See Winterton at pp 21 and 22.  As appears from this same passage, economic conditions have also resulted in voluntary reductions in judicial salaries, most recently in Western Australia in 1983.  But, in the case of the Supreme Courts of the States and Territories, the relevant legislation governing the remuneration of those judges typically contains a bar, like that in s 41(3) the Supreme Court Act (NT), against reducing judges’ remuneration, in partial reflection of the Act of Settlement provision for the “establishment” of judicial remuneration.

183               The Act of Settlement provisions, their widespread adoption in Australia in respect of the judges of superior courts from early in the piece and their retention, though in modified form to allow for increases necessitated by economic factors, show that the preservation of judicial independence continues to be seen in this country as requiring not only the fixing of the remuneration to be paid to judges on appointment, but also assuring their remuneration throughout the entire period of their office.  The extension of these provisions to some magistrates, such as those in Queensland by s 4 the Judges (Salaries and Allowances) Act 1967 (Qld), emphasises their importance to ensuring judicial independence and impartiality.  As then Professors Zelman Cowen and David Derham said in their article, The Constitutional Position of the Judges (1956) 29 ALJ 705:

“It has always been assumed, since the first year of George III’s reign, that the level of judicial salaries and the security of those salaries are intimately connected with the preservation of judicial independence.”  (at 707)

184               The Canadian Supreme Court, in recent years, has given detailed consideration to what is required for security of judicial tenure and financial security in the context of deciding whether the constitution of a particular court or whether executive and legislative action, including action to reduce judicial remuneration, is such as to contravene s 11(d) of the Canadian Charter of Rights and Freedoms which guarantees accused persons trial by “an independent and impartial tribunal”.  The courts of the United Kingdom, in the case of Scotland since 1998 and England and Wales since 2000, have also had to consider, in a variety of different factual contexts in both civil and criminal matters, whether a particular court or tribunal has been constituted as “an independent and impartial tribunal”, as is required by Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The Canadian and UK authorities assist in identifying the content of the principle described in Ebner as “fundamental to the Australian judicial system” that trials under our system must be conducted by a tribunal with those same characteristics.

185               In Valente v The Queen [1985] 2 SCR 673, the first case in which the Supreme Court examined the content of the Charter right, the issue was whether a provincial court was an independent and impartial tribunal having regard to the facts that the tenure of provincial court judges fell short of that of superior court judges (which reflected the Act of Settlement provisions) and that the provincial judges were dependent for certain salary and pension entitlements on the discretion of the Executive government.  The Court held that there were three essential conditions of judicial independence for the purposes of s 11(d) of the Charter:  security of tenure, financial security for the judges and the institutional independence of the tribunal.  It is not now necessary to give further consideration to the third of these conditions.  Le Dain J, who gave the judgment of the Court, said of the content of the first two conditions of judicial independence required for an independent and impartial tribunal:

“…  Security of tenure, because of the importance that has traditionally been attached to it, must be regarded as the first of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter.  (at 694)

…

There are, of course, a variety of ways in which the essentials of security of tenure may be provided by constitutional or legislative provision ….  There is considerable variation in the relevant provisions of the provincial legislation.  (at 695 - 696)

…  It may be desirable that the tenure of judges should be expressed as being during good behaviour, which leaves cause for removal to be determined according to the common law meaning of those words … rather than have the grounds for removal specified in legislation, but I do not think it is reasonable to require that as an essential condition of judicial independence for purposes of s. 11(d) of the Charter. It is sufficient if a judge may be removed only for cause related to the capacity to perform judicial functions.”  (at 697)

186               His Honour then turned to financial security, saying:

“The second essential condition of judicial independence for purposes of s. 11(d) of the Charter is, in my opinion, what may be referred to as financial security. That means security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence.  (at 704)

…

Although it may be theoretically preferable that judicial salaries should be fixed by the legislature rather than the executive government and should be made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation, I do not think that either of these features should be regarded as essential to the financial security that may be reasonably perceived as sufficient for independence under s. 11(d) of the Charter. At the present time in Canada the amount of judges’ salaries is a matter for the initiative of the Executive, whether they are fixed by act of the legislature or by regulation. Moreover, it is far from clear that having to bring proposed increases to judges’ salaries before the legislature is more desirable from the point of view of judicial independence, and indeed adequate salaries, than having the question determined by the Executive alone, pursuant to a general legislative authority. …  The essential point, in my opinion, is that the right to salary of a provincial court judge is established by law, and there is no way in which the Executive could interfere with that right in a manner to affect the independence of the individual judge.”  (at 706)

187               One of the issues for the Supreme Court in Valente was whether the fact that the pension entitlements of provincial court judges were governed by the same legislation governing the pension entitlements of public servants infringed this requirement of judicial independence for the purposes of s 11(d) of the Charter.  The Court concluded:

“The provisions established a right to pension and other benefits which could not be interfered with by the Executive on a discretionary or arbitrary basis. That, as I have indicated, is the essential requirement for purposes of s. 11(d). Making the provisions governing civil servants applicable to the provincial court judges did not purport to characterize provincial judges as civil servants or increase the discretionary control of the Executive over the judges.”  (at 707 - 708)

188               Valente has been followed by the Supreme Court of Canada in a series of cases:  see R v Beauregard (1986) 30 DLR (4th) 481; Attorney-General of Quebec v Lippé [1991] 2 SCR 114; R v Généreux (1992) 88 DLR (4th) 110 and Reference Re: Public Sector Pay Reduction Act (Prince Edward Island), s 10; Attorney General of Canada et al, Intervenors (1997) 150 DLR (4th) 577.

189               In Reference Re: Public Sector Pay Reduction Act (Prince Edward Island), s 10, Lamer CJC, who gave the majority judgment of the Supreme Court, made a number of statements dealing with how the judges can be seen to be exposed to Executive influence because of the latter’s control over the public funds from which judges are paid.  He said:

“With respect to the judiciary, the determination of the level of remuneration from the public purse is political in another sense, because it raises the spectre of political interference through economic manipulation.  An unscrupulous government could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication.”  (at 641)

190               And that while:

“[political] manipulation and interference most clearly arise from reductions in remuneration; those reductions provide an economic lever for governments to wield against the courts.  But salary increases can be powerful economic levers as well.  For this reason, salary increases also have the potential to undermine judicial independence …”  (at 646)

191               In the context of outlining the role that the Supreme Court considered that a judicial remuneration tribunal should perform in order to ensure that judicial remuneration issues would not impair the Charter requirement for courts to be independent and impartial tribunals, Lamer CJC also said:

“… in order to guard against the possibility that government inaction might lead to a reduction in judges’ real salaries because of inflation, and that inaction could therefore be used as a means of economic manipulation, the commission must convene if a fixed period of time has elapsed since its last report, in order to consider the adequacy of judges’ salaries in light of the cost of living and other relevant factors, and issue a recommendation in its report.”  (at 651)

192               The Court in Valente recognised that the three requirements of judicial independence were not fixed in content, but could be satisfied, according to the circumstances, by provisions that could differ from court to court and from province to province.  The Court rejected the submission that, if they were to constitute an independent and impartial tribunal, provincial court judges should have the same constitutional guarantees of security of tenure and security of salary and pension as superior court judges and said:

“What should be considered as the essential conditions of judicial independence for purposes of s. 11(d) of the Charter – that is, those which may be reasonably perceived as such – is a difficult question. The concept of judicial independence has been an evolving one.  (at 691)

…

The standard of judicial independence for the purposes of s. 11(d) cannot be a standard of uniform provisions. It must necessarily be a standard that reflects what is common to, or at the heart of, the various approaches to the essential conditions of judicial independence in Canada.”  (at 694)

193               In the later case of R v Généreux (1992) 88 DLR (4th) 110, the question was whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter.  Lamer CJC, who gave the majority judgment in the Supreme Court, referred to these statements in Valente and said:

“The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente.  He emphasized that a flexible standard must be applied under s. 11(d).  Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal.  Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal.  For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas.  …

…

Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security.  The substance of this condition is as follows …:

‘The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.’

Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals.  Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected.”  (at 129)

194               A related point was made by Lord Reed in Starrs v Ruxton; Ruxton v Starrs 2000 JC 208, the case in which the Scottish High Court of Justiciary set aside a conviction because the trial court was not an independent and impartial tribunal, having been presided over by a temporary judge.  (The Scottish authorities have accepted that Starrs v Ruxton is good law:  see Millar v Dickson [2002] 1 WLR 1615 at 1618 and 1643.)  Lord Reed said:

“Conceptions of constitutional principles such as the independence of the judiciary, and of how those principles should be given effect in practice, change over time.  Although the principle of judicial independence has found expression in similar language in Scotland and England since at least the late seventeenth century, conceptions of what it requires in substance - of what is necessary, or desirable, or feasible - have changed greatly since that time.”  (at 250)

195               Dicta in the Canadian and UK cases emphasise the importance of appearances, especially the appearance that may be created in the mind of a reasonable observer of the existence or possible existence of extraneous influences acting on the judge, rather than whether such influence has, in fact, been exerted, in evaluating whether the independence and impartiality of a tribunal may be impermissibly impaired.  In Généreux, Lamer CJC said:

“I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence.  Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased.  The question is whether an informed and reasonable person would perceive the tribunal as independent.”  (at 130)

196               It is not necessary that there be ground for thinking that an entity, such as the Executive government, is actually seeking to exert influence before a judge’s independence and impartiality will be compromised:  if the circumstances are such that the judge may be perceived as likely to harbour feelings of insecurity in respect of tenure or salary if he or she exercises the judicial functions in a particular way, that can also lead to the conclusion that the judge cannot constitute an independent and impartial tribunal.  In Starrs v Ruxton, Lord Reed said:

“The Solicitor General emphasised that it is inconceivable that the Lord Advocate would interfere with the performance of judicial functions.  I readily accept that; but that is not the point.  Judicial independence can be threatened not only by interference by the executive, but also by a judge’s being influenced, consciously or unconsciously, by his hopes and fears as to his possible treatment by the executive.  …  The adequacy of judicial independence cannot appropriately be tested on the assumption that the executive will always behave with appropriate restraint …”  (at 248)

197               The test for determining whether a particular tribunal satisfies the Canadian Charter or the European Convention guarantee of independence and impartiality, with its emphasis on appearances, is much the same as that applicable in Australia for determining whether a judge will be disqualified for actual or apprehended bias - a rule which the High Court in Ebner said, at [22] “follows from a consideration of the fundamental principle, that court cases, civil or criminal, must be decided by an independent and impartial tribunal”.  Their Honours also said:

“[7]    …  So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

[8]      The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

198               That conditions of judicial appointment have been fixed for a short time only, with provision for them to be renewed by the Executive, is a strong indicator that a tribunal does not meet the requirements of s 11(d) of the Canadian Charter or Art 6 of the European Convention.  In Starrs v Ruxton, temporary sheriffs were appointed by the Lord Advocate, a member of the Executive government of Scotland, for periods of twelve months at a time.  Lord Reed said:

“A short term of office is not, in my opinion, necessarily objectionable …  Temporary appointments are, however, apt to create particular problems from the point of view of independence, particularly where the duration of the appointment is not fixed so as to expire upon the completion of a particular task or upon the cessation of a particular state of affairs (such as some emergency or exigency), but is a fixed period of time of relatively short duration.  In particular, such a term of office is liable to compromise the judge’s independence where the appointment can be renewed …  (at 242)

…

So far as temporary sheriffs are concerned, the period of one year is in itself much shorter than the periods considered in the Campbell v Fell,Çiraklar and Incal judgments [of the European Court of Human Rights].  What to my mind is of critical importance, however, is that renewal is both possible and expected, but is at the discretion of the Executive.  In effect, temporary sheriffs have their judicial careers broken up into segments of one year, so as to provide the executive with the possibility of reconsidering their appointment on an annual basis.  …

Given that temporary sheriffs are very often persons who are hoping for graduation to a permanent appointment, and at the least for the renewal of their temporary appointment, the system of short renewable appointments creates a situation in which the temporary sheriff is liable to have hopes and fears in respect of his treatment by the executive when his appointment comes up for renewal:  in short, a relationship of dependency.  This is, in my opinion, a factor pointing strongly away from ‘independence’ within the meaning of art 6.”  (at 243)

199               In Généreux, the Canadian Supreme Court based its conclusion that a conviction by a General Court Martial should be set aside because it was not an independent and impartial tribunal within s 11(d) of the Charter, in part, because the presiding judge advocate did not enjoy sufficient security of tenure to satisfy the Charter requirements.  As a regular officer in the army’s legal branch, he was appointed to preside at courts martial solely on a case by case basis, returning to his ordinary duties in the legal corps at the end of each trial:  “As a result, there was no objective guarantee that his or her career as military judge would not be affected by decisions tending in favour of an accused rather than the prosecution.  A reasonable person might well have entertained an apprehension that a legal officer’s occupation as a military judge would be affected by his or her performance in earlier cases.”  (p 142)  The Court also held that neither the judge advocate nor the other regular officers, drawn from corps other than the legal branch, who were members of the court martial enjoyed sufficient financial security to satisfy the Charter requirement.  Lamer CJC said:

“…  The requirement of financial security will not be satisfied if the executive is in a position to reward or punish the conduct of the members and judge advocate at a General Court Martial by granting or withholding benefits in the form of promotions and salary increases or bonuses.

There were no formal prohibitions, at the time that the appellant was tried by the General Court Martial, against evaluating an officer on the basis of his or her performance at a General Court Martial.  An officer’s performance evaluation could potentially reflect his superior’s satisfaction or dissatisfaction with his conduct at a court martial.  Consequently, by granting or denying a salary increase or bonus on the basis of a performance evaluation, the executive might effectively reward or punish an officer for his or her performance as a member of a General Court Martial.  This interference with the independence of the members of a General Court Martial would be an infringement of s. 11(d) of the Charter.  Once again, this is not to suggest that the executive in fact sought to influence the outcomes of court martial proceedings by the granting or withholding of salary increases, but rather, that a reasonable person might have entertained such an apprehension under the system as constituted at the time of the appellant’s trial.

…

… this possibility of executive interference is inconsistent with s. 11(d).”  (at 144 - 145)

200               What was said in these cases emphasises the importance, in assessing whether a tribunal is independent and impartial, of how things might appear to a reasonable observer.  Short term appointments to judicial office, especially when they are renewable at the discretion of the Executive government, are incompatible with the perceived ability of the appointees to act as an independent and impartial tribunal.  If the Executive government can fix judicial remuneration for a short period, at the end of which the Executive will have to consider what is to be the level of judicial remuneration thereafter, that is also incompatible with the perception of independence and impartiality required of judicial tribunals.  In such situations, it is the uncertainty likely to be created for judges about what will be the arrangements for their tenure and remuneration in the near future that is likely to create a perception of want of independence and impartiality.

201               I have referred to the economic conditions over the past five decades both in Australia and overseas that have shown the need for judicial salaries to be periodically increased in order to preserve their value.  As the tables at pp 37 and 76 of Winterton’s Judicial Remuneration in Australia show, there was either no or only minor changes to Supreme Court judges’ salaries around Australia from the start of the last quarter of the nineteenth century to about 1950, but that, since then, there have been frequent increases in those salaries.  In turn, the need for periodic remuneration reviews has brought into sharp focus the undesirability of the Executive government itself determining the timing of such reviews and the amounts of increases.  The solution has been to interpose between the Executive government and the judiciary remuneration review tribunals.  Winterton says of the position in 1995:

“Australian governments have gradually come to appreciate the advantages of independent remuneration commissions or tribunals, since all jurisdictions except Tasmania [where Supreme Court judges’ salaries were fixed by statute as the average of those payable to South Australian and Western Australian judges] involve them in varying degrees in determining the remuneration payable to judges and magistrates, as well as to parliamentarians and holders of senior executive positions.  Only South Australia gives Remuneration Tribunal determinations binding force; the Commonwealth (since 1989), New South Wales, Queensland and Western Australia give them binding effect subject to disallowance by either House of Parliament.”  (at p 43)

202               Despite the need for reviews of judicial remuneration, the interposition between the Executive government and the judiciary of a tribunal required to form its own opinion on whether and if so what changes should be made to existing levels of judicial remuneration is an important indicator that the judiciary, whose remuneration is subject to the jurisdiction of such a tribunal, has sufficient financial security to be seen to be capable of acting independently and impartially.  This is so whether the remuneration tribunal makes binding determinations of judicial remuneration or only makes a non-binding public recommendation to the Executive government about such remuneration.  See Reference re: Public Sector Pay Reduction Act (Prince Edward Island), s 10 at 636 - 638, 640 - 641 and 648 - 653.  The Canadian Supreme Court there held that the establishment of such tribunals was required if the inferior courts, not guaranteed independence like the superior courts, by s 100 of the Constitution Act 1867, were to meet the Charter requirement in s 11(d) that they be independent and impartial tribunals.  See particularly p 657.

203               The approach taken in the cases as to what will be sufficient to cast a cloud over the capacity of a tribunal to act independently and impartially confirms the correctness of the assessment of Lindsay J in giving the judgment of the English Employment Appeal Tribunal in Scanfuture UK Ltd v Secretary of State for Trade and Industry [2001] IRLR 416.  Lindsay J referred to McGonnell v United Kingdom (2000) 8 BHRC 56 in which a person’s conviction in the Royal Court in Guernsey for breaches of a planning law was overturned.  The Court was held not to be an independent and impartial tribunal within Art 6 of the European Convention because of an intermingling of judicial and legislative roles:  it was presided over by the Bailiff of Guernsey who was also a member of the Guernsey Legislature and had been a member when it adopted that planning law.  Lindsay J said:

“The case represents a striking example of just how little may properly be taken to give rise to a want of an appearance of independence or to a legitimate fear of bias or partiality.”

204               Just how readily a perception of a lack of impartiality and independence will be regarded by the Court as likely to arise in the mind of the hypothetical reasonable observer is demonstrated by Fingleton v Christian Ivanoff Pty Ltd, the decision that led the Northern Territory authorities to take the radical step of removing Territory magistrates from the public service entirely and to enact the Magistrates Ordinance providing for the establishment of a magistracy in the interests of judicial independence.  There, a defendant in a summary prosecution successfully argued that the Special Magistrate hearing the case should be disqualified on the ground of bias because the complainant was represented at the hearing by a solicitor employed in the Department of Legal Services, the same department of the public service in which the magistrate was employed.  The issue was whether these circumstances showed such a potential for a magistrate to be influenced by the Executive as to require his disqualification for want of apparent impartiality.  Wells and Sangster JJ, in the context of discussing the correct approach to evaluating whether such a conclusion should be drawn, said at 548:

“The community is entitled to expect a high standard from all courts. …

Because the standard is so exacting, any departure or reasonably suspected departure from it must be seen as the more serious.

In our judgment, a fair-minded observer of the situation that obtained, both to his knowledge and to that of the learned Special Magistrate, when this case was called on, might suspect - and reasonably suspect - that the learned Special Magistrate would be unconsciously moved not to make rulings or reach conclusions that were adverse to the case presented by his fellow officer (who could reasonably be expected to report to the Permanent Head on the hearing and its outcome); and might, without being aware of it, be disposed to conduct the proceedings not in strict obedience to law, but rather in a manner calculated to obtain or retain the approval of his fellow officer and thus, indirectly, to please the Permanent Head or, at all events, to avoid incurring his displeasure.

Our conclusion, therefore, is that the learned Special Magistrate was right, and that he should regard himself as disqualified for bias.”

205               Their Honours reached this conclusion, though they acknowledged that the objective circumstances to be taken into account included “the policy, scrupulously adhered to since Magistrates have been public servants, that an Attorney-General does not, in any way, directly or indirectly, attempt to influence a Magistrate in the performance of his judicial duties other than by arguments presented in due course of law, either in open Court or in Chambers”.  (at 546)

206               The points that emerge from the cases are these:

(1)               Financial security for the members of a court is one of the essential requirements if they are to constitute an independent and impartial tribunal for the purposes of s 11(d) of the Canadian Charter and Art 6 of the European Convention and of the kind that is fundamental to the Australian legal system;

(2)               That judges of a particular court may not enjoy the highest degree of financial security provided for by the Act of Settlement is not incompatible with their nevertheless constituting an independent and impartial tribunal;

(3)               If the conditions of judicial appointment and service are fixed for a short time only, with provision for them to be renewed by the Executive government, the independence and impartiality of those so appointed will be compromised;

(4)               The need for judicial salaries to be periodically adjusted to keep pace with changing economic circumstances exposes judges to the perception that their independence and impartiality may be compromised where it is the Executive government, rather than an interposed tribunal itself free of government control, that decides whether, when and to what extent their salaries should be changed;

(5)               When a question arises in the Australian, Canadian and UK contexts, whether the arrangements for tenure and for the remuneration of judicial officers fall short of the minimum requirements for a tribunal is to be regarded as an independent and impartial one, the test is whether an informed and reasonable observer might perceive that the judicial officer is subject to pressure from extraneous sources, particularly, but not limited to, the Executive government, capable of affecting how he or she will make their decisions.  Such a perception is sufficient to show a lack of independence and impartiality, even if no such pressure is actually exerted;

(6)               When the question arises whether there are grounds for a reasonable apprehension that the independence and impartiality of a tribunal guaranteed by the Canadian Charter or the European Convention is not fulfilled or whether the impartiality of an Australian court is so questionable by reason of the possibility of it being subject to influence by the Executive government as to require disqualification from adjudication, those grounds are not made out by speculation that is “vague, whimsical, fanciful [or] capricious”:  Fingleton at 540.  But circumstances that suggest only a low risk of impermissible interference or pressure, particularly by the Executive government, will be sufficient to show that a tribunal’s independence and impartiality has been impermissibly compromised.

207               In seeking to construe ss 4(3) and 6 in a way which promotes the object of the Magistrates Act to provide for an independent and impartial magistracy, it is appropriate for the Court to have regard to these points in considering whether a particular construction will further or impede that object.

Is existence of a valid determination under s 6 necessary to the validity of an appointment under s 4(3)?

208               The Magistrates Act makes provision for the appointment of persons to public offices and for the determination of the conditions, including remuneration, on which they are to hold those offices.  The question for decision here is whether the existence of a valid remuneration determination under s 6 at the time of an appointment under s 4(3) is one of the requirements of the Magistrates Act that must be satisfied if that power of appointment itself is to be validly exercised.

209               I accept that the language of ss 4(3) and 6 is such that those two provisions do not necessarily have to be read as inter-dependent, ie, as making the validity of an appointment under s 4(3) dependent upon the existence of a valid determination under s 6.  But there are other considerations, including some arising from the statutory context in which ss 4(3) and 6 are found and some arising from the readily identifiable object of the Magistrates Act to provide for an independent and impartial magistracy, that I consider require these two provisions to be construed as inter-dependent.

210               Section 6 shows that the office of magistrate is a remunerated one and in addition, s 11 imposes on an appointee to such office an extensive prohibition against earning remuneration from other sources that is operative from the time of the appointment to the end of the period the appointee holds the office of magistrate.  Section 6 plainly does not confer on the Administrator a power of determination to be exercised or not at discretion.  It confers a power that the Administrator must exercise to give effect to the legislative intent that the office is to be remunerated from the time the appointment is made.  On ordinary principles of interpretation, and ignoring the particular context, that power could be construed as requiring a determination to be made within a reasonable time after the appointment:  see BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 106 ALR 35 at 60.  But if the existence of a valid determination under s 6 by no later than the time of appointment under s 4(3) is not required, and it is enough for a determination under s 6 to be made within a reasonable time thereafter, it is difficult to see how an appointee could adjudicate, pending the making of the salary determination, without facing a well-founded challenge to his or her impartiality for bias.  Apprehension of bias would arise from the risk that, to better assure the prompt exercise of the power under s 6 or a favourable exercise of that power, the appointee’s decisions in the intervening period might favour the Executive government.  In Buckley v Edwards [1892] AC 387, the Privy Council, at 396, referred to the vulnerability of a judicial appointee in that position by adopting what was said by one of the Court of Appeal judges, who observed:  “It is difficult to conceive a position of greater dependence”.  When the object of the Act to provide for the establishment of an independent and impartial magistracy is taken into account, together with the provisions of ss 6 and 11, there is strong justification for reading ss 4(3) and 6 as inter-dependent.

211               That a magistrate appointed under s 4(3) is entitled to be remunerated from the time he or she commences to hold that office is by itself a powerful indication that the existence of a salary determination at the date of the appointment is essential to a valid appointment is shown by Buckley v Edwards.  The issue in that case was whether a person could be validly appointed a fifth puisne judge of the Supreme Court of New Zealand under s 5 the Supreme Court Act 1882 (NZ), though the Legislature had made no provision for the appointee’s salary:  see The Attorney-General v Mr Justice Edwards (1891) 9 NZLR 321 at 341 - 342, where s 5 of the 1882 Act is set out, and [1892] AC at 399.  The Civil List Act 1862 (NZ), in force at the time of Edwards’ appointment, only made provision for salaries for four puisne judges.  The Privy Council considered at length the provisions of the repealed legislation that governed the appointment of Supreme Court judges prior to the 1882 Act, including the Supreme Court Judges Act 1858 (NZ), because of the assistance it considered the prior legislation gave in interpreting s 5 of the 1882 Act:  see [1892] AC at 399.  It interpreted the 1882 Act as making the fixing by the legislature of a salary for a fifth puisne judge a requirement of the exercise of the power to appoint such a judge because there were various provisions in the 1882 Act and its 1858 predecessor that, with greater or lesser clarity, conferred on appointees entitlements to salaries, certain in amount, which were payable from the time of appointment.  See the discussion of ss 6 and 7 of the 1858 Act at pp 397 to 400 and of ss 7 and 11 of the 1882 Act at 400.  Section 6 of the 1858 Act dealt with the salaries of Supreme Court judges in terms of the Act of Settlement, declaring that a salary at least equal to that “payable by law” at the time of the judge’s appointment should be paid throughout the whole period of the judge’s tenure of office.  Of this provision, the Privy Council said:

“The language of this section is imperative and general.  How can its requirements possibly be complied with in any reasonable sense, in the case of a judge to whom at the time of his appointment there was no salary payable by law?  Is this not a clear indication of the intention of the legislature that there should be no appointment of a judge unless at the time of his appointment there was a fixed salary payable to him by law in respect of his office?”  (at 397)

212               The Privy Council also thought that s 7 of the 1858 Act, re-enacted in the 1882 Act, supported this interpretation.  It said:

“The 7th section empowers the Governor in Council, at any time during the illness or absence of any judge appointed as aforesaid, or for any other temporary purpose, to appoint a judge or judges of the Supreme Court to hold office during his Excellency’s pleasure, and it provides that every such judge shall be paid such salary ‘not exceeding the amount payable by law to a puisne judge of the said court,’ as the Governor in Council shall think fit to direct.  This section clearly implies that there will be a fixed salary payable to any person filling the office of puisne judge of the Supreme Court.  If a puisne judge can be appointed to whom there is no amount payable as salary, what will be the operation of this section?”  (at 398)

213               Section 11 was the provision of the 1882 Act corresponding to, but framed quite differently from, s 6 of the 1858 Act.  It is set out at p 400 of the report and is, in terms, a simple prohibition against reducing the salary of a judge during the continuance of his commission.  The Privy Council said:

“The 11th section of the Act of 1882, as distinctly as the 6th section of the earlier Act, involves the necessity of a salary being fixed at the commencement of the judge’s commission.”  (at 400)

214               Though it did not in terms make an appointment dependent upon there being a salary fixed for the appointee at the date of appointment, s 6 of the 1858 Act was clearly enough drawn on the assumption that a salary would be fixed at and payable from the time of appointment:  the inference from that, according to the Privy Council, was that the power of appointment was dependent upon the salary to be paid to the appointee being fixed when the commission issued.  It is much more difficult to see how s 7 of the 1858 and 1882 Acts and s 11 of the Act of 1882 under which Edwards’ appointment was made, as a matter of language, support that conclusion.  Unlike s 6 of the 1858 Act, s 11 was silent about whether there was assumed to be a salary fixed in its amount and payable to a judge at the time of his appointment:  it could be complied with once a salary was determined, however long after appointment that may have been.  Yet the Privy Council read it “as distinctly as the 6th section of the earlier Act [as] involv[ing] the necessity of a salary being fixed at the commencement of the judge’s commission”.  I think it reached this conclusion plainly enough from the reliance it placed on the legislative history of the 1882 Act as legislation providing for the appointment of judges whose independence was to be maintained:  see [1892] AC at 396 - 397.  The approach to construction adopted by the Privy Council was, I think, similar to that which led Prendergast CJ, in dissent in the New Zealand Court of Appeal, to the same conclusion as the Privy Council.  In (1891) 9 NZLR 321, Prendergast CJ said:

“Irrespective of the reasons upon which the principle that Judges of a Supreme Court should have security of tenure of office, and should have their remuneration also fixed and secured, it is due to the credit and honour of the Crown that, in respect of any office, judicial or otherwise, and to which the Crown is empowered to appoint for life, and the holder of which has public services to perform, there should be adequate remuneration provided, and that such remuneration should be inseparably attached to the office; …

As any other arrangement of authority is so clearly calculated to bring about not only a discreditable state of things, but a state of things inconsistent with the expectation that the duties of the office will be discharged with a due regard to the public interest, even as I think with regard to any office, though not the highest judicial office, that it ought not readily to be supposed that the Legislature would wittingly enact to that effect, and, consequently, that, in considering any legislative provisions dealing with such a subject, the improbability of the Legislature so enacting ought to be constantly borne in mind.  If this be so with regard to any office to which the holder is appointed for life, it needs scarcely to be mentioned that the reasons have still greater force when the office is that of a Judge of the Supreme Court.”  (at 344 - 345)

215               For the reasons given, a magistrate appointed under s 4(3) is entitled to be paid a salary from the time the appointee commences to hold that office.  That was all that the Privy Council considered necessary in Buckley v Edwards to require the power of appointment of a judge to be construed as dependent upon the appointee’s salary being fixed by no later than the time the appointment took effect.  Buckley v Edwards thus supports the construction of s 4(3) as dependent on s 6.

216               Further, s 9A(1) empowers the Attorney-General to appoint a person eligible for appointment as a permanent magistrate to be a relieving, ie, temporary, magistrate.  Section 9A(4) provides:

“A Relieving Magistrate holds office upon such terms and conditions, whether as to remuneration or otherwise, as the Attorney-General determines.”

217               By reason of the definition of “magistrate” in s 3, a relieving magistrate, like a permanent office holder, is subject to the extensive prohibition in s 11 against earning income from sources other than the office.  Though for no obvious reason the entitlement of a relieving magistrate to remuneration is expressed in different terms to the entitlement of a permanent magistrate to remuneration under s 6, the implication in s 9A(4) is that a relieving magistrate is entitled to be remunerated during the whole of his or her period of office, as determined by the Attorney-General.  Section 9A(4), in providing that a relieving magistrate “holds office upon such terms and conditions … as to remuneration … as the Attorney-General determines”, can, I think, only be satisfied if a determination under the sub-section is in existence by no later than the time a relieving magistrate commences to hold office, ie, by no later than the time of his appointment:  a relieving magistrate, during the period he or she is awaiting the determination, cannot be said to hold office on specific terms and conditions if they are only fixed some time after he or she commences to hold that office.  Section 9A(4), in its context, should, I think, be construed as requiring the Attorney-General, where a relieving magistrate is appointed, to make a remuneration determination by no later than the date of appointment (ie, the date upon which the relieving magistrate commences to hold office).

218               Sections 14 and 17 make provision for the appointment and remuneration of special magistrates in terms not materially different to those in s 9A(1) and (4), save that it is the Administrator in the former case, and the Attorney-General, in the latter, in whom the powers of appointment and determination of remuneration are vested.  Section 17 must, I think, be construed as obliging the Administrator to exercise the power of determination of remuneration there conferred in respect of a special magistrate by no later than the time the special magistrate commences to hold office, for the same reasons that I think that is the proper interpretation of s 9A(4).

219               There is no discernible reason why relieving and special magistrates should, in respect of their right to an immediately enforceable entitlement to remuneration from the moment they commence to hold office and throughout the entire period they hold such office, be in what on the face of the relevant provisions appears to be a stronger position of independence than appointees to the permanent magistracy.  The implication from the provisions relating to relieving and special magistrates is that s 6 should be construed as imposing the same obligation on the Administrator to ensure that a person, from the time of appointment to the office of magistrate under s 4(3), has an immediately enforceable entitlement to remuneration.

220               Sections 4(3) and 6 can easily be read, without forcing the language, as prescribing the conditions that must be satisfied if the power of appointment of a Chief Magistrate is to be validly exercised.  The object of the Act, of which ss 4(3) and 6 are elements, is to provide for an independent and impartial magistracy.  This object is advanced if ss 4(3) and 6 are construed as inter-dependent, in the sense I have referred to.  It is impeded if s 6 is read as doing nothing more than cast on the Administrator a duty, enforceable by public law remedy, to make a determination that will provide for the salary to be paid to the appointee from the time of appointment of a magistrate even if it is possible, despite Buckley v Edwards, to hold that that arrangement is not of itself enough to require the power of appointment to be construed as conditional upon the exercise of the power to determine remuneration by no later than the time the appointment took effect.  If a person can be validly appointed to the office of magistrate without an immediately enforceable entitlement to remuneration and only the right to go to court for a public law remedy to compel the Administrator to do what should have been done by the date of appointment, that puts the appointee in a position of financial vulnerability vis-à-vis the Executive government, that is, in my opinion, inconsistent with the appearance of independence and impartiality which the Legislature intended to exist in relation to magistrates.  If s 6 is read as only requiring the Administrator to make a determination fixing a new appointee’s salary within a reasonable time after the appointment, it is, for the reasons given, an interpretation that even more plainly does not promote that object of the Act.  The purposive interpretation of these provisions mandated by s 62A the Interpretation Act (NT) requires them to be construed as making the exercise of the power of appointment in s 4(3) dependent on the exercise of the power of determination under s 6.

Does s 6 empower the Administrator to determine what a magistrate’s remuneration is to be for a fixed period?

221               The expression “as the Administrator, from time to time, determines” in s 6 is, as a matter of language, capable of being read as empowering the Administrator, on one or more occasions, to fix remuneration for a discrete part only of the entire term of a magistrate’s period of tenure.  But there are good reasons for reading this phrase in its context in the Magistrates Act as not conferring that authority on the Administrator, but instead, as empowering the Administrator only to make a determination that will have an indefinite operation, though capable of subsequent alteration.

222               Under s 6 the Magistrates Act, the Executive government is the sole repository of power to alter magistrates’ salaries.  In the Territory, magistrates are entirely dependent on the Executive government to decide if and when to act to grant the increases in their salaries that economic conditions in Australia make necessary to preserve their value.  Though the Remuneration Tribunal, established under the Remuneration Tribunal Act (NT), can inquire into and make recommendations on the remuneration to be paid to judges and magistrates under s 10 of that Act, the Executive government is not bound to act on any such recommendation and, more importantly, cannot be compelled to make the request of the Tribunal necessary to enliven the Tribunal’s powers of inquiry and recommendation.  The Tribunal was not involved in the Special Determination of 27 February 1998.  A report with recommendations by the Tribunal in relation to judicial salaries consequent upon a request by the Administrator under s 10 must be tabled in the Legislative Assembly immediately after receipt by the Administrator.  But unlike reports with recommendations or determinations in respect of the salaries of Members of Parliament made by the Tribunal under s 9(1), which also must be tabled in the Assembly, the former are not disallowable by the Assembly while the latter are.  Though such a report must be made public, it is for the Executive government alone to determine what, if any, effect should be given to the Tribunal’s recommendations once it has elected to seek the Tribunal’s opinion.

223               The absence of any requirement for the interposition between the Executive government and Territory magistrates of a remuneration review tribunal free of government direction that must act to either fix or recommend to the government what should be the current level of remuneration has substantial significance to whether it can be said that a perception that magistrates are subject to impermissible influence can reasonably be held to arise.  If s 6 is interpreted as empowering the Administrator to make a determination of a magistrate’s remuneration for a fixed period, the authorities I have referred to show that it is not at all fanciful to say that an informed and reasonable observer might well think that the Executive government could influence the way in which magistrates perform their judicial functions by exercising its power under s 6 to act promptly or slowly in deciding whether or not to grant salary increases to magistrates and by exercising its power to determine the quantum of such increases as it might grant, according to whether it considered that magistrates were performing their judicial functions in ways acceptable to the government of the day.  And even if no influence was in fact exercised, a reasonable observer might well think that magistrates might themselves be influenced by their hopes or fears as to their possible treatment by the Executive, so far as their remuneration was concerned.  That perception is, I think, made stronger when such a power can be exercised, without being impeachable for bad faith or improper purpose, by making a determination fixing magistrates’ salaries that will operate for a short period, such as two years:  that leaves magistrates to wonder whether the government will make a new determination at the end of the period that will increase salaries or that, instead, will leave them where they are.  As the learned primary judge noted, it was common ground at the trial that s 6 permitted the Administrator to reduce, as well as increase, magistrates’ remuneration.  The perception, as distinct from the actuality, of improper influence is made still stronger if s 6 is construed as vesting power in the Administrator to alter magistrates’ salaries by both increasing and reducing them, by determinations effective only for short periods.

224               It is, I think, more difficult to justify a perception that magistrates are exposed to influence by the Executive government inconsistent with them performing their judicial functions independently and impartially if s 6 is construed as limiting the Administrator’s power to initially fix and then alter the salaries of magistrates to a power to make determinations each of indefinite operation, so that each will, unless and until altered, fix each magistrate’s salary throughout the entire residue of his or her tenure of office.  Though most of the period since 1950 has been characterised in Australia by inflation that erodes the value of judicial salaries and thus necessitates their increase, the rates of inflation and the periods of  high inflation have fluctuated widely.  There have been quite long periods when judicial salaries have not been increased.  Even though a magistrate will contemplate remuneration reviews from time to time, if he or she has an immediately enforceable entitlement to a salary certain in amount throughout the whole of the magistrate’s term of office that, in my opinion, enhances judicial independence by offering substantially greater financial security than does a situation in which the magistrate has an enforceable entitlement to salary only for a short period, knows there will be a new determination in the quite near future, but does not know what action the Executive government will choose to take, whether by way of increasing or reducing the current level of remuneration or leaving it frozen.  An observer would, I think, more readily be concerned about whether magistrates might feel under some pressure to satisfy the Executive government generated by the certainty that the government would decide at fixed, short intervals whether or not to increase (or reduce) salaries than an observer would be where magistrates had, at all times throughout the entire residue of their tenure, an enforceable right to be paid their current remuneration without any need for further action by the government to assure them of that.

225               The respondent relied on Day v Hunkin (1938) 61 CLR 65 as authority for the proposition that a determination establishing remuneration for a fixed period could be lawfully made under s 6.  Day, a public servant, was appointed to a statutory position for a five year term at a salary fixed at £1000 per annum.  His appointment was, however, subject to s 27 the Public Service Acts 1916 - 1925 (SA), the remuneration provision of general application to all First Division public servants.  Section 27 provided that:  “every officer of the First Division shall be paid such salary as is determined by the Governor on the recommendation of the board”.  His salary was reduced twice during that period by determinations under s 27.  Day unsuccessfully sued in contract for the difference; he contended that the two reductions were invalid because a determination having been once made under s 27, it could not be altered without his consent during his five years’ tenure of office.  The Crown relied upon s 37 the Acts Interpretation Act 1915 (SA), which is in similar terms to s 41(1) the Interpretation Act (NT).  This provides that (subject to a contrary intention):

“Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.”

226               Section 27 the Public Service Acts (SA) was construed, without reference to the Acts Interpretation Act (SA) provision, as a power to make salary determinations from time to time.  Dixon J accepted, at 78, that the phrase “such salary as is determined” in s 27 could be read as providing for a determination to operate for a fixed and specified time, as well as for a determination operative for an indefinite period, but in all cases subject to later alteration.  It is apparent that the particular statutory context powerfully influenced the interpretation Dixon J and Latham CJ each placed on s 27.  See per Latham CJ at 75 - 76 and Dixon J at 78.  A magistrate appointed under the Magistrates Act is not, like Day, a servant or employee of the Crown.  He or she is intended by the Legislature to be independent from the Executive government, whereas a public servant is by law subject to its directions.  See also O’Connor v South Australia (1976) 14 SASR 187 at 188 - 189.  Importantly, public servants typically have less secure tenure than magistrates.  In the Territory, even heads of public service departments can be dismissed at “any time” at the “absolute discretion” of the relevant minister:  s 20, Public Sector Employment and Management Act 1993 (NT).  The claim of public servants to security of remuneration is accordingly less than that of magistrates.  I do not think Day v Hunkin provides any authority for reading s 6 the Magistrates Act as empowering the Administrator to fix remuneration for a specified period, be it long or short.

227               When the phrase “from time to time” is found in a provision conferring a power on a repository, the provision is well capable of being read as intended to ensure that the power of determination conferred by the provision will not be exhausted by its initial exercise.  In Lawrie v Lees (1881) 7 App Cas 19, Lord Penzance said of a statutory power entitling the repository to make orders “from time to time” for certain purposes:

“… the words ‘from time to time’ are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction.  The meaning of the words ‘from time to time’ is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether …”  (at 29)

228               “In other words the donee of such a power is never functus officio”:  Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335 - 336.  This consideration, in my opinion, provides the reason for Interpretation Act provisions of the kind contained in s 41(1) the Interpretation Act (NT).  They are enacted to ensure that a statute that confers power on a repository to do something will not generally be interpreted as being exhausted by its initial exercise, though that may be one interpretation that the wording of the provision is capable of bearing.

229               There is good reason to read the phrase “from time to time” in s 6 as intended to ensure that the section would not be construed as exhausted upon its initial exercise with respect to a particular appointment under s 4(3).  Section 6 is in the same form in which it appeared in the 1976 Ordinance.  The Legislature could have omitted the phrase “from time to time” from s 6 and relied instead on the provision of general application in s 41(1) the Interpretation Ordinance.  But it thought it necessary to expressly qualify the power of determination in s 6 to put it beyond argument that the power could be repeatedly exercised.  The 1976 Ordinance took magistrates out of the public service and conferred on them a high level of judicial independence, including security of tenure that approximated that conferred on the Territory’s Supreme Court judges by Ch III of the Constitution, those judges then being appointed under Commonwealth legislation. Given this, it is not improbable that, if the phrase “from time to time” had been omitted, a court might have construed s 6 of the Ordinance as conferring a power on the Administrator to determine remuneration that was exhausted, in relation to an appointee, by its first exercise.  This is especially so since, even if in the absence of the phrase “from time to time” the power in s 6 was so construed, magistrates’ salaries once set, would not have been beyond alteration:  the Legislature would always have been able to intervene.

230               In the context of the Magistrates Act, there remains good reason for reading the phrase “from time to time” in s 6 as only intended to make clear that the remuneration determined by the Administrator as that payable from the time a magistrate is appointed is not to be the remuneration payable to the magistrate throughout the entire period he or she holds office, but can be varied as often as the Administrator considers appropriate by later exercises of that power of determination.  Section 6 the Magistrates Act confers power on the Executive government to make a determination of remuneration to be paid to tenured judicial officers.  The existence of financial security is an important consideration if magistrates are to do that which is the legislative intention, viz, to constitute independent and impartial tribunals.  Concern that the Executive government not be able and not be perceived publicly as being able to influence performance of the judicial function of adjudication is at the root of the requirement for financial security that has long been regarded as essential to maintaining judicial independence.  It remains a matter of concern.  The economic history of the past fifty years shows the need for there to be a mechanism for maintaining, in a broad way, the purchasing value of judicial salaries.  But that need has fluctuated, sometimes being pressing, sometimes less so.  Even in recent years the pressure on judicial salaries in Australia has at times been downwards.  It cannot therefore be said that the general expectation that judicial salaries will be increased periodically is such as to justify construing s 6 as empowering the Administrator to make remuneration determinations operative for short, fixed periods.  In the absence of the express qualification that the power of determination can be exercised “from time to time” and notwithstanding the diminution in 1980 in magistrates’ security of tenure, the importance of financial security for judicial officers could still justify reading s 6 as conferring only a power to set the remuneration of a magistrate on appointment at that which was to be paid from appointment throughout his tenure in office to ensure independence is not compromised by arming the Executive with power to reduce magistrates’ remuneration or with power to use control over increasing remuneration as an economic lever for influencing magistrates’ decision-making.  As I have noted, salaries fixed under such a limited power of determination would remain adjustable by the Legislature.  The phrase “from time to time” can be taken to have been inserted in s 6 to empower the Administrator to adjust magistrates’ salaries whenever the need to do that arises, without requiring the Legislature to intervene.  Given the object of the Act, s 6 can therefore be readily construed as empowering the Administrator to fix a magistrate’s remuneration only by a determination which will operate indefinitely, and to alter the salary so fixed by another determination with indefinite operation, whenever the Administrator considers it appropriate to do that.

231               I have referred to ss 9A, 14 and 17 the Magistrates Act, which make provision for the appointment of relieving and special magistrates.  The natural construction of those provisions is that a remuneration determination capable of fixing their remuneration throughout the entire period they hold office must be made by no later than the date they commence to hold office.  This is another indication that the power of remuneration determination in respect of permanent magistrates in s 6 is to be construed as empowering the Administrator to make only a determination capable, unless and until subsequent alteration, of fixing the magistrate’s salary throughout the entire period the magistrate will remain in office from the date of the determination.

232               The language of s 6, looked at in isolation, can be read as permitting the Administrator an unlimited power of determination which would authorise determinations operative only for short periods, as well as ones of indefinite operation.  But s 6 must be given the interpretation which secures, to the greatest extent consistent with its language, the independence and impartiality of magistrates.  For the reasons given, reading s 6 as requiring the Administrator to make a determination that will fix the remuneration to which a magistrate is entitled on appointment and thereafter, throughout the period the magistrate holds office, subject only to the Administrator later varying that initial determination by another determination of indefinite operation, gives it an operation that better promotes independent and impartial adjudication than does construing s 6 in the way argued for by the respondent.  So construing s 6 still enables recognition to be given to economic pressures that have become current in recent decades that require judicial salaries to be increased fairly frequently to maintain their value.

233               That a purposive interpretation of ss 4(3) and 6 the Magistrates Act leads to this conclusion is illustrated by the provisions of the Supreme Court Act (NT) governing the appointment and remuneration of Supreme Court judges.  Section 41(1) the Supreme Court Act (NT) deals with the entitlement to remuneration of Territory Supreme Court judges.  It is in language not materially different from that in s 6 the Magistrates Act.  Section 41(1) does not, in express terms, secure to a judge the Act of Settlement protection of the right to be paid the salary attaching to the office at the time when the commission is issued for so long as the commission remains in force.  If the words of s 41(1) are looked at only in the context of s 41, I think s 41(1) is open to the same construction as s 6 of the Magistrates Act, for which the respondent contends.  Section 41(2) provides that the salary to which a judge is entitled under s 41(1) “accrues from day to day and is payable monthly”.  Section 41(3) prohibits the salary, allowances and benefits to which a judge is entitled under s 41(1) from being “altered to his detriment during his term of office” and s 43(4) charges salaries payable under s 41(1) on the consolidated revenue of the Territory and that sub-section is an appropriation of that fund for that purpose.  There is no counterpart to s 41(2), (3) or (4) in the Magistrates Act.  But if s 41(1) were read, as I think the language of the sub-section permits it to be read, as empowering the Administrator to make a determination limited to fixing the salary of a Supreme Court judge for a short discrete part of the period of tenure of such a judge, s 41(3) could still be given full effect:  all that would be necessary is to ensure that a later determination, whether for another fixed or for an indefinite period did not set remuneration at a lower level than that set by any earlier determination.  Section 41(4) can also be given full effect in respect of any determination of salary whether it be for a short fixed period or an indefinite period:  there is no need for there to be in existence at all times a determination capable of fixing a judge’s salary through the entire period of his tenure of office for the standing appropriation to be effectual.  So can s 41(2).  It operates upon whatever salary is determined, but only once that determination is made and whenever that may be.  Such an interpretation of s 41(1) would not, however, be adopted.  It is to be interpreted as requiring the Administrator to determine by the time of appointment, the salary to be paid to a Supreme Court judge throughout the entire period of his tenure, subject to the Administrator later exercising his power to vary that determination.  It is not the language of s 41(3) and (4) that compels such an interpretation.  It is the need to give a purposive construction to these provisions, required by s 62A the Interpretation Act (NT) and the modern approach to statutory interpretation that requires such a reading of s 41(1).  It is wider considerations, including the object of the Supreme Court Act (NT) to provide for an independent and impartial Supreme Court, and the context within which s 41 is found, with provisions for judges to take the oath of office (s 37) and to have secure tenure (s 40), that provides the justification for reading s 41(1) in that way.

Was Mr Bradley’s appointment valid?

234               Since I consider that, on its true construction, the mode prescribed by the Magistrates Act for the exercise of the power to appoint the Chief Magistrate and a magistrate under s 4(3) the Magistrates Act requires that there be in existence at the time of appointment a valid determination as to remuneration etc under s 6 and the Special Determination does not, by par (b), constitute a valid exercise of the latter power because it fixed Mr Bradley’s salary for only a two year period rather than indefinitely, Mr Bradley’s appointment was invalid.

Can the appointment nevertheless be saved?

235               The respondent contends that if this position is reached, Mr Bradley’s appointment can nevertheless be supported by the determination of the Administrator of 30 January 1998, though the Special Determination of 27 February, in terms, revoked it.  It can be accepted that the determination of 30 January 1998 complied in all respects with s 6 and that, if the Administrator had confined his activity on 27 February to the appointment he made of Mr Bradley on that date “to hold the office of Chief Magistrate on and from 9 March 1998”, there could be no question as to the validity of that appointment:  in that situation the necessary inference would have been that the Administrator intended that Mr Bradley would hold office as Chief Magistrate on the terms and conditions, including remuneration, in the January determination which was sufficient to make the exercise of the power of appointment valid.

236               By instrument dated 27 February 1998, the Administrator, acting with the advice of the Executive Council in pursuance of s 4(3) the Magistrates Act, appointed Mr Bradley “to hold the office of Chief Magistrate on and from 9 March 1998”.  The Special Determination of the same date, a separate instrument, is in these terms:

“I, NEIL RAYMOND CONN, the Administrator of the Northern Territory of Australia, acting with the advice of the Executive Council -

(a)       in pursuance of section 6 of the Magistrates Act and with reference to section 43 of the Interpretation Act, with effect on and from 8 March 1998, revoke the Determination of Remuneration and Allowances of Magistrates dated 30 January 1998 in so far as it relates to the Chief Magistrate but not otherwise; and

(b)       in pursuance of section 6 of the Magistrates Act, determine that for the period on and from 9 March 1998 to and including 8 March 2000 -

(i)        the salary payable to the Chief Magistrate is …”

237               Section 43 of the Interpretation Act (NT) provides:

“Where an Act confers a power to take an action or to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend or vary any such action or instrument.”

238               Section 43 was expressly relied on in par (a) of the Special Determination because, by reason of the definition in s 18 the Interpretation Act (NT) of “instrument of a legislative or administrative character”, s 43 applies to s 6 to permit revocation of the January determination which was itself made as an exercise of the power conferred by s 6 the Magistrates Act.

239               The respondent submitted that if there was any defect in the Special Determination that made it ineffective as an exercise of the power in s 6 to fix Mr Bradley’s remuneration, the general determination of 30 January 1998 would apply to the appointment “because the pro tanto revocation of that 30 January determination … would fall with the rest of the Special Determination”.  Central to this submission is the assumption by the respondent that the appellant, to succeed in the appeal, must rely on the doctrine of severance embodied in s 61 the Interpretation Act (NT) to preserve par (a) of the Special Determination, and thus the revocation of the January determination, once par (b) is held invalid.  Section 61 provides:

“Where an Act confers upon any authority power to make, grant or issue any instrument of a legislative or administrative character, any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made and so as not to exceed the power of that authority, to the intent that, where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.”

240               It was submitted, in reliance on what Dixon J said in Bank of New South Walesv The Commonwealth (1948) 76 CLR 1 at 371, that, if par (b) of the Special Determination is invalid, s 61 cannot save par (a) and the result of the Special Determination being obliterated in its entirety is that the determination of 30 January was never effectively revoked.  But even if par (a) of the Special Determination must fall with par (b), that does not, I think, lead to the conclusion that Mr Bradley was appointed Chief Magistrate on the terms and conditions, including remuneration, of the January 1998 Determination.

241               The respondent did not contend that s 6 the Magistrates Act, either read with or without s 43 the Interpretation Act (NT), was limited, in so far as it gave the Administrator power to revoke a remuneration determination, to revoking an existing determination in order to replace it immediately with a new determination so that if par (b) of the Special Determination falls, par (a), as a free-standing revocation of the 30 January determination, would be ultra vires s 6, quite apart from any question as to the proper operation of the doctrine of severance.  The assumption in the respondent’s argument was that, but for the proper application of the doctrine of severance, the revocation of the earlier determination effected by par (a) of the Special Determination could be effective even if the determination in par (b) of that Special Determination was itself invalid.  But even if s 6 should be construed as permitting revocation of an existing determination only in order to replace it immediately with a new determination, that would not assist the respondent, though it would follow that once par (b) fell, par (a) as a free-standing revocation would not itself be within the power conferred by s 6.

242               If the whole of the Special Determination falls, as the respondent contends is required by the proper application of the doctrine of severance, that does not mean that the actions of the Administrator, in appointing Mr Bradley to be Chief Magistrate with the remuneration and on the other terms and conditions fixed by his Special Determination, can be treated as never having occurred and that the Administrator instead should be taken to have done something he manifestly did not do, viz, appoint Mr Bradley to be Chief Magistrate on the entirely different terms as to remuneration and otherwise set out in the January determination.  After saying that the severance clause, s 6(c) of the Banking Act 1947 (Cth) did not extend the operation of the general severance clause applicable to legislation by s 15A the Acts Interpretation Act 1901 (Cth), Dixon J, in Bank of New South Wales, said of this provision:

“At first sight it may seem to express the somewhat disconcerting intention that the Court, having ascertained at what points the Act as passed offends against the Constitution, should then undertake the task of reframing it from the fragments that might remain.  But a closer examination of the paragraph shows that it does not attempt an inadmissible delegation to the Court of the legislative task of making a new law from the constitutionally unobjectionable parts of the old.  …  It does not assume to require the Court to give to any provision a different meaning or even operation from that which it possesses as it stands in the statute read as a whole.  …  Section 6 (c) may be said to express an intention that, however much amputation and excision may be necessary, what is left of the Act shall be law, but it does not say that it shall be submitted to plastic surgery.  In any case s. 6 is a declaration of intention that provides a guide in ascertaining whether any given provision is, according to the true meaning of the enactment, conditional upon the valid operation of another.  But in the nature of things it cannot be more than a guide.  In the end the extent to which any part of the enactment held to be bad is inoperative must depend upon the real intention of the legislature in relation to the particular situation resulting from the invalidity found to exist.”  (at 372)

243               The respondent would have the Court go further than undertake the kind of task of reshaping the valid residue of legislative action found to be partly invalid that Dixon J said would be “inadmissible”:  the respondent would have the Court obliterate the entire Special Determination and then go on to construct from other materials, viz, the instrument of appointment of 27 February and the determination of 30 January, an appointment of Mr Bradley as Chief Magistrate on terms and conditions that the Administrator did not consider appropriate and which Mr Bradley did not want.  It is only the Administrator who can appoint Mr Bradley to be the Chief Magistrate and then only by acting under s 4(3) to make the appointment and under s 6 to fix his remuneration.  The Administrator never made such an appointment because he did not fix the particular remuneration or the other terms and conditions on which Mr Bradley was to hold office in a legally effectual way.  By striking down par (b) of the Special Determination and with it par (a) also, the Court cannot retrospectively bring about something that the Administrator deliberately declined to do, viz, appoint Mr Bradley to hold office as Chief Magistrate on and from 9 March 1998 on the terms and conditions, including remuneration, set out in the 30 January 1998 determination, terms and conditions, moreover, that Mr Bradley was not prepared, at the time, to accept.

244               The Special Determination gave Mr Bradley remuneration substantially greater than the Chief Magistrate was given under the 30 January determination and travel conditions very substantially more generous than those provided for in the January determination.  Though an appointment to the office of Chief Magistrate under s 4(3) and a determination of remuneration and other matters under s 6 are unilateral exercises of power by the Administrator not dependent as a matter of law upon the appointee’s agreement, evidence that Mr Bradley would have been content to accept an appointment on the terms as to remuneration, etc fixed by the determination of 30 January 1998, if the Special Determination should turn out to be ineffectual, would have been relevant to just what was the Administrator’s own subjective intention when he made the Special Determination.  We were not taken to any such evidence.  The learned primary judge found at [277] that, even after Mr Bradley communicated his changed position to Mr Stone that he expected to be appointed “in the ordinary way”, ie, to age sixty-five and not for just two years, Mr Bradley considered he was still entitled to a special remuneration package designed for a short term appointment.  The Administrator must act on advice and it is clear from the material put before him by Mr Stone, on the basis of which he executed on 27 February 1998 both Mr Bradley’s instrument of appointment and the Special Determination, that the possibility that Mr Bradley’s appointment might ever be on the remuneration and other terms and conditions fixed by that January determination was never considered by those advising the Administrator or by the Administrator himself.  The instrument of appointment and the Special Determination are free of ambiguity; they show that the Administrator and those advising him intended that Mr Bradley was to be appointed Chief Magistrate on the terms set out in the Special Determination and that the January determination was to have no application at all to Mr Bradley.  The material that Mr Stone, as Chief Minister, put before the Administrator consisting of Mr Stone’s letter of 25 February, the Minute of the Executive Council of 27 February and the accompanying Explanatory Memorandum with the instrument of appointment and the Special Determination for execution by the Administrator shows that it was never the intention of those advising the Administrator that the January determination should have any application on any basis to Mr Bradley.  This Court was not asked to find that, despite what his Honour said at [277], Mr Bradley would, at the time of his appointment, have been prepared to accept office on the remuneration and other terms and conditions contained in the 30 January determination.  Nor was this Court asked to find that the Administrator ever had the actual intention that the 30 January determination might ever, on any basis, apply to Mr Bradley.

245                 Whether only par (b) of the Special Determination falls or whether par (a) falls with it, the respondent cannot rely on the 30 January determination to validate the appointment.

246               In any event, the doctrine of severability, as embodied in s 59 the Interpretation Act (NT), in its application to statutes, and in s 61, in its application to subordinate legislation and administrative determinations, does no more than establish a rebuttable presumption as to what is to be taken to be the intention of the maker of the statute or the administrative determination when it is discovered that the statute or the determination is partly ultra vires.  Dixon J dealt, in Bank of New South Wales at 369 to 372, with the operation of the severability clause in the Banking Act in the event that part of the Banking Act was constitutionally invalid.  His Honour repeatedly emphasised that whether the residue of a statute found to be partly beyond power can nevertheless remain in operation depends upon the intention of the legislature when it enacted the statute to which the severability clause is applicable.  His Honour said:

“The effect of such clauses [ie, severability clauses] is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail.  To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context.  The general provision contained in s. 15A of the Acts Interpretation Act 1901-1941 produces this effect, as does s. 46 (b), which similarly deals with severance in subordinate legislation.

But in applying s. 15A and s. 46 (b) the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result.  This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability.”  (at 371)

247               He concluded:

“In the end the extent to which any part of the enactment held to be bad is inoperative must depend upon the real intention of the legislature in relation to the particular situation resulting from the invalidity found to exist.”  (at 372)

248               The respondent relies on the dictum in the second paragraph of Dixon J’s reasons at 371 set out above.  His Honour was there concerned to state only how the task of identifying the legislative intention as to the fate of the residue of a statute, partly invalid, should be performed.  Where the doctrine of severance has to be applied to a partly invalid statute, the relevant intention is that of the legislature.  It is understandable that Dixon J would frame the test as he did here when that task is not to ascertain the actual intention of the minister who introduced the Bill for the Act in question or the actual intention of the government at whose instigation it was enacted by the parliament, but the presumed intention of the legislature to be ascertained objectively from the language of the statute as passed and the admissible extrinsic material, such as the second reading speech.

249               But, in this case, the respondent is not concerned with identifying the legislative intention as to whether the residue of a partly invalid statute is to fall or remain in operation.  Instead, the respondent has to show that the intention of the Administrator, as the particular official who made the Special Determination, was that if par (b) of the Special Determination turned out to be invalid, the Administrator intended that par (a) of that Special Determination should fall with par (b).  And as Dixon J emphasised, it is the “real” intention of the actor that must be sought, an entirely different exercise where the actor is an official from how the legislative intent is to be ascertained.  The “real intention” of the Administrator is something capable of ascertainment:  it is a question of fact to be established by the evidence relevant to that issue.

250               There is no ground for inferring that the Administrator should be taken to have actually intended that if par (b) of the Special Determination was invalid, par (a) should also fall.  In the state of the evidence before the Court, the inference is that the Administrator simply did not turn his mind to the possibility that par (b) of the Special Determination might be beyond power and that, in consequence, it might make invalid Mr Bradley’s appointment as Chief Magistrate.  Given that Mr Bradley’s position at the time he was appointed was that he wanted the remuneration and terms and conditions of the Special Determination and not those of the 30 January determination and that the Administrator and those advising him each subjectively intended that Mr Bradley would be appointed with the remuneration and on the other terms and conditions set out in the Special Determination and not those of the 30 January determination, there is no ground either for any inference that the Administrator ever intended that, on any basis, Mr Bradley should hold office during the first two years of his appointment at the remuneration and on the other terms and conditions set out in the 30 January determination.  To hold that Mr Bradley’s appointment can be supported by the 30 January determination would be to deal with the case on the basis of imputing to the Administrator a fictional intention it is known with certainty that he never held.

251               On no view of the case can the respondent rely on the 30 January determination to support the validity of Mr Bradley’s appointment.

252               I would allow the appeal.

Associate:

Dated:              27 September 2002