Federal Court of Australia
Crawford v State of Western Australia [2025] FCAFC 18
ORDERS
HER HONOUR CATHERINE PATRICIA CRAWFORD Appellant | ||
AND: | THE STATE OF WESTERN AUSTRALIA Respondent | |
mortimer CJ, stewart and o’bryan JJ | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. On or before 11 March 2025 the parties file agreed proposed minutes of order in relation to the costs of the appeal.
3. In the absence of any agreement pursuant to order 2, on or before 25 March 2025 each party file any submissions they wish to make on the question of costs, limited to three pages.
4. The question of costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
The Court:
1 The appellant, Magistrate Catherine Patricia Crawford, appeals from orders made by the Federal Court of Australia in Crawford v State of Western Australia [2024] FCA 222 (the primary judgment). The appellant commenced proceedings in the High Court of Australia and by orders made on 8 December 2022 the High Court remitted the matter to a single judge of this Court for hearing and determination.
2 The primary judgment sets out the factual background in detail and in these reasons we refer to the facts in brief summary, and in detail only where necessary to resolve the grounds of appeal. The primary judge also set out the parties’ competing contentions, which, subject to some clarification in oral submissions from senior counsel for the appellant, did not vary materially on appeal, so they need not be set out again. Where necessary to the resolution of the grounds of appeal, we refer below to the parties’ arguments and the evidence.
3 For the reasons set out below, the appeal must be dismissed.
Background and short chronology
4 On 20 June 2006, the appellant was appointed from and including 1 July 2006 by the Governor of Western Australia as a magistrate of the Magistrates Court of Western Australia and contemporaneously to the office of magistrate of the Children’s Court of Western Australia. At the time of trial there were 57 magistrates of the Magistrates Court including the appellant, the Chief Magistrate and the Deputy Chief Magistrate (excluding Family Court magistrates and Supreme Court registrars who are also magistrates). It was an agreed fact at trial that all of those 57 magistrates were dually appointed magistrates.
5 The dual appointment is possible by reason of the terms of s 10(4) of the Children’s Court of Western Australia Act 1988 (WA), and s 6(3) of the Magistrates Court Act 2004 (WA).
6 Section 6(3) of the MC Act provides:
(3) With the Governor’s approval, a magistrate —
(a) may hold concurrently another public or judicial office or appointment, including an office or appointment made under the law of another place; and
(b) may perform other public functions concurrently with those of a magistrate.
7 Section 10(4) of the CCWA Act provides:
(4) A magistrate of the Magistrates Court may be appointed to be contemporaneously a magistrate of the Children’s Court.
8 The jurisdiction of the Magistrates Court is both civil (MC Act, s 10 and see Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6) and criminal (MC Act, s 11). It has jurisdiction to hear and determine simple offences or indictable offences which can be dealt with summarily; it may also commit persons charged with indictable offences to higher courts.
9 By contrast, the jurisdiction of the Children’s Court is principally criminal (although it has jurisdiction over certain statutory functions as regards children: cf CCWA Act, s 20). The Court has exclusive jurisdiction to hear and determine a charge of an offence alleged to have been committed by a child (CCWA Act, s 19(1)).
10 Consequently, although the criminal jurisdictions of the Magistrates Court and Children’s Court overlap, the types of offenders who are brought before each court and the procedures to which they are subject inherently differ. Dually appointed magistrates therefore exercise jurisdiction pursuant to either of the MC Act or CCWA Act depending on the age of an offender, notwithstanding that the charge may be the same as between different offenders.
11 The Chief Magistrate is the “principal officer”, or head of jurisdiction, of the Magistrates Court (MC Act, s 24). The President, who must be a judge, is the head of jurisdiction of the Children’s Court (CCWA, Act s 7(8)).
12 It was an agreed fact at trial that since approximately 9 April 1996, every Magistrates Court magistrate and Children’s Court magistrate has been a dually appointed magistrate in both the Magistrates Court and Children’s Court (see also the primary judgment at [50]). It was also an agreed fact that a
dually appointed Magistrate who sits in the Magistrates Court generally only acts in their office as a Children’s Court Magistrate when presiding over a Children’s Court list in a regional area, save for ad hoc arrangements as discussed between the particular Magistrate, the Chief Magistrate and the President of the Children’s Court.
13 Since her appointment and until February 2012, the appellant sat as a Children’s Court magistrate when she was sitting in regional areas, but worked full-time as a magistrate in the Magistrates Court. The appellant’s chronology describes a period from 2008 to July 2010 when the appellant sat in the Magistrates Court in Kununurra and performed “ad hoc” Children’s Court duties. In their agreed statement of facts, the parties also used the term “ad hoc” to describe the performance of duties as a Children’s Court magistrate by a person otherwise sitting full-time as a magistrate of the Magistrates Court. We have avoided the use of that term as we consider it does not entirely reflect either the nature of the dual appointment regime, or the circumstances of how Children’s Court matters were dealt with by magistrates sitting regionally, in that it may suggest such a practice is unplanned or unscheduled.
14 It emerged and was common ground during oral argument that what in fact occurred in regional areas is that magistrates of the Magistrates Court deal with whatever matters come before them while they are sitting at a particular regional registry, and if they hold a dual appointment (which they all do), this may include Children’s Court matters. While it is correct to describe this as occurring where necessary and dependent on the matters listed at any given time, the practice reflects the core nature of judicial work in regional areas of Western Australia, and the practical benefits of a dual appointment system where judicial resources are limited.
15 In late 2011 or early 2012, it can be inferred that there was — by agreement between the Chief Magistrate and the President of the Children’s Court — a ‘swap’ between the appellant and a magistrate who was sitting full-time in the Children’s Court but had expressed an interest in sitting full-time in the Magistrates Court. The appellant had been in any event, from 6 February 2012, sitting full-time in the Children’s Court for a short period to cover the personal leave of another magistrate who sat full-time in the Children’s Court.
16 From this time until November 2021, the appellant sat full-time in the Children’s Court in Perth. However, it was agreed that she also continued to sit from time to time in the Children’s Court in regional areas. During this time, the appellant did not perform Magistrates Court functions other than completing the hearing of a prosecution in 2012. However, the appellant maintained a dual commission in both Courts during this period.
17 There was little evidence about the details of what occurred in 2020 and early 2021, but it can readily be inferred that the appellant wished to remain sitting predominantly in the Children’s Court but apprehended she may not be able to do so. The primary judge described what occurred during 2020 as “the President and the Applicant fell into disagreement” (primary judgment at [4]). In January 2021, the appellant commenced proceedings in the Supreme Court of Western Australia against the President of the Children’s Court. The State of Western Australia intervened but later withdrew.
18 The Supreme Court proceeding was settled in October 2021. In this proceeding there was no factual dispute that the terms of settlement included a document described as a “common understanding”, which was admitted into evidence before the primary judge. Part of the “common understanding” included an agreement that the appellant would sit in the Children’s Court at Fremantle on a full-time basis and have chambers in the Fremantle Courthouse. Perhaps unusually in our respectful opinion, the “common understanding” included an agreement about the manner in which the President of the Children’s Court would allocate work to the appellant:
7. The work to be allocated to Magistrate Crawford while she sits in the Fremantle Children’s Court will cover all aspects of the Children’s Court jurisdiction.
8. The work to be allocated to Magistrate Crawford while she sits in the Fremantle Children’s Court will include matters within the Care and Protection jurisdiction.
9. Judge Quail expects that no Children’s Court matters that are to be heard at courts at which the Children’s Court has a registry will be allocated to Magistrate Crawford other than those that are filed or to be dealt with in the Fremantle, Armadale and Rockingham registries.
10. Judge Quail will allocate to Magistrate Crawford at the Fremantle Children’s Court all matters that would in the ordinary course be heard or dealt with by the Children’s Court sitting in Fremantle, Armadale and Rockingham, including criminal matters and restraining orders.
11. It is Judge Quail’s present intention that if a new Children’s Court facility is opened at the Armadale court precinct, that will include a magistrate or magistrates sitting as Children’s Court magistrates at such Armadale Children’s Court, Magistrate Crawford will be directed to be that magistrate or one such magistrate.
12. Magistrate Crawford will have the same access to the Perth Children’s Court as all other Children’s Court magistrates, but will not have permanent chambers or a permanent car bay at that building.
19 In March 2022, two events occurred.
20 First, on 1 March 2022, Pts 2 and 3 of the Courts Legislation Amendment (Magistrates) Act 2022 (WA) came into operation. A key provision of the Amendment Act inserted s 11 into the CCWA Act, which provides:
11. Work of magistrates appointed to both Magistrates Court and Children’s Court
(1) In this section —
Children’s Court functions means functions of a magistrate of the Court;
dually appointed magistrate means a person who holds office both as a magistrate of the Magistrates Court and as a magistrate of the Court.
(2) The President may, by written notice, inform the Chief Magistrate that the President considers that, to deal with the workload of the Court, it is necessary or desirable for a particular dually appointed magistrate for the time being to perform Children’s Court functions —
(a) on a full-time basis; or
(b) on a part-time basis as specified in the notice.
(3) If the President gives a notice under subsection (2) in relation to a dually appointed magistrate —
(a) the Chief Magistrate may consent, or refuse to consent, to the magistrate for the time being performing Children’s Court functions on the basis specified in the notice; and
(b) if the Chief Magistrate consents — the Chief Magistrate must, in giving any directions to the magistrate under the Magistrates Court Act 2004 section 25, take into account that for the time being the magistrate is required to perform Children’s Court functions on the basis specified in the notice.
(4) If a particular dually appointed magistrate has performed Children’s Court functions on a full-time or part-time basis or has been the subject of a notice under subsection (2), the President may, by written notice, inform the Chief Magistrate —
(a) that the President considers that, to deal with the workload of the Court, it is not necessary or desirable for the magistrate for the time being to perform Children’s Court functions at all; or
(b) that the President considers that, to deal with the workload of the Court —
(i) it is not necessary or desirable for the magistrate for the time being to perform Children’s Court functions on the basis that previously applied; and
(ii) it is necessary or desirable that the magistrate should instead for the time being perform Children’s Court functions on a part-time basis as specified in the notice (which must, in the case of a magistrate who previously performed those functions on a part-time basis or was the subject of a notice under subsection (2)(b), be a reduced part-time basis).
(5) If the President gives a notice under subsection (4) in relation to a dually appointed magistrate, the Chief Magistrate must, in giving directions to the magistrate under the Magistrates Court Act 2004 section 25, take into account —
(a) in the case of a notice under subsection (4)(a) — that for the time being the magistrate is not required to perform Children’s Court functions; or
(b) in the case of a notice under subsection (4)(b) — that for the time being the magistrate is required to perform Children’s Court functions on the specified part-time basis and not otherwise.
(6) In determining whether to give a notice under subsection (2) or (4) in relation to a dually appointed magistrate, the President has absolute discretion and is not required to take into account the seniority or length of service of the magistrate or any other matter.
(7) A notice under this section in relation to a magistrate is subject to any subsequent notice under this section in relation to the magistrate.
[Section 11 inserted: No. 2 of 2022 s. 7.]
21 Section 12A of the CCWA Act is also relevant, and was also inserted by the Amendment Act. It provides:
12A. President may assign duties to magistrates
(1) The President, by directions given from time to time to a person who is a magistrate, may —
(a) specify which case or cases, or class or classes of case, the person is to deal with; and
(b) specify which administrative duties the person is to perform for the time being; and
(c) specify where, when and at what times to deal with those cases or perform those duties.
(2) A direction given under subsection (1) must relate only to the person’s functions as a magistrate of the Court.
(3) A direction given to a magistrate under subsection (1) does not limit the functions of the magistrate.
(4) A magistrate must comply with a direction given under subsection (1).
(5) A contravention of subsection (4) is not an offence.
(6) The Chief Magistrate is not entitled, under the Magistrates Court Act 2004 or any other law, to direct a person to perform functions as a magistrate of the Court or in relation to the performance of those functions.
[Section 12A inserted: No. 2 of 2022 s. 8.]
22 Finally, in terms of key provisions necessary to understand the course of events in relation to the functions performed by the appellant pursuant to her dual appointment, s 25(1) of the MC Act provides:
(1) The Chief Magistrate, by directions given from time to time to a person who is a magistrate, may —
(a) specify which case or cases, or class or classes of case, the person is to deal with or in which division of the Court the person is to sit; and
(b) specify which class or classes of the judicial functions that the person has under written laws, whether as a magistrate or otherwise, the person is to perform for the time being; and
(c) specify which administrative duties the person is to perform for the time being; and
(d) specify where, when and at what times to deal with those cases or perform those functions or duties.
23 The effect of s 25(1) was modified by s 25(6), which was inserted by the Amendment Act and provides:
(6) If a person holds office both as a magistrate of the Court and as a magistrate of the Children’s Court, the Chief Magistrate must not give a direction under subsection (1) in relation to the person’s functions as a magistrate of the Children’s Court.
24 In other words, each of the respective heads of jurisdiction was intended to retain legal and effective control over the performance of functions in their Court by magistrates with dual appointments.
25 Pertinent parts of the extrinsic material for the Amendment Act are quoted in the primary judgment at [5] and [6].
26 Second, following closely on the heels of the Amendment Act, the President of the Children’s Court sent a memorandum to all full-time Children’s Court magistrates, headed “Workload review - Confidential” and dated 24 March 2022. This was also in evidence before the primary judge.
27 In this memorandum, the President said:
As you know, the Children's Court has had an extra full-time magistrate since January 2021. It was a decision of the executive government to provide that additional resource.
I am currently reviewing the workload of all full-time Children’s Court magistrates and our listing requirements. Depending on the outcome of that review, it may be necessary for one of you to be made available to sit in the Magistrates Court. You are all dually appointed and hold Magistrates Court commissions.
I believe that I know what your individual views about working in the Magistrates Court are, but this is your opportunity to confirm them to me or let me know if you have changed your position.
28 This prompted a response from the appellant to the President, dated 1 April 2022, referring to the “common understanding” and stating relevantly:
To ensure clarity I do not agree to transfer, removal or being “made available” to the Magistrates Court. As you know I was invited by Judge Reynolds, as he then was, to transfer to the Children’s Court in 2012, on a permanent basis, to replace Magistrate Potter who wished to join the Magistrates Court. I am committed to working with children and their families, rather than adults.
29 The President then made a decision which his Honour communicated to the Chief Magistrate by letter dated 2 May 2022 described as “Notice pursuant to s 11(4)” of the CCWA Act, which relevantly stated:
I am pleased to let you know that I have completed my review of the workload of the full-time Children’s Court magistrates. I have concluded that the Children’s Court has more full-time magistrates than it requires. Accordingly, I have advised the Department of Justice and Government that from 1 June 2022 a dually appointed full time Children’s Court magistrate will be required to work part-time in the Children’s Court and will be available to work part-time in the Magistrates Court. The division of work will be 0.2 FTE in the Children’s Court and 0.8 FTE available to the Magistrates Court.
I have had regard to the views of the full-time Children’s Court magistrates and other considerations and determined that, until further direction, the magistrate to work part time in the Children’s Court one day per week from 1 June 2022 will be Magistrate Crawford. Her Honour’s Children’s Court duties from then and for the time being and not otherwise will be to preside as listed in the Fremantle and Rockingham Children’s Courts one day each per fortnight and have chambers in those courts on those days. Enclosed is the suburban Children’s Court roster until the end of 2022 showing the days when Magistrate Crawford will be required to sit in the Children’s Court (if not on leave).
I am amenable to Magistrate Crawford presiding in other suburban Children’s Courts instead if, for example, you direct her to be based in one of those court locations. There are other possibilities we could also discuss if you do decide to direct Magistrate Crawford to sit in the Magistrate’s Court.
30 The President wrote on the same day in similar terms to the appellant, informing her of his decision and issuing her a formal direction said to be pursuant to s 11 of the CCWA Act, which again was in substantially the same terms as the President’s communication to the Chief Magistrate.
31 The primary judge (at [104]) inferred that the Amendment Act “was, at least in part, intended to operate in relation to the Applicant”. On appeal, there was no express submission made on behalf of the appellant that the Amendment Act was directed only at her, or was an improper device to avoid the ongoing arrangements under the “common understanding”.
32 The May 2022 arrangements, as they affected the appellant, were modified by agreement between the President and the Chief Magistrate in July 2023. One feature was to reduce even further the likelihood the appellant would sit on matters in the Children’s Court. The new arrangement was communicated to the appellant by a notice said to be pursuant to s 11 of the CCWA Act and dated 3 August 2023, which relevantly stated:
I have further concluded that it is necessary and desirable that you should perform Children’s Court functions under the same general direction that applies to all dually appointed magistrates who are not the subject of some other specific direction, namely, to preside in the Children’s Court as and when required and directed to do so.
I have advised the Chief Magistrate accordingly and this is the formal written notice pursuant to s 11 of the Children’s Court of Western Australia Act 1988 of those decisions. From the week commencing 13 November 2023 you will be available for direction by the Chief Magistrate, having regard to the general Children’s Court direction which continues to apply to you.
33 The parties agreed the following facts, subject to the respondent’s objections on relevance over parts of the following:
57. On 15 August 2022, the applicant relocated her chambers to the Magistrates Court in Perth, and from that date has generally alternated on a weekly basis between:
(a) sitting for four days in the Magistrates Court in Fremantle, doing work allocated to her by the Chief Magistrate and for one day at the Children’s Court held at Fremantle; and
(b) sitting for four days in the Magistrates Court in Fremantle, doing work allocated to her by the Chief Magistrate and for one day at the Children’s Court held at Rockingham.
58. By reason of the applicant’s letter dated 1 April 2022 (referred to in paragraph 49), the applicant has not consented to:
(a) sitting on a full-time or part-time basis in the Magistrates Court;
(b) sitting on a part-time basis in the Children’s Court;
(c) sitting other than on a full-time basis in the Children’s Court.
34 In other words, at the time of the appeal, the appellant continued to exercise jurisdiction as a Children’s Court magistrate and in the Magistrates Court. She does not however do so on the basis she would prefer; namely sitting predominantly or exclusively as a magistrate in the Children’s Court.
35 At no point did the appellant seek to resign her commission as a magistrate, either before or after the Amendment Act. Insofar as the period after the Amendment Act is concerned, we infer that might well be because of the terms of Sch 1 cll 12(6) and 12(7), also introduced by the Amendment Act. Clause 12(6) of Sch 1 of the MC Act provides:
(6) If a person holds office both as a magistrate of the Court and as a magistrate of the Children’s Court, and the person resigns from only one of those offices, the resignation is taken to be a resignation from both of those offices.
36 The appellant sought to challenge the powers conferred by s 11 of the CCWA Act “and associated provisions” including Sch 1 cll 12(6)-(7) of the MC Act as constitutionally invalid because they offend the principles in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. For the reasons set out below, this challenge must fail.
37 The appellant did not, and never has, sought judicial review in this Court of the decision made by the President. That is, she has not raised any improper purpose or legal unreasonableness contentions, or contentions that the exercise of power by the President relying on s 11 of the CCWA Act was otherwise in excess of jurisdiction.
38 Rather, as we understand it, the premise of the appellant’s arguments on appeal is that s 11 purports to authorise the kind of direction given to her by the President, and the kind of arrangements made between the President and the Chief Magistrate. Senior counsel for the appellant accepted that the appellant does not take issue on appeal with the conclusion reached by the primary judge that s 12A of the CCWA Act and s 25 of the MC Act give compulsory effect to a notice issued pursuant to s 11 of the CCWA Act. At [51] the primary judge stated:
… Both parties were united in their view that they [ss 11(4) and 12A(1)] empowered the President to issue the four notices and that, subject to the question of the provisions’ validity, the notices had the effect of altering the extent of the work done by the Applicant in the Children’s Court. The debate between them therefore was principally about the Kable doctrine.
The reasoning of the primary Judge
39 The primary judge dismissed the appellant’s application, and rejected her constitutional challenge.
40 In summary his Honour’s reasoning centred on the proper construction of the impugned provisions, and other aspects of the legislative schemes of the CCWA Act and MC Act that his Honour considered relevant. In the primary judgment from [52] onwards, his Honour finds that the impugned provisions:
(a) are concerned with a “particular” magistrate rather than all magistrates who hold dual appointments;
(b) operate “asymmetrically” in that it is always the President who enlivens any assignment process, and the consent of the Chief Magistrate may or may not be required;
(c) do not contain any express empowerment of the President to form an opinion about the needs of the Children’s Court although this can be implied; and
(d) section 11 of the CCWA Act is only concerned with the “efficient management of judicial resources”.
41 The primary judge considered there were two legislative assumptions in these provisions which, “but for the provisions of s 11 itself” might be seen as wrong or legally dubious. We will return to this part of the primary judgment in due course, as the appellant relied on them in her arguments. After some further discussion about the constructional choices available in light of the limited terms of the Amendment Act, especially in relation to its potential to affect the powers of the Chief Magistrate, the primary judge concluded at [74]-[75]:
74 My conclusions on construction are therefore as follows:
(a) even though they do not say this, ss 11(2) and (4) include a power in the President to form the opinions to which the provisions refer; and
(b) even though they do not say this, s 25(1) of the MC Act and s 12A(1) of the CCWA Act empower the Chief Magistrate and the President to give effect to the opinions formed by the President under ss 11(2) and (4).
75 It follows that I agree with the parties that these provisions, if valid, authorised the issue of the four notices. It will be apparent, however, that the route I have found it necessary to pursue is somewhat longer than their agreement implied.
42 Between [76] and [80] the primary judge made some findings about how the powers conferred could lawfully be exercised, although as we have observed, this was not a case of judicial review. We accept his Honour did so for the purpose of considering the constitutional arguments.
43 At [81], the primary judge noted the core contention of the appellant, also present on this appeal, that any alteration to the functions of a dually appointed magistrate required to be performed by their head(s) of jurisdiction could only be made with the magistrate’s consent.
44 His Honour did not agree, and as we will explain, nor do we.
45 The primary judge did express the view (at [82]) that:
…s 12A(1) cannot be used to bring about a state of affairs where the basis upon which the magistrate works (full-time or other than full-time) is altered when viewed across both courts (unless the magistrate consents to such an alteration).
46 That observation concerns a change from a magistrate working on a full-time basis to a part-time basis. That is not this case. We do not propose to express a view on that issue.
47 From [84] the primary judge then examined what might be the relevant considerations for an exercise of the impugned powers. This consideration was extensive, again as we read it so as to inform the primary judge’s consideration of the constitutional argument, which in part proceeded on the basis that the powers could be exercised in relation to a “magistrate with whom the President had become dissatisfied because of the President’s perception of how the magistrate discharged their adjudicative powers and responsibilities as a Children’s Court magistrate” (at [92] of the primary judgment).
48 His Honour generally did not accept such a purpose would be lawful, and instead characterised the provisions as “orthodox administrative efficiency provisions although not perhaps drafted with perfect clarity” (at [97]).
49 The primary judge also made a number of findings about the deeming provision in cl 12(6) concerning resignations, introduced by the Amendment Act. He noted at [101]:
…Further, for all those magistrates of the Magistrates Court who accepted a second commission in the Children’s Court on their appointment, it is not the case that they did so knowing and understanding that resignation from the either court would result in their resignation from both offices although this will be the case with all dual appointments after the commencement of the amendments. At the time of the appointments of the present crop of magistrates, each had a right to resign from one court and to remain on the other.
50 At [104] the primary judge noted some of the particular features of cl 12(6), including that its operation was retrospective and plainly directed at the appellant. His Honour then set out his principal reasoning and conclusions at [105]-[110]:
105 The question then becomes whether cl 12(6), when combined with the powers conferred on the President by ss 11(4) and 12A(1), are such as to undermine the independence of the magistrates of the Children’s Court. I agree with the Applicant that the notion of independence in this context includes independence of the magistrates from each other: Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 at [29] per Gleeson CJ and Gummow J. The question is whether cl 12(6), s 11(4) and s 12A(1) are such that the President (and the Chief Magistrate) may be able to influence magistrates in the performance of their judicial duties.
106 Although I regard the terms of the Amending Act as highly unusual, particularly cll 12(6) and 12(7), the limitations on the powers in ss 11(4) and 12A(1) are such that the President is not able to use the powers under those sections to influence a magistrate in the exercise of their judicial functions. Within the concept of ‘influence’ I would include notions of punishment or retribution. It is plainly outside the scope of ss 11(4) and 12A(1) for the President to move a magistrate to the Magistrates Court because of perceptions about how that magistrate was discharging his or her office which are unrelated to the efficient allocation of workload.
107 Once that is accepted, whatever misgivings one might have about cll 12(6) and (7) such misgivings are not about the ability of the magistrates to discharge their offices independently and become, in essence, industrial in nature. Put another way, once one accepts that ss 11(4) and 12A(1) can only be used in ways which are consistent with judicial independence, it is difficult to see how the independence of magistrates is threatened merely because a dually appointed magistrate can only resign both offices together rather than each one separately.
108 Since I do not accept that the provisions of the Amending Act, properly construed, pose any threat to judicial independence there is no occasion to consider the scope and extent of the Kable doctrine. A useful statement of the Kable doctrine appears in Attorney-General (NT) v Emmerson [2014] HCA 13; 254 CLR 393 at [40] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ):
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
109 For the reasons I have given I am not satisfied that the impugned provisions substantially impair the institutional integrity of the Magistrates Court or the Children’s Court. If I were wrong in the limitations I would impose upon the exercise of the powers in ss 11(4) and 12A of the CCWA Act and s 25(1) of the MC Act, issues about institutional integrity would arise. The unconfined ability of the President to alter the conditions of service of a magistrate would pose a threat to the institutional integrity of the Children’s Court. This in turn would result in the provisions being invalid. At that point, s 7 of the Interpretation Act would be relevant:
Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.
110 Thus, whilst I have arrived at the restrictions on the powers in ss 11(4) and 12A of the CCWA Act and s 25(1) of the MC Act by a familiar process of statutory interpretation, if I were wrong in those conclusions, I would arrive at the same constructions by reason of s 7. In either case, the effect is that the constitutional challenge must fail.
The grounds of appeal
51 The primary judge’s conclusions and reasoning turned on constructional choices about the relevant provisions in each of the CCWA Act and MC Act.
52 The appellant challenges his Honour’s constructional choices, in particular that a magistrate’s consent is not required for any alteration to the basis on which they work across the two Courts. The appellant contends that a magistrate must consent to any such alteration. Otherwise, there is an interference with the judicial independence of a dually appointed magistrate.
Grounds 1 and 2
53 These grounds contend:
1. The primary judge erred in law in finding that ss 11(3), 11(5) of the Children’s Court Act of Western Australia 1988 (WA) and s 25(1) of the Magistrates Court Act 2004 (WA) require or empower the Chief Magistrate to allocate work to a dually appointed magistrate the subject of a notice issued pursuant to s 11(2) or s 11(4) in such a way that the basis upon which they work (full-time or other than full-time) considered across both courts is not altered, unless the magistrate consents (PJ [78]-[79]).
2. The primary judge erred in law in finding that s 12A of the Children’s Court Act of Western Australia 1988 (WA) requires or empowers the President to allocate work to a dually appointed magistrate the subject of a notice issued pursuant to s 11(2) or s 11(4) in such a way that the basis upon which they work (full-time or other than full-time) considered across both courts is not altered, unless the magistrate consents (PJ [82]).
54 Thus, both grounds centre on the primary judge’s findings at [78]–[79] and [82].
55 With respect, we consider the appellant has misunderstood the primary judge’s findings in these passages. It is not the constructional choice his Honour made in these passages which is the foundation of his reasoning for the conclusions at [98] and [109], and which in turn are the central findings that the appellant seeks to challenge. Further the primary judge did not adopt the reasoning ascribed to him — namely treating a magistrate with dual appointments as only holding one “theoretical” office or “combin[ing]” the separate appointments held by a magistrate; cf [17], [20]–[25] of the appellant’s written submissions.
56 At [68] to [93] below we explain why we hold the view we have expressed at [55].
57 This misunderstanding results in the inevitable dismissal of these grounds of appeal.
Ground 3
58 Appeal ground 3 is put as follows:
By reason of the errors of law the subject of grounds 1 and 2 above, the primary judge erred in law in finding that s 11 of the Children’s Court Act of Western Australia 1988 (WA) does not interfere with the judicial independence of a dually appointed magistrate and is thereby valid.
59 The central point made in ground 3 is that any alteration to the basis, in terms of day-to-day work and sittings, upon which a magistrate with dual appointments works across the Children’s Court and the Magistrates Court can only be made with the consent of the magistrate concerned.
60 Otherwise, the appellant contends, there is an impermissible effect on judicial independence, contrary to the principles in Kable. See the appellant’s written submissions at [39]:
In this case, the power of a head of jurisdiction to unilaterally alter the basis (full-time or other than full-time) upon which a dually appointed magistrate works in one or both of their judicial offices has the capacity to influence the decisional independence and security of tenure of that magistrate. In particular, the heads of jurisdiction have the power to determine whether a dually appointed magistrate exercises one of their offices, substantially or at all. More generally, a dually appointed magistrate is exposed to the risk that the basis upon which they work in their two offices will be unilaterally changed in a manner that renders their continued discharge of either office untenable (e.g. a change from part-time across both offices to full-time in one office or across both).
61 For the reasons we explain below, ground 3 must also be rejected.
Resolution
Some general findings about the legislative schemes
62 There was no real debate between the parties about the roles and functions of each of the Chief Magistrate and the President under their constituent legislation. Like any other court, these heads of jurisdiction are given the responsibility of administering the Court over which they preside, including the allocation of work to magistrates. The primary judge also made this point at [96], referring to Rees v Crane [1994] 2 AC 173 at 187-188. See also Drummond J’s obiter observations at [163] in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297; 122 FCR 204. His Honour was in dissent, but these observations were not suggested by the High Court to be incorrect: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146.
63 For the Magistrates Court, the Chief Magistrate is empowered to assign duties to magistrates (s 25 of the MC Act) and to give directions about administrative matters and procedures for the effective and efficient operation of the Court, provided that the directions do not limit the judicial independence of magistrates (s 27 of the MC Act).
64 The Children’s Court is to be constituted by a judge, or a magistrate, or not less than two justices of the peace: s 6(1) of the CCWA Act. A judge holding a commission in the District Court or the Supreme Court of Western Australia may perform the functions of a judge in the Children’s Court: s 6(3) of the CCWA Act, on the request of the President and with the consent of the relevant head of jurisdiction. A judge appointed by the Governor shall be the President of the Children’s Court: s 7(8), but may hold a dual commission: s 7(9).
65 For the Children’s Court, prior to the Amendment Act, the overarching provision in the CCWA Act concerning the President’s responsibilities for the administration of the Children’s Court was contained (and remains) in s 37(1):
Subject to this Act and to the rules of court, the President is responsible for the administration of the Court, the disposition of the business of the Court and for its practice and procedure.
66 The role of the President in allocating the work of the Children’s Court amongst its members, whether judges, magistrates or justices of the peace was apparent from, at least, ss 13(1) and 13(5):
(1) The Court —
(a) is to have registries at such places, including places outside the State, as the Minister, by written notice to the President, decides from time to time; and
(b) is to sit at places where it has a registry at such times as the President decides from time to time; and
(c) may, despite paragraphs (a) and (b), sit or otherwise exercise its jurisdiction at any time and place, but must not do so at a place outside the State without the approval of the President.
…
(5) The President may direct a judge, magistrate or JP to sit at any place where the Court has a registry and may direct concurrent sittings of the Court at the same place for the prompt disposal of the Court’s functions.
67 As the primary judge observed at several points in his reasons, these powers are likely conditioned by considerations that are relevant and appropriate to the proper discharge of the work of the court, and the workload of individual magistrates, and cannot be exercised for improper purposes. However, the appellant has not made any challenge to the lawfulness of the particular exercises of power by the President outside her constitutional challenge. There are no judicial review proceedings.
Grounds 1 and 2
68 At [24]-[31] of his reasons, the primary judge set out the various provisions of the MC Act which confer and/or affect the independence of magistrates; namely provisions about tenure, immunity from suit, remuneration, suspension and removal from office. At [43] the primary judge observed that these provisions were, in substance, copied across into the CCWA Act, noting of course that judges may also be appointed to the Children’s Court, and not only magistrates. His Honour then described at [32] the power of the Chief Magistrate to allocate work amongst magistrates.
69 Later in his Honour’s reasons, the primary judge explained that the conditions of service, so described, for Magistrates Court magistrates and for Children’s Court magistrates are contained in Sch 1 cl 5 of the MC Act, with necessary modifications. The Sch 1 cl 5 conditions of service are given effect by s 5 of the MC Act. The conditions of service provided for in Sch 1 cll 5(3) and 5(5) should be set out as they are of central relevance to ground 1 and 2:
(3) The Governor may from time to time determine the conditions of service (other than remuneration) of a magistrate, including whether he or she is to work full time or other than full time as a magistrate
….
(5) Unless the magistrate has consented, the Governor must not determine that a magistrate working full time is to work other than full time, or vice versa.
70 There is a key difference in language between this provision and the impugned provisions introduced by the Amendment Act. The condition of service provision concerns whether a magistrate “works” full-time or “other than full time” as a magistrate. Read in the context of Sch 1 cl 5 as a whole, cll 5(3) and 5(5) provide a clear meaning of the phrases “full time” and “other than full time”. These terms refer to, and mean, the amount of time a magistrate is working: are they working on a full-time basis (generally, five days a week) or a part-time basis (less than five days per week)?
71 Clause 3(2) of Sch 1 provides that a magistrate is to be appointed by commission in the form set out in Sch 2. That form of commission reads:
[Heading for commission]
To: [name]:
1. By this commission issued under the Public Seal of the State, I, the Governor, acting under the Magistrates Court Act 2004 Schedule 1 clause 3 and with the advice and consent of the Executive Council and reposing full trust and confidence in your loyalty, learning, integrity and ability, appoint you as a magistrate of the Magistrates Court as from and including [date].
2. The office of magistrate is a judicial office with administrative functions. You are to assist in and promote the administration of justice and the maintenance of peace, order and good government in the State.
3. You shall hold the office of magistrate with all the rights, powers, privileges, advantages and jurisdiction that apply to it during good behaviour and subject to the Magistrates Court Act 2004 as amended from time to time.
Issued …
72 The implicit meaning of this commission is that an individual holds a commission that requires them to work full-time. In contrast, Sch 1 cl 9 of the MC Act, dealing with acting magistrates, expressly contemplates that an instrument of appointment itself must specify if an acting magistrate “is to work full time or other than full time as an acting magistrate” (our emphasis).
73 There are otherwise no express references in either the MC Act or the CCWA Act to a magistrate (as opposed to an acting magistrate) “working part-time”.
74 What is very clear however, is that the legislative scheme of the MC Act contemplates that magistrates who are working full-time may perform a range of different functions, and exercise a range of different powers, in a number of different capacities. The scheme of the MC Act must, in this respect, be read with the scheme of the CCWA Act (even before the Amendment Act), and the other legislation to which we refer below.
75 Section 6(3) of the MC Act (set out above at [6]) expressly provides that magistrates are able to hold other offices and to perform functions of those offices concurrently with the functions of a magistrate. The Governor’s approval is required.
76 Section 6(3) contemplates appointments and the holding of offices on a wider basis than a dual appointment as a magistrate. For example, a magistrate also holds a contemporaneous office as a coroner and also as a justice of the peace: see Coroners Act 1996 (WA) s 11(1) and Justices of the Peace Act 2004 (WA) s 12(1)(e). These appointments by operation of law fall within s 6(3)(a) in our opinion. These offices are all held because a person holds office as a magistrate. So much is clear from s 6(1) of the MC Act:
A magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including this Act and other written laws.
77 By s 6(3)(b) a person may “perform other public functions concurrently with those of a magistrate”. There is no express limit on what kind of other public functions might be performed, save for s 6(4), which reflects a persona designata qualification on s 6(3)(b): see generally Wainohu v New South Wales [2011] HCA 24; 243 CLR 181; Grollo v Palmer [1995] HCA 26; 184 CLR 348 at 364-365.
78 Whatever offices might be held, or functions performed, by an individual magistrate for the purposes of s 6, the legislative scheme contemplates the offices are held, and the functions performed, concurrently with their functions as a magistrate, being a magistrate who is working on a full-time basis and is not working part-time. For dual appointees, that includes their functions either as a Children’s Court magistrate or as a Magistrates Court magistrate. It also includes functions they might perform as a coroner or justice of the peace. These provisions do not bring about any change to the full-time nature of the office of a magistrate, as contemplated by a person’s commission. Of course, in a practical sense a magistrate might spend part of their working week, or month, or year, performing one or more of these other functions. Nevertheless, the magistrate remains working “full time” as a magistrate.
79 The giving of a commission to a person by the Governor, and the acceptance of it by an individual, is a consensual act: the Crown confers an office on an individual and an individual accepts that office, and the obligations which attend the office, taking an oath or affirmation to demonstrate that acceptance. It being in that sense a consensual act, subject of course to the legislative terms on which it is conferred and accepted, it would be implicit if not expressly provided for that only by consent could a fundamental aspect of the office be altered. Whether an individual is working full-time as a magistrate is expressly identified by the parliament as such a fundamental tenet.
80 To sum up, the terms “full time” and “otherwise than full time” in Sch1 cl 5 are not intended to relate to the portion of time a person might spend in any given week, month or year, performing the functions and exercising the powers of a magistrate in the Magistrates Court. Rather cll 5(3) and 5(5) refer to a person working on a full-time basis or a part-time basis, according to the common understanding of the pattern of “full time work” (five days a week), or part-time work (less than five days a week). That is what cannot be altered without their consent.
81 Likewise, reductions or changes in a magistrate’s performance of functions, such as suspension for physical or mental incapacity (other than temporary illness) or other kinds of incapacity or misbehaviour, are dealt with separately in Sch 1 of the MC Act. Clauses 13, 14 and 15 provide for suspension or termination processes commenced by the Attorney-General. If engaged, these processes will affect the amount of time a magistrate is working, but plainly are not matters to which a magistrate must consent. They are coercive provisions.
82 The consent in s 6(4) of the MC Act refers to an entirely different situation; namely if a magistrate is to perform functions that are not judicial functions, then they do so as an individual under the persona designata doctrine, and therefore only with their consent.
83 In contrast, s 11 of the CCWA Act is not about magistrates working in a pattern of full-time or part-time. It concerns which functions they perform while working full-time (assuming they hold a full-time commission). Hence the language in s 11(2) of the CCWA Act:
…it is necessary or desirable for a particular dually appointed magistrate for the time being to perform Children’s Court functions —
(a) on a full-time basis; or
(b) on a part-time basis…
(Emphasis added.)
84 Section 11(2) makes express what was in our respectful opinion always implicit in the legislative scheme of both the MC Act and the CCWA Act, which must be read together for persons who hold dual appointments; namely that the respective heads of jurisdiction, as part of their lawful powers and functions, have the capacity to determine whether a magistrate performs the functions of a magistrate in the Children’s Court, or in the Magistrates Court, or a combination of the two. We accept that s 11 is somewhat one-sided in that there is no equivalent in the MC Act. Nevertheless, s 11(3) requires the Chief Magistrate to give consent to a proposal by the President, which is consistent with the role of the Chief Magistrate under the MC Act.
85 As the primary judge observed, some of the drafting of these provisions is perhaps not as clear as it could be. The use of “full-time” and “part-time” in two different senses; one related to engagement in, or a pattern of, work and one related to performance of functions while working, also does not assist.
86 Nevertheless, the primary judge’s reasoning should be approached with this distinction in mind. Although his Honour did not develop these issues out in his reasons, we consider it is clear this is the approach he took. The meaning of these terms was – sensibly – assumed to correlate to the common understanding of them.
87 Now the appellant has put his Honour’s reasoning about those terms into issue on the appeal, more detailed attention must be paid to their meaning, as we have explained above. That meaning does not assist the appellant’s contentions.
88 The primary judge’s conclusions were correct, and consistent with the analysis above. It is only where a magistrate who is working in a full-time pattern is given directions by the Chief Magistrate that they are only to work in a part-time pattern (eg two days a week) that the protections in Sch 1 cl 5(5) are engaged. Under this legislative scheme, altering conditions of service in this way is not within the lawful remit of the Chief Magistrate; it is a matter for the Governor (as the office holder who granted the commission) and any alteration must be with the consent of the magistrate concerned. That is because such a change affects the consensual basis on which the magistrate’s commission was issued, as well as the entitlements which accompany their office.
89 As part of his Honour’s consideration of the correct construction of the impugned provisions, from [76] he considered the consequences of the ‘asymmetry’ he had identified in the way the terms of ss 11, 12A of the CCWA Act and s 25(1) of the MC Act operate. Namely, that the power to issue directions to a magistrate with dual appointments is conferred on the President and is concerned with Children’s Court work.
90 It is in that context that the primary judge explained what his Honour considered would be an impermissible exercise of the s 11 power by a President (at [78]-[79]):
78 There is no doubt that ss 11(3) and (5) (together with s 25(1) of the MC Act) cannot be used for the improper purpose of sidelining a magistrate from sitting altogether. However, it is possible to imagine benign uses of these powers to bring about the same result. For example, a magistrate reduced to no work in the Children’s Court may also genuinely be surplus to requirements in the Magistrates Court. In such a case an exercise of the power in s 25(1) by the Chief Magistrate to assign no work to the magistrate in the Magistrates Court because there were already enough magistrates to perform the work would fall within the apparent ambit of a proper exercise of the power and, in particular, would be without any want of good faith.
79 Even for such a good faith exercise of the power in s 25(1), however, I do not accept that this could be a lawful outcome. The difficulty here is to reconcile such a state of affairs with the apparent confinement to the Governor of the power to alter the conditions of service for a magistrate (including whether they work full-time or other than full-time) which even then can only be exercised with the consent of the magistrate concerned: Sch 1 cl 5(3). The effect of the introduction of s 11 of the CCWA Act, and in particular s 11(5), necessarily must now require the question of whether a magistrate works full-time or other than full-time for the purposes of that clause to be determined across both courts considered together. I would therefore read ss 11(3) and (5) of the CCWA Act and s 25(1) of the MC Act so that the Chief Magistrate can only allocate work to the magistrate in the Magistrates Court in such a way that the basis upon which they work (full-time or other than full-time) considered across both courts is not altered, unless the magistrate consents.
(Emphasis added.)
91 The emphasised words illustrate his Honour correctly understood the limits of Sch 1 cll 5(3) and 5(5).
92 For the reasons we have explained, there was no error in the primary judge’s finding that what occurred to the appellant did not engage the protections of cl 5(5), and was not a decision that needed to be made by the Governor only after the appellant’s consent.
93 By the impugned exercise of power by the President under s 11 of the CCWA Act, the appellant’s work was not reduced to a part-time pattern. She remained working full-time; for some of her working hours as a magistrate in the Magistrates Court, and for some of her working hours as a magistrate in the Children’s Court, in particular if she sat in rural or regional courts. The legislative schemes of the MC Act and the CCWA Act contemplate such a division of functions. They are matters for the heads of jurisdiction, and since the Amendment Act, for express direction by the President. No consent of the magistrate concerned is required.
94 Grounds 1 and 2 must be dismissed.
Ground 3
95 As the respondent submitted, ground 3 must fail if grounds 1 and 2 have failed. That is the case.
96 The logical flaw in the appellant’s argument on ground 3 can be seen from her own written submissions at [40]:
In this regard, dually appointed magistrates are in no special or different position when compared to persons who hold office exclusively as either a Magistrate or as a Children’s Court magistrate. From a constitutional perspective, it is no more open to the President to unilaterally direct that a dually appointed magistrate reduce the discharge of their judicial function as a Children’s Court magistrate from a full-time basis to a part-time basis, than it is open to them to unilaterally direct a person appointed exclusively as a Children’s Court magistrate to do so.
(Emphasis added.)
97 Here, as throughout her argument, the appellant uses the concepts of “full-time” and “part-time” to refer to what proportion of a working week (or month, or year) a magistrate spends in either the Children’s Court or the Magistrates Court. We have explained, when dealing with grounds 1 and 2, why this is not a correct understanding of the terms.
98 The argument concentrates on a reduction in Children’s Court sitting and hearing time, and contends that is impermissible without the magistrate’s consent. So too it must be, at the level of power, that an increase in Children’s Court sitting and hearing time would suffer from the same absence of power.
99 Thus, the appellant’s argument amounts to no more than the proposition that the allocation of sitting duties for a magistrate with dual appointments cannot be altered by their head of jurisdiction (or here, the President more relevantly) without the consent of the magistrate. That is why, in the example we have given above, the appellant sees no constitutional difficulty with what happened in her case when her Children’s Court sitting hours were increased – because she consented to this.
100 That in turn throws the appellant back on the protection she contends is expressed in Sch 1 cl 5(5) of the MC Act, which as we have explained is not engaged in the case of the allocation of duties between magistrates with dual appointments, provided they remain in a full-time pattern across the Magistrates Court or the Children’s Court (or, for that matter, in any other office they hold as permitted under s 6 of the MC Act). Indeed, as senior counsel for the respondent submitted in the appeal, a consequence of the appellant’s submission is that the allocation of magistrates to meet the Court’s workload would require not only a magistrate’s consent, but also the approval of the executive government, through the Governor. As senior counsel continued:
… a construction which simultaneously allows a judicial officer to stymie the management of the court’s workload by refusing consent to a direction as to where they are to sit, but not only that, leaves an important element of how work is to be allocated within that court not to the head of jurisdiction but to the governor could hardly be more antithetical to the institutional independence of the court.
101 That submission should be accepted.
102 For the reasons the primary judge explained fully, any exercise of power by the President (and any agreement by the Chief Magistrate) in relation to an allocation of duties for a dual appointee that is arbitrary, legally unreasonable, made for an improper purpose, or not in good faith, is likely to be unlawful. Those matters would have to be alleged and clearly proven, in a judicial review application. The appellant did not suggest that the primary judge’s analysis on this issue was incorrect. It is not.
103 As the primary judge observed at [98], so construed the powers introduced by the Amendment Act do not pose any threat to judicial independence. They result, it can be accepted, in a dual appointee being required to perform functions in one or other of the Magistrates Court or the Children’s Court in proportions that they may not prefer. However, these are matters for a head of jurisdiction, in consultation with the magistrate concerned. They are not matters over which the magistrate has a right of veto.
104 These powers to re-calibrate and change the performance of judicial functions of dual appointees as between the Children’s Court and the Magistrates Court do not in themselves constitute a threat to the judicial independence of magistrates when they are performing their functions in either Court. Understood in the way explained by the primary judge, the allocation and distribution of work is a basic aspect of the role of a head of jurisdiction, as the legislative scheme makes plain.
105 The respondent correctly submitted that the appellant’s constitutional challenge involved the proposition that the President’s power in s 11 of the CCWA Act “has the capacity to influence the decisional independence and security of tenure of dually appointed magistrates.” This is one way to express the implied limit imposed by the Kable principles. A decision by the President under s 11 of the CCWA Act about the assignment of a magistrate to the Children’s Court or to the Magistrates Court is an administrative decision, part of the conduct of the administrative affairs of the Children’s Court. Similarly, the decision of the Chief Magistrate under s 11(3) of the CCWA Act, read with the constraint imposed by s 25(6) of the MC Act, is an administrative decision, part of the conduct of the administrative affairs of the Magistrates Court.
106 Contrary to the appellant’s reply submissions, these powers are indeed about the allocation of work to magistrates; namely to those with dual appointments. Dual appointments being expressly contemplated by the legislative schemes, and not impugned by the appellant, these powers are plainly concerned with the work magistrates will perform, in accordance with the arrangements their respective heads of jurisdiction consider appropriate. The same is true of the contemporaneous appointments by operation of law under the Coroners Act and the Justices of the Peace Act.
107 A head of jurisdiction might take into account suitability, experience and capacity of individual magistrates to perform one role more than another. Provided these considerations do not stray into the kinds of considerations we have identified at [102] above, they are not only permissible but to be expected. Magistrates, like all other judicial officers, will have a variety of strengths, expertise, experience and suitability for how they perform and discharge their functions. An appropriate aspect of the role of a head of jurisdiction is to include such assessments in arrangements for the allocation of work. Again, it must be emphasised that there was no judicial review application before the primary judge about the exercise of these allocation powers by the President in respect of the appellant.
108 If as the primary judge held, and as we have agreed, the correct construction of these powers is that their exercise is not conditioned on the consent of the magistrate concerned, the appellant must demonstrate that these powers and functions are (Wainohu at [7] (French CJ and Kiefel J)):
incompatible with the court’s essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides.
109 Or, she must demonstrate that their exercise is an administrative function that “substantially impair[s] its essential and defining characteristics as a court”: see Wainohu at [7] (French CJ and Kiefel J).
110 In Wainohu, the identified impairment and incompatibility was the requirement that a judge need not give reasons for making a declaration that an organisation is a “declared organisation”, so that its members could be made subject to control orders issued as a subsequent exercise of judicial power. That was a case about the conferral of persona designata powers and functions on judges. There is no parallel here, where the issue concerns the performance of judicial functions. Further, what is in question here is the legitimate and necessary role of each head of jurisdiction, as head of jurisdiction, in the conduct of the administrative affairs of their Courts and the allocation of work amongst magistrates of those Courts.
111 It is accepted by the respondent that the powers and functions conferred by s 11 of the CCWA Act, and the constraint in s 25(6) of the MC Act, are administrative in nature, and in that sense the principles first outlined in Kable, and explained in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319; South Australia v Totani [2010] HCA 39; 242 CLR 1 and Wainohu, are theoretically applicable.
112 Beyond an assertion that these powers affected the judicial independence of magistrates, and impaired their exercise of judicial power, the appellant’s submissions did not explain how it was that the powers conferred on the President affected impermissibly the judicial powers exercised by a magistrate who might have been given a s 11 notice about the Court in which they were to sit. There was an assertion in the appellant’s reply submissions at [19] that the s 11 powers could make a
dually appointed magistrate … subject to extraneous and impermissible influences on the exercise of the decision-maker’s functions.
113 The appellant’s submissions orally did not expand upon what those influences might be although they did refer to a situation where “a Children’s Court magistrate can be moved on because they are not welcome, or there’s been a fuss” (TS 12). On a generous reading to the appellant, this is an example of a potentially improper (and therefore unlawful) exercise of power, but no more than that. The respondent’s oral submissions accepted that an extraneous (and thus unlawful) purpose might include where “a head of jurisdiction doesn’t like a member” (TS 35).
114 The appellant contends that decisional independence includes “freedom from improper directions from one judicial officer to another” relying on the following passage in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 at [29]. Gleeson CJ and Gummow J, with whom McHugh J (at [34]), Hayne J (at [108]) and Callinan J (at [142]) relevantly agreed, stated:
The flaw in the argument is that it assumes a relationship between a Chief Justice and a member of his or her court which is contrary to fundamental principles of judicial independence. It is frequently overlooked that the independence of the judiciary includes independence of judges from one another. The Chief Justice of a court has no capacity to direct, or even influence, judges of the court in the discharge of their adjudicative powers and responsibilities. The Chief Justice of the Family Court has, by virtue of s 21B of the Family Law Act, responsibility for ensuring the orderly and expeditious discharge of the business of the Court. That administrative responsibility does not extend to directing, or influencing, or seeking to direct or influence, judges as to how to decide cases that come before them. As a member of an appellate bench, the Chief Justice may be a party to decisions which are authoritative or influential in relation to the decision-making of single judges, but that is a different matter, and is of no present relevance.
(Emphasis added.)
115 There is no allegation in this proceeding that the President exercised his powers under s 11 of the CCWA Act as a means of directing or influencing the appellant about how to decide cases that came before her. Again, such a case could have been advanced on judicial review. It would have been an extremely serious allegation and would have required highly probative evidence.
116 Principally, the appellant’s submissions rested only on the incorrect construction of the legislative scheme about the need for a dually appointed magistrate to consent to any alteration in the performance of their functions as between, relevantly, the Magistrates Court and the Children’s Court. Again, consent was raised as a critical precondition, but just how the absence of consent necessarily impaired judicial independence was not developed.
117 The appellant has not made good her constitutional challenge and ground 3 must be rejected.
The resignation deeming provision
118 A challenge to the validity of this provision (Sch 1 cll 12(6) and 12(7) of the MC Act, read with ss 10(5)(a) and 10(5)(b) of the CCWA Act) is incorporated into the appellant’s case at trial and on appeal.
119 The nature of the challenge is the same as it is to the other provisions; namely that the resignation provision impermissibly interferes with judicial independence in the sense explained in Kable. The appellant contends (at [48] of her written submissions):
The provisions read together then have the effect that a dually appointed magistrate, in resigning one office by choice, is forced to resign an office which they never wished to resign.
120 At [40] of the primary judge’s reasons, his Honour observed:
The effect on the Applicant is that it has prevented her from evading the operation of s 11 (which only applies to dually appointed magistrates) by resigning as a magistrate from the Magistrates Court and thereby ceasing to be a dually appointed magistrate.
121 The appellant made a similar point in her written submissions at [46].
122 Even putting to one side the retrospective effect of Sch 1 cl 12(7) of the MC Act, it is correct that these provisions tie together what are otherwise two independently held, and independently conferred, judicial commissions. However, the appellant did not develop how this tying together impermissibly impaired the judicial independence of dually appointed magistrates.
123 In the absence of any constitutional challenge to the dual appointment regime itself, as it appears in the two legislative schemes, there is no independent and substantive constitutional argument for the Court to address concerning the resignation provisions.
Conclusion
124 The appeal must be dismissed. No submissions were made to suggest that anything other than the usual order as to costs on the appeal would be appropriate. Nevertheless, the parties should have a short period of time to consider the judgment and seek to agree on costs orders. In the absence of agreement, there will be orders for the filing of short submissions on costs.
Associate:
