FEDERAL COURT OF AUSTRALIA
North Australian Aboriginal Legal Aid Service Inc v Bradley  FCA 1728
COURTS AND JUDGES – judicial review – appointment of Chief Magistrate of Northern Territory – remuneration and allowances fixed by Special Determination for two years – no provision for further remuneration and allowances – whether appointment invalid as failing to secure judicial independence.
ADMINISTRATIVE LAW – judicial review – application by North Australian Aboriginal Legal Aid Service Inc for declaration that appointment of Chief Magistrate of Northern Territory invalid – standing of applicant – whether its interest in subject matter of litigation greater than that of general public – whether “special interest” – whether incorporated body takes interest of individual members – whether allegations of improper or extraneous purpose justiciable –whether such purpose must subsist at time of making of impugned decision.
STATUTES – legislation conferring unfettered power upon Administrator to fix remuneration and allowances for magistrates – whether section should be read down to ensure that remuneration and allowances cannot be reduced save in specified circumstances – whether Act manifests intention on part of legislature to secure judicial independence – Magistrates Act 1977 (NT).
CONSTITUTIONAL LAW – judicial power of the Commonwealth – whether Ch III of Constitution applicable to Territory courts – whether Territory courts exercise federal jurisdiction – whether implication in Ch III and/or in Constitution that Territory courts be free from executive or legislative interference – whether implication extends to tenure and remuneration of Territory magistrates – scope of s 122 of Constitution – application of principles in Kable v The Director of Public Prosecutions (NSW) to Territory courts.
Magistrates Act 1977 (NT) ss 4, 4(3), 6, 7, 7(1) and 10
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT)
Aboriginal and Torres Strait Islander Commission Act 1986 (Cth) ss 7(1) and 10(1)
The Constitution ss 51(xxxix), 71, 72, 72(iii), 73, 73(ii), 77(iii), 80, 106, 111, 122 and Ch III
Judiciary Act 1908 (Cth) ss 39(2), 68 and 68(2)
Northern Territory (Self Government) Act 1978 (NT)
Stipendiary Magistrates Act 1957 (WA) s 7
Magistrates Court Act 1987 (Tas) s 10
Association Incorporation Ordinance 1963 (NT)
Constitution Act 1902 (NSW) ss 53, 54 and 55
Constitution Act 1975 (Vic) ss 77 and 85
Northern Australian Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia (2000) 10 NTLR 103 at 117 and 119 considered
Boyce v Paddington Borough Council  1 Ch 109 at 114 referred to
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 530-531, 541, 547 and 548 applied
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36, 41-42 and 74 applied
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 applied
Bateman’s Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 267 applied
British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257 referred to
Croome v Tasmania (1997) 191 CLR 119 at 126-127 and 137-138referred to
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 referred to
Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 565applied
Allan v Transurban City Link Ltd  HCA 58 referred to
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 referred to
The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186-187, 193, 202-204, 215, 217 220-222, 233, 261 and 283 applied
South Australia v O’Shea (1987) 163 CLR 378 at 410-411 referred to
Barton v The Queen (1980) 147 CLR 75 referred to
Maxwell v The Queen (1996) 184 CLR 501 at 533-534 referred to
Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 479 referred to
Council of Civil Service Unions v Minister for the Civil Service  1 AC 374 at 398, 407, 411-412 and 418 referred to
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 referred to
Xenophon v South Australia (200) 78 SASR 251 at 253-254 and 263-265 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18, 33-34 and 35-36 considered
Jones v Dunkel (1959) 101 CLR 298 referred to
Municipal Council of Sydney v Campbell  AC 338 referred to
Thompson v Randwick Corporation (1950) 81 CLR 87 referred to
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 67-68, 75 and 83-84 referred to
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 77-78, 87, 98, 101, 102, 103, 106-107, 109, 111, 115, 116-117, 118, 134, 136, 137, 139, 141, 142 and 143 applied
Northern Territory v GPAO (1999) 196 CLR 553 at 576-577, 580-581, 590-591, 592-593, 597, 601, 603, 620 and 650-651 applied
Kruger v The Commonwealth (1997) 190 CLR 1 at 43, 56, 82, 107, 108-109, 141-143, 162-176 and 165-166 applied
The King v Bernasconi (1915) 19 CLR 629 at 635 and 637 considered
Spratt v Hermes (1965) 114 CLR 226 at 242-243, 255-256, 257, 264, 265, 266, 278 and 280-281 applied
Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599, 600-602, 603-604, 606, 613-614, 616 and 626-628 applied
Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 332, 336-341, 340, 348, 353 and 382applied
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 referred to
Grollo v Palmer (1995) 184 CLR 348 at 365, 376-377 and 392-394 referred to
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16 referred to
Attorney-General (Cth) v R (The Boilermakers’ Case) (1957) 95 CLR 529 at 540-541 referred to
Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 referred to
R v Sussex Justices; Ex parte McCarthy  1 KB 256 at 259 referred to
Mitchell v Barker (1918) 24 CLR 365 referred to
Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 527 referred to
Gould v Brown (1998) 193 CLR 346 at 402 and 485-486 referred to
Re Australasian Memory Pty Ltd and Corporations Law; Brien v Australasian Memory Pty Ltd (1997) 149 ALR 393 at 431 referred to
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 698 and 703 applied
Nicholas v The Queen (1998) 193 CLR 173 referred to
Lange v Australian Broadcasting Corp (1997) 189 CLR 520 referred to
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 150 DLR (4th) 577 considered
Ly v Jenkins  FCA 1640 considered
Le Mesurier v Connor (1929) 42 CLR 481 at 496 referred to
Peacock v Newtown Marrickville & General Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37 referred to
Russell v Russell (1976) 134 CLR 495 at 530 referred to
Adams v Chas S Watsons Pty Ltd (1938) 60 CLR 545 at 555 referred to
A Hamilton in The Federalist Nos 78 and 79 “The Judges as Guardians of the Constitution” and “The Position of the Judiciary” (A Hamilton, J Madison and J Jay The Federalist (1961, Harvard University Press pp 495 and 497))
Aronson and Dyer, Judicial Review of Administrative Action 2nd ed, 2000, LBC Information Services, Sydney at 246-251 and 513
E Campbell, “Termination of Appointments to Public Offices”(1996) 24 Federal Law Review 1 at 40
E Campbell, “Constitutional Protection of State Courts and Judges”,(1997) 23 Monash University Law Review 397 at 415
P Johnston and R Hardcastle,“State Courts: The Limits of Kable”, (1998) 20 Sydney Law Review 216 at 225 and 238
Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (1995)
Declaration of Principles of Judicial Independence issued by the Chief Justices of the Australian States and Territories (1997)
Chief Justice Malcolm, ‘Judicial Independence’ 15th International Conference of the International Society for the Reform of the Criminal Law at p 9
Sir Anthony Mason, ‘The Appointment and Removal of Judges’, in H Cunningham (ed) Judicial Independence in the Nineties and Beyond, 1997, Judicial Commission of New South Wales, Sydney
A Mason, “Judicial Independence and the Separation of Powers-Some Problems Old and New” (1990) 13 University of New South Wales Law Journal 173
R Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office, 1993, Clarendon Press, Oxford,at 3
M D Kirby, “Judicial Independence in Australia Reaches a Moment of Truth” (1990) 13 University of New South Wales Law Journal 187
R D Nicholson, “Judicial Independence and Accountability: Can They Co-Exist?” (1993) 67 Australian Law Journal 404
M D Kirby, “Attacks on Judges-A Universal Phenomenon” (1998) 72 Australian Law Journal 599
A M Gleeson, “Legal Oil and Political Vinegar”, (1999) 10 Public Law Review 108
NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY and NORTHERN TERRITORY OF AUSTRALIA
D17 of 2001
7 DECEMBER 2001
DARWIN (BY VIDEO LINK FROM MELBOURNE)
TABLE OF CONTENTS
The history of these proceedings 3
NAALAS’ allegations 11
Mr Bradley’s defence to NAALAS’ allegations 12
The Northern Territory’s defence to NAALAS’ allegations 14
The issues 16
does naalas have Standing to bring this proceeding?
NAALAS’ submission 17
The Northern Territory’s objections to NAALAS’ standing 24
The principles which govern standing 28
Conclusion regarding standing 51
is NAALAS’ ALLEGATION OF IMPROPER PURPOSE JUSTICIABLE? 65
NAALAS’ FACTUAL CLAIMS IN SUPPORT OF ITS ALLEGATIONS
OF IMPROPER PURPOSE 83
The paper trail
(a) The initial discussions regarding Mr Bradley’s appointment 86
(b) Concurrent proposals to allow for magistrates to be
appointed on contract 90
(c) Mr Flynn’s letter of 7 January 1998 99
(d) The Ministerial of 12 January 1998 101
(e) Preparation of a draft bill to amend the Magistrates Act 103
(f) Criticism of the proposed amendments 143
(g) Mr Flynn’s draft Ministerial of 10 February 1998 145
(h) Mr Flynn’s Ministerial of 12 February 1998 154
(i) Concurrent developments regarding the introduction
of fixed term appointments for magistrates 161
(j) Further criticisms of the proposal to introduce fixed
term appointments 165
(k) Mr Stone’s response to the criticisms 166
(l) Mr Bradley’s appointment by the Administrator 169
(m) The immediate aftermath 172
(n) Later developments 173
(a) Mr Flynn 176
(b) Mr Toohey 195
The respondents’ witnesses 207
Findings Regarding NAALAS’ Factual Allegations 254
NAALAS’ IMPROPER PURPOSE CASE 289
Findings regarding NAALAS’ improper purpose case 301
NAALAS’ ULTRA VIRES CLAIMS 327
The relevant legislative provisions 329
The respondents’ submissions 333
Findings regarding NAALAS’ ultra vires argument 338
NAALAS’ CONSTITUTIONAL ARGUMENT 342
NAALAS’ submissions 345
The respondents’ submissions 365
CONCLUSIONS REGARDING THE CONSTITUTIONAL ISSUE 375
IS KABLE APPLICABLE TO THE TENURE AND REMUNERATION
OF JUDICIAL OFFICERS? 417
IN THE FEDERAL COURT OF AUSTRALIA
D 17 OF 2001
NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC
HUGH BURTON BRADLEY
NORTHERN TERRITORY OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The parties file and serve written submissions as to costs on or before 31 January 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
D 17 OF 2001
NORTHERN TERRITORY OF AUSTRALIA
REASONS FOR JUDGMENT
1 The North Australian Aboriginal Legal Aid Service Inc (“NAALAS”) is an association incorporated under the Associations Incorporation Ordinance 1963 (NT) (“the Ordinance”). Its purposes are set out in its constitution. They include:
· establishing and running a legal aid office for Aborigines;
· bringing matters concerning Aborigines’ legal rights to the attention of the public and appropriate authorities;
· promoting knowledge and understanding in the police, judicial, corrective and other services of the special needs of Aborigines;
· promoting measures to improve relations between Aborigines and members of the police, judicial, corrective and other services;
· increasing knowledge among Aborigines of:
(i) their legal rights and obligations; and
(ii) the functions, duties and powers of police, judicial and corrective officers; and
· carrying out any other matters incidental to these purposes and doing all things lawful to achieve them.
2 Membership of NAALAS is confined to Aboriginal communities, organisations, and persons who satisfy the requirements as to race or residence specified in its constitution. NAALAS is wholly funded by the Aboriginal and Torres Strait Islander Commission (“ATSIC”). It employs a number of lawyers whose duties include representing those charged with offences before courts of summary jurisdiction constituted pursuant to the provisions of the Magistrates Act 1977 (NT)(“the Act”), and before juvenile courts. It represents approximately 2000 persons each year before those courts in the “Top End” of the Northern Territory. At any given time it handles between 200 and 400 cases.
The history of this proceeding
3 On 20 November 1997, Ian Gray, the then Chief Magistrate of the Northern Territory, tendered his resignation. The circumstances which led to his 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.
4 Mr Gray’s successor as Chief Magistrate was Hugh Bradley, the first respondent in this proceeding. He was appointed to that office on 27 February 1998. His appointment commenced on 9 March 1998.
5 On 20 April 2000, NAALAS commenced proceedings against Mr Bradley in the Supreme Court of the Northern Territory, by originating motion. Various orders for relief were sought, but as the result of interlocutory proceedings, a number of paragraphs of the originating motion were struck out. That left as the relief sought simply a declaration that the appointment of Mr Bradley to the office of Chief Magistrate of the Northern Territory, made by the Administrator on 27 February 1998, was invalid.
6 Following those interlocutory proceedings, an amended originating motion was filed. So too was an amended statement of claim which joined the second respondent, the Northern Territory of Australia, to the proceeding. Both Mr Bradley and the Northern Territory filed defences claiming that the amended statement of claim disclosed no arguable or justiciable cause of action.
7 On 2 June 2000, the Northern Territory filed a summons seeking summary judgment or, alternatively, that the amended statement of claim be struck out. That application, which was supported by Mr Bradley, came on for hearing before Olney J who, on 13 June 2000, ordered that there be summary judgment for both respondents.
8 NAALAS appealed against that judgment. On 16 November 2000, the Northern Territory Court of Appeal allowed the appeal: see Northern Australian Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia (2000) 10 NTLR 103.
9 On 4 May 2001 the High Court refused the respondents special leave to appeal against that decision. The Court indicated that it would be preferable to postpone consideration of the respondents’ arguments until after relevant findings of fact had been made at trial.
10 On 6 June 2001 Olney J, acting pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT), transferred the proceeding from the Supreme Court of the Northern Territory to the Federal Court.
11 On 3 July 2001 NAALAS filed a further amended statement of claim (the “statement of claim”) in which it alleged, inter alia, that:
· the Northern Territory and Mr Bradley had, on or before 27 February 1998, entered into an “agreement or arrangement” pursuant to which Mr Bradley would accept the office of Chief Magistrate limited for a period of two years upon certain terms and conditions.
· those terms and conditions included:
(i) payment of a salary of $193,602 per annum indexed during those two years to increase in line with any increase in the salaries of stipendiary magistrates during that period and;
(ii) other conditions “substantially in excess” of those recommended by the Remuneration Tribunal and determined by the Administrator in his Determination of Remuneration and Allowances for Magistrates dated 30 January 1998 (“the January Determination”).
· on 27 February 1998 the Administrator, acting upon the advice of the Executive Council, signed two documents:
(i) one headed “Appointment of Chief Magistrate” which, “under colour of reliance upon s 4(3) of the Magistrates Act”, purported to appoint Mr Bradley “to hold the office of Chief Magistrate on and from 9 March 1998”;
(ii) the second headed “Determination of Remuneration, Allowances and Terms and Conditions of Chief Magistrate” which revoked the January Determination insofar as it related to the Chief Magistrate and, “under colour of reliance upon s 6 of the Magistrates Act”, purported to determine Mr Bradley’s salary and other emoluments for a two year period on and from 9 March 1998 to and including 8 March 2000 (“the Special Determination”).
· the purported appointment of Mr Bradley was made for improper purposes, that is for purposes other than to secure the administration of justice in the Northern Territory. These improper purposes were set out in par  of the statement of claim and included:
(i) defeating the measure of judicial independence implicitly required by the Act;
(ii) giving effect to the agreement or arrangement outlined above;
(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.
· the purported exercise on 27 February 1998 by the Administrator in Council of the power to appoint Mr Bradley was ultra vires the Act. The particulars of this allegation were provided in par  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.
(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.
· If, contrary to its claims of improper purpose and ultra vires, as pleaded in pars  and  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 Ch III of the Commonwealth Constitution. Alternatively, ss 4 and 6 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.
Mr Bradley’s defence to NAALAS’ allegations
12 By his defence filed on 10 July 2001, Mr Bradley denied that:
· he had entered into an agreement or arrangement with the Northern Territory of the type alleged.
· he had agreed to accept the office of Chief Magistrate for a period of two years as alleged.
· his appointment by the Administrator in Council was ultra vires.
· the claim of constitutional invalidity had any substance.
13 Mr Bradley did not plead to the allegation of improper purpose as it was made clear by NAALAS that this allegation was directed only against the Northern Territory. Mr Bradley did not challenge NAALAS’ standing to bring and maintain this proceeding.
The Northern Territory’s defence to NAALAS’ allegations
14 By its defence filed on 9 July 2001, the Northern Territory deniedthat:
· NAALAS had standing to bring this action.
· the allegation of improper purpose was justiciable.
· the appointment of Mr Bradley was ultra vires.
· the claim of constitutional invalidity had any substance.
15 The Northern Territory pleaded that, if the allegation of improper purpose was justiciable, it was not made out upon the facts. It also pleaded that Mr Bradley’s appointment had been made in accordance with the requirements of ss 4 and 6 of the Act, and that upon gazettal, it was presumed to be valid.
16 In broad terms, the issues raised by the pleadings seem to me to be as follows:
· does NAALAS have standing to bring this proceeding?
· is the allegation of improper purpose justiciable?
· was there an “agreement or arrangement” of the type alleged? If so, did it have the purpose and effect that Mr Bradley could be subjected, during his tenure, to influence by the Northern Territory in the carrying out of his duties?
· was Mr Bradley’s appointment made for improper or extraneous purposes? In particular, was he appointed under the Special Determination in order to circumvent the statutory provision for tenure to the age of 65 years?
· was his appointment ultra vires, by reason of the terms of the Special Determination?
· assuming that ss 4 and 6 of the Act allowed for the possibility of the appointment in the circumstances alleged by NAALAS, are those provisions repugnant to Ch III of the Constitution?
does naalas have Standing to bring this proceeding?
17 NAALAS’ claim to standing rests upon its status as an association incorporated under the Ordinance. It relied, in support of that claim, upon an affidavit sworn by Michael Rowland Jones, its Principal Solicitor, Crime. He said that NAALAS was governed by a council of elected office bearers, and funded by ATSIC. Its funds were disbursed pursuant to ss 7(1) and 10(1) of the Aboriginal and Torres Strait Islander Commission Act 1986 (Cth).
18 Mr Jones said that NAALAS’ objectives were contained in its constitution. Those objectives are set out in par of this judgment.
19 According to Mr Jones, almost all NAALAS’ clients were in receipt of some form of social security. Many of them were homeless, financially destitute and very poorly educated.
20 Mr Jones described this proceeding as “a case of the highest public and legal importance”. He said that he had spent an enormous amount of time in its preparation. That had included substantial interstate travel which had prevented him from devoting time to his other responsibilities. NAALAS had already spent $111,363 preparing its case, well over the approved budget of $39,500. That expenditure had caused it real difficulties.
21 Mr Jones said that approximately 20% of the cases dealt with by his staff involved juvenile defendants. He said that Mr Bradley was one of three magistrates who heard matters involving juveniles in Darwin. Mr Bradley was also one of nine magistrates based in Darwin, and sat regularly hearing summary matters and committals.
22 According to Mr Jones, during the period 1 June 2001 to 1 August 2001, NAALAS represented 138 Aboriginal persons who had been arrested for various offences, and detained in custody. Throughout that same period it had also represented many more Aboriginal persons who had been released on bail, or summonsed to appear.
23 NAALAS relied upon Mr Jones’ affidavit to support its contention it had a “special interest”, beyond that of the ordinary public, in whether Mr Bradley had been validly appointed.
The Northern Territory’s objections to NAALAS’ standing
24 The Northern Territory submitted that none of the matters raised by Mr Jones’ affidavit suggested that NAALAS had an interest of the kind that would give it standing. It submitted that describing this case as being “of the highest public and legal importance” did not, of itself, confer a relevant interest. Nor did the fact that because of its involvement in this proceeding NAALAS had diverted a substantial amount of resources (and overspent its budget). If, as the Northern Territory contended, NAALAS was no more than a “busybody”, the facts attested to by Mr Jones simply made it “a big-spending busybody”.
25 The Northern Territory further submitted that the fact that NAALAS represented a large number of Aboriginal persons who regularly came before the courts of summary jurisdiction did not give it a “special interest” in whether Mr Bradley had been validly appointed. Its interest in that matter was no greater than that which any counsel appearing in a case before this Court would have in the validity of the appointment of the Judge presiding. Although any client that NAALAS represented might have a “special interest” in challenging the validity of the appointment of the magistrate presiding over his or her case, it did not follow that NAALAS itself had such an interest.
26 The Northern Territory also submitted that NAALAS could not be equated with a person whose liberty or property might be at risk, depending upon whether Mr Bradley was validly appointed. It might be that NAALAS was seeking to make an important point regarding the need for judicial independence. However, in doing so, it was still expressing no more than an “intellectual or emotional” concern, which was not sufficient to give it standing.
27 Finally, the Northern Territory challenged NAALAS’ reliance upon its so-called “statutory and public function” in support of its claim to standing. NALAAS had no statutory function. Its constitution did not prescribe, as one of its objectives, the supervision of the appointment of magistrates. Even if it did, that could not of itself confer standing upon it. A corporation could not achieve standing simply be adopting, in its instrument of incorporation, a particular object or purpose.
The principles which govern standing
28 In Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) LBC Information Services, Sydney, the learned authors comment, at 513:
“For a topic which has generated so much critical attention from the commentators and law reform agencies, it is remarkable how rarely it [standing] presents the courts with problems.”
29 A person has standing to sue (or locus standi) where the court recognises that person’s connection with the dispute before it, and regards that connection as sufficient to allow that person to institute and maintain the proceeding.
30 Issues of standing generally arise only within the realm of public law. The traditional test of standing in such cases was that formulated by Buckley J in Boyce v Paddington Borough Council  1 Ch 109 at 114 where his Lordship said that a person unable to invoke a private right or equity had to be able to show “special damage peculiar to himself from the interference with the [asserted] public right”.
31 The “special damage” test was abandoned in Australia in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 (“ACF”) because it implied that standing in public law cases was restricted to those who could demonstrate that they were at risk of pecuniary damage. The High Court laid down a new test for parties seeking declaratory or injunctive relief in public law cases. Such a party had to show a “special interest” in the subject matter of the action.
32 In a passage which has been repeatedly cited, Gibbs J said, at 530-531:
“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”
33 Stephen J, at 541, considered that the question of standing should be resolved:
“…by the direct route of search for enforceable rights conferred by statute, rather than … the circuitous course of seeking, in accordance with Boyce’s Case, for the existence of special damage.”
34 Mason J said, at 547:
“…apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property of proprietary rights, to his business or economic interest…and perhaps to his social or political interests.”
35 His Honour went on to say, at 548:
“…that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi…”
36 The High Court reaffirmed these principles in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. In that case, Gibbs CJ said, at 35-36:
“If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, [i.e. to restrain another private citizen from breaking the criminal law] it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc v. The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.” (footnotes omitted)
37 Stephen J said, at 41-42:
“…I should say that I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests.
… As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.”
38 Brennan J said, at 74:
“A litigant’s interest in obtaining the relief claimed is not by itself the interest which gives standing to sue; standing to sue is not established by suing. Where a plaintiff seeks to enforce compliance with a public duty, standing is to be found in some affection or threatened affection of the plaintiff’s interests by the defendant’s breach or apprehended breach of the duty. Conversely, a defendant is liable to be sued because by his breach of duty he had affected, or by his apprehended breach of duty he threatens to affect, the plaintiff’s interests.
A plaintiff must show that he had been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner.” (footnotes omitted)
39 In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 (“SDA”), a trade union, 1200 of whose members were employed as shop assistants in the Central Shopping District in Adelaide, was held to have standing to seek an injunction restraining the Minister from permitting the introduction of general Sunday trading during certain hours. The union’s members had a “special interest” in the trading hours of shops in which they were employed which was “different from and greater than that of other members of the public”. Significantly, the union was regarded as having the same “special interest” in the subject matter of the dispute as that of its members.
40 In Bateman’s Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, the plaintiffs operated a contributory funeral benefit fund and a contributory life insurance business catering for members of the New South Wales Aboriginal community. The defendants were Aboriginal land councils constituted under the Aboriginal Land Rights Act 1983 (NSW). That Act provided for the financing of activities of the defendants from public funds. They proposed to conduct a contributory funeral benefit fund catering for all Aboriginal persons. The plaintiffs brought proceedings claiming that the establishment and operation of the defendants’ proposed fund was unlawful on the ground that it was beyond their statutory powers. They sought injunctions restraining the defendants from carrying on the fund business. The defendants contended that the plaintiffs had no standing to maintain the proceedings.
41 The High Court held that the plaintiffs had a sufficient “special interest” to seek equitable relief. It found that it was highly probable that, if not restrained from commencing and conducting their fund activities, the defendants would cause severe detriment to the plaintiffs’ business.
42 Although standing was recognised on the basis of the existing “special interest” test, as formulated in ACF, Onus and SDA, Gaudron, Gummow and Kirby JJ indicated in a joint judgment that they were prepared to see that test widened, if necessary. They observed that it gave insufficient attention to the basis upon which equity intervenes in public law matters, particularly to restrain apprehended ultra vires activities of statutory authorities involving recourse to public monies. They also noted that the characteristics of the office of Attorney-General in this country differed from those of that office in England, in particular with respect to the grant of the fiat.
43 Their Honours observed, at 267:
“Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.”
44 Their Honours went on to say that it would be odd if the requirements for standing outside the constitutional sphere were more stringent than the requirements within it. They observed that prejudice to a sufficient material interest, such as that in the practice of a profession or occupation, was sufficient in constitutional cases: British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257; and Croome v Tasmania (1997) 191 CLR 119 at 126-127 and 137-138. The same requirements ought therefore to be sufficient in ordinary public law cases.
45 McHugh J observed that the present law relating to standing was “far from coherent”. He accorded particular significance to the Attorney-General’s right to speak on behalf of the public in protecting the public interest. Their Honours Gaudron, Gummow and Kirby JJ gave this consideration less weight. However, McHugh J considered that whatever deficiencies there were in the existing law, the Court should do no more than maintain current doctrine, leaving reform to the legislature.
46 Recently, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J commented extensively upon the special interest and role of the Attorney-General in relation to public wrongs. Her Honour observed that the general rule was that only the Attorney-General could institute proceedings with respect to a public wrong. However, that rule was subject to exceptions. These included the “special damage” requirement in Boyce, subsequently extended in ACF to the “special interest” test.
47 Gummow J observed that the term “standing” was little more than a metaphor. His Honour traced the origin of the term to the posture traditionally required of advocates. He commented, tellingly, that metaphors in the law were apt to obscure rather than illuminate. The question to be addressed was that of the competency of a party, other than the Attorney-General, to proceed without the fiat to seek enforcement of a statutory regime or an obligation of a public nature. Here, in his Honour’s view, lay the genesis of the modern concept of “standing”.
48 Gummow J emphasised that there was no general rule which prescribed the adequacy in any given case of the connection between the instituting party and the subject matter for determination in that case. In matters of public law, there was no single criterion as to the need for, or the content of, the standing requirement.
49 In Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 565, a specially constituted five member Full Court held that the respondent lacked standing. The Court summarised the current law:
“In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.”
50 In dismissing an appeal from that decision, the High Court observed that the issue raised in that case was one of statutory construction. There was little utility therefore in having regard to the general principles governing standing: Allan v Transurban City Link Ltd  HCA 58.
Conclusion regarding standing
51 The starting point in determining whether NAALAS has standing in this proceeding must be to consider its status, and the functions which it performs. As noted earlier, its purposes are set out in its constitution: see par  of these reasons for judgment.
52 It is important to note that although NAALAS is an incorporated association under the Ordinance, it is not to be regarded as though it were a private or public company. Its membership includes “Group Members” and “Individual Members” and is confined to Aboriginal communities, organisations and individuals born in, or who have lived in the area for which ATSIC funds the provision by NAALAS of legal services. It has no shareholders, and no directors in the ordinary sense of that term. Its income and property can only be applied towards its purposes, as set out in its constitution. It is governed by a thirteen member Council, including a President and members from specific regions within the Northern Territory.
53 NAALAS also has an Executive which comprises the President and four Council members. It must meet at least six times each year and has responsibility for NAALAS’ general governance. It is required to appoint a Director who must comply with Executive and Council directions concerning NAALAS’ policy. It may engage appropriately qualified solicitors to act on NAALAS’ behalf and on behalf of its clients.
54 As noted earlier, NAALAS is wholly funded by ATSIC. In other words, it receives public funds under a Commonwealth statute in order to enable it to carry out its functions.
55 Mr Jones’ affidavit establishes that NAALAS represents the interests of a substantial number of indigenous Australians in the Northern Territory. Many of its clients find themselves facing criminal charges which require them to appear before courts of summary jurisdiction. The evidence does not disclose the percentage of cases before those courts in which NAALAS is involved. However, it can be inferred from the large number of clients that NAALAS represents that it is a significant proportion.
56 NAALAS’ clients are among the most disadvantaged members of our community. The primary reason for it’s existence is to provide legal representation and advice to those clients. Courts of summary jurisdiction throughout Australia deal with a wide range of criminal matters, some quite minor and others of a serious nature. In the Northern Territory, the mandatory sentencing regime in place until the recent change of government meant that any appearance before a magistrate, even upon a seemingly minor charge, could be fraught with the risk of imprisonment. That fact highlights the importance of NAALAS’ role in protecting the rights of Aboriginal people, and in ensuring, so far as possible, their humane and decent treatment.
57 It is true that NAALAS’ constitution says nothing about it having a mandate to supervise the appointment of magistrates in the Northern Territory. It would be astonishing if it did.
58 It is also true that a corporation cannot confer standing upon itself merely by adopting a particular purpose or object in its constitution. NAALAS did not argue to the contrary.
59 I accept the submission of the Northern Territory that the fact that NAALAS has diverted a substantial amount of its scarce resources to the conduct of this proceeding does not, of itself, give it standing. If NAALAS is a “mere busybody”, the fact that it is prepared to spend large sums in this way does not give it a “special interest” in the subject matter of this litigation.
60 However, I do not accept the submission that NAALAS has no more than an “intellectual or emotional concern” in some abstract principle of judicial independence which is said to underlie this proceeding. The question whether Mr Bradley was validly appointed by the Administrator cannot be characterised in that way.
61 Mr Bradley sits regularly upon cases which involve Aboriginal persons, almost all of whom are NAALAS’ clients. He has been asked by at least one such person to disqualify himself on the grounds of bias because of the circumstances in which he was appointed. There is nothing abstract about that issue. If he was not validly appointed, he cannot validly exercise judicial power. His decisions, many of which affect the liberty of NAALAS’ clients, will be void, and of no effect.
62 In my view NAALAS’ interest in the validity of Mr Bradley’s appointment is relevantly a “special interest”. It has the same interest in that issue as would any of its clients appearing before Mr Bradley. In SDA it was held that a trade union had the same interest in the subject matter of the dispute as its individual members. That reasoning seems to me to be equally applicable to NAALAS in the present circumstances:see generally Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.
63 I should emphasise that I am not expressing any view as to whether a legal practitioner representing a client before Mr Bradley (as distinct from that individual client) would have standing to challenge the validity of his appointment. Such a practitioner cannot be equated with an incorporated body such as NAALAS, which has particular responsibilities towards Aboriginal persons and the Aboriginal community generally. NAALAS occupies a pivotal role in the administration of criminal justice in the Northern Territory. Had this proceeding been brought by one of its employee solicitors, in his or her capacity as legal representative for a client, there might have been some substance in the Northern Territory’s point. As matters stand, there is none.
64 The authorities make it plain that whether or not an applicant in a public law case has standing involves questions of degree. I am satisfied that, having regard to NAALAS’ status, and the functions it performs, it has a sufficient connection with the subject matter of this litigation to amount to a “special interest”. Accordingly, I find that NAALAS has standing to bring and maintain this proceeding.
is NAalas’ allegation of improper purpose justiciable?
65 Both Mr Bradley and the Northern Territory contended that NAALAS’ allegation that the appointment was made for improper or extraneous purposes was not justiciable.
66 Mr Bradley submitted that the appointment of a person as a judicial officer falls into that special category of decision that is not open to review by the courts “as to purpose”.
67 The Northern Territory submitted that this Court could not examine what lay behind the Administrator’s decision to exercise the power conferred by s 4(3) of the Act to appoint a Chief Magistrate. Nor could it determine that an appointment of a person, qualified for that appointment in accordance with the provisions of the Act, was vitiated by any improper purpose.
68 Both Mr Bradley and the Northern Territory acknowledged that, on the current state of the authorities, decisions of the Administrator, acting upon the advice of the Executive Council, were not immune from judicial review on the grounds of improper or extraneous purposes.
69 That proposition was established in The Queen v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170. Gibbs CJ said, at 193:
“In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize.”
70 Aickin J explained the concept of improper purpose in the following terms at 233:
“I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. … A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.”
See also Stephen J at 202-204 and 215.
71 Mr Bradley and the Northern Territory submitted that, notwithstanding the reasoning in Ex Parte Northern Land Council, there were various categories of administrative decision that were immune from judicial review. These included decisions relating to foreign affairs (including the making of treaties), decisions relating to national defence (such as the declaration of war), the exercise of the prerogative of mercy (South Australia v O’Shea (1987) 163 CLR 378 at 410-411), the grant of honours, the power to bring an ex officio indictment (Barton v The Queen (1980) 147 CLR 75), the power to enter a nolle prosequi (Maxwell v The Queen (1996) 184 CLR 501 at 533-534) and the power to appoint Queen’s Counsel (Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 479).
72 They referred to various authorities in support of their contention that NAALAS’ allegations of improper or extraneous purpose were not justiciable. They cited, in particular, Council of Civil Service Unions v Minister for the Civil Service  1 AC 374 at 398, 407, 411-412 and 418; Ex Parte Northern Land Council at 220-222, 261 and 283; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 and Xenophon v South Australia (2000) 78 SASR 251 at 253-254 and 263-265. They submitted that the reason why Mr Bradley’s appointment could not be challenged upon grounds of improper or extraneous purpose was at least in part because the Court was ill-suited to review or otherwise interfere with the process of judicial appointment. That was a matter of “high policy” entrusted to the executive and legislative branches of government. It was not appropriate to be dealt with by the judiciary.
73 Mr Bradley and the Northern Territory relied heavily upon Attorney-General (NSW) v Quin (1990) 170 CLR 1. That case concerned the abolition, in 1982, of the New South Wales Courts of Petty Sessions, which had been constituted by stipendiary magistrates. They were replaced by Local Courts constituted by magistrates appointed by the Governor. All but five of the one hundred former stipendiary magistrates who applied were appointed to the new courts in accordance with a policy under which they would be appointed unless they were considered unfit for judicial office. One stipendiary magistrate who was overlooked obtained a declaration from the Supreme Court of New South Wales that the Attorney-General’s decision not to recommend his appointment was void on the ground that he had not been afforded an opportunity to respond to certain allegations about his suitability. The Attorney-General then indicated that he would treat an application by the former stipendiary magistrate in the same way as that of any other applicant, namely on merit, save that the allegations the subject of the earlier case would not be taken into account unless he was given an opportunity to meet them. Mr Quin commenced another action in which he contended that he was entitled to have his application reconsidered by the Attorney-General without reference to other applications made in the meantime.
74 The High Court held, by majority, that the Attorney-General was not obliged to apply the policy pertaining at the time of the appointments of former stipendiary magistrates.
75 Mason CJ concluded that it was for the Attorney-General and Cabinet to decide what procedures, if any, should be followed and what criteria, if any, should be applied in selecting and recommending magistrates for appointment. His Honour said, at 18:
“Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers…under the constitutional arrangements which prevail in New South Wales and the doctrine of separation of powers, to the extent to which it applies in that State, the function of making appointments to the Judiciary lies within the exclusive province of the Executive. According to tradition, it is not a function over which the courts exercise supervisory control.”
76 Brennan J said, at 33-34:
“It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorized by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution…it is the criteria which appeal to the Executive Government, not the criteria which appeal to the courts, which necessarily prevail in the selection of judicial officers.”
77 Dawson J regarded the Mr Quin’s claim as intruding upon the policy which was otherwise left entirely to those entrusted under the legislation with the responsibility of determining who was to be appointed a magistrate.
78 Both Deane and Toohey JJ dissented. Deane J relied heavily upon the basic tenet of the administration of justice, that there must be a strong and independent judiciary as the primary custodian of individual rights and liberty under the law. Toohey J accepted that in ordinary circumstances the courts have no role to play when it is suggested that a person appointed to judicial office was not appointed on merit or even that the person was wholly unsuitable for judicial appointment. However, Mr Quin’s situation was out of the ordinary because he had a “legitimate expectation” that his application to be appointed a magistrate under the new Act would be treated in the same way as those of other stipendiary magistrates.
79 In Northern Australian Aboriginal Legal Aid Service Inc v Bradley and Northern Territory of Australia (supra), the respondents relied upon Quin in support of their contention that NAALAS’ allegation of improper purpose was not justiciable. Priestly J, Doyle and Brooking AJJ said at 117:
“As regards justiciability, we regard it as fairly arguable that the Court may investigate the question whether the appointment of the first defendant was made for the purposes alleged, if those purposes are to be given the wide meaning which the pleaders' words on a fair reading may be said to convey. If those purposes were to be established, the case might be said to be a very different one from Quin (supra), which concerned what Brennan J at 34 described as the calibre of appointments to the judiciary and the choice of criteria in the selection of judicial officers. The statements by Brennan J, relied on by the defendants in this Court in support of the non-justiciablity point, were not directed to a case of the kind that is alleged here. Moreover, Mason CJ, at 18, did not express himself in absolute terms (‘generally speaking, the judicial branch of government should be extremely reluctant to intervene’). Dawson J said nothing on that point. Toohey J at 64 spoke of the appointment of judicial officers for reasons other than merit. We do not think Quin (supra) may be said clearly to be a binding authority to the effect that matters relating to judicial appointments are never justiciable.”
80 It was submitted on behalf of Mr Bradley and the Northern Territory that these observations were directed only to the issue of whether it was “fairly arguable” that the Court could investigate whether Mr Bradley’s appointment was made for the purposes alleged, and not whether the argument that the Court could not do so was correct. It was submitted that the Court of Appeal had failed to take account of a number of authorities which had been cited to it in support of the contention that the allegation of improper purpose was not justiciable. It was also submitted, specifically on behalf of Mr Bradley, that the Court had taken an unduly restrictive view of the observations of Mason CJ and Brennan J in Quin.
81 In my view, NAALAS’ allegations of improper or extraneous purpose are extremely serious. They would, if proved, tend to bring the administration of justice in the Northern Territory into disrepute. It would be surprising, given this consideration, if the Supreme Court of the Northern Territory could not examine those allegations. Quin is distinguishable from the present case precisely for the reasons given by the Court of Appeal. Moreover, I am not persuaded that that Court misunderstood the scope of the reasoning of Mason CJ and Brennan J in that case.
82 Ex Parte Northern Land Council established that the exercise of a statutory power by the executive government for an improper or extraneous purpose may be the subject of judicial review, and the establishment of such a purpose can vitiate the exercise of the power. I regard that case as being at least highly persuasive authority in support of NAALAS’ contention. In my opinion, NAALAS’ claim that Mr Bradley’s appointment was invalid by reason of its having been made for an improper or extraneous purpose is justiciable.
NAALAS’ factual claims in support of its allegations of improper purpose
83 NAALAS alleged that there was an agreement or arrangement of the type pleaded in its statement of claim between the Mr Bradley and the Northern Territory. It also contended that Mr Bradley’s appointment was invalid because the Northern Territory was actuated by one or more of the improper or extraneous purposes alleged.
84 NAALAS’ case in support of these allegations was largely circumstantial. It relied heavily upon inferences to be drawn from a series of documents concerning Mr Bradley’s appointment which were brought into existence between December 1997 and February 1998. Most of these documents were produced by the Northern Territory as part of its discovery in this proceeding.
85 NAALAS called only two witnesses in support of its allegations of improper or extraneous purpose. These were John Flynn and Martin Toohey. Mr Flynn was the Chief Executive Officer of the Office of Courts Administration throughout the period leading up to 3 March 1998. He played a significant role in the negotiations with Mr Bradley concerning his appointment. Mr Toohey was Mr Flynn’s successor, and replaced him on 3 March 1998. I will return to a discussion of the witnesses’ evidence
The paper trail
(a) The initial discussions regarding Mr Bradley’s appointment
86 After Mr Gray’s resignation, Shane Stone, who was at that time the Chief Minister and Attorney-General of the Northern Territory, spoke to Mr Bradley and offered him the position of Chief Magistrate. Mr Bradley was at that time the managing partner of a local firm of solicitors.
87 On 9 December 1997 Mr Bradley wrote to Mr Stone accepting that offer in the following terms:
“I confirm that I have pleasure in accepting your offer to take up the position of Chief Magistrate of the Northern Territory commencing Monday 8 March 1998.”
I also confirm that my brief is to achieve greater efficiencies in and quality of the services provided by the Magistrate to the people of the Northern Territory. I look forward to working with you and your Government to achieve this end.
I will discuss the terms of my contract with Mr Flynn, who will no doubt seek your advice as necessary.” (emphasis added)
88 On 11 December 1997 Mr Bradley wrote to Mr Flynn confirming that he had formally accepted Mr Stone’s offer. He said:
“I understand that the terms of my contract are to be sorted out between myself and yourself. I thought therefore I should set out my understanding of the position and those matters which I might ask to be considered but only on the basis that the cost to the Territory is no greater than that which was proposed by you in the summary outlined by yourself last week.
I therefore comment as follows:
1. That I am to commence employment as Chief Magistrate commencing on 8 March 1998 for an anticipated term of approximately 2 years. I understand that that term may be extended by mutual consent. While it has not been discussed I consider the Territory would want a minimum of three months notice from me and I suggest that may be mutually an appropriate notice period for both parties ……” (emphasis added)
89 On 15 December 1997 Mr Stone wrote to Mr Bradley acknowledging receipt of his letter to Mr Stone of 9 December. He informed Mr Bradley that he was going on leave that day, and that he had instructed the appropriate officers to “progress the matter” in his absence.
(b) Concurrent proposals to allow for magistrates to be appointed on contract
90 It may be coincidental, but at about the time that Mr Bradley was being offered the position of Chief Magistrate, consideration was being given, within the Attorney-General’s Department, to the possibility of appointing magistrates upon contract. Barbara Bradshaw, a Policy Officer within the Department, was asked by David Anderson, the Director, Policy to consider possible amendments to the Act to enable such appointments to be made. She was also asked to advise whether any other jurisdictions appointed magistrates in that way, and whether the government could dispense with the Remuneration Tribunal, with salaries and conditions to be “determined by the Minister”. She recorded in a file note that the amendments to the Act could be passed as a matter of “urgency”, in the next sittings of the Legislative Assembly.
91 Ms Bradshaw researched these issues and prepared a summary of the legislation in each State that provided for the appointment and removal of magistrates, and how they were remunerated.
92 Several days later, a draft Cabinet Submission was prepared. Its purpose was to consider firstly whether the Northern Territory should introduce legislation to enable magistrates to be appointed “under contract”, and secondly whether the Chief Magistrate should be given the power to direct other magistrates in relation to matters other than the performance of their judicial functions. It was recommended that Cabinet authorise the preparation of legislation to bring about these objectives. It was suggested that enabling magistrates to be appointed “under contract” would increase flexibility and better deal with workloads. It was proposed that the necessary legislation be introduced in the February 1998 sittings of the Assembly.
93 On 12 December 1997 Mr Anderson sent Mr Stone a document described as a “Ministerial”. In it he noted that Mr Stone had “requested preparation of a draft Cabinet Submission to consider amendments to the Magistrates Act”to enable magistrates to be “appointed by contract with the Attorney-General” (emphasis added). He recommended that Mr Stone approve the preparation and circulation of an attached Cabinet Submission. Mr Stone approved that recommendation.
94 On the same day, Ms Bradshaw wrote to Tom Hurley, Parliamentary Counsel, regarding the proposed Amendment Bill. She said (inter alia):
“The purpose of the amendments is to enable Magistrates (which would include the Chief Magistrate … and Stipendiary Magistrates) to be appointed by under [sic] a contract with the Attorney-General. This contract would provide for remuneration and other terms and conditions and be for a fixed period …
Accordingly could you prepare a Magistrates Amendment Bill as follows:
1. Short title Magistrates Amendment Bill.
2. Commencement. It is possible that the Attorney-General may be looking to appoint someone under these new provisions in early March 1998 …
3. Amend section 4 to provide that the Minister may enter into a contract with a person which has the effect of appointing them as a Chief Stipendiary Magistrate … or Stipendiary Magistrate … It is envisages [sic] that the contract would cover such matters as the term of office, remuneration, allowances and other terms and conditions.” (emphasis added).
95 Ms Bradshaw referred to the Local Courts Act 1982 (NSW) which allowed for “temporary appointments” as magistrates as a possible model for the proposed amendments.
96 On 15 December 1997 Gail Jamieson, of the Office of Parliamentary Counsel, prepared a file note recording a conversation with Ms Bradshaw as follows:
“Barbara advised that the proposed amendments in relation to fixed term appointments for Magistrates is to be enacted alongside the existing arrangements, ie Administrator will appoint Magistrates who are to have indefinite terms and the Attorney-General will appoint Magistrates who are to have fixed terms.”
97 On 18 December 1997 Mr Anderson wrote a note across a copy of the draft Cabinet Submission relating to the proposed bill. The note was addressed to Elizabeth Kelly, Senior Policy lawyer in the Attorney-General’s Department and was in the following terms:
“We need the contracts issue resolved in time for Hugh Bradley’s appointment (he wants one).
MPL [Margaret Lyons, the Secretary of the Attorney-General’s Department] wants the Cabinet Submission expanded to:
Consider the effect of contracts on judicial independence.
…” (emphasis added)
98 Mr Anderson’s note linked Mr Bradley’s appointment to the more general proposal under consideration to introduce legislation to allow for magistrates to be appointed on contract.
(c) Mr Flynn’s letter of 7 January 1998
99 On 7 January 1998 Mr Flynn wrote to Mr Bradley in the following terms:
“… I have not as yet had your contract terms and conditions approved by the Attorney-General but will be submitting them to him in January on his return from holidays.
Following your letter and our discussions I now set out below the terms and conditions that I will be recommending to the Attorney.
1. The contract salary will be $193,602 paid fortnightly in arrears less PAYE tax. If, during the contract period, magistrates salary rises then your salary will increase at the same percentage and from the same date as does the magistrates.
2. The contract be for a period of 2 years and 6 weeks commencing on 9 March 1998 and terminating on 19 April 2000. Either party being able to give 3 months notice to terminate. …
3. During the contract period you may take a total of 12 weeks leave …and in the event that the contract be terminated at some earlier period then any pro rata leave accrued not taken by you shall be paid to you at the contract salary level.
As soon as the Attorney-General has approved or made any alteration to the proposed conditions I will arrange an appropriate contract. The contract will not be able to be entered into until such time as the Magistrates Act is amended to provide for appointments on a contract basis.” (emphasis added)
100 For whatever reason, Mr Bradley did not receive this letter. It was not until early February 1998 that Mr Flynn provided him with a copy.
(d) The Ministerial of 12 January 1998
101 On 12 January 1998 Mr Flynn prepared a Ministerial for Mr Stone regarding Mr Bradley’s appointment. The Ministerial was in the following terms:
To obtain your approval for the terms and conditions to apply to Mr Hugh Bradley’s appointment as Chief Magistrate.
Mr Hugh Bradley has formally accepted the offer to take up the position of Chief Magistrate in the Northern Territory. The Magistrates Act is to be amended to allow for the appointment of Magistrates for a fixed term on specified terms and conditions. Although the amending legislation has yet to be passed, it is considered appropriate for Mr Bradley’s terms and conditions to be determined as soon as possible.
Attached is a copy of a letter to Mr Bradley, which is largely self-explanatory (Attachment A).
[Attachment A was a version of Mr Flynn’s letter of 7 January 1998 which differed from that which had been sent to Mr Bradley in that it omitted the word “contract” and spoke instead of “the appointment”]
The main component of the proposed package is salary, and this is based on the following:
$156,674 Present salary of Chief Magistrate
Plus $27,261 An addition of 17.4% of salary in lieu of any government contribution towards superannuation. All magistrates are entitled to join the Northern Territory Government and Public Authorities Superannuation Scheme [NTGPASS] and the minimum government exposure to a member is 17.4%. This figure has been provided by the Superannuation Office.
Plus $15,667 An additional 10% loading to compensate for a short contract with no provision for long service leave.
Minus $6,000 Salary sacrifice to compensate for the difference in cost between a Camry and Calais motor vehicle.
Total $193,602 …”
102 The Ministerial was received by Mr Stone’s office on 14 January 1998. He approved it the next day.
(e) Preparation of a draft bill to amend the Magistrates Act
103 On 13 January 1998 Ms Jamieson prepared a draft Bill giving effect to Ms Bradshaw’s request of 12 December 1997 that provision be made for the appointment of magistrates by the Attorney-General. The draft Bill proposed that s 7 of the Act be amended by omitting sub-section (1), and replacing it with the following provision:
“(1) Subject to this Act –
(a) a Magistrate appointed under section 4(3) by the Administrator holds office until he or she attains the age of 65 years; and
(b) a Magistrate appointed under section 4(3) by the Attorney-General holds office for the period (not exceeding 5 years) specified in the instrument of appointment.”
104 On 14 January 1998 Mr Anderson prepared a Ministerial for Mr Stone. It recorded that Mr Stone had requested preparation of a draft Cabinet Submission to consider amendments to the Act to enable magistrates to be appointed “by contract” with the Attorney-General. It also recorded that on 15 December 1997 Mr Stone had approved an earlier draft Cabinet Submission for circulation. That earlier draft had been circulated to Treasury, the Office of Courts Administration, the Office of the Commissioner for Public Employment and the Chief Minister’s Department. Mr Anderson said:
“The Chief Minister’s Department expressed concerns about possible controversy over the impact of the proposed changes on the independence of the judiciary, particularly as they follow the controversies over mandatory sentencing, procedures for allocating legal work to local practitioners and criticism of Government policy by Magistrates. Appointment of Magistrates by the Administrator for a fixed term, possibly under contract to the Northern Territory, was considered a preferable option.
A further draft Cabinet Submission is attached. The first draft has been amended to consider concerns about the independence of the judiciary. The notion of ‘contract appointment’ has been replaced with a ‘fixed term’ appointment on terms and conditions as determined by the Administrator from time to time. Those terms and conditions can either be specified in the instrument of appointment or set by the Remuneration Tribunal.
In the case of Mr Bradley’s appointment as Chief Magistrate, terms and conditions have already been negotiated with him and will be incorporated in his instrument of appointment.
This revised proposal achieves the same objective as a ‘contract appointment’ but does not offend the principles of judicial independence to the same extent. As a consequence, the notion of contracting with the Attorney-General has also been removed.
The Cabinet Submission recommends drafting of legislation for introduction and passage at the February 1998 sittings, and was developed in consultation with the Office of Courts Administration.” (emphasis added)
105 Mr Anderson’s Ministerial was approved by Mr Stone. Next to the paragraph in which it was noted that concerns had been expressed about possible controversy over the impact of the proposed changes on the independence of the judiciary, Mr Stone wrote the word “really”.
106 The attached draft Cabinet Submission was headed “Amendment of the Magistrates Act.” Its stated purposes were, inter alia, to consider whether the Northern Territory should introduce legislation to enable magistrates to be appointed by the Administrator for a “fixed term”, upon specified conditions.
107 Paragraph 4 of the draft Cabinet Submission noted that there was no provision in the Act to appoint either a Magistrate or a Chief Magistrate for a fixed term upon specified terms and conditions. It also noted that provision was made for fixed term appointments of magistrates in New South Wales.
108 Paragraphs 9 and 10 of the draft Cabinet Submission noted that any alteration to the method of judicial appointment might impact upon the independence of the judiciary, particularly in relation to security of tenure. Those paragraphs read:
“9. …In 1997, the Chief Justices of Australia issued a Declaration of Principles on Judicial Independence which sought to deal with the importance of the principle that judges should not be dependent upon the executive government for the continuance of the right to exercise judicial office. The statement noted that judicial appointments should be until the statutory age of retirement, the appointment of an acting judge to avoid meeting a need for a permanent appointment is objectionable in principle and the holder of a judicial office should not, during the term of that office, be dependent upon the Executive Government for the continuance of the right to exercise that judicial office or any particular jurisdiction or power associated with that office.
10. The appointment of a Magistrate for a fixed term is clearly inconsistent with the Chief Justice's [sic] Declaration. However, fixed term appointments have been made in New South Wales without apparent controversy. Concerns about security of tenure and dependence on the Executive are met by ensuring that remuneration of 'fixed term' Magistrates is according to the same system as other Magistrates ie. set by the Remuneration Tribunal, and that 'fixed term' Magistrates can only be removed under the procedures established for other Magistrates. Where appropriate, it would also be prudent to make the appointment for a substantial term and specify that it is not renewable.” (emphasis added)
109 Paragraph 14 of the draft Cabinet Submission noted that the decision to legislate might arouse public comment, particularly from the legal profession, if it were perceived to involve a breach of the principles of judicial independence.
110 It should be noted that the draft Cabinet Submission emphasised that legislation would be needed to bring about the proposed changes. It foreshadowed that the amendments would be introduced and passed in the February 1998 sittings of the Assembly.
111 On 16 January 1998 Jim Dorling, the Acting Secretary of the Department of the Chief Minister and a former Parliamentary Counsel, sent a fax to Mr Anderson containing a file note of a meeting which he had apparently had with Mr Stone the preceding day. The file note attributed the following views to Mr Stone:
“A desire that all appointments be for a period of 10 years, whether or not that took them past the age of 65;
A wish to be able to appoint Magistrates older than 65 for short periods and/or to do particular jobs;
A willingness to have appointments made by the Administrator to avoid emphasising the Attorney-General’s role;
112 The file note continued:
“He had been under the impression that the Government was bound by the decision of the Remuneration Appeals Tribunal and that arrangements for remuneration of particular incumbents could not be topped up. I disavowed him of this pointing out that they are at the discretion of the Administrator and they are not required to be publicly disclosed (sections 6 and 17). It has become practice that the Magistrates are remunerated at the Remuneration Tribunal's recommended rate but there is nothing to stop the Administrator’s determination for a particular magistrate topping up. … He seemed to be quite happy that HB only wanted the shorter term and would leave at that time anyway, and therefore even the tenure to 65 years might be acceptable, especially if the special top up terms and conditions were limited to the shorter term.” (emphasis added)
113 Mr Dorling’s file note once again linked the proposals to amend the Act to allow for magistrates to be appointed for fixed terms with Mr Bradley’s own particular situation.
114 On 19 January 1998 Mr Dorling met with Ms Kelly. Her file note of the meeting records a discussion regarding appointments as magistrates which would involve leaving the power to appoint for life, but adding a “fixed term”, as in New South Wales. She referred to a possible two year appointment. She also referred to “topping up” the salaries paid to magistrates in order to attract suitable applicants, and to the “need for flexibility”. She noted specifically in relation to Mr Bradley’s appointment that it was to be for a term of 2 years and 6 weeks.
115 On 22 January 1998, Mr Anderson provided Mr Stone with a Ministerial entitled “Information on Amendments to the Magistrates Act”. Under the heading “Background”, Mr Anderson said:
“You have previously approved a Cabinet Submission seeking amendments to the Magistrates Act to allow fixed term appointments on specified terms and conditions and to allow the Chief Magistrate to direct other Magistrates in respect of matters other than those relating to the performance of their judicial functions.
These amendments will be introduced on urgency in the February Sittings to facilitate the appointment of Hugh Bradley as Chief Magistrate.
I understand that you raised the following further matters with Mr Dorling in relation to the proposed amendments:
10 Year Appointments
The amendments presently proposed enable appointments to be made for 10 years. However, they also give the flexibility to make appointments for greater or less than that period. If the amendments are limited to 10 year appointments, this flexibility will be lost. The same result may be achieved by adopting a policy of making all future appointments under the amendments for 10 year terms…”
116 The Ministerial recommended that Mr Stone note that no changes to the proposed amendments were required in order to provide for 10 year appointments.
117 Mr Stone was obviously unimpressed with Mr Anderson’s Ministerial. He annotated it in his own handwriting with comments such as "your information is wrong”, “says who?”, “bull”, and “who requested this Ministerial to be raised?”.
118 The Northern Territory discovered an undated document headed “10 Year Fixed Terms for Magistrates”. The provenance of the document was unknown. It observed that fixing a 10 year term for all new magistrates, renewable after the expiration of that term, would offend the requirements of judicial independence. It said that fixing a term that was not renewable would not be objectionable on that basis, but may have other drawbacks. It observed that Mr Bradley wanted to serve for only two years, and canvassed the possibility that he might receive a package that was different to that provided for in the last Remuneration Tribunal ruling. It went on to say:
“Although the Act presently requires Magistrates to be appointed until age 65, there is no legal impediment to appointing the new Chief Magistrate on terms different to that set out in the Tribunal ruling. The terms could be specified in the instrument of appointment which is not a public document and which need not be tabled in the Legislative Assembly.
In short, except in relation to the period of appointment, there is no need to amend the Magistrates Court (sic) Act to appoint the new Chief Magistrate on different terms and conditions to other Magistrates.”
119 The undated document also expressed concerns about adverse comments which might follow the introduction of fixed term appointments for magistrates.
120 It is clear from the document that when it was prepared, it was still considered necessary for the Act to be amended if Mr Bradley were to be appointed for the two year term which it was thought he wanted.
121 On 22 January 1998, the Department of the Chief Minister commented on the proposed amendments to the Act. It noted that the Cabinet Submission raised issues which were fundamental to the principles of judicial independence and therefore needed to be approached “with considerable circumspection”.
122 Also on 22 January 1998, Mr Anderson sent Mr Stone a Ministerial noting that on 16 January, he had approved the draft Cabinet Submission for circulation and comment. The Ministerial informed Mr Stone that comments had now been received. Mr Anderson recommended that he sign the attached Cabinet Submission and approve waiver of “the five-day rule”. Mr Stone approved the recommendation and recorded in his own handwriting “Follow my instructions and amend the Cabinet Submission pronto”.
123 It is clear that as at 22 January 1998 it was contemplated that the Actwould be amended by repealing s 7(1). A Magistrates Amendment Bill Second Reading Speech, and Committee Notes, were attached to the Ministerial.
124 Once again, on 22 January 1998, Ms Kelly prepared a memorandum concerning the proposed amendment bill. She sent a copy of that memorandum to Ms Jamieson. In it, she reported that “contract appointments” by the Attorney-General would no longer be pursued. Instead, Cabinet would be asked to approve legislation to provide for the appointment of magistrates on fixed terms by the Administrator. A copy of the New South Wales provision allowing for such appointments was appended.
125 On 27 January 1998, Mr Stone wrote to the Chief Justice of the Northern Territory informing him, no doubt as a matter of courtesy, of the government’s proposals to amend the Act. His letter commenced as follows:
“I am currently reviewing the Magistrate’s Act [sic] with a view to amendments in the February sittings, which will commence on Tuesday, 17 February.
It is proposed to amend the legislation to provide for fixed term appointments (10 years) of all new magistrates and to facilitate the appointment of the new Chief Magistrate, Mr Hugh Bradley.
126 Once again, as with much of the documentation generated throughout January 1998, fixed term appointments for magistrates, and Mr Bradley’s appointment as Chief Magistrate, were linked.
127 On 30 January 1998, the Administrator, acting upon the advice of the Executive Council, revoked an earlier Remuneration Determination dated 31 October 1996 and, pursuant to s 6 of the Act, promulgated the January Determination, setting the salary payable to the Chief Magistrate at $156, 674 per annum and other magistrates at $143, 832 per annum.
128 On the same day, Ms Kelly sent a memorandum to Ms Jamieson regarding the amendment bill. She commented:
“Because of the need to have certain appointments made quickly, the bill must commence asap.” (emphasis added)
129 On 2 February 1998, the Chief Justice replied to the letter sent to him by Mr Stone. He wrote:
“I understand it is proposed that Mr Bradley be appointed as Chief Magistrate for a fixed term of two years with a view to his bringing his wide legal and managerial experience to bear upon the lower courts. That issue can be isolated from the others. On the assumption that my understanding is correct and that there will be no provision for renewal of his engagement, I have no concerns but have referred the matter to the other Judges for their views.
The proposals to appoint all new Magistrates for fixed terms of ten years and to vest some of them with the powers of the Master of this Court both require very careful consideration. It would assist us if you were to provide details of what it is that motivates each proposal and what is sought to be achieved. As you know, the Judges do not normally involve themselves in matters of government policy, but if it appears possible that the principles of judicial independence (which apply to Magistrates as well as Judges), or the exercise of any part of the jurisdiction of this Court may be affected, then you will appreciate that we must take an active interest. For example, is it proposed that a fixed term may be extended? Upon what basis may such an appointment be terminated? …
I understand from your letter that the question of the Master’s jurisdiction may be conveniently deferred. However, the fixed term appointment of Magistrates is also significant, and I request that it not progress further for the time being. Perhaps you would be good enough to let me have a copy of the proposed Bill.” (emphasis added)
130 Mr Stone did not provide the Chief Justice with a copy of the proposed bill, as requested. Nor did he reply to the Chief Justice’s letter for several weeks.
131 On 4 February 1998, Ms Kelly emailed Ms Jamieson requesting that the existing draft of the amendment bill be amended. The requirement was that all new appointments of magistrates were to be for fixed terms of 10 years. The amendments were described as “urgent”.
132 On the same day, Ms Kelly had a discussion with Graham Nicholson, Crown Counsel. Her shorthand notes of that discussion are difficult to decipher. They seem to me to record, albeit cryptically, concern about the proposed amendments to the Act, including the possibility that fixed term appointments might be subject to judicial review upon grounds of improper purpose or irrelevant considerations. Ms Kelly noted that the “present situation” raised “no constitutional problem”. She referred to the High Court having, in the late 1980’s or early 1990’s, decided two cases, one or both of which had involved New South Wales magistrates. She canvassed the possibility of legislating to ensure that, were any such challenge to be brought, it would not be justiciable. She referred specifically to Ch III of the Constitution. Somewhat presciently, having regard to subsequent events, she raised the question whether the Northern Territory courts were Ch III courts.
133 On the morning of 5 February 1998 Ms Jamieson e-mailed Ms Kelly on the subject of the Magistrates Amendment Bill. She said:
“I have had a thought. In relation to a Chief Magistrate or Stipendiary Magistrate appointed for a fixed term, is he or she to be eligible for reappointment? If so, I think we need to include words to that effect in section 7.”
134 Later that same morning Ms Kelly sent an e-mail in reply telling Ms Jamieson that it was intended that the “Magistrate etc” be eligible for reappointment and asking whether it was necessary to set that out expressly in the Bill. Ms Kelly also asked whether, if the power to reappoint were set out, it would be necessary to consider judicial review in the event of failure to reappoint.
135 Still later that day, Ms Jamieson e-mailed Ms Kelly telling her that it was unnecessary to “state that they are eligible for re-appointment”, and apologising “for throwing an imaginary spanner in the works”. Ms Jamieson recorded a file note of a conversation with Ms Kelly on the e-mail, commenting:
“We agreed that an express provision allowing re-appointment may only serve to draw attention to the issue.” (emphasis added).
136 On the same day a memorandum was sent by Justice Angel of the Supreme Court of the Northern Territory to the other members of the Court. It was headed “Magistrates’ Terms of Appointment” and was in the following terms:
“I refer to the Chief Justice's memorandum of 2 February and Kearney J's memorandum of 3 February and the proposed meeting on 6 February to discuss this matter.
As to the future appointment of Magistrates for a fixed term of 10 years the proposal is objectionable if there is to be a right of reappointment thereafter. Even without a right of reappointment the proposal is still objectionable because there will be pressure for change to subsequently introduce a right of reappointment both from the Executive, if it approves the incumbent, and experience shows that there will be a loss of accumulated wisdom if the incumbent is not reappointed and also pressure from the incumbent if he or she likes the job. So either with or without a right of reappointment a fixed term of appointment is objectionable. A further objection is that since the proposal applies to future appointments the lower court will consist of magistrates with various terms of appointment which is of itself objectionable.
So far as the situation regarding Mr Bradley is concerned the situation is unknown. The Chief Minister in his letter of 27 January speaks of amendments to the Magistrates’ Act “to facilitate the appointment of the new Chief Magistrate, Mr Hugh Bradley”. If his appointment is open ended and upon an understanding he will resign at the expiry of 2 years, it is difficult to understand why any amendment is necessary. I understand from both Riley QC and Mildren J that that is the situation rather than for a fixed 2 year terms. We will not know until we see the Bill. A fixed 2 year term with or without a right of reappointment is objectionable for the reasons given above. If his appointment is to be open ended (whilst proposing to resign after 2 years) it is not objectionable provided there is no tailored or special remuneration or superannuation package accompanying the appointment. The latter would be objectionable. Implicit in the arrangements concerning Mr Bradley is the fact that he had a “job” to do. The Chief Justice in his letter to the Chief Minister of 2 February refers to Mr Bradley’s “wide legal and managerial experience”. The proper functions of a Chief Magistrate should never be confused with that of a management consultant or bureaucrat. It would be interesting to know Mr Bradley’s proposed terms of hire compared with the terms of Ian Gray CSM, his predecessor.
I agree with Kearney J that a detailed explanation, before implementation, is essential. I agree with him that the Bradley appointment can not be isolated from the proposal for future appointment of Magistrates for fixed terms of 10 years. I agree that the proposals, such as they have been disclosed thus far, strike at judicial independence.
When more is known I consider the Court, through the Chief Justice, ought to make a public statement on the issue as the Bar and Law Society both appear to be presently ineffectual.”
137 Also on 5 February 1998, Ms Lyons sent Mr Stone a Ministerial regarding the draft Cabinet Submission dealing with the amendment bill. She described the background to the bill in the following terms:
“By Decision No. 10130 Cabinet approved the preparation of amendments to the Magistrates Act to enable:
· the appointment of Magistrates by the Administrator for a fixed term upon specified terms and conditions; and
· the Chief Magistrate to give directions to Magistrates and Justices in relation to matters other than their performance of judicial functions.
The Bill is to be introduced on urgency and passed in the February 1998 Sittings of the Legislative Assembly. The appointment of the new Chief Magistrate cannot be made until the amendments commence...” (emphasis added)
138 On 7 February 1998, Mr Stone approved Ms Lyons’ Ministerial. Attached to that Ministerial were a draft Cabinet Submission and a draft bill repealing s 7(1) of the Act, and substituting the following:
“(1) Subject to this Act, a Magistrate appointed under section 4(3) holds office for the period of 10 years commencing on the date of his or her appointment.”
139 A draft Second Reading Speech and Explanatory Memorandum were also attached.
140 It seems, therefore, that in about the first week of February 1998, the original proposal to enable magistrates to be appointed for unspecified fixed terms was refined into a proposal that they be appointed for a period of 10 years.
141 Ms Lyons’ Ministerial expressly stated that Mr Bradley could not be appointed as Chief Magistrate until after the amendments came into effect. That would suggest that she contemplated, at that stage, that Mr Bradley would be appointed for a period of 10 years, rather than until he reached the age of 65.
142 It should perhaps be noted at this stage that Mr Stone said in evidence that he did not read Ms Lyons’ Ministerial in that way. He said that he regarded the reference to the new Chief Magistrate’s appointment not being able to be made until “the amendments commenced” as referring to the power which was to be vested in the Chief Magistrate to give directions, and not to the fixed term appointments which the Act would introduce.
(f) Criticism of the proposed amendments
143 On 6 February 1998 the President of the Law Society of the Northern Territory, Steve Southwood, wrote to Mr Stone saying that he had been informed that the Government may be proposing to introduce a Bill enabling magistrates to be appointed for a period of 10 years, and asking for confirmation of that fact. Mr Southwood indicated that he had misgivings about the appointment of magistrates for limited periods.
144 On 9 February 1998 Justice Kearney of the Supreme Court of the Northern Territory wrote to Mr Stone in the following terms:
“As the Chief Justice mentioned in his letter of 2 February, dealing with proposed amendments to the Magistrates Act, he referred the subject of fixed-term appointments of Magistrates to the Judges, for their views. We have now had an opportunity to consider the issues, in the unavoidable absence of the Chief Justice; the following are our views.
We consider that appointment of future Magistrates for fixed terms is inconsistent with the principles of judicial independence, as presently understood and observed in Australia. Consequently, in our view, with respect, any proposal for term appointments of Magistrates should not proceed further. This would encompass any proposal, on any terms, for a 2-year appointment of the Chief Magistrate; however, we understand that in fact no such appointment is contemplated.
In our consideration of the issues, we concerned ourselves only with the basic question of judicial independence and not, for example, with any questions of policy such as might arise from the espousal by Australia of the Beijing principles of judicial independence of 1995, in relation to the Lawasia region. We bore in mind, however, the Declaration of principles on judicial independence issued by the Chief Justices of the States and Territories on 14 April 1997, conveniently set out at (1996‑97) 15 Aust. Bar Review 175 (copy annexed), particularly principle (1).”
(g) Mr Flynn’s draft Ministerial of 10 February 1998
145 On 10 February 1998 Mr Flynn prepared a draft Ministerial addressed to Mr Stone. Attached to it were an Executive Council Submission, Departmental No 8226, an Explanatory Memorandum and a draft “Determination of Salary, Allowances and Benefits of Chief Magistrate”.
146 The draft Ministerial recommended that Mr Bradley be appointed by the Administrator as Chief Magistrate. It read:
“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. The attached submission is based on the expectation that the Magistrates Act will be amended and law by the time the submission is presented to the Executive Council.
You approved remuneration and a set of conditions for Mr Bradley on 15 January 1998 (see Attachment). 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 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
or alternatively he would then receive the remuneration and allowances as applicable to the Chief Magistrate under the normal determination.
Documents for the Executive Council Submission have been settled by Parliamentary Counsel. It is recommended that you approve and sign the submission and return it for lodging with Executive Council Secretariat.”
147 The Executive Council Submission, draft Departmental No 8226 was in the following terms:
“Act Magistrates Act
Section Sections 4(1), 4(3) and 6
Subject Appointment of Chief Magistrate
Proposed that the Administrator appoint Hugh Burton Bradley as Chief Magistrate
for a period of two years with effect on and from 9 March 1998 to and including 8 March 2000, and determine his salary, allowances and benefits.”
148 The Explanatory Memorandum included the following observations:
“The salary, allowances and benefits applicable to Mr Bradley’s appointment as Chief Magistrate are set out in the attached determination. Mr Bradley has indicated that he would only wish to be appointed for a period of two years. His salary has therefore been adjusted as he will obtain no superannuation benefit …
It is recommended that the Administrator appoint Mr Hugh Burton Bradley as Chief Magistrate for a period of two years with effect on and from 9 March 1998 and determine his salary, allowances and benefits of office.” (emphasis added)
149 The draft “Determination of Salary, Allowances and Benefits of Chief Magistrate”, read as follows:
“I, NEIL RAYMOND CONN, the Administrator of the Northern Territory of Australia, acting with the advice of the Executive Council, in pursuance of section 6 of the Magistrates Act, determine the salary, allowances and benefits of employment of and applicable to Hugh Barton Bradley, Chief Magistrate of the Northern Territory (“Chief Magistrate”), being for a period of two years commencing on and from 9 March 1998 to and including 8 March 2000, to be as follows:
1. The remuneration payable to the Chief Magistrate will be $193,602 per annum payable fortnightly in arrears. The Chief Magistrate’s remuneration shall increase at the same percentage rate that magistrates’ salaries increase and from the same date.
150 It should be noted that this third attachment was in effect a draft of what subsequently came to be known as the Special Determination.
151 It is important to note that the draft Ministerial of 10 February 1998 was not signed. It appears not to have been forwarded to Mr Stone’s office. The lines that were struck through, as set out above, indicate that someone had second thoughts about what would happen if Mr Bradley were not to resign at the expiration of the two year period stipulated. Moreover, it was no longer considered appropriate, by that stage, that his appointment be limited to a period of two years. It follows that there must have been a critical reappraisal of these matters sometime after 10 February 1998.
152 Mr Stone denied ever having seen the draft Ministerial, or the draft Determination. I accept his evidence in that regard. These documents were obviously not in a form suitable to be presented to him.
153 What is interesting about the draft Ministerial is that it emphasised that the attached Executive Council Submission, Departmental No 8226, was based upon the expectation that the Act would be amended and law by the time that the Submission was presented to the Executive Council. In other words, Mr Bradley’s appointment was seen, at this time, as being wholly contingent upon the Act being amended.
(h) Mr Flynn’s Ministerial of 12 February 1998
154 On 12 February 1998 Mr Flynn prepared another version of the draft Ministerial. That version differed significantly from the draft of 10 February. It omitted the reference to the expectation that the Act would be amended, and law by the time the Submission was presented to the Executive Council. It also altered what had been said earlier about what would happen were Mr Bradley not to resign after the expiration of the two year period for which the determination would apply. The words which had previously been struck out in the earlier draft did not appear in the final version of that Ministerial.
155 Mr Flynn also added that he had informed Mr Nicholson of the proposals regarding Mr Bradley’s appointment and that he had no difficulty with any aspect of them.
156 On 17 February 1998, Mr Flynn’s Ministerial of 12 February was received by Mr Stone’s office. Mr Stone approved it the next day.
157 Attached to the Ministerial were the same three documents previously attached, though significantly altered.
158 The Executive Council Submission, Departmental No 8226, proposed that the Administrator appoint Mr Bradley as Chief Magistrate with effect on and from 9 March 1998, and determine his remuneration, allowances, terms and conditions. Unlike the earlier draft of that document, there was no mention of the appointment being for a period of two years.
159 The attached Explanatory Memorandum also differed from the earlier draft by omitting the recommendation that Mr Bradley be appointed for a period of two years. This version, which Mr Stone approved, merely recommended that the Administrator appoint Mr Bradley as Chief Magistrate “with effect on and from 9 March 1998”.
160 Lastly, the draft Determination purported to revoke the January Determination in so far as it related to the Chief Magistrate, but not otherwise. The draft Determination also provided, pursuant to s 6 of the Act, that for the period on and from 9 March 1998 to and including 8 March 2000, the salary payable to the Chief Magistrate would be $193,602 per annum.
(i) Concurrent developments regarding the introduction of fixed term appointments for magistrates
161 While Mr Flynn was engaged in the task of preparing the Ministerial of 12 February 1998, Ms Lyons was involved in the preparation of a Ministerial regarding the introduction of fixed term appointments of magistrates. On 10 February 1998, she sent that Ministerial to Mr Stone. He approved the proposed amendments to the Act which included the introduction of a 10 year period for all new appointments.
162 It is by no means clear whether Mr Flynn was aware that Ms Lyons was engaged in preparing that Ministerial. It is equally unclear whether Ms Lyons was aware of what Mr Flynn was doing in arranging for Mr Bradley’s appointment, or of the significant changes which had occurred between his draft Ministerial of 10 February 1998 and the final version of 12 February.
163 To add to what was plainly a confusing state of affairs, on 6 February 1998 Mr Bradley responded to Mr Flynn’s letter of 7 January 1998 which Mr Bradley had only just received. 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.”
164 It should be noted that Mr Stone denied ever having seen this letter. However, for some unexplained reason, an unsigned copy of the letter was discovered by the Northern Territory. How an unsigned copy of a letter written by Mr Bradley, and apparently sent from his home address, happened to find its way into the Northern Territory’s possession remains a mystery.
(j) Further criticisms of the proposal to introduce fixed term appointments
165 On 11 February 1998 the Chairman of the Judicial Conference of Australia, Justice Lockhart, wrote to Mr Stone expressing concern about the Northern Territory Government’s proposal to amend the Act to provide for fixed term 10 year appointments of all new magistrates. He observed that fixed term appointments, whether contemplated to include prospects of reappointment or not, struck at judicial independence and urged Mr Stone not to proceed with the proposal.
(k) Mr Stone’s response to the criticisms
166 On 24 February 1998 Ms Lyons prepared a draft letter for Mr Stone to sign in response to Mr Southwood’s letter. Mr Stone wrote that he had noted Mr Southwood’s concerns regarding the proposal to introduce fixed term appointments for magistrates. It had been decided, however, that the proposed amendments would be deferred.
167 A similar response was provided to Justice Kearney’s letter.
168 With regard to the letter from the Chief Justice of 2 February 1998, Ms Lyons noted that he had indicated that he had “no concerns with a fixed term appointment for Mr Bradley as Chief Magistrate for a period of two years with no option for renewal” (emphasis added). According to Mr Stone, he had never contemplated an appointment of that type for Bradley. However, he said nothing to disabuse the Chief Justice of his belief that Mr Bradley was to be appointed for a fixed term of two years. Instead he simply indicated that the proposal to introduce fixed term appointments for magistrates would be deferred.
(l) Mr Bradley’s appointment by the Administrator
169 On 25 February 1998 Mr Stone wrote to the Administrator recommending that he appoint Mr Bradley as Chief Magistrate with effect on and from 9 March 1998 and also that he determine his remuneration, allowances, terms and conditions. Attached to his letter was Departmental No 8226 which contained a proposal in precisely those terms. Also attached was the Explanatory Memorandum.
170 The Administrator executed an Instrument of Appointment on 27 February 1998. It was in the following terms:
“”I, NEIL RAYMOND CONN, the Administrator of the Northern Territory of Australia, acting with the advice of the Executive Council, in pursuance of section 4(3) of the Magistrates Act, appoint Hugh Burton Bradley, a person who is eligible to be appointed, to hold the office of Chief Magistrate on and from 9 March 1998.”
171 On the same day the Administrator promulgated the Special Determination. It revoked the January Determination and fixed a salary of $193,602 per annum for the Chief Magistrate for the period 9 March 1998 to and including 8 March 2000.
(m) The immediate aftermath
172 On 3 March 1998 Mr Toohey, who by then had replaced Mr Flynn as Chief Executive Officer of the Office of Courts Administration, wrote to Mr Bradley. It was common ground that Mr Flynn had drafted that letter. In it Mr Toohey referred to Mr Flynn’s letter of 7 January 1998 setting out Mr Bradley’s proposed terms and conditions. He attached a copy of the Special Determination and added that the shorter period of two years specified “did not detract from” the terms set out in 7 January letter. He said that the taking of leave was an administrative matter, subject only to his approval. He went on to say that Mr Bradley could take up to twelve weeks leave in advance during his “first two years of service”. The respondents placed considerable reliance upon that expression in this proceeding.
(n) Later developments
173 On 30 November 1999, the Administrator revoked the Special Determination, and made a fresh Determination fixing the salary payable to the Chief Magistrate at $206,186 per annum payable fortnightly in arrears until and including 8 March 2000.
174 On 16 February 2000, Mr Bradley wrote to the Remuneration Tribunal regarding his remuneration and allowances. He said:
“My conditions of service have to date been the subject of a special determination on the basis of an understanding reached between Mr Flynn (then Chief Executive Officer of Office of Courts Administration) and the Public Service Commissioner.
I acknowledge that my recollection of my terms and conditions of appointment at the commencement of my appointment are not entirely in accord with the documentation.
The increments arranged by Mr Flynn clearly reflect an allowance for a short term appointment. …
I do not ask for the continuation of the allowances for short term appointment, however I do ask that an appropriate amount continue to be made in respect of the cost which Government would otherwise undertake to cover me under its own superannuation scheme.
In summary my request is that you sympathetically consider the very reasonable requests made on behalf of my brother Magistrates and that there be some more appropriate and equitable recognition of the role and responsibilities of Chief Magistrate. On the latter aspect I ask that you consider:-
· An appropriate salary margin
· Continuation of the conversion of superannuation benefits at the rate previously agreed to by the Public Service Commissioner
· Deleting any allowance presently being made for a short term appointment
175 On 27 March 2000, Mr Bradley wrote to the Secretary of the Northern Territory Law Society. He said that he noted with concern the President’s comments regarding the conditions of his appointment. He expressed disagreement with the President’s view that a judicial officer should not negotiate his terms and conditions of service, but should simply accept such standard terms and conditions as were offered. He also said that the terms of his appointment had been set out in the Special Determination which he had, at all times, believed were publicly available. He had subsequently discovered that this was not correct. He was therefore attaching copies of his Instrument of Appointment and of that Determination. He asked that it be noted that his appointment was a permanent one and that the terms were set in accordance with the Act. He wrote, in relation to the Determination:
“[t]he terms were for 2 years (it was and remained the case that after the completion of 2 years I would revert to standard conditions).”
(a) Mr Flynn
176 Mr Flynn said that he reported directly to Mr Stone.
177 His recollection was that sometime in December 1997, he had a conversation with Mr Stone to the following effect:
“Mr Stone said: I have to appoint a Chief Magistrate. I have got in mind Hugh Bradley and David Farquar. What do you think. My preference is for Hugh Bradley.
I said: I don’t know if he would be interested. I know he intends to retire.
Mr Stone said: It might not be enough money for him.
I said: I think he gets about $200, 000.00 now in his practice.
Mr Stone said: Is that all? I used to make about $350, 000.00.”
178 Mr Flynn said that several days later he saw Mr Bradley socially, and asked him if Mr Stone had contacted him. Mr Bradley said that he had not, and Mr Flynn said nothing further. Approximately one week later, Mr Flynn saw Mr Bradley again. Mr Bradley told him that Mr Stone had offered him the position of Chief Magistrate. Mr Flynn asked if he had accepted the offer and Mr Bradley replied that he had told Mr Stone that he was interested, but could only guarantee him two years.
179 Subsequently, Mr Flynn had:
“an official conversation with probably one of Mr Stone, Margaret Lyons, the secretary of the Attorney-General’s Department or Mr David Anderson, the Deputy Secretary.”
180 The conversation went along the following lines:
“He/She said: Hugh Bradley is to be the next Chief Magistrate. He has agreed to take the job. He is going to be appointed on a 2 year contract. You discuss it with him and work out the details.
I said: Good. I will do that.”
181 Mr Flynn said that prior to the conversation, he was aware from speaking with Mr Stone that he favoured the introduction of fixed term appointments for magistrates.
182 Within a few days, Mr Flynn received Mr Bradley’s letter of 11 December 1997. In that letter, he spoke of being appointed on a “contract” for two years. Mr Flynn said that he then began the process of formulating a contract for Mr Stone’s approval:
“within the constraints of OCA’s budget and the common standards prevailing in the NT Public Service for appointments at executive level on a contract basis.”
183 As part of that process, he spoke with Mr Bradley and others.
184 Mr Flynn said that Mr Stone was absent from Darwin on leave between mid December 1997 and mid January 1998. Ms Lyons was also away at that time, and Mr Anderson was acting head of the Department. He said that because Mr Stone was away, he wrote, in his letter of 7 January, that the terms and conditions proposed were subject to Mr Stone’s approval.
185 Mr Flynn said, in his evidence in-chief:
“…[W]hoever told me to draw up the conditions must have said to me …prepare a contract or the conditions of the contract for 2 years. I can’t remember who that person was. But I certainly wouldn’t have done it off my own back.”
186 Mr Flynn was shown a number of documents relating to Mr Bradley’s appointment. Some of these documents were signed by him while others had been prepared by officials within the Attorney-General’s Department. Some time after 7 January, he had a conversation with one or other of Mr Anderson or Ms Kelly. The substance of that conversation was that Mr Bradley “was no longer to be appointed on a contract and was to be appointed normally”. Mr Flynn said that what he was told interested him as the arrangements that he had made with Mr Bradley, which had by then been approved by Mr Stone, were different from the terms and conditions of a normal appointment. Mr Flynn said that a conversation to the following effect took place:
“I said: What happens to the special terms and conditions?
He/She said: He can have that for the first 2 years.”
187 At a later stage, Mr Flynn saw a draft of the proposed Special Determination. The draft was silent as to what would happen after the expiry of the two year period. Mr Flynn said that he expressly raised that matter for consideration. He was reasonably sure that either Mr Hurley or Ms Kelly told him that “[i]t automatically goes back to the ordinary conditions for a Chief Magistrate”.
188 Mr Flynn was shown a copy of Mr Bradley’s letter of 6 February 1998. He said that he could not recall having seen it until about the end of July 2001, when he was shown a copy by Mr Bradley’s legal representatives.
189 Mr Flynn was asked in cross-examination by Mr Reeves QC, who appeared for Mr Bradley, about the conversation that he had had with “one of” Mr Stone, Ms Lyons or Mr Anderson. He said that that conversation must have occurred before 11 December 1997, otherwise Mr Bradley’s letter would have come as a complete surprise to him.
190 He agreed that he had a vague recollection of having been told by Mr Bradley that he had not received Mr Flynn’s letter of 7 January, and of having provided Mr Bradley with a copy in the first week of February.
191 Mr Flynn was asked about the conversation which he had had with either Mr Anderson or Ms Kelly. He agreed that that conversation must have occurred sometime in February because he would not have given Mr Bradley a copy of the letter of 7 January, containing references to an appointment for a period of two years and six weeks, commencing on 9 March 1998 and terminating on 19 April 2000, once the instructions regarding Mr Bradley’s appointment had been changed.
192 Mr Flynn said that after he spoke with either Mr Anderson or Ms Kelly he understood that Mr Bradley’s term was “going to be consistent with the Magistrates Act, appointment until 65”.
193 Mr Flynn was then asked about the handover of his position to Mr Toohey. It was put to him that Mr Toohey would say that during that period, Mr Flynn had described Mr Bradley’s appointment as “unusual” because the tenure was limited to two years. Mr Flynn said that he could not remember having said anything to that effect. It was further put to Mr Flynn that Mr Toohey would say that after having read the letter of 3 March 1998, Mr Toohey had said “[T]his is most unusual. You don’t appoint Magistrates for two years, they must be appointed for life.” Mr Flynn said that he had no recollection of anything like that being said. He said that had Mr Toohey made a comment to that effect, he would have replied that Mr Bradley’s appointment was not for two years, but was a normal appointment, with special conditions for the first two years.
194 Mr Myers QC, who appeared for the Northern Territory, suggested to Mr Flynn that his recollection of having been told by either Mr Stone, Ms Lyons or Mr Anderson, that Mr Bradley was to be appointed on a two year contract, may have been mistaken. It was put to him that he may simply have been told that Mr Bradley had said that he could only guarantee Mr Stone two years. However, Mr Flynn was adamant that he would not have written the letter of 7 January had he not been told that Mr Bradley was to be appointed on a two year contract.
(b) Mr Toohey
195 Mr Toohey said that he was the Chief Executive Officer of the Office of Courts Administration from 3 March 1998 to 26 August 1999.
196 He said that Mr Flynn had provided him with a detailed induction throughout his first week in office. On his first day, he was shown Mr Bradley’s letter of 11 December 1997, and Mr Flynn’s reply of 7 January. Mr Flynn told him:
“The Chief Magistrate has resigned so we have to get a new one. Hugh Bradley has been selected to take over. It is an unusual appointment because the tenure is limited to 2 years. You have to sign this letter finalising it.” (emphasis added)
197 The “letter finalising it” was the letter of offer dated 3 March 1998. Mr Toohey signed that letter. He said that he particularly noted the limited tenure of Mr Bradley’s appointment as set out in Mr Flynn’s letter of 7 January. He said that he remarked to Mr Flynn:
“This is most unusual. You don’t appoint Magistrates for 2 years. They must be appointed for life.”
198 Mr Flynn replied:
“No, this is a special one. It has all been considered and approved by the Attorney-General. It is all in order and there is extra salary to compensate him for the short term. It has all been checked out.”
199 Mr Toohey said that after his conversation with Mr Flynn, he went through the relevant file and satisfied himself that Mr Bradley’s appointment had been “checked out”, as Mr Flynn had said. The documents on the file were consistent with the matter having been fully reviewed by someone in authority.
200 Mr Toohey said that in mid 1999, he was engaged in medium term financial planning when the question of the identification and selection of a new Chief Magistrate arose. It was his understanding that Mr Bradley’s term of office was to expire in eight or nine months and he was anxious to begin the replacement process as soon as possible. He said that at one of his regular fortnightly meetings with Mr Bradley, the following conversation took place:
“Toohey: When are you leaving, we need to start looking for a replacement.
Bradley: I don’t know what you are talking about. I am not going. I am here to the statutory retiring age of 65.
Toohey: But you were only appointed for 2 years.
Bradley: That has been overtaken by events. It was always intended that I stay until 65.”
201 Within a few weeks of that conversation, Mr Toohey spoke to Ms Lyons. He told her of what Mr Bradley had said and she remarked:
“No, that’s not right. I’ll have to speak to the Attorney-General because it was always understood to be a 2 year term.”
202 Mr Toohey was cross-examined at some length by Mr Reeves. He agreed that the induction provided by Mr Flynn had extended over a period of five days and that he had received a comprehensive briefing. He said that he could not recall having been shown the instrument of Mr Bradley’s appointment at the time he signed the letter of 3 March 1998.
203 Mr Toohey’s attention was drawn to the Special Determination which had been attached to that letter. He was reminded that it operated for a period of 2 years only, from 9 March 1998 to 8 March 2000.
204 He said that he had read the Act prior to taking up his position. He was aware that s 7(1) required that magistrates be appointed until they reached the age of 65. His attention was drawn to the expression in the letter “during your first two years of service…” (emphasis added). He denied having understood that expression to mean that Mr Bradley’s appointment was to be for more than two years. He insisted that Mr Flynn had made it quite clear to him that Mr Bradley’s appointment was for a period of two years only.
205 Mr Toohey agreed with Mr Myers that he had signed the letter drafted by Mr Flynn on his first day on the job. That suggestion carried the implication was that he had little understanding of the background to Mr Bradley’s appointment at the time that the letter was sent.
206 Mr Myers challenged the accuracy of Mr Toohey’s recollection of his conversations with Mr Flynn and Ms Lyons. However, Mr Toohey insisted that he remembered clearly having been told by both of them that Mr Bradley’s appointment was for two years.
The respondents’ witnesses
207 Mr Reeves elected not to call any evidence. Mr Myers decided to call only Mr Stone.
208 Mr Stone said that when he received Mr Gray’s letter of resignation, he immediately began thinking about a replacement. He considered that the new Chief Magistrate should be someone who could provide managerial experience and leadership, qualities which he believed had previously been lacking.
209 Mr Stone said that he had telephoned Mr Bradley in early December 1997 and asked him to come and see him. During the course of their meeting, he offered Mr Bradley the position. Mr Bradley said that he had been intending to retire and that he and his wife had planned for some time to go overseas. However, he thought that he could defer those plans. He said to Mr Stone words to the effect, “I can only give you two years.” Mr Stone replied that this was acceptable. He just wanted Mr Bradley to get started.
210 Mr Stone said that he had had a second meeting with Mr Bradley shortly before he went on leave on 15 December 1997. His evidence did not make clear precisely when that second meeting took place. It is almost certain, however, that it was after 11 December when Mr Bradley wrote to Mr Flynn confirming that he had accepted the position on a two year contract basis.
211 Mr Stone said that Mr Bradley told him during the course of the second meeting that he would accept the position. Mr Bradley also said that he had spoken to Trevor Riley QC (subsequently Justice Riley of the Supreme Court of the Northern Territory) and to others, about the appointment. 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 was perfectly acceptable.
212 A short time after Mr Bradley told him at this second meeting that he would accept the position, Mr Stone spoke to Mr Flynn. According to Mr Stone, he told Mr Flynn that Mr Bradley could “only give us two years in the job”. He asked Mr Flynn to make the necessary arrangements for Mr Bradley’s appointment which Mr Bradley had made clear he could not take up until March 1998.
213 Mr Stone stressed that he had never given instructions to Mr Flynn, or to anyone else, that Mr Bradley was to be appointed on a two year contract, or for a fixed term of two years, or indeed on any basis other than in accordance with the terms of the Act.
214 Mr Stone said that he was away from Darwin until mid January 1998. He was not involved in working out the details of Mr Bradley’s appointment, including matters such as his salary. He said that he had never discussed with Mr Bradley what might happen, so far as Mr Bradley’s remuneration was concerned, after the period of two years had expired. He acknowledged that he was aware of the Special Determination. However, he had no difficulty with Mr Bradley receiving the additional salary because he was sacrificing a great deal by leaving private practice. In addition, he was told by a departmental officer that paying Mr Bradley an additional salary component would not cost the government any more than paying him the salary and other benefits, including superannuation, fixed by the Remuneration Tribunal.
215 Mr Stone agreed that he had written to the Chief Justice informing him that a review of the Act was being undertaken, and also that Mr Bradley was to be appointed as the new Chief Magistrate. He said although he had used the words “and to facilitate the appointment of the new Chief Magistrate…” in his letter, he had not intended to convey that the introduction of the 10 year fixed term appointments for magistrates which was foreshadowed was in any way linked to Mr Bradley’s appointment.
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.
219 Mr Stone’s evidence was subjected to a searching cross-examination by Mr Walker SC, who appeared for NAALAS.
220 He was asked why he had recommended to the Administrator that the Special Determination be limited to two years. He replied that he had acted upon the advice of Mr Nicholson, and that of others. He said that he had at all times “followed process”.
221 Mr Stone’s attention was drawn to Mr Flynn’s Ministerial of 12 February which said that the Special Determination would apply for two years and contained the following comment:
“If Mr Bradley were not to resign after that period, his remuneration and allowances should be renegotiated.”
222 He said that he understood that comment, and the Ministerial, to reflect the fact that, on 15 January, he had approved Mr Bradley’s remuneration and conditions. He reiterated that as it was Mr Nicholson’s opinion that there was no difficulty with respect to any part the process associated with Mr Bradley’s appointment, he was satisfied that everything was in order.
223 Mr Stone was then reminded of the contents of the Ministerial of 15 January. It will be recalled that a copy of Mr Flynn’s letter of 7 January was attached to that Ministerial. The version of that letter that was provided to Mr Stone referred to Mr Bradley’s appointment as being for two years. He was also reminded that that Ministerial, which was entitled “Appointment of Chief Magistrate”, had emphasised that the Actwould have to be amended in order to allow for the appointment of magistrates for fixed terms.
224 Mr Walker questioned Mr Stone about the Ministerial:
“As at 15 January 1998 it was your understanding wasn’t it, that Mr Bradley was to be appointed on a short contract, isn’t that right?---No.
As at 15 January 1998 you approved, did you not, of the remuneration calculated to reflect his appointment on a short contract, didn’t you?---No.
Are you sure about those last two answers?---This man was being appointed in a normal way but with a different remuneration package.”
225 Mr Walker then asked Mr Stone about the copy of the letter of 7 January. That letter was described in the Ministerial as “largely self-explanatory”. Mr Stone initially replied that had he relied entirely upon what was contained in the body of the Ministerial, which was what he had been asked to approve, and not upon any attached letter.
226 Mr Stone was asked whether he had read the letter before he approved the Ministerial. He replied that he would have “scanned it”, but having signed “thousands” of documents in his time, he had only “a faint recollection” of the letter. He was pressed about this matter and eventually said that he would have read the letter but would not have “relied upon” it. Mr Walker asked:
“Now do you accept that in the substance of the Ministerial you were being asked to approve a remuneration package including compensation of Mr Bradley for a short contract? Do you agree with that or not?---The word contract wasn’t in my vocabulary.
Very well, can you turn to page 308. That contains a copy of the second page of the Ministerial we have been talking about, doesn’t it? Mr Stone?---Yes, I see it.
At the top of the page, if not in your vocabulary, then the vocabulary of this Ministerial is reference to the sum of $15, 607 and the following description ‘An additional 10 per cent loading to compensate for a short contract with no provision for long service leave’, do you see that?---I see that.
Do you accept that in the body or substance of this Ministerial there was a recommendation which you approved of remuneration for Mr Bradley to compensate for a short contract?---I was simply not proceeding on the basis that it was a contract.
Do you accept that that quoted passage includes compensating Mr Bradley for a short contract?---That is what it states.
Does it not follow then that you approved the remuneration for Mr Bradley in a sum which would compensate him for a short contract?---Well, if that is the construction of the document, ultimately his Honour will determine that, but I was not proceeding on the basis that the man was to be given a contract.
Could you- would you agree that there is no other way as in ordinary …English to understand the word compensate for a short contract, do you agree there is not other way of interpreting that?---Well, that is not a matter for me, ultimately it is a matter for his Honour.
Do you agree that by slashing through “not approved”, given the choice of approved or not approved and by signing on 15 January, you accepted the recommendation in the body of the Ministerial?---I accepted the recommendation of the process that had been put to me.
The process included a transparent calculation of a package totalling $193, 602, didn’t it?---Yes.
Part of that which was revealed in that transparent process…was a sum to compensate for a short contract, wasn’t it?---That is what it says.
You saw no reason to disbelieve that…did you?---No I didn’t because I believed he was getting a proper appointment.
You accepted that the remuneration was being determined by your approval with a sum to compensate for a short contract, didn’t you?---I was not proceeding on the basis of a short contract.” (emphasis added)
227 The cross-examination continued:
“Can you read the word contract in any other way than the ordinary meaning familiar to you…?---I- sorry?
---meaning an engagement by agreement?---I had been consistently assured as was demonstrated in the documents that Mr Bradley was being appointed to a normal term and I followed that process and he got a normal appointment. The word, contract, was not part of my intention or the Government’s.”
228 Mr Stone again insisted that he had never raised the subject of a contractual appointment with Mr Bradley. He said that he “could not recall” having instructed any departmental officer to arrange for Mr Bradley to be appointed on such a basis.
229 Mr Stone acknowledged that at some stage in 1997 he had begun to consider whether magistrates should be appointed on contract. That possibility had been discussed in a number of forums, including the Standing Committee of Attorneys General. He said that he had been led to believe that such appointments were possible, and that there was provision for them in New South Wales. He agreed that he had since learned that the relevant New South Wales legislation in fact made provision for statutory appointment for fixed terms, and not for appointments under contract.
230 Mr Stone was asked whether, as at 15 January, he had in mind a two year limit on Mr Bradley’s remuneration as Chief Magistrate. He replied that he had “no recollection of any substance about that issue”.
231 Mr Walker then asked Mr Stone some further questions regarding the latter of 7 January:
“Let me take you to item 2 then in the context of that letter. You were aware on 15 January 1998 that the terms and conditions proposed for your approval were for an appointment for a period of 2 years and 6 weeks commencing on 9 March 1998 and terminating on 19 April 2000, weren’t you?---I have no recollection of that at all.”
232 Mr Stone’s attention was drawn to that part of the letter which suggested that Mr Bradley could not be appointed upon the terms proposed without an amendment to the Act. He said that in his mind Mr Bradley’s appointment, and any proposed amendments, were in no way linked. He adhered to that position despite the fact that in his letter, Mr Flynn had written:
“As soon as the Attorney-General has approved or made any alteration to the proposed conditions I will arrange the drafting of an instrument of appointment. The appointment will not be able to be made until such time as the Magistrates Act is amended to provide for ‘fixed term’ appointments.” (emphasis added)
233 Mr Stone was then asked about what had caused the change in the language used by his Department in the draft Cabinet Submission of 16 January. It will be recalled that in that document, the word “contract” was deleted, and replaced by the expression “fixed term appointment”.
234 Mr Stone’s explanation for that change was that it resulted from concerns which had been expressed by several departmental officers as to whether the appointment of magistrates on contracts was consistent with the principles of judicial independence, as understood and observed in this country. He insisted that the change had nothing whatever to do with Mr Bradley’s appointment. The advice which he had received was that a fixed term appointment was, in substance, the same as a contract appointment, though a less provocative expression.
235 Mr Walker asked Mr Stone whether he shared the views expressed by the Chief Justice about the dangers which fixed terms appointments posed for judicial independence. Mr Stone replied that he had noted those views but in the end considered that the legislature must take primacy on this issue.
236 Mr Stone was reminded of the warning from his Department that fixed term appointments raised issues of a fundamental nature regarding judicial independence and needed to be approached with “considerable circumspection”. He acknowledged having noted that warning.
237 He was asked why he had waived the five day rule regarding Cabinet Submissions. He denied that his decision had anything to with the urgency of Mr Bradley’s appointment.
238 Mr Stone agreed that by 6 February the Cabinet Submission which he had earlier endorsed had been significantly altered. He also agreed that as a result of the changes which had been made, his Department no longer held any concerns regarding judicial independence.
239 Mr Stone was then taken to his initial letter to the Chief Justice. It will be recalled that in that letter he had informed the Chief Justice that it was proposed to amend the Act to provide for fixed term appointments of ten years for all new magistrates, and “to facilitate the appointment of the new Chief Magistrate, Mr Hugh Bradley”. He denied that he had suggested in that letter that Mr Bradley’s appointment required an amendment to the Act. He said that his reference to “all new magistrates” was intended to apply to magistrates appointed in the future, but not the Chief Magistrate.
240 Mr Stone was asked whether he had ever raised with anyone else, apart from Mr Bradley, the possibility that Mr Bradley would be appointed for a fixed term of two years. He replied that he had only ever said that Mr Bradley had told him that he would only stay for two years. He was then asked whether that was why he had decided to limit Mr Bradley’s remuneration to that period. He said that that may have been the reason that the departmental officers had made that recommendation, but he could not be not certain of that fact.
241 Curiously, Mr Stone said that he was “not conscious” of having limited Mr Bradley’s remuneration “to hold him to his word”.
242 Mr Stone was asked:
“Well, did you limit the remuneration to 2 years to make sure that a package which gave him extra money, over and above the normal, to compensate for a short contract would not continue for 11 or 12 years, until he turned 65?---I have no recollection to turning my mind to that. The man had said to me “I can only give you two years.” I said to departmental officers, “go and sort it out, show me how we do this.”
243 Mr Stone was asked about his subsequent correspondence with the Chief Justice. It will be recalled that, in his letter of 2 February, the Chief Justice said that he understood that Mr Bradley was to be appointed for a fixed term of two years. He had said that upon the assumption that that understanding was correct, and that there would be no provision for renewal of Mr Bradley’s engagement, he had no concerns about the appointment. However, he had sought the views of other judges.
244 Mr Walker asked Mr Stone whether he could provide an explanation as to how the Chief Justice could possibly have reached the understanding that Mr Bradley was to be appointed for a fixed term of two years. Mr Stone replied that Darwin was a small town, and that the matter of the appointment had been the subject of gossip within the legal fraternity.
245 Mr Stone agreed that he took no steps to correct the Chief Justice’s misapprehension, not even when he ultimately replied to his letter some three weeks later. His explanation for that omission was that “Mr Bradley was … getting an ordinary appointment”. He had not set that out in his letter to the Chief Justice because he thought that this was something that “everyone knew”. He added that he had “learnt a long time ago not to tell the Chief Justice he was wrong.”
246 Mr Stone acknowledged that he was aware, in the early part of 1998, that there may be a problem with renewable fixed term appointments for judicial officers. He said that he had taken note of the views of those who regarded appointments of that type as being in conflict with the principles of judicial independence. However, Mr Bradley was not being appointed on a fixed term basis. The only matter to be negotiated, after the expiration of the two year period of the Special Determination, would be his remuneration, and not his appointment.
247 Mr Walker asked Mr Stone why, if Mr Bradley had “an ordinary appointment”, he received a “top up” for a period of two years, based upon his being compensated for having accepted a “short term contract”. Mr Stone replied that Mr Bradley’s package was lawful, and was authorised by the provisions of the Act.
248 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.”
249 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.”
250 Mr Walker asked Mr Stone if he could provide any explanation as to how, in his letters of 9 and 11 December 1997, Mr Bradley had come to assume that his appointment was to be on contract for a term of two years. Mr Stone said that that was a question for Mr Bradley. Mr Walker asked if Mr Stone could provide an explanation as to how Mr Flynn, in his letter of 7 January, had proceeded upon the same assumption. Mr Stone reiterated that as far as he was concerned, Mr Bradley was always “getting an ordinary appointment”. If Mr Bradley and Mr Flynn chose to use the word “contract” to describe the nature of that appointment, that was a matter for them.
251 Mr Stone agreed that he had not admonished Mr Flynn for having written to Mr Bradley about a “two year appointment”. He also agreed that, so far as he was aware, he was the only person who had discussed with Mr Bradley the duration of his appointment.
252 Mr Stone acknowledged that before he took leave on 15 December 1997, he had initiated a proposal for the introduction of fixed term appointments for magistrates. He maintained that this proposal had nothing to do with Mr Bradley’s appointment. He accepted that it was possible that some officers within his department may mistakenly have linked these two quite unrelated matters.
253 Finally, Mr Stone was asked whether he could explain why Mr Bradley, having spoken to Mr Riley, would suddenly have sought to emphasise, during the course of his second meeting with Mr Stone, that his appointment had to be an “ordinary” one. Mr Stone could provide no such explanation. From his point of view, it was always intended that Mr Bradley would be appointed until he reached the age of 65 years.
Findings regarding NAALAS’ factual allegations
254 An unusual feature of this case was the number of persons who might have been called to give evidence, but were not. NAALAS called only Mr Flynn and Mr Toohey. Mr Bradley did not testify. The Northern Territory called only Mr Stone.
255 There were other officers of the Attorney- General’s Department, the Office of Courts Administration, the Chief Minister’s Department and Parliamentary Counsel who were significant figures in the events leading to Mr Bradley’s appointment, but who were not called to give evidence. They included:
· Ms Lyons, the Secretary of the Attorney-General’s Department;
· Mr Anderson, her Deputy and Acting-Secretary at the time Mr Bradley’s appointment was first discussed,
· Ms Kelly, Senior Policy lawyer in the Attorney-General’s Department;
· Ms Bradshaw, Policy Officer in the Attorney-General’s Department;
· Mr Hurley, Parliamentary Counsel;
· Ms Jamieson, an officer in the Parliamentary Counsel’s Division of the Chief Minister’s Department;
· Mr Dorling, former Parliamentary Counsel, who retired in 1995 but performed ad hoc legal tasks for the Northern Territory throughout the relevant period; and
· Mr Nicholson, Crown Counsel.
256 Although NAALAS could have called any or all of these persons to give evidence, it argued, with considerable force, that they were all in the camp of the Northern Territory. It was unreasonable, in those circumstances, to expect NAALAS to call them. NAALAS submitted that the unexplained failure of the Northern Territory to call these persons as witnesses should result in the application of the rule in Jones v Dunkel (1959) 101 CLR 298.
257 NAALAS also contended that the failure of Mr Bradley to give evidence should have the same consequence.
258 It is sufficient, for present purposes, to observe that any findings that I make must be based largely upon the documents which were tendered, and the somewhat sparse evidence given by Mr Flynn, Mr Toohey and Mr Stone. It is almost certain that the best evidence of what lay behind Mr Bradley’s appointment was not adduced. There is a great deal which must be left to conjecture.
259 As noted at the outset of these reasons for judgment, there are several distinct factual issues to be resolved. Has NAALAS made good its claim that, on or before 27 February 1998, Mr Bradley and the Northern Territory entered into an agreement or arrangement of the type alleged? If so, was that agreement or arrangement made for improper or extraneous purposes? Did these purposes include those particularised by NAALAS in its statement of claim?
260 In endeavouring to answer these questions, the starting point must be the appointment of Mr Bradley by the Administrator on 27 February 1998. It is that act which is said by NAALAS to be invalid.
261 NAALAS’ allegations of improper or extraneous purpose require that careful consideration be given to the circumstances prevailing at the time the Administrator exercised the power in question.
262 It must be recognised that there are often several purposes behind an impugned decision, some of them legitimate, and others not so. It must also be recognised that any inquiry into the purpose for which a power was exercised is likely to present evidentiary difficulties. These difficulties are even greater where, as in the present case, the impugned decision has been taken not by a single decision maker, but is the product of advice from a body with more than one member: see generally Aronson and Dyer (op cit) at 246- 251.
263 The background to Mr Bradley’s appointment is of course important. However, it must not be forgotten that the improper or extraneous purpose which NAALAS must establish is one which actually operated upon the mind of the decision maker (or those that advised him) at the time the decision was taken, and not one which may have existed at some earlier time, but no longer subsisted when the appointment was made.
264 It seems to me that, on the evidence, it has been established that at about the time of Mr Gray’s resignation, the Northern Territory Government was considering the introduction of contract appointments for magistrates. These were seen as having advantages over the existing provisions for tenure.
265 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.
266 Between 11 and 15 December 1997 Mr Bradley sought Mr Riley’s advice regarding the nature of the appointment. Mr Riley sensibly 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.
267 Mr Flynn was not, at that stage, apprised of that development. 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
268 On 7 January 1998, when Mr Flynn wrote to Mr Bradley formally offering him the position, he believed that the offer which he was authorised to make was of a two year contract with a special remuneration package designed to compensate Mr Bradley for the short term nature of the position. Mr Flynn was not engaged on a frolic of his own. He acted upon instructions which had been conveyed to him by someone in authority. That person must have been Mr Stone, Ms Lyons or Mr Anderson. Neither Ms Lyons nor Mr Anderson would have instructed Mr Flynn to offer Mr Bradley a two year contract without having first sought and obtained Mr Stone’s approval.
269 Mr Flynn maintained that belief until he was told, much later, that the nature of Mr Bradley’s appointment had altered dramatically, and that he was no longer to be appointed for a term of two years. By that time, the Special Determination had been negotiated and agreed upon.
270 Until at least mid February, it was understood by some departmental officers that Mr Bradley’s appointment was contingent upon amendments being made to the Act to allow for fixed term appointments to be made. Those departmental officers were not made privy to Mr Bradley’s changed position regarding the basis upon which he would accept the appointment.
271 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 within departmental circles, and was replaced by the less controversial expression, “fixed term appointments”.
272 At about this time, 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.
273 Towards the end of January, word of the government’s proposed amendments to the Act began to filter through to the legal community in Darwin. Expressions of concern were received 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.
274 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.
275 Instead of telling Mr Bradley, as the Northern Territory ought to have done, that given that he was now to be appointed in the ordinary way and his remuneration would have to revert to the January Determination, arrangements were set in train for the Administrator to make the Special Determination. It may be that these arrangements were put in place because Mr Stone believed, as did his departmental officers, that Mr Bradley would resign after two years.
276 There was some consideration given to the question 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.
277 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 are not immediately apparent to me, 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.
278 On 27 February 1998, the Administrator appointed Mr Bradley as Chief Magistrate. That appointment was made pursuant to s 4(3) of the Act. It was to the age of 65 years. It was not a contract or fixed term appointment.
279 On the same day, the Administrator promulgated the Special Determination. It provided for Mr Bradley to be remunerated, at a higher salary than that fixed by the January Determination, for a period of 2 years. It was silent as to what was to happen after that period had elapsed.
280 I accept that during the initial discussions between Mr Bradley and Mr Flynn, there was a 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 events. Mr Bradley told Mr Stone, within days of receiving the offer of appointment that he wanted an “ordinary appointment”. Regrettably, Mr Stone did not pass that information on to those who needed to have it.
281 There appears to have been little, if any, communication between Mr Flynn, who was engaged in the task of arranging for Mr Bradley’s appointment, and those departmental officers within the Attorney-General’s Department and Parliamentary Counsel, who were concerned with the proposed amendments to the Act. Putting the matter colloquially, the left hand did not know what the right hand was doing.
282 The only person with a direct involvement in both these matters appears to have been Mr Stone. Had he read Mr Flynn’s Ministerial of 12 January and its attachments with appropriate care, he would have appreciated that Mr Flynn’s understanding of the terms upon which Mr Bradley was to be appointed no longer accorded with Mr Bradley’s changed position. At the same time, the officers proceeded upon the basis that the amendments to the Act which were being drafted were needed in order to enable Mr Bradley to be appointed on a fixed term. Their understanding of what was happening was also incomplete.
283 The documents tendered in this proceeding seem to me to point unequivocally to the conclusions set out above. I appreciate that these conclusions are at odds with Mr Stone’s evidence as to what occurred, and in particular his insistence that he had never contemplated an appointment for Mr Bradley on a contract or fixed term basis.
284 I am unable to accept these aspects of Mr Stone’s evidence. It is inconceivable that Mr Flynn would have negotiated a two year contract with Mr Bradley without having specific instructions to do so, as he claimed, from one of Mr Stone, Ms Lyons or Mr Anderson. If Ms Lyons or Mr Anderson gave those instructions, they had to have Mr Stone’s imprimatur. The idea that a new Chief Magistrate could be appointed upon a two year contract, a fundamental departure from existing practice and long standing convention, which would have necessitated radical and far-reaching amendments to the Act, without the Chief Minister and Attorney-General having any knowledge that such an appointment was being negotiated seems to me to border upon the fanciful.
285 One possible explanation for Mr Stone’s faulty recollection of what occurred is that Mr Bradley resiled from his initial position regarding the nature of his appointment almost immediately after their first meeting. By the second meeting, Mr Bradley was insistent upon an “ordinary appointment”, and that remained his position from that time on.
286 From the time that the government deferred or abandoned it plans to introduce legislation to amend the Act to allow for fixed term appointments for magistrates, Mr Bradley could only lawfully be appointed in accordance with the requirements of s 7(1). That position was not reached, however, until about 12 February 1998.
287 It is difficult to see how NAALAS’ allegations of improper or extraneous purpose can be accepted given these conclusions. Putting to one side the constitutional issues which are said to arise, the Northern Territory was always entitled to regard itself as being lawfully able to appoint Mr Bradley on a fixed term basis provided the Act was amended to allow for such an appointment. An intention on the part of a government to introduce legislation to enable a particular course to be followed is not easily characterised as an improper or extraneous purpose.
288 The nub of NAALAS’ improper or extraneous purpose case must be that, once it was decided to abandon or defer the proposed amendments to the Act, it was no longer possible to appoint Mr Bradley for anything less than the period stipulated by s 7(1). Although in a strictly formal sense, that was precisely what occurred on 27 February 1998, NAALAS contended that the provision made for his remuneration in the Special Determination meant that, for all practical purposes, his appointment became one for a fixed term of only two years. I shall deal with this variant of the argument below.
NAALAS’ IMPROPER PURPOSE CASE
289 NAALAS contended that the provisions of the Act, and in particular ss 7 and 10, were intended to give magistrates security of tenure, that is, freedom from interference and influence by the government of the day in the performance of their duties.
290 NAALAS submitted that the power to appoint magistrates vested in the Administrator by s 4(3) could only be exercised for the purpose of securing appointees who were to have total independence from the influence of the executive government. The appointment of Mr Bradley with a special two year remuneration package was alleged to have subverted that purpose.
291 Put another way, NAALAS submitted that the power to appoint Mr Bradley was exercised for a purpose other than that for which it was conferred: Municipal Council of Sydney v Campbell  AC 338; Thompson v Randwick Corporation (1950) 81 CLR 87 and Ex Parte Northern Land Council (supra). If a power is conferred in terms which require it to be used only for a particular purpose, then the use of that power for any other purpose cannot be justified: Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 67-68, 75 and 83-84; Ex Parte Northern Land Council (supra) at 186-187, 215, 217 and 233.
292 NAALAS argued that Mr Bradley’s appointment could be challenged for improper purpose “on its face” or “by reference to its actual operation”: Ex Parte Northern Land Council. The appointment was invalid on its face because the Special Determination demonstrated an intention on the part of the government that his remuneration be secure for only the first two years of his appointment. The appointment was invalid in its actual operation because, by reason of the Special Determination, he would be required to renegotiate his remuneration at the expiration of the term, an arrangement specifically contemplated by the government before his appointment took effect.
293 NAALAS submitted that the fact that Mr Bradley had “reverted” to a tenured appointment under a subsequent determination which was of general application at the conclusion of his initial two years as Chief Magistrate did not render his appointment retrospectively valid.
294 Mr Bradley submitted that there was no evidence to support the conclusion that he had entered into an agreement or arrangement of the type alleged. At most, the documents upon which NAALAS relied showed that he had told Mr Stone from the outset that he was only willing to commit himself for a period of two years. Shortly thereafter, he proposed to Mr Flynn that he be appointed for that period. Almost immediately, after receiving advice from Mr Riley, and upon more mature reflection, he told Mr Stone that the appointment had to be an ordinary one.
295 Mr Bradley submitted that the fact that he was to receive a special package for the first two years of his appointment did not lead to the conclusion that it was, for all practical purposes, fixed term. Nor did it render the appointment unlawful.
296 Mr Bradley submitted that there was no evidence that he had been provided with, or that he had any knowledge of, the contents of the various Ministerials and other working documents generated within the Attorney-General’s Department. He submitted that the evidence made it plain that he had always believed that he had been appointed in accordance with the provisions of the Act. This was confirmed by his conversation with Mr Toohey in mid 1999, and also by his letter to the Secretary of the Law Society.
297 In any event, as I was reminded, NAALAS made no allegations of improper or extraneous purpose against Mr Bradley. It was submitted that no finding of any such purpose on the part the Northern Territory should, in these circumstances, invalidate his appointment.
298 The Northern Territory submitted that the evidence did not support the existence of an agreement or arrangement of the type alleged by NAALAS. Mr Bradley’s letter of 11 December 1997 did not result in any such agreement or arrangement with the Northern Territory upon its terms. Nor did Mr Flynn’s letter 7 January. Mr Bradley’s appointment was by and in accordance with the terms of the Instrument of Appointment, and the Special Determination.
299 The Northern Territory submitted, in the alternative, that if any agreement or arrangement of the type alleged had been proved, it no longer subsisted at the time the appointment was made.
300 The Northern Territory further submitted that even assuming that any such agreement or arrangement did exist, and assuming also that it subsisted at the time the appointment was made, such an agreement or arrangement could not have affected the validity of the appointment. Where tenure was prescribed by statute, any contract containing terms inconsistent with that tenure must be invalid: see generally E Campbell, “Termination of Appointments to Public Offices” (1996) 24 Federal Law Review 1 and in particular at 40, where the learned author writes:
“Contracts are…ineffective to alter the terms of office prescribed by statute. If, for example, a statute declares that the maximum term for which a person may be appointed is five years, the term for which a person is appointed cannot be extended, by contract, to seven years. An agreement to re-appoint the person to the office on the expiration of the maximum statutory term would almost certainly not be regarded as legally binding in that it sought to impose an illegitimate fetter on the future exercise of a statutory discretion.”
Findings regarding NAALAS’ improper purpose case
301 In my view, NAALAS’ improper purpose case must fail.
302 I accept NAALAS’ contention that during the initial phase of their discussions, Mr Bradley and Mr Flynn reached agreement about the general nature of Mr Bradley’s appointment. However, that agreement was an agreement in principle only, and was not, in any way, binding upon the parties.
303 Mr Bradley’s reply to Mr Flynn’s letter of 7 January made it clear that he did not agree to an appointment on the terms set out that letter, but would only accept an appointment in accordance with s 7(1) of the Act. It was an appointment on those terms to which Mr Bradley agreed, and not one for a fixed term.
304 Moreover, I am not satisfied that Mr Bradley’s appointment was invalid as having been made for any of the other improper or extraneous purposes alleged by NAALAS.
305 It will be recalled that NAALAS pleaded that Mr Bradley’s appointment was made “for purposes other than to secure the administration of justice in the Northern Territory”. It was said that the appointment was made, inter alia, to defeat the principles of judicial independence implicitly required by the Act. Further, the appointment put Mr Bradley into the position where he would, at the expiration of two years, have to negotiate with the government for his future remuneration and allowances.
306 Put bluntly, NAALAS claimed that the combination of an appointment purportedly made in accordance with s 7(1) of the Act, and a Special Determination which provided for remuneration for a period of two years only, meant that Mr Bradley was beholden to the government throughout the first two years of his tenure. At the very least, he would have to negotiate a new package with the government after two years, with no guarantee that he would continue to be remunerated at all.
307 NAALAS claimed that the Special Determination had to be seen in the context of the government’s earlier proposals to amend the Act to allow for contract or fixed term appointments for magistrates. When it was finally decided not to proceed with these amendments, Mr Bradley had to be appointed in accordance with s 7(1) of the Act, and his remuneration should have been fixed in accordance with the January Determination. However, NAALAS submitted, that the Special Determination was implemented in order to impose improper constraints upon him, at least during the first two years of his appointment.
308 There is no doubt in my mind that 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 he age of 65 years, there was no justification for his receiving the remuneration under the Special Determination. 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.
309 The fact that Mr Bradley had, from the outset, signalled that he expected to retire after two years did not 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.
310 It is plainly arguable that the Special Determination was invalid having regard to the circumstances under which it came to be made. Indeed, it may be that the Determination was void. However, NAALAS has not challenged its validity and it is clear why it has not done so. Even if such a challenge had been brought, and had succeeded, the result would have been merely that the Special Determination would be set aside. Arguably, that would mean that the January Determination, which it purported to revoke, remained valid and applied to Mr Bradley’s position. That might mean that Mr Bradley would be obliged to repay some money to the Northern Territory. It would not, however, lead to the invalidity of his appointment. Nor would it vindicate any fundamental principles of judicial independence of the kind which led NAALAS to institute this proceeding.
311 As I indicated earlier, NAALAS’ case is based largely upon inference. It claims that Mr Bradley’s appointment was intended to achieve one or more of the purposes outlined in its statement of claim. NAALAS has the onus of proof in relation to that allegation.
312 I accept that the inference for which NAALAS contends is open upon the primary facts which have been established. I also accept that as a result of the operation of the rule in Jones v Dunkel (supra), that inference should more readily be drawn because the Northern Territory has failed to call so many of the significant figures in the events which occurred. At the very least, it may be said that its failure to call these witnesses leads to the conclusion that their evidence would not have assisted the Northern Territory.
313 It must be said, however, that there are other inferences also capable of being drawn from the primary facts which have been established. 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.
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 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.
317 The evidence in my view suggests 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 improperly influence him in the performance of his duties.
318 It will be recalled that Mr Flynn said in his Ministerial of 12 February that he had fully apprised Mr Nicholson of the proposed Special Determination and that in Mr Nicholson’s opinion, there was no difficulty with respect to any part of the process. It was upon Mr Flynn’s recommendation in that Ministerial that the Special Determination was made.
319 I observed Mr Flynn closely when he gave his evidence. I regard him as a truthful witness. The fact that he was not kept fully informed of the progress of the proposed amendments to the Act means that his recommendation in the Ministerial, that the Special Determination be implemented, cannot be regarded as wholly exculpatory, so far as the Northern Territory is concerned. Nonetheless, it remains the case that Mr Stone approved Mr Flynn’s recommendation, and that it had Mr Nicholson’s imprimatur.
320 Mr Stone struck me as having been somewhat casual in his attention to detail. I accept that in his role as Chief Minister and Attorney-General, he bore onerous responsibilities. There must have been many competing demands upon his time. I have no doubt that he signed thousands of documents of the type described in this proceeding, as he said he did.
321 It is nonetheless clear that Mr Stone did not devote anything like the attention required to the issue of Mr Bradley’s appointment. Indeed, he appears to have given the matter only the most cursory attention. There were plainly some quite fundamental issues to be addressed.
322 Mr Stone was on notice that members of the judiciary, the legal profession and some of his own departmental officers, had serious concerns about the proposal to introduce fixed term appointments for magistrates. The nature of those concerns could hardly have been spelt out more clearly.
323 Mr Stone delegated to Mr Flynn the task of arranging for Mr Bradley’s appointment. There was nothing wrong with adopting that course. However, having done so, it was incumbent upon him to ensure that Mr Flynn was properly informed of all relevant developments. These included, in particular, Mr Bradley’s decision to resile from the type of appointment originally discussed, and agreed in principle, and the government’s decision to abandon or defer the proposed amendments to the Act. Mr Stone did not discharge that responsibility. His failure to do so left Mr Flynn (and probably others), at least for a time, with the impression that the Special Determination was to be implemented pursuant to a new legislative regime, one which would authorise fixed term appointments for new magistrates.
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.
NAALAS’ ultra vires CLaims
327 NAALAS alleged that the purported exercise by the Administrator of the power to appoint a Chief Magistrate, on 27 February 1998, was ultra vires. It submitted that at the time of Mr Bradley’s appointment there was no valid and subsisting determination of his remuneration and allowances as required by ss 4 and 6 of the Act. That was because the Special Determination was to apply for a period of only two years. It followed that it was beyond the power of the Northern Territory to make the appointment.
328 Both Mr Bradley and the Northern Territory denied that ss 4 and 6 were to be so construed. They submitted that the validity of Mr Bradley’s appointment was not dependent upon the arrangements made for his remuneration and allowances.
The relevant legislative provisions
329 Section 4(1) creates the offices of Chief Magistrate, Deputy Chief Magistrate and Stipendiary Magistrate. Section 4(3) provides:
“The Administrator may appoint persons to hold offices referred to in subsection 4(1).”
330 Section 6 provides:
“Unless and until express provision is made in relation thereto, by or under and 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.
331 Section 7(1) provides that a magistrate appointed under s 4(3) holds office until he or she attains the age of 65 years.
332 Section 10 relevantly provides that a magistrate appointed under s 4(3) shall not be removed from office unless the Administrator is satisfied that the magistrate is incapable of carrying out his or her duties, incompetent to carry out those duties, or is for any other reason unsuited to their performance.
The respondents’ submissions
333 The Northern Territory submitted that it was not necessary that there be in existence a current determination of remuneration in order for an appointment to be valid. It submitted that the power to appoint a magistrate under s 4(3) was no way dependent upon the power to determine remuneration under s 6.
334 The Northern Territory submitted, in the alternative, that the Special Determination was, in any event, valid. The power conferred upon the Administrator by s 6 was at large, and not fettered by any purposive construction. The section was intended to provide for the remuneration and allowances of magistrates, and the terms and conditions upon which they hold office. It was not intended to deal with the exercise of the power to appoint them.
335 It was submitted that there was nothing to suggest that s 6, or indeed the Act read as a whole, was intended to secure judicial independence. The width of the power of removal in s 10, which includes the removal of a magistrate “for any other reason unsuited” to the performance of his or her duties, demonstrated that an independent judiciary was not one of the primary considerations underlying the Act.
336 The Northern Territory seized upon the concession made by NAALAS, in argument, that the power to determine remuneration and allowances under s 6 could be exercised to reduce the remuneration and allowances paid to magistrates. That concession had been qualified by the submission that any reduction could not be such as to drive a magistrate from office. It had also been qualified by the submission that a reduction could not single out a magistrate for special treatment, and had to be across the board. The Northern Territory submitted that having made that concession, and having sought to qualify it in the manner suggested, NAALAS was in effect seeking to rewrite s 6. The qualifications proposed were plainly difficult to apply in practice, and the section should not be construed as though it included words which were not there.
337 The Northern Territory submitted that there was another answer to NAALAS’ contention. If, contrary to its primary submission, s 6 operated to invalidate the Special Determination, the result would be that the purported revocation of the January Determination would also be invalid. That would leave Mr Bradley with an entitlement to the remuneration and allowances fixed by the January Determination. It would follow that, contrary to NAALAS’ contention, there was “a valid and subsisting determination providing for [Mr Bradley’s] remuneration and allowances” at the time of his appointment.
Findings regarding NAALAS’ ultra vires argument
338 In my view, NAALAS ultra vires claims must be rejected. Section 6 should be given its ordinary and natural meaning. The power which it confers upon the Administrator to determine the remuneration and allowances for magistrates is couched in the widest terms. As NAALAS conceded, the section seems to allow for a reduction, as well as an increase, in remuneration.
339 Section 6 is in stark contrast with s 72(iii) of the Constitution. That section provides that the Justices of the High Court and of the other courts created by the Parliament shall receive such remuneration as the Parliament may fix, but the remuneration shall not be diminished during their continuance in office. It is plainly derived from the Act of Settlement 1700. Section 6 does not have any such ancestry.
340 In addition, it is difficult to discern a legislative intent to secure judicial independence in the provisions of the Act. I agree with the respondents that s 10 provides the Administrator with far wider powers to remove magistrates from office than those found in many other statutes. It is true that s 7(1) provides tenure for magistrates until they reach the age of 65 years. However, that section is expressly made subject to the other provisions of the Act, including s 10.
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.
NAALAS’ constitutionaL ARGUMENT
342 NAALAS alleged that if, contrary to its allegations of improper or extraneous purpose, and its allegation of ultra vires, the Act purported to authorise Mr Bradley’s appointment, ss 4 and 6 were pro tanto invalid by reason of s 122, 111 and 51(xxxix), together with Ch III of the Constitution. Alternatively, ss 4 and 6 must be read down so as to conform with the requirements of both the Constitution and the Judiciary Act 1903 (Cth) with the result, in either case, that those sections did not authorise the appointment.
343 I have already determined that NAALAS’ allegations of improper or extraneous purpose must fail because they were not made out on the evidence. I may, of course, be wrong in having come to that conclusion. NAALAS submitted that, to the extent that ss 4 and 6 might be regarded as justifying the appointment, notwithstanding the existence of any such purpose, those sections would be repugnant to the Constitution, and invalid.
344 NAALAS put a somewhat different submission in relation to its allegationof ultra vires. I rejected that allegation because the construction of ss 4 and 6 for which NAALAS contended seemed to me to be untenable. NAALAS submitted that to the extent to which ss 4 and 6 bore the construction for which the Northern Territory contended, and which I accorded to them, those sections were invalid as being repugnant to the Constitution.
345 NAALAS’ constitutional argument depends upon establishing that the principle enunciated by the High Court in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51, namely that State courts capable of exercising the judicial power of the Commonwealth cannot be required to act in a manner incompatible with Ch III, is applicable to the courts of the Northern Territory. Kable was said to reflect the paramount importance of securing judicial independence in a way that was violated by the terms of Mr Bradley’s appointment.
346 To make good that contention, NAALAS submitted that:
· s 122 of the Constitution, together with s 51(xxxix), authorise the Parliament to create, or authorise the creation of, Territory courts capable of exercising federal jurisdiction.
· s 111 subjects the Territory courts to the exclusive jurisdiction of the Commonwealth.
· Ch III applies throughout the Commonwealth, including the Territories and the Territory courts.
· the separation of judicial power in the Constitution carries with it irreducible minimum requirements in relation to an independent and impartial judiciary, including tenure and remuneration, that may not be diminished during the course of office.
· the Territories may not authorise their respective executives to appoint judicial officers (who are capable of being vested with the judicial power of the Commonwealth) in a manner that is repugnant to the Constitution.
· the appointment of Mr Bradley was, in the circumstances, repugnant to these irreducible minimum requirements.
· the legislative and executive dimensions of judicial appointment (as opposed to the choice of appointee) are susceptible to judicial review.
347 NAALAS submitted that the power conferred by s 122 enabled the Parliament to authorise self-governing Territories to create courts to administer Territory law and to determine cases and controversies under that law. The Parliament could also, by s 122, and if necessary by s 51(xxxix), enact legislation vesting the judicial power of the Commonwealth in the officers of Territory courts.
348 NAALAS relied principally upon Northern Territory v GPAO (1999) 196 CLR 553 in support of these propositions. It submitted that s 68 of the Judiciary Act operated to vest the judicial power of the Commonwealth in magistrates (including the Chief Magistrate) appointed under the Act.
349 NAALAS submitted that the Northern Territory came into being by virtue of s 111 of the Constitution. Territories surrendered by a State, and accepted by the Commonwealth are, under that section, “subject to the exclusive jurisdiction of the Commonwealth: Northern Territory v GPAO (supra) at 576-577 and at 650-651. Accordingly, full power over the Northern Territory, including judicial power, vested in the Commonwealth upon its acceptance: Kruger v The Commonwealth (1997) 190 CLR 1 at 165-166.
350 NAALAS acknowledged that, as the authorities presently stand, the provisions of Ch III do not apply in their entirety to the Territories. It accepted that The King v Bernasconi (1915) 19 CLR 629 had determined that the power of the Parliament conferred by s 122 to make laws for the government of a Territory was not restricted by the provision in s 80 that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Although some of the reasoning in Bernasconi had been subsequently doubted, NAALAS acknowledged that the decision itself had never been overruled.
351 NAALAS also accepted that, as the authorities presently stand, judicial appointments to Territory courts need not be made in accordance with s 72: Spratt v Hermes (1965) 114 CLR 226, Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 and Re Governor, Goulburn Correctional Centre; Ex Parte Eastman (1999) 200 CLR 322 (“Eastman”).
352 However, NAALAS submitted that merely because certain provisions of Ch III had been held not to be applicable to the Territories, it did not follow that Ch III, in its entirety, had no application. It relied upon Kruger (supra) at 107, 108-109 and 162-176; cf at 43, 56 and 141-143 and Northern Territory v GPAO at 590-591 and 601 for that proposition.
353 NAALAS argued that the relationship between the Commonwealth, its Territories, the Constitution and the laws of those several polities had, from start to finish, the basic character stipulated by Covering Clause 5, which renders the Constitution and all laws made under it “binding on the courts, judges and people of every State and of every part of the Commonwealth”. It submitted that the expression “every part of the Commonwealth” included the Territories: Northern Territory v GPAO at 620.
354 NAALAS submitted that neither the Parliament nor the Northern Territory Assembly had the power to remove itself from the operation of the Constitution. That included the doctrine of the separation of powers, which was constitutionally entrenched. NAALAS further submitted that every law of the Commonwealth, including laws supported or authorised by s 122, was subject to Ch III: Eastman at 336-341; Northern Territory v GPAO at 580-581 and 650 -651; Kruger at 82 and 162 et seq. It followed that the judicial power of the Commonwealth, as prescribed in s 71, and the separation of that power from the legislative and executive powers of the Commonwealth, entrenched by Ch III, applied in the Territories.
355 NAALAS next submitted that judges who are capable of exercising federal jurisdiction must be, and must 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; Harris v Caladine (1991) 172 CLR 84 at 135; Grollo v Palmer (1995) 184 CLR 348 at 365, 376-377 and 392 and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. It submitted that the independence of the judiciary was the bulwark of the Constitution: Attorney-General (Cth) v R (The Boilermakers’ Case) (1957) 95 CLR 529 at 540-541 and Grollo v Palmer at 392-394.
356 NAALAS argued that without an appropriate measure of security of tenure, and remuneration that remained undiminished during the course of office, there could be no meaningful concept of judicial independence. It referred to the observations of Alexander Hamilton in The Federalist Nos 78 and 79 “The Judges as Guardians of the Constitution” and “The Position of the Judiciary” (A Hamilton, J Madison and J Jay The Federalist (1961, Harvard University Press pp 495 and 497)):
“That inflexible and uniform adherence to rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence…”
“Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support…in the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”
357 NAALAS acknowledged that the Act of Settlement, and its later colonial, and even later Australian, successors involved statutory, rather than judge-made law. In that sense, judicial independence and its importance to the administration of justice and the rule of law, and its Constitutional status, were not products of the common law but rather sprang from the will of the legislature. It submitted, however, that judicial independence was also a fundamental precept of the common law. For example, the authorities dealing with bias were predicated upon the need for an impartial, and therefore independent, judiciary: Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644.
358 NAALAS argued that it was fundamental to judicial independence that judges and magistrates be accorded appropriate security of tenure. It submitted that it was no less important that the remuneration paid to judicial officers be guaranteed, subject only to the wholly exceptional case of an across the board reduction based on economic imperatives. Certainly judicial remuneration must be incapable of being reduced by a disgruntled government, displeased with the outcome of a particular case, or the performance of a particular judicial officer.
359 NAALAS contended that it was the combination of Mr Bradley’s appointment until he reached the age of 65 years, and the Special Determination which expired after two years, that raised a reasonable apprehension, on the part of its clients, that because he was dependent upon its good will for his future remuneration, he would act in favour of the government, particularly in criminal matters. Mr Bradley’s situation could not be compared with that of acting judges who at least had no expectation of continuing in office until retirement, and therefore no concerns about having to negotiate their remuneration with the executive at the end of their terms of appointment.
360 NAALAS argued that, although it had been determined that the specific requirements of s 72 were not directly applicable to Territory judges, the broader principles of judicial independence, which were implicit in Ch III, and in the Constitution as a whole, governed judicial appointments in the Northern Territory. Section 72 was not to be interpreted in accordance with the maxim expressio unius est exclusio alterius. Although the prohibition upon reduction of judicial salaries contained within that section did not operate in relation to Territory courts, with the consequence that, at least in theory, the remuneration of Territory judges could be reduced by the legislature, there were limits upon the extent to which that could lawfully be done. For example, judicial remuneration could not be reduced to the point where there was a serious possibility that judicial officers would be forced to consider resignation.
361 NAALAS submitted that the doctrine of the separation of powers would be undermined if there were not adherence to the basic requirements of tenure for judicial officers, and a largely fixed and irreducible remuneration during their continuance in office. It submitted that the fact that s 72 did not, in terms, apply to the self-governing Territories was merely a reflection of the fact that s 122 authorised the Parliament to grant them the power to appoint their own judicial officers, and to determine their own cases and controversies.
362 NAALAS argued that it could not be supposed that the Territory legislatures enjoyed greater powers to depart from the doctrine of the separation of powers established in the Constitution than State legislatures. Judicial officers appointed in both the States and the Territories were appointed other than in accordance with, and under s 72. Yet, as NAALAS submitted:
“So far as the purpose or function of judicial impartiality is concerned, such as informs the reasoning for the decision in Kable, no possible distinction emerges which can sensibly diminish its importance for the administration of Commonwealth criminal law in Territories as opposed to its administration in States.”
363 NAALAS contended that the Chief Magistrate, and all other magistrates in the Northern Territory, were authorised, by virtue of s 68(2) of the Judiciary Act, to exercise the judicial power of the Commonwealth. If the Northern Territory, by its legislation, permitted their remuneration to be significantly reduced during their term of office, that legislation would be repugnant to the Constitution, and hence invalid.
364 NAALAS concluded by invoking Lord Hewart CJ’s famous dictum in R v Sussex Justices; Ex parte McCarthy  1 KB 256 at 259:
“…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
The respondents’ submissions
365 Mr Bradley submitted that:
· the doctrine of the separation of powers, though an essential element of the Constitution, was not part of the constitutional doctrine of the States: Kable at 65, 77-78 and 109. Nor was that doctrine applicable to the Territories, given that it had its roots in the structure of the Constitution. There was no structure similar to that of the Constitution in the Northern Territory (Self-Government) Act 1978.
· the principle established in Kable, which was based upon that aspect of incompatibility identified in Grollo v Palmer as “the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution…is diminished” had no application to the Territory courts. That principle reflected a particular aspect of the doctrine of the separation of powers, and turned upon the somewhat unusual circumstances in Kable: see Kable at 98, 106-107, 109, 116-117 and 134.
· if, contrary to his primary submission, the principle which lay behind Kable was applicable to the Territory courts, the appointment of Mr Bradley did not violate that principle because:
(a) Kable expressly or impliedly exempted from its operation the appointment, tenure and terms of remuneration of judicial officers.
(b) Mr Bradley’s appointment, even when coupled with the Special Determination, could not “undermine public confidence in the integrity and impartiality of the judiciary”.
(c) in Eastman, the appointment of an acting judge to the Australian Capital Territory (“ACT”) Supreme Court for a period of 12 months had been held not to be invalid. It had not been suggested that that appointment contravened the relevant principle.
(d) s 6 of the Act was similar in form to the provisions applicable to the remuneration of magistrates in other jurisdictions: see for example s 7 Stipendiary Magistrates Act 1957 (WA) and s 10 Magistrates Court Act 1987 (Tas).
366 The Northern Territory submitted that it was significant that theargument of constitutional invalidity based upon Kable had not been taken originally and had been raised for the first time before the Court of Appeal. Moreover, before that Court the argument which had been advanced was that “in making judicial appointments even in State and Territories, security of tenure must be assured”: NAALAS v Bradley (supra) at 119. It was that proposition which had been held to be “arguable” by that Court. It was also that argument which the Court regarded as “more or less identical” to NAALAS’ “improper purpose argument, but having its genesis in a constitutional principle”.
367 The Northern Territory contended that following the decision of the Court of Appeal, and the refusal of the High Court to grant special leave from that decision, NAALAS had amended its statement of claim to add the constitutional argument in its present form. However it submitted that the argument advanced before me bore little resemblance to that which had been advanced before the Court of Appeal.
368 The Northern Territory submitted that it was essential to NAALAS’ constitutional argument, as reformulated, that not only were the Territory courts subject to implied limitations derived from Ch III, but also that those courts were subject to the limitations within that chapter which require particular forms of tenure, and security of remuneration. A major part of NAALAS’ argument was based upon the proposition that the Territory courts were capable of being vested with the judicial power of the Commonwealth. However, that proposition could not be sustained.
369 The Northern Territory relied, in particular, upon three decisions of the High Court in support of its contentions: Spratt v Hermes, Capital TV and Appliances Pty Ltd v Falconer and Eastman.
370 It submitted that Spratt v Hermes had decided that a Territory court (the ACT Court of Petty Sessions) was not subject to s 72 of the Constitution. Accordingly, magistrates could be appointed to that court without complying with the requirements of that section.
371 Falconer had held that the ACT Supreme Court was not a “federal court” or “court exercising federal jurisdiction” within s 73(ii). Accordingly, there was no constitutionally entrenched right of appeal to the High Court from that Court.
372 Eastman had affirmed that s 72 did not apply to the Territory courts, at least where those courts were created by laws enacted by the legislature of a self-governing territory. Importantly, in Eastman, the Court rejected a challenge to the validity of the appointment of an acting judge of the ACT Supreme Court based upon the fact that that judge had been appointed for a limited term only.
373 The Northern Territory submitted that, it had been determined by the High Court that where a Territory court was vested with jurisdiction by a Commonwealth statute, the validity of that statute was supported by s 122 of the Constitution. The jurisdiction conferred was not federal jurisdiction. To the extent that s 68(2) of the Judiciary Act operated to vest jurisdiction in the magistrates of the Northern Territory, that section involved an exercise of the power conferred by s 122. It did not vest federal jurisdiction in those magistrates.
374 It followed, so it was submitted, that there were three fundamental objections to NAALAS’ constitutional argument:
· Eastman affirmed that the requirements of security of tenure and of irreducible remuneration contained in s 72 did not apply to the Territory courts. That decision, which adopted the earlier reasoning in The King v Bernasconi, and applied Spratt v Hermes and Falconer, operated to rebut any inference which might otherwise be drawn from Ch III of an assurance of security of tenure for judicial officers in the Northern Territory. Given that s 72, which dealt specifically with the subjects of tenure and remuneration, had no application to the Territory courts, no implication regarding these same subjects could be drawn from Ch III, when read as a whole.
· Kable dealt with incompatibility. It had no application to the tenure and remuneration of judicial officers. Just as it was for the States alone to determine the appointment, tenure and remuneration of State judges, it was for the Northern Territory to determine those matters in relation to Territory judges: Kable at 102 and 115.
· even assuming that “in making judicial appointments…in States and Territories, security of tenure must be assured”, none of the facts alleged by NAALAS undermined that security. The tenure of magistrates was defined by ss 7(1) and 10 of the Act. It was not disputed that the Administrator had appointed Mr Bradley under s 4(3). The Instrument of Appointment did not purport to deny him the tenure for which that section provided. Even if his appointment had been made for one or more of the purposes alleged by NAALAS, that could not affect the security of his tenure.
conclusions regarding the constitutional issue
375 It is clear that s 122 authorises the establishment of Territory courts. The authorities establish that such courts are not federal courts, and are not subject to s 72 because they are not “created by the Parliament”. That expression refers only to courts created under s 71. Those courts are “the High Court of Australia” and “such other federal courts as the Parliament creates”. Territory courts are therefore outside the federal judicature.
376 Spratt v Hermes determined that the fact that a 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.
377 Barwick CJ said at 242-243:
“Unless s 72 is of universal application to all courts created by the Commonwealth pursuant to any legislative power, these decisions [R v Bernosconi (1915) 19 CLR 629 and Porter v The King; ex parte Yee (1926) 37 CLR 432] determine the answer to the second question. However, s 72, in my opinion, is not of such universal application. Upon its proper construction, in my opinion, it refers in the expression “the other courts created by the Parliament” to the other courts to which reference is made in s 71, namely, such other Federal courts as the Parliament creates, courts created by laws made in pursuance of the “Federal” legislative powers contained in s 51 of the Constitution. A court created by law made by the legislative power given by s 122 is not a “Federal” court. Thus the section is not a limitation upon the power to create courts of judicature which is included within the complete power of legislation given by s 122 for the government of the Territories.
I come to the conclusion, therefore, directly from the language of the Constitution that the Commonwealth by laws made under the legislative powers given by s 122 can create or authorize the creation of courts with jurisdiction in respect of occurrences in or concerning a territory without observing the requirements of s 72 in the appointment of the judicial officers constituting such courts.
But not all those who have considered this matter and would arrive at the same conclusion would do so for the reasons I have thus expressed. Some would support that result upon the fundamental view that Chap. III as a whole is inapplicable to or in respect of territories. The consequences of such a view are, in my opinion, so far-reaching and my respect for those who have entertained and do entertain it so great, that I feel bound to indicate the reasons for my inability to accept it.”
378 His Honour went on to analyse Bernasconi which was the source of the doctrine that Ch III had “no application to the territories”. He observed that this conclusion did not necessarily follow from the case itself. All that Bernasconi had decided was that the power of the Parliament conferred by s 122 to make laws for the government of a Territory, whether that power was exercised directly or through a subordinate legislature, was not restricted by the provision in s 80 that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. It was because of the construction of s 80 itself, as distinct from any reasoning affecting Ch III as a whole, that Bernasconi should be supported. In his Honour’s opinion, ss 74, 75 and 78, which were all contained within Ch III, were applicable to the Territories.
379 Barwick CJ also disagreed with the proposition, apparently accepted by the majority in Bernasconi, that a law made under s 122 was not a “law of the Commonwealth”.
380 Kitto J said at 255-256 that:
“… Chap. III does not limit in any way the authority of the Parliament under s 122 to make laws with respect to the exercise of judicial power which are laws for the government of a territory …”
381 His Honour concluded, at 257, that the power of Parliament under s 122 was “unrestricted by anything express or implied in Ch III”.
382 Taylor J held that s 122 gave the Parliament authority to make laws for the government of the Territories including the establishment, or authorisation of the establishment, of courts. He said at 264:
“Upon authority they are not federal courts and they do not exercise the judicial power of the Commonwealth though they are established under laws made by the Commonwealth Parliament.”
383 Menzies J observed at 265:
“The decisions of this Court in regard to the jurisdiction of territorial courts, its own jurisdiction to hear appeals from such courts, and its original jurisdiction to hear and determine matters arising in a territory have unfortunately not resulted in a coherent body of doctrine.”
384 His Honour concluded his review of the earlier decisions of the High Court by holding, at 266, that it had been decided that the Parliament may, by a law made under s 122, establish in its Territories, other than the Australian Capital Territory, courts which were not “federal” in the constitutional sense. This meant that judges could be appointed and hold tenure otherwise than as provided by s 72, and that they could exercise jurisdiction outside that which Parliament could confer under s 77.
385 Windeyer J said at 278:
“Courts created for a territory pursuant to s 122 are not federal courts. It is therefore not necessary that judges or magistrates appointed to them should have the tenure prescribed by s 72.
The Parliament can by legislation pursuant to s 122 confer upon the High Court an appellate jurisdiction from territorial courts.
But the provisions of ss 75 and 76 define, probably exhaustively, the original jurisdiction of the High Court. Those provisions apply to proceedings arising in the territories.”
386 Finally, Owen J said at 280-281, that s 122 enabled the Parliament to establish “territorial courts which are not federal courts within the meaning of s 71 of the Constitution and are not therefore amongst ‘the other Courts’ to which s 72 refers”.
387 Spratt v Hermes (supra) was considered again in Capital TV and Appliances Pty Ltd v Falconer (supra). It was there held that the ACT Supreme Court was not a federal court or a court exercising federal jurisdiction within the meaning of s 73 of the Constitution. Accordingly, no appeal lay as of right to the High Court from that Court.
388 Barwick CJ said at 600:
“In my opinion, it a necessary conclusion from the Court’s decision in Spratt v Hermes that the Supreme Court of the Australian Capital Territory is neither a federal court within the meaning of s 71 or s 73 of the Constitution as interpreted by the decisions of this Court nor a Court invested with “federal” jurisdiction.” (footnote omitted)
389 McTiernan J said at 601-602:
Reading Ch III of the Constitution as a whole … the expression “federal court” in s 73(ii) should be interpreted as meaning a court the jurisdiction of which is defined by s 77(i). In my opinion the Australian Capital Territory Supreme Court Act is wholly a law for the government of the Australian Capital Territory passed pursuant to s 122 of the Constitution. … The tenure of a justice of a court created by an Act passed pursuant to s 122 is a matter within the discretion conferred on the Parliament by that section.”
390 Menzies J said, at 606, that throughout Ch III, “federal jurisdiction” meant jurisdiction conferred by the Constitution itself upon the High Court, or by the Parliament upon that Court or some other federal court, or invested by the Parliament in a State court. This jurisdiction did not include courts created by Parliament under s 122, or any other source of legislative power outside Ch III.
391 Windeyer J said at 611:
“The Parliament may give what tenure its chooses to the judges of any court that it creates that is not, strictly speaking, a federal court.”
Owen, Walsh J and Gibbs JJ agreed at 613-614, 616 and 626-628 respectively.
392 As noted earlier, Eastman reaffirmed that s 72 had no application to Territory courts. Gleeson CJ, McHugh and Callinan JJ noted at 332 that in Spratt v Hermes, the Court had been invited to overrule Bernasconi, but had declined to do so. Their Honours also noted that in Spratt v Hermes,Barwick CJ had not accepted all of the reasoning in Bernasconi, “some of which was wider than was necessary for the actual decision”. They noted in particular that his Honour had rejected the general proposition that Ch III was wholly inapplicable to the Territories.
393 Gaudron J took a somewhat different approach. Her Honour agreed that the ACT Supreme Court, having been established or sustained pursuant to s 122, was not a Court upon which the Parliament could confer jurisdiction to be exercised throughout the Commonwealth in all or any of the matters specified in ss 75 and 76. She observed at 340:
“Were the question free of authority, I should think the preferable course would be to give the words of s 72 their natural and ordinary 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.” (footnote omitted)
394 In indicating what she regarded as being the “preferable course”, Gaudron J reiterated the views which she had previously expressed in Kruger at 109; Gould v Brown (1998) 193 CLR 346 at 402 and Northern Territory v GPAO at 603.
395 Gummow and Hayne JJ said at 348 that the “preferable construction” was that a court created by the Parliament for the government of a Territory was not a federal court created under ss 71 and 72, but could answer the description of one of the “other courts” which were invested by laws made by the Parliament with federal jurisdiction within the meaning of s 71. Territory courts could therefore be recipients of the judicial power of the Commonwealth by a law supported not by s 77, but by s 122.
396 Thus, three members of the Court in Eastman, Gaudron, Gummow and Hayne JJ indicated that a Territory court, though not a “federal court”, could be invested with federal jurisdiction. However, even those three members of the Court accepted that s 72 had no application to a court created under s 122. Indeed, s 72 would have no application to a court even where that court was invested by the Parliament with federal jurisdiction.
397 Gaudron J noted one other matter with respect to the vesting of federal jurisdiction in a court created under s 122. Her Honour said at 340:
“If it is not necessary for a court of that kind 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 requirements 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 could be vested in it.” (footnote omitted)
398 It must be noted that her Honour’s observations regarding Kable were plainly dicta. So too were the observations of Gummow and Hayne JJ at 353.
399 Kirby J dissented. His Honour, at 372, rejected the notion that merely because s 122 was found in Ch VI of the Constitution, it was somehow “cut free” of the requirements of Ch III. He concluded that there were numerous indications, from the language of the provisions in Ch III, that the judiciary of each Territory must be created in a way that conformed to the requirements of that chapter. Hence Territory courts must, prima facie, be “federal courts”.
400 His Honour went on to express the view that past authority, including Spratt v Hermes and Falconer should be overruled, particularly since those cases rested, ultimately, on the “shaky foundation of Bernasconi.” He said at 382:
“So illogical is present authority - and so potentially serious in disjoining territory courts from a constitutionally protected relationship with the integrated Australian judiciary - that in my view this Court should approach the matter as one of principle rather than authority.” (footnotes omitted)
401 NAALAS relied heavily upon the dicta set out above of Gaudron J, Gummow and Hayne JJ and Kirby J in Eastman set out above.
402 Its argument was also supported by reference to several passages in GPAO (supra). That case dealt with the interaction between two Commonwealth Acts, the Family Law Act 1975 and the Evidence Act 1995, and a Northern Territory Act, the Community Welfare Act 1983.
403 In GPAO, Gleeson CJ and Gummow J noted, at 591-592, that the outcome in that case was not governed or controlled by Bernasconi. The Family Court was clearly a “federal court” and not a “territory court”. No issue arose as to whether s 122 authorised laws creating “territory courts”, which were not “federal courts” created under s 71, but upon which the Parliament could confer federal jurisdiction. If the Parliament could confer such jurisdiction, a question would arise with respect to the application of Kable to such “territory courts”.
404 Gaudron J observed at 597 that it was possible to form the view that courts created pursuant to s 122 were not federal courts within s 71, and not subject to the requirements of s 72, without adopting a doctrine of “duality” that treated those courts as wholly outside Ch III. Her Honour said:
“The significance of s 76(ii) of the Constitution is that it describes what is, perhaps, the most frequently invoked area of federal jurisdiction, namely, jurisdiction with respect to matters “arising under any laws made by the Parliament”. If that expression includes laws made by the Parliament under s 122, as its language would plainly suggest, then matters arising under those laws are matters which engage the judicial power of the Commonwealth. By Ch III, that power is vested only in this Court, in federal courts created by the Parliament and in “such other courts as it invests with federal jurisdiction”, which courts, it has been held, do not include the Territory courts”: Falconer (emphasis added) (footnote omitted)
405 Gaudron J went on to say that not only had it been held that Territory courts were not “federal courts”, they had been held not to be courts which could be invested with federal jurisdiction. That was because, in the words of Barwick CJ in Falconer at 599,:
“… the courts which may be invested with federal jurisdiction are courts set up by the States. They cannot include courts created by the Commonwealth.”
406 Gaudron J plainly regarded the reasoning in Spratt v Hermes and in Falconer as being unsatisfactory. Her Honour had difficulty with the proposition that Ch III was concerned only with the judicial power of the “Commonwealth proper” and that the Territories were relevantly “disjoined” from the Commonwealth. She referred to Kruger,where that view had been rejected by Toohey J, and also criticised by both herself and Gummow J. Her Honour continued at 603-604:
“Given the terms of ss 71, 72 and 76(ii) of the Constitution, I adhere to my statement in Gould v Brown that “the better view is that courts created pursuant to s 122 are ‘courts created by the Parliament’ for the purposes of s 72”. However, there is some basis for concluding otherwise. In particular, it is possible to conclude that a court created simply to exercise jurisdiction in a Territory with respect to matters arising in that Territory is not a federal court for the purposes of s 71 because its jurisdiction is confined within the limits of s 122. And although it requires reading a limitation into the words “the other courts created by the Parliament” in s 72, it is possible to read those words as referring back to the “federal courts … the Parliament creates” in s 71 with the consequence that the requirements of s 72 do not apply to the Territory courts. (Emphasis added)
Given that there is some basis for not treating courts created by s 122 as federal courts and for not treating them as subject to the requirements of s 72 and given, also, that the decisions to that effect have been acted upon for many years, I am prepared to accept that, to that extent, the decisions of this Court on the relationship between s 122 and Ch III of the Constitution should stand. But that does not have the consequence that a Territory court cannot exercise the judicial power of the Commonwealth. Nor does it have the consequence that a Territory court stands wholly outside Ch III. Rather, it is, in my view, entirely consistent with an approach that gives effect to the integrated legal system which Ch III requires.” (footnotes omitted, emphasis added)
407 The “integrated legal system” to which her Honour referred was also discussed in Kable at 101 and 137, 139, and 143.
408 What emerges from this analysis is that there appears to be a high degree of dissatisfaction, on the part of at least four members of the Court as presently constituted, with the reasoning in Bernasconi, Spratt v Hermes and Falconer.
409 The fact these four members of the Court have expressed such misgivings about the reasoning in these cases does not mean that I am at liberty to disregard them. None of them has ever been overruled. In fact, the High Court expressly declined to overrule them as recently as Eastman. Unless they can be distinguished, they bind me.
410 Spratt v Hermes held that Territory courts are not “federal courts”. See also Bernasconi at 635 and 637 and Mitchell v Barker (1918) 24 CLR 365. The first judge of the Supreme Court of the Northern Territory was able to be appointed for a five year term. Moreover, there was a right of appeal to the Supreme Court of South Australia. For a time there was only limited right to trial by jury in the Northern Territory: Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 527. Spratt v Hermes also held that the judicial officers appointed to Territory courts need not be appointed in accordance with the requirements of s 72. Falconer held that Territory courts do not exercise “federal jurisdiction” within s 73. Both those cases decided, at least implicitly, that even when Territory courts deal with federal matters, they do not exercise the judicial power of the Commonwealth.
411 NAALAS submitted that even if s 72 had no application to appointments to Territory courts, there was implicit within Ch III a requirement that there be an independent and impartial judiciary in all courts capable of exercising federal jurisdiction. It submitted that those courts included the Territory courts. That requirement stemmed not from the language of s 72, but from Ch III read as a whole.
412 I am unable to accept that submission. I cannot see how Ch III can be said to contain any implication regarding judicial tenure and remuneration which falls outside the scope of s 72. It is that section which deals with those subjects comprehensively and in terms. If, as both Spratt v Hermes and Eastman have held, s 72 has no application to Territory courts, it would be straining the bounds of constitutional interpretation to hold that Ch III operates indirectly to limit the powers of Territory legislatures with regard to these matters. In other words, though Ch III may be applicable in some respects to the Territory courts, the requirements of tenure and remuneration contained within that chapter are exhaustively stated in s 72, and leave no room for any broader implication.
413 It would be a bold step to find authority for NAALAS’ proposition regarding tenure and remuneration in Covering Clause 5. If the implication for which it contends is to be drawn from that provision, it seems to me that it should be drawn by the High Court, and not by a judge at first instance.
414 It is to be hoped that my reasoning is not misunderstood. I consider that there is considerable force, with respect, in the criticisms which have been levelled at Bernasconi. I also have difficulty with Spratt v Hermes and Falconer. If it were open to me, I would conclude that the Territory courts are capable of exercising federal jurisdiction. I would also hold that when, for example, they deal with breaches of Commonwealth law, they do so. It follows that I would regard Kable as being applicable to the Territory courts.
415 I consider, however, that Spratt v Hermes, Falconer and Eastman, which bind me cannot be distinguished from the present case, except by reasoning that I would regard as disingenuous. It is always possible to confine a decision essentially to its own facts. However, to do so in circumstances where the High Court has enunciated fundamental and wide ranging constitutional principles would, in my opinion, be inappropriate. If that Court considers that the reasoning in one or more of those cases requires modification, it is for that Court alone to bring about that result. It follows that NAALAS’ constitutional argument must fail.
416 That is a conclusion to which I have come reluctantly. I cannot see why, as a matter of basic principle, the protection which Kable affords the residents of the States should not equally be afforded to the residents of the Territories. If, as has been suggested, there is in this country “an integrated legal system”, it seems peculiar that some of the courts which form part of that system should be subject to fundamentally different underlying constitutional principles.
Is Kable applicable to the tenure and remuneration of judicial officers?
417 There is room for disagreement as to whether Kable applies to the Territory courts. Assuming that I am wrong in holding that it does not apply to those courts, the question arises whether it would operate to invalidate Mr Bradley’s appointment?
418 In order to resolve that question, it is necessary to consider in some detail precisely what Kable decided. It will be recalled that in that case, it was held that Ch III, by implication, limits the power of State legislatures to confer non-judicial functions on State courts. That implication represents a significant diminution of State legislative power which, though subject to s 106 of the Constitution, had generally been regarded before Kable as being plenary.
419 Kable concerned a challenge to the constitutional validity of the Community Protection Act 1994 (NSW). That Act, which was described by both Gaudron J and Gummow J, in separate judgments, as “extraordinary”, was enacted in response to the threat that Mr Kable, who had been convicted of the manslaughter of his wife, was perceived to pose to the community.
420 Under s 3 of that Act, the Supreme Court was empowered to make an order detaining him for a period of six months after his sentence had expired. That Court was to make such an order if it was satisfied, on reasonable grounds, that it was more likely than not that he would commit a serious act of violence, or that it was appropriate for the protection of particular people that he be held in custody. Similar legislation had been enacted previously in Victoria: Community Protection Act 1990 (Vic).
421 A majority in the High Court, comprising Toohey, Gaudron, McHugh and Gummow JJ, held that the non-judicial functions conferred upon the Supreme Court were incompatible with Ch III, and hence invalid. Brennan CJ and Dawson J dissented.
422 The members of the Court who made up the majority expressed their views in different ways.
423 Toohey J adopted a somewhat narrower approach than that taken by the other members of the majority. He observed that notwithstanding the fact that Mr Kable was being dealt with under a State Act, and had been convicted of a common law offence, the Supreme Court, when applying the Community Protection Act, was exercising federal jurisdiction. In coming to that conclusion, he accepted a concession made by the Solicitor-General for New South Wales, who appeared on behalf of the Director of Public Prosecutions, that the appellant was relying upon “federal constitutional points”. Moreover, the appellant had done so at first instance and before the New South Wales Court of Appeal.
424 The “federal constitutional points” to which his Honour referred were a general claim that the Constitution proscribed legislation that discriminated against a particular individual, and a claim that s 80 required that a finding under the Act be made by a jury and not by a judge alone.
425 Given that these federal constitutional points had been raised, his Honour reasoned that s 77(iii) of the Constitution, and s 39 of the Judiciary Act meant that the Supreme Court had been exercising federal jurisdiction. There is no doubt that but for that conclusion, he would not have held that Ch III operated to invalidate the legislation.
426 A number of commentators have criticised this aspect of his Honour’s reasoning. There was no doubt that the points taken by Mr Kable raised constitutional issues. To that extent, it was true that federal jurisdiction had been invoked. However that was, in a sense, sheer accident. The points taken need not have been raised. They may indeed have been entirely devoid of merit. Yet the considerations supporting a Ch III invalidation of the Act would have been equally compelling.
427 In his dissenting judgment, Dawson J observed, at 599, that the approach taken by Toohey J:
“…may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act.”
428 In a helpful article, P Johnston and R Hardcastle “State Courts: The Limits of Kable”, (1998) 20 Sydney Law Review, 216, the authors comment at 225:
“Indeed, the difficulty with Toohey J’s reasoning is that in some cases State legislation may not attract the Kable limitation simply because its constitutional validity has not been challenged”
429 See also Re Australasian Memory Pty Ltd and Corporations Law; Brien v Australasian Memory Pty Ltd (1997) 149 ALR 393 at 431 where Santow J expressed similar criticisms of this aspect of Toohey J’s reasoning
430 Gaudron and McHugh JJ declined to limit Kable to State courts actually exercising federal jurisdiction. They held that it was sufficient that State courts were capable of exercising the judicial power of the Commonwealth.
431 Gaudron J said, at 103:
“Chapter III requires that the parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.”
432 Her Honour considered that this limitation was founded upon the fact the State courts “exercise the judicial power of the Commonwealth”.
433 McHugh J said, at 115, that a State legislature could not undermine the role of State courts as “repositories of federal judicial power”. His Honour continued, at 118:
“… [I]t 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.”
434 Gummow J observed, at 136, that the “jurisdiction exercised by the Supreme Court was wholly federal”, as indeed it was. However, his Honour too did not limit the Kable constraint to State courts actually exercising federal jurisdiction. He observed, at 142, that the functions of State courts were “intertwined with the exercise of the judicial power of the Commonwealth”. This was because decisions of those courts, whether or not given in the exercise of federal jurisdiction, yielded “matters” founding appeals to the High Court under s 73(ii).
435 I assume for present purposes, and contrary to my earlier conclusion, that the limitations upon State legislative power laid down in Kable are applicable to Territorial legislatures as well. The question is, given the construction that I have accorded to ss 4 and 6 of the Act, would Kable lead to the invalidity of those sections?
436 At one level, Kable may be regarded as being of limited scope, applying only to extreme examples of incompatibility, such as those identified in the judgment, and later explored in other cases: see John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 703.
437 Certainly Kable was an extreme case. The New South Wales legislature required the Supreme Court to act in a manner which was directly in conflict with the traditional role performed by judges in sentencing offenders. The majority considered that the function conferred upon the Court by this legislation was a non-judicial function of a kind that would tend to undermine public confidence in the independence of the judiciary.
438 There are other examples which may well fall within the Kable principle. It is clear, as McHugh J observed at 111, that Kable extends to prevent a State legislature from abolishing its court system entirely. A State could not defeat the exercise of the grants of power conferred on the Parliament by s 77 of the Constitution by the simple expedient of abolishing its courts, and setting up tribunals that were not courts. It is important to note, however, that his Honour qualified even that modest proposition. He said that the Constitution prohibited only the abolition of State Supreme Courts, and not lower courts. Gummow J agreed, at 141, that the Supreme Courts were in “a distinct position”.
439 In John Fairfax Publications Pty Ltd v Attorney-General (NSW) (supra), the New South Wales Court of Appeal held that certain sections of the Supreme Court Act 1970 (NSW) were invalid. Those sections provided that an appeal on questions of law by the Attorney-General from an acquittal for contempt was to be heard in camera. It further prohibited the publication of any submissions made on the appeal, and concealed the identity of the alleged contemnor.
440 Spigelman CJ noted that the complainant contended that the Court was exercising federal jurisdiction in the proceedings instituted by the Attorney-General. In Kable it had been common ground that the Supreme Court had been exercising federal jurisdiction because constitutional arguments had been agitated during the course of the proceedings. In the instant case, there was no concession that the Court was exercising federal jurisdiction merely because one of the parties wished to agitate a constitutional question. However, his Honour was prepared to determine the matter upon that assumption.
441 Spigelman CJ said, at 698:
“Kable is authority for the proposition that a State legislature may not invest the Supreme Court of the state with a function which is incompatible with the exercise by that court of the judicial power of the Commonwealth. The four judgments of the majority in Kable are not able to be distilled into a single principle…
The reasoning of the majority in Kable was not confined to the character of a function or power conferred by a state law. Some of the reasoning encompasses the manner in which a function or power is to be performed. Although Kable was concerned with the compatibility of a specific non-judicial power (to order imprisonment without any finding of criminal guilt) with the exercise by a state Supreme Court of the judicial power of the Commonwealth, the reasoning of the majority did involve principles of broader application...”
442 The learned Chief Justice observed that each of the members of the majority in Kable had referred to the significance of public confidence in the administration of justice and, particularly, the appearance of impartiality and independence of the judiciary from the legislature and the executive. He contrasted this approach with that of Brennan CJ (with whom Hayne J agreed) in Nicholas v The Queen (1998) 193 CLR 173 that to:
“hold that a court’s opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power”.
443 However, Spigelman CJ also noted that in Grollo v Palmer (supra) at 365, the Court had identified diminishing “public confidence in the integrity of the judiciary as an institution” as a way in which constitutionally impermissible incompatibility may arise. That test had also been applied in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (supra) at 16.
444 The State legislation under challenge in John Fairfax did not confer a particular function or power. It was concerned with a matter of procedure. The issue was whether the principle of open justice was so fundamental an aspect of the judicial process that its modification in the particular circumstances offended the principles derived from Ch III, as identified in the reasoning in Kable.
445 Spigelman CJ concluded that Kable operated only in “quite exceptional” cases. He said, at 703:
“This is manifest in the failure of intermediate courts of appeal to identify any such contravention in the subsequent authorities:
· R v Moffatt (the imposition and review of indefinite sentences);
· R v Wynbyne (1997) 99 A Crim R 1 (mandatory sentencing);
· Felman v Law Institute of Victoria [ 4 VR 324 at 352-8] (supervisory jurisdiction over legal profession);
· Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588 at 595-6; 162 ALR 79 (denial of legal professional privilege);
· Lloyd v Snooks  TASSC 117 (mandatory sentencing).”
446 His Honour concluded that some forms of parliamentary modification of the principle of open justice would be struck down by the constitutional principle identified in Kable. For example, a provision requiring the court to sit in camera in all cases involving the State of New South Wales, either generally or in some specific respect in which the interests of the state were involved, would, in his opinion, be invalid. However, the measure under consideration in the instant case did not represent an infringement which impinged upon the “integrity” of the Supreme Court as a repository of federal power. Nor did it impinge upon the independence, or the appearance of independence of that Court. Further, it did not constitute such a distortion of its predominant or essential characteristics as to involve the Court determining the issues of law posed for its consideration, otherwise than by the exercise of the judicial power of the Commonwealth.
447 The Chief Justice went on to hold that the provisions under challenge were invalid because they intruded into the freedom of communication guaranteed by the Constitution in a manner not reasonably appropriate and adapted to achieving the legitimate objective of protecting persons who have been acquitted of criminal contempt: Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
448 Meagher JA agreed with the conclusions reached by Spigelman CJ, and with his reasons in relation to the Kable issue. However, his Honour disagreed with the finding that Lange had any application to the instant case, and rejected the conclusion that the relevant provisions were invalid.
449 Priestly JA concluded that the Kable point should succeed, in effect dissenting on this aspect of the judgment. His Honour agreed with the Chief Justice that John Fairfax should succeed in its application, upon the Lange point.
450 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. Does Kable operate to require minimum guarantees of tenure, financial security and administrative independence?
451 The principle that there should be such minimum guarantees has been recognised internationally. The 6th Conference of Chief Justices of Asia and the Pacific, held in Beijing in mid 1995, unanimously adopted the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. Article 4 of those principles regards the maintenance of the independence of the judiciary as essential to the attainment of its objectives and the proper performance of its functions in a free society observing the rule of law. It continues:
“…It is essential that such independence be guaranteed by the State and enshrined in the Constitution or the law.”
452 Chief Justice Malcolm of the Supreme Court of Western Australia recently delivered a paper, “Judicial Independence” at the 15th International Conference of the International Society for the Reform of the Criminal Law, and in it commented upon the Beijing Principles. His Honour also commented upon the conditions under which judicial service should take place. He said, in relation to judicial remuneration:
“That remuneration should be secure, in the sense that it cannot be altered to the detriment of a judge during the term of office, is also of particular importance. A judge who faces the possibility of financial disadvantage if his or her decisions displease the Executive is not placed in a position from which it is easy to exercise the judicial function with true impartiality.
A legitimate exception to this principle may be made where the reduction in remuneration is an across the board, non-discriminatory reduction in the national economic interest, which is agreed to by the Judges concerned. Such a reduction has no adverse implications for judicial independence.” (footnote omitted)
453 The Declaration of Principles on Judicial Independence issued in April 1997 by the Chief Justices of the Australian States and Territories took account of the Beijing Principles, promulgating similar principles relating to the appointment of judges of the courts of the States and Territories of Australia.
454 Sir Anthony Mason in his paper, ‘The Appointment and Removal of Judges’, in H Cunningham (ed) Judicial Independence in the Nineties and Beyond, 1997, Judicial Commission of New South Wales, Sydney,commented upon judicial independence in a magisterial context, making reference to Alexander’s Case (1918) 25 CLR 434 at 469. He observed that Isaacs and Rich JJ seemed to have taken the view that protecting the judicial independence of inferior courts, at least those on the lower end of the scale, served no real purpose.
455 In questioning whether that view should continue to prevail, Sir Anthony, in his paper, went on to say:
“…The litigants and the public expect impartial and independent adjudication from magistrates just as they expect it from judges. The common law principles relating to bias and ostensible bias apply to magistrates as well as judges. Magistrates’ courts undertake important work extending over a wider range of issues. They exercise an important jurisdiction in relation to summary offences. They are the principal point of contact that the community has with the court system. Today there are strong reasons for applying the concept of judicial independence to magistrates.”
456 The Canadian Supreme Court has held, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 150 DLR (4th) 577, that in order to preserve public confidence in the independence of the judiciary, Provincial legislatures are prevented from reducing Provincial court judges’ remuneration. The Court’s reasoning turned largely upon a provision of the Canadian Charter of Rights and Freedoms, and as a result may be of limited assistance in resolving this question in Australia.
457 No Australian authority of which I am aware holds that State legislatures are prohibited from reducing the remuneration of State court judges. There are undoubtedly powerful political considerations which prevent that course from being adopted. In most States, judicial remuneration is determined by independent statutory tribunals, though their recommendations need not necessarily be accepted.
458 Similarly, State judicial tenure is subject to amendment by ordinary State legislation, and is not, as a general rule, constitutionally entrenched. There are exceptions to that proposition: see for example ss 53, 54 and 55 of the Constitution Act 1902 (NSW) and ss 77 and 85 of the Constitution Act 1975 (Vic). However, these provisions deal only with such matters as removal, suspension and retirement from office, and the powers and constitution of the Supreme Court, and do not impose any limitation upon legislation which has the effect of reducing judicial remuneration.
459 It has been suggested that there is scope for Kable to be read as preventing State legislatures from undermining judicial independence in State courts by reducing the remuneration of the judges of those courts: see, for example, P Johnstone and R Hardcastle, op cit, at 238 and E Campbell, “Constitutional Protection of State Courts and Judges”, (1997) 23 Monash University Law Review 397 at 415.
460 Some of these same commentators recognise, however, that the text of Ch III poses difficulties for the implication against political interference through economic manipulation which Kable might otherwise support. Section 72 expressly provides for the tenure and remuneration of the Justices of the High Court and of the other courts created by the Parliament. That section plainly does not refer to State judges, and has been held by the High Court not to apply to Territory judges.
461 While the concept of an “integrated Australian judiciary” favoured by three members of the Court in Kable, and also by Kirby J in Gould v Brown (supra) at 485-486, imposes limitations upon State legislative interference with State courts, the language of Ch III may be difficult to reconcile with the conclusion that these limitations apply to State legislation dealing with the tenure and remuneration of State judges.
462 It is a nice question whether the constitutional implication recognised by the majority in Kable derived solely from the structure and text of Ch III, or whether it was based upon a broader unwritten constitutional norm. Although the matter cannot be said to be free from doubt, in my opinion, the structure and text of Ch III formed a central part of the reasoning of the majority. Kable does not support any broader principle.
463 It is clear that Kable establishes that State courts are not immune from the requirements of Ch III. As integral components of the Australian judicial system, those courts, which are invested with federal jurisdiction, must remain capable of exercising the judicial power of the Commonwealth free from executive or legislative interference. The same reasoning cannot be applied to Territory courts which, on the authorities as they stand, do not exercise federal jurisdiction.
464 There is no doubt that Kable will, in certain circumstances, invalidate State legislation which operates to undermine public confidence in the independence of State courts. If that general principle underlies the judgment, and it can be assumed that the same reasoning can be applied to Territory courts, there nevertheless remains a difficulty in reconciling the broad notion of the need for such public confidence with the specific language of s 72.
465 The authorities establish that s 72 does not apply to State or Territory Courts. That omission cannot have been accidental. It is difficult in those circumstances to see how any broader implication concerning tenure and remuneration may be drawn from Ch III.
466 I agree, with respect, with the observations of Spigelman CJ in John Fairfax concerning the scope of the Kable limitation upon State legislative power. Kable extends beyond notions of incompatibility into the realm of procedure. It is not confined to the “character of a function or power” conferred by a State law, but encompasses the manner in which that function or power is to be performed.
467 It may seem odd that Kable, which is based upon the twin pillars of the separation of powers and judicial independence, should apply to incompatibility, procedure, and the abolition of State courts themselves, but not to the tenure and remuneration of State judicial officers. Yet the language of s 72 may dictate that conclusion.
468 In Kable, Gaudron J said, at 102:
“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.”
469 McHugh J 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.”
470 Recently, the Full Federal Court in Ly v Jenkins  FCA 1640 described, as an “accepted constitutional doctrine”, the obligation of the Commonwealth, when investing a State court with judicial power, to take that court as it finds it.
471 The Court there referred to a passage in Le Mesurier v Connor (1929) 42 CLR 481 at 496:
“… [T]he power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal Courts.”
472 The Full Court went on to cite Latham CJ in Peacock v Newtown Marrickville & General Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37:
“This is a power to give new, additional, jurisdiction to State courts. The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. It may make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved; or, as in the Judiciary Act 1903-1940, sec 39, it may allow the State law to operate in respect of such matters. But the State court must be taken as it exists. The constitution or structure of the court cannot be changed by the Federal Parliament.”
473 Thus, the Full Court concluded, Parliament may affect the functions of a State court, but the “court’s organization and constitution are inviolate”: Russell v Russell (1976) 134 CLR 495 at 530. It also referred to Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 555 per Latham CJ:
“…The decision rests upon the distinction between structure and function. The Commonwealth Parliament cannot change the structure of a State court, but it may confer new functions upon that court.”
474 It follows that even if, contrary to my earlier conclusion, 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.
475 Professor Robert Stevens in his important book, The Independence of the Judiciary: The View from the Lord Chancellor’s Office, 1993, Clarendon Press, Oxford,at 3,observes:
“While there is widespread consensus on the obvious importance of the independence of the judiciary, the literature on it is meagre…”
476 That observation is less true today than it was in 1993.
477 It is sometimes forgotten that the need for judicial independence is not dependent upon the doctrine of the separation of powers, as originally articulated by Montesquieu and so willingly embraced by Blackstone. The American version of that doctrine, which found its way into the Australian Constitution, provides one route towards a theoretical justification for the need to secure judicial independence. It is not, however, the only route towards such a justification.
478 There has never been any real acceptance of the doctrine of the separation of powers in the United Kingdom. One has only to consider the functions performed by the Lord Chancellor to appreciate that fact. Yet great importance is attached to the independence of the judiciary.
479 The main reason given in support of judicial independence is that it is a condition of impartiality, and therefore of the right to a fair trial. As Sir Anthony Mason has observed, in the paper previously cited:
“…The criteria, mode and terms of appointment of judges, and the removal of judges from office continue to be topics of lively discussion and debate. In the past the discussion has been heavily influenced by the paramount importance of securing judicial independence which has always been seen as a central pillar of the rule of law. Judicial independence continues to be central to the modern debate because concern has been expressed about recent developments which have tended to erode the protection of judicial independence in Australia. Some of these developments have revealed a tension between judicial independence and judicial accountability.”
480 See also A Mason, “Judicial Independence and the Separation of Powers – Some Problems Old and New” (1990) 13 University of New South Wales Law Journal 173; M D Kirby, “Judicial Independence in Australia Reaches a Moment of Truth” (1990) 13 University of New South Wales Law Journal 187; R D Nicholson, “Judicial Independence and Accountability: Can They Co-Exist?” (1993) 67 Australian Law Journal 404; M D Kirby, “Attacks on Judges-A Universal Phenomenon” (1998) 72 Australian Law Journal 599 and A M Gleeson, “Legal Oil and Political Vinegar” (1999) 10 Public Law Review 108.
481 The arrangements made for judicial remuneration are obviously central to judicial independence. As indicated earlier, Mr Bradley’s appointment as Chief Magistrate, under the Special Determination, reflected an extraordinary lack of appreciation, on the part of those who ought to have known better, of the fundamental importance of securing judicial independence. It does not follow, however, that the appointment was invalid.
482 The words of Brennan J in Attorney-General (NSW) v Quin (supra), at 35-36, appear to me to be apposite:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
483 The decision to limit Mr Bradley’s remuneration to a period of two years, as set out in the Special Determination, may fairly be described as manifesting an administrative error. 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.
484 To criticise what occurred in this case is not, however, to conclude that it vitiated Mr Bradley’s appointment. That appointment was made in accordance with the provisions of the Act. The fact that the appointment was made against the background of a foolish attempt to introduce contract or fixed term appointments for magistrates, which was fortunately abandoned, does not invalidate it. The clumsy manner in which his remuneration was fixed is, in my view, a separate issue.
485 It follows that NAALAS’ application that Mr Bradley’s appointment be declared invalid must be dismissed. I have been asked by the parties to afford them an opportunity to consider my reasons for judgment before making any submissions as to costs. I propose to accede to that request.
I certify that the preceding four hundred and eighty-five (485) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Dated: 7 December 2001
Counsel for the Applicant:
Mr B Walker SC, with Mr A Moses and P Keyzer
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Solicitor for the Applicant:
Geoff James Solicitor and Notary
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Counsel for the First Respondent:
Mr J Reeves QC with Mr P McNab
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Solicitors for the First Respondent:
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Counsel for the Second Respondent:
Mr A Myers QC with Mr P Hanks QC and Ms P Tate
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Solicitor for the Second Respondent:
Solicitor for the Northern Territory
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Dates of Hearing:
20, 21, 22 and 23 August 2001
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Date of Judgment:
7 December 2001