Sunday, 6 December 2009

Double-booked appointments

There hasn't been much reaction (at least that I'm aware of) in response to the recent news that Justice Dodds-Streeton of the Federal Court is about to be re-appointed to the bench of the Supreme Court of Victoria.

I haven't heard anyone sounding alarm bells to this unique arrangement that will see her Honour appointed to both State and Commonwealth benches simultaneously, which suggests the legal consequences of this have been thought out very carefully - or, alternatively, haven't been thought out at all.

A few years ago the shared Commonwealth/State cross-vesting arrangements that had been in place since 1988 were struck down by the High Court as unconstitutional in Re Wakim; ex parte McNally (1999) 198 CLR 511. In the Boilermakers' case it was held that Ch III of the Constitution is exhaustive of federal judicial power. The invalidation of that legislation required parliaments to scramble around to prevent a tidal wave of litigation.

Commonwealth courts cannot be vested with any power other than judicial power. This has caused some drama over the years as, following the lead of the US, federal judges have been increasingly vested with extra-curial powers such as the power to authorise search warrants, listening devices and other functions which are considered administrative in nature, rather than judicial. To this end, the award of additional powers has been permitted by use of persona designata, a legal fiction that makes a distinction between awarding powers or duties to a holder of a particular office, rather than the office itself.

This practice was found to have strayed too far in Wilson v Minister for Aboriginal Affairs ("the Hindmarsh Island bridge case"), where the appointment of a Federal judge as a Reporter under the Aboriginal and Torres Straight Islander Protection Act 1984 was held to be invalid. (the High Court's decision is summarised in the Aboriginal Law Bulletin). There doesn't necessarily need to be a conflict of interest between the two roles in order to offend Ch III. (For a detailed discussion of the public policy considerations, see the joint judgement of Brennan CJ and Deane, Dawson and Toohey JJ in Grollo v Palmer (1995) 184 CLR 348).

Forge v ASIC was a corporations case where the High Court considered the division of State and Commonwealth power in light of the Kable doctrine. Having previously decided that the Commonwealth Constitution requires state courts to be fitting repositories for Commonwealth power, the question of how far that enabled the Constitution to regulate the composition or operation of state courts was again raised. (Every self-represented litigant contesting a speeding fine seems to be able to quote the name of this case, but appears not to have read it.)

The appellant in Forge v ASIC, unhappy with the court's judgment, chose to challenge the appointment of the judge who presided over the case. Judge Foster of the Supreme Court of New South Wales had been appointed as an acting judge after reaching the compulsory retirement age as a federal judge. The High Court, with some caution, affirmed the validity of the temporary appointment. In so doing, the High Court affirmed the principle in Kable but found the temporary judicial appointments in NSW did not offend it.

Is there supposed to be a distinction drawn between state and federal courts, or do the cross-vesting provisions of the Commonwealth Constitution make such a distinction superfluous? I'm not going so far as to say the dual appointment will be constitutionally invalid. Given that state courts exercise Commonwealth jurisdiction the two roles seem complementary.

But I'd say it will be a potential appeal point that every party going before Justice Dodds-Streeton (in either jurisdiction) will have tucked up their sleeve.


Unknown said...

Owen Dixon argued for a unified court system that would be neither state or federal.

With modern technology (transport, document reproduction, instant communication) it is becoming hard to justify the continued existence of state parliaments. A state based judiciary will become equally difficult to support as more and more national legislation is proclaimed. Critics might suggest that there is no such thing as truly uniform national legislation. Based on past form they may be right. I merely put forward the suggestion that the only way to ensure that such laws are interpreted consistently is the formation of a unified national judiciary.

Whether we fight it or embrace it, the time for legal parochialism is quickly running out. I fully expect in my lifetime, and certainly the lifetimes of those just going into practice, that the difference between the state and federal jurisdictions will have eroded down to practically nothing.

After all, are we not all Australian lawyers?

Sarah Goodwyn said...

I had to read Forge v ASIC when I was doing Constitutional Law. I don't get it. What's it got to do with speeding fines?

Dr Manhattan said...

Well, that's the sixty-four million dollar question, Sarah.

Forge v ASIC discusses the Kable incompatability doctrine, which comes from Kable v DPP (NSW) (1996) 189 CLR 51. There, the High Court held that State courts, because they are capable of exercising the judicial power of the Commonwealth, cannot be required to act in a manner incompatible with Chapter III of the Constitution (a point developed from their decision a year earlier in Grollo v Palmer).

I think some people are attracted to the idea of the Commonwealth Constitution as a single source of law, from which all other laws derive their force. This isn't the case in Australia (or in the US, either, from what little I understand of their system) but that doesn't stop some lay people from believing forces which infringe upon their civil liberties will, at some point, be deemed unconstitutional.

In fact, the Constitution provides very few express rights for citizens, and the High Court has been sparing in finding implied ones. Unlike the US, Australia has no Bill of Rights (though, of course, this could change in the future).

What has all this got to do with speeding fines?

Somewhere along the line, someone has got the idea of using Forge v ASIC to argue the unconstitutionality of speeding fines. To my knowledge, this has never even been attempted, let alone successfully. In Baker v R (2004) 223 CLR 513, Kirby J famously described the Kable doctrine as the, "constitutional guard-dog that would bark but once".

Although it's unlikely that the entire traffic law system is going to be tipped down the drain tomorrow, the Forge v ASIC argument has gone viral over the internet.

Kyle said...

Alan, although I agree with your sentiments, I'm not confident we will see wholesale change to the Commonwealth structure any time soon. The States are too concerned to protect that part of their turf they still can, and I imagine the Federal government probably doesn't want to be responsible for all of the services provided by the States.

There are a few cases that suggest the judiciary is pretty keen to interpret and apply national legislation uniformally. I think the problem for them is that there are differences even amongst State-versions of national laws (such as the Road Rules) that work against completely uniform interpretation. And of course, there's often room for legitimate differences of opinion on national legislation, just as there is on state laws.

We might see the States disappear in our lifetimes, but I expect we'll be sitting on a porch with a blanket over our knees when it happens!


Sarah, +1 to what Dr Manhattan said.

The sorts of folks I imagine might try such arguments are The Principality of Caledonia, or perhaps UPMART.

I would have bet London to a brick that The Principality of Camside would have tried this argument, but sadly for those who like bizarre war stories, they seem to have disappeared. (But, you can see cached versions of their website using the wayback archive, here.)

A good example of their legal argument employing this sort of logic is ACCC v Purple Harmony Plates Pty Ltd [2001] FCA 1062. Neal Lyster — one of the respondents in that case — was associated with Purple Harmony Plates (see The Age's article here ). Coincidentally, the websites for the Principalities of Caledonia and Camside were then registered to Neal Lyster's address, which was also the registered address of Purple Harmony Plates Pty Ltd.