Clarke, Jennifer --- "Was the Judge in a Political Role? Dorothy Ann Wilson v Minister for Aboriginal and Torres Strait Islander Affairs" [1996] AboriginalLawB 65; (1996) 3(84) Aboriginal Law Bulletin 19

• Was The Judge In A Political Role? Dorothy Ann Wilson V Minister For Aboriginal And Torres Strait Islander Affairs
• Functions Of A Reporter Under S10 Of The Act
• The Decision In Wilson
• Findings Of The Majority
• Judgment Of Gaudron J
• Judgment Of Kirby J

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Was the Judge in a Political Role?

Dorothy Ann Wilson v Minister for Aboriginal and Torres Strait Islander Affairs

Dorothy Ann Wilson v Minister for Aboriginal and Torres Strait Islander Affairs

Full Bench of the High Court

Unreported

6 September 1996

Casenote by Jennifer Clarke

In 1995, the Full Federal Court overturned a report by Professor Cheryl Saunders and a decision by the then Commonwealth Minister for Aboriginal and Tones Strait Islander Affairs, Robert Tickner, under s10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Act'), to prevent a bridge being constructed between Kumarangk/Hindmarsh Island and Goolwa in South Australia (see Norvill & Milera v Chapman & Ors, Tickner v Chapman & Ors [1995] FCAFC 1726; (1995) 133 ALR 226 and 'Kumarangk Chronology', commencing page 22).

The acting Commonwealth Minister (Senator Rosemary Crowley) then nominated Justice Jane Mathews to provide a further report on the area, purportedly in accordance with s10 of the Act. (Without such a report, the Minister could not act on the application: see Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409. Because of the Full Federal Court decision, the Saunders report no longer had any effect.)

Justice Mathews commenced her inquiries, but before she completed her report, a South Australian Royal Commission concluded, on the basis of evidence from 'dissident' Ngarrindjeri women, that matters of Aboriginal tradition on which the previous reporter and the Minister had relied, had been 'fabricated'. Members of this 'dissident' group challenged Justice Mathews' appointment in the High Court, on the grounds that it breached the principle of separation of judicial power in Chapter III of the Commonwealth Constitution.

Functions of a reporter under s10 of the Act

Characterisation of a reporter's functions under the Act is crucial to the High Court's decision. For this reason, it appears that the decision in Wilson can be limited to the heritage protection context, and does not undermine the role of judges in mediating native title claims, or making recommendations for the grant of Aboriginal land rights under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Under the Act, the Minister may make a declaration protecting an area upon receiving an application from an Aboriginal person or group of Aboriginal people seeking its protection, being satisfied that the area is a 'significant Aboriginal area' (one of 'particular significance to Aboriginals in accordance with Aboriginal tradition-see s10), which is under threat of 'injury or desecration' (including from use inconsistent with tradition), and upon considering a report in relation to the area by 'a person' nominated by the Minister.

Reporters must, before submitting reports to the Minister, notify the public of the purpose of the application for the area's protection and invite representations. The reporter must give due consideration to all representations made, and attach them to the report (s10(3)). However, despite being required to observe natural justice (Minister for Aboriginal and Torres Strait Islander Affairs v WA, Full Federal Court, 28 May 1996), the reporter is not required to conduct an oral hearing. The Act does not confer on reporters the protections and immunities conferred on members of the National Native Title Tribunal ('the NNTT') under s180(1) of the Native Title Act 1993 (Cth) ('the NTA'), or on the Aboriginal Land Commissioner (see s53A of the Act).

The report must deal with the following matters: the particular significance of the area to Aborigines; the nature and extent of the threat of injury or desecration; the extent of the area which should be protected; the prohibitions and restrictions to be made with respect to the area; the effects of the making of a declaration on any proprietary or pecuniary interests of other people; the duration of any declaration; the extent to which the area is or may be protected under State or Territory law; and the effectiveness of any remedies under such laws.

The decision in Wilson

The decision in Wilson does not break new legal ground, but it does involve a new application of principles previously developed by the Court in Grollo v Palmer ((1995) [1995] HCA 26; 184 CLR 348) which suggest that, in future, governments will need to be careful in nominating judges to perform administrative functions. (The Court's more recent decision in Kable v DPP for NSW (unreported, 12 September 1996), that the doctrine of separation of judicial powers in the Commonwealth Constitution can limit the legislative power of a State, means that the Commonwealth is not the only level of government affected by the decision in Wilson.)

As Kirby J acknowledges in his dissent, the use of judges to investigate sensitive and complex issues is a settled feature of Australian public life. That practice has been upheld by the High Court in the past on the basis that the judges were appointed to administrative (executive) functions in their individual capacity, not as members of a court, and that therefore the separation of judicial from executive powers, as required by the Commonwealth Constitution, was not breached (see R v Kirby, ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 275). However, the decision in Wilson emphasises that judges will not be permitted to perform administrative functions which are incompatible with their judicial functions, and this incompatibility can arise from public perceptions of judges and the judiciary as an institution.

In Wilson, six judges - Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ and (in a separate judgment) Gaudron J-applied Grotto v Palmer to find Justice Mathews' appointment as a reporter invalid. They said the appointment conferred on Justice Mathews a non-judicial function, which was incompatible under the Commonwealth Constitution with her performance of judicial functions as a judge of the Federal Court. They read down s10 of the Act so that it did not authorise the Minister to appoint a Federal Court judge as a reporter. This meant, effectively, that Justice Mathews had never been appointed, and her report to the Minister (which the present Minister has tabled in Parliament) has no official status.

Findings of the majority

Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said that incompatibility between Justice Mathews' judicial and non judicial functions arises from 'the performance of non judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished' (page 15).

According to these judges, not all administrative functions are incompatible with judicial functions, and judges will be permitted to perform compatible administrative functions. If the administrative function is not closely connected with the legislature or executive, it won't be incompatible with a judge's judicial functions. Even if it is closely connected with the parliament or government, if the function is required to be performed independently of the instruction, advice or wish of the legislature or executive (other than instructions contained in a law or legislative instrument), no incompatibility will arise. But incompatibility will arise in such situations if judges are required to exercise a discretion on political grounds (that is, where judges make their own assessments of how competing interests should be balanced without reference to criteria laid down in a law). It may also be relevant for the High Court to consider (as it did here) whether the function to be performed must be performed judicially, that is, in accordance with natural justice principles. If such performance is not required, it is unlikely that the function will be performed free of political influence or without political discretion, although the fact that the function is required to be performed judicially will not indicate conclusively that it is compatible with judicial functions.

Thus, Royal Commissions may involve judges in a dose working connection with government, but because Commissioners are usually required to act judicially in finding facts and applying the law, and because they report independently of executive direction, the holding of a Royal Commission will not be incompatible with judicial functions. (The distinction made here seems rather artificial, given the highly political nature of many Royal Commissions.) Similarly, Federal judges appointed as Presidential members of the Administrative Appeals Tribunal act independently of executive instruction, and their administrative function is not therefore incompatible with judicial office.

By contrast, however, the their Honours said the reporter's function under the Act is performed as an integral part of the Minister's exercise of executive power. Performance of such a function 'places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser' (page 18). The reporter's obligation to act judicially is not sufficient to overcome these indications that his or her functions are incompatible with the holding of judicial office.

It is difficult to know what these comments mean for the appointment of judges to administrative tribunals which exercise mediation or arbitration functions, for example the NNTT. Arguably, the NNTT's functions are sufficiently divorced from other limbs of government to ensure that the separation of powers doctrine is not breached. However, some functions of the NNTT (for example, determination of 'future acts') involve detailed consideration of policy issues. Much may turn on the fact that the NTA spells out in detail the criteria which the NNTT must take into account in making a determination. Similarly, the NNTT is required to act fairly (NTA s109), and has adopted detailed procedures for the handling of mediation (see, for example, 'Appendix G: Draft Mediation Strategy' in NNTT Annual Report 1994-95, AGPS, Canberra, 1995) which reflect procedural fairness concerns.

According to the majority judges, reporters have a function of determining competing interests (those of Aboriginal applicants and others whose interests are affected), and that is a political function. Reporters may choose to act independently of the Minister, but the Act does not require them to do so; thus, reports may accord with Ministerial policy. Determining 'the extent of the area that should be protected', 'the prohibitions and restrictions to be made', and 'the duration of any declaration' (ss10(4)(c), (d), and (f) of the Act) involves making political decisions. The majority judges distinguish this function from the role of the Aboriginal Land Commissioner in finding the nature and extent of an Aboriginal connection with land, or in making an assessment of the extent to which Aboriginal beliefs or lifestyles are under threat (under s50 of the Act Again, the distinction here seems rather artificial, given the Commissioner's role of making recommendations to the Minister regarding the grant of land).

The majority judges also took a very strict view of the reporter's role of reporting on protection available for an area under State or Territory law. They said that this involves the giving of advisory legal opinions to the executive, a function alien to the exercise of Commonwealth judicial power.

Judgment of Gaudron J

Gaudron J delivered judgment in similar terms, although Her Honour emphasised the need for Federal judges (who adjudicate controversies over different governments' constitutional powers) to be seen to be completely independent of the executives and parliaments of all levels of government. She said whether or not a function 'gives ... the appearance of an unacceptable relationship between the judiciary and the other branches of government' should be determined by reference to functions which judges have exercised historically (for example, Royal Commissions), as well as to contemporary needs.

Her Honour said that functions carried out publicly, except where justice requires otherwise, in a manner manifestly free of outside influence, and which result in outcomes which can be assessed on their own terms, are unlikely to suggest such an unacceptable relationship. However, the reporter's function has not, historically, been performed by judges. It does not need to be carried out in public. The report need not be made public, and cannot be judged according to its own terms. The function of reporting therefore gives the appearance that the judge is acting as the servant or agent of the Minister, and is thus incapable of being conferred on a judge.

Judgment of Kirby J

Kirby J dissented. He emphasised the large number of inquiries in which judges have been involved since Federation, 'without the slightest demur from this Court' (page 37). This historical background 'require[d] the Court to pause before establishing a rule which would ... cast doubt on such settled activity' (page 39).

As a matter of statutory construction, according to Kirby J, there is no reason why a federal judge cannot be a 'person' within the Act. History and the meaning of 'person' in the Royal Commissions Act 1902 (Cth) contradict such an interpretation.

The suggestion that judges cannot be reporters, because they would be the 'servant[s] or agent[s] of the Minister', misconceived the reporter's independent function. The Minister has no role to play between nomination of a person and receipt of a report. The manner in which reporters obtain representations, and the matters to be dealt with in a report, are established by Parliament. The Minister cannot vary those matters or interfere with the reporting function. Procedural rulings made by Justice Mathews indicated 'a lively appreciation of her independence as a reporter' (page 43). As a donee of statutory powers required to act with lawfulness, integrity and fairness, the reporter is obliged to act in a way wholly independent of the Minister and completely conformable to the conduct normal to a judge. It should not be complained that the reporter's report is advisory only, because that is also the role of Royal Commissions.

Kirby J agreed that the incompatibility of non judicial functions with judicial duties could be assessed by reference to whether the former involve functions preventing performance of judicial duties, and whether the non-judicial duties could prejudice the independence (real and apparent) of the judiciary. Where the functions involved are not incompatible with judicial activities, it is necessary to analyse whether they draw on features of judicial experience normal to its character (exhibiting neutrality, receiving evidence, assessing its credibility, evaluating submissions, and reaching conclusions conformable with the law). It is not necessarily incompatible with judicial office for a judge to be involved in partisan or political questions. The closer the functions to those usually involved in the judicial function, the less objectionable the use of the judge. The use of judges of final courts of appeal, particularly in federations, present different questions.

Kirby J agreed that, in determining incompatibility, the court will consider whether the community might lose confidence in the integrity of the judiciary. However, there was no constitutional invalidity in the Act or in the nomination of Justice Mathews. The separation of powers remained intact; there was a clear divorce, in law and in appearance, between Justice Mathews' appointment as a judge, and her appointments to non judicial duties. The appointment was not imposed on her, and at no time did she perform both federal judicial duties and duties as a reporter.

Kirby J's judgment raises important questions about the line between the reporter's functions and those of an 'eligible judge' issuing a telephone tapping warrant under the Telecommunications (Interception) Act 1979 (Cth) (these functions were upheld as compatible with judicial functions in Grollo v Palmer). According to Kirby J, the duties of a reporter are closer to those of judicial office than the duties of an eligible judge. While most of the reporter's functions would be carried out in private, the same was often true of Royal Commissions, and it was always so with the issue of warrants under the Telecommunications (Interception) Act. Unlike these judges, Justice Mathews' appointment was publicly announced, some of her proceedings were public, and she was subject to the rules of procedural fairness. In exercising her function, Justice Mathews was publicly identified, evaluating evidence and submissions, judicially reviewable, and presenting a report which reality suggests would have inevitably found its way into the public domain, save for any specially confidential parts.

Kirby J concluded with the following criticism of the majority view.

In my respectful opinion, the decision in this case involves a departure from long-standing practice in Australia... , a rejection of the [more flexible] principles found to be appropriate in the more rigid [US] constitutional context ... , an undue constriction of the Parliament's decision to authorise utilisation of "any person" as a reporter; and a serious limitation on the privilege of the Executive Government to choose a person, who happens to be a judge, where the sensitivity and importance of the particular case is considered by it to warrant such a course' (page 59).