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Because Ch III requires there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a state so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.[14]
While thus acknowledging the constitutional argument, the joint judgment based its conclusion on the statutory construction of the Supreme Court Act 1970 (NSW). Their Honours held that the 'better' statutory construction of the Supreme Court Act is that it distinguishes between appointments as a judge and appointments to act as a judge.[15] Put another way, the words of s 37 do not create a separate office of 'Acting Judge', but merely permit a person to 'act' as a Judge, for a certain term.[16] Their Honours concluded that, given this distinction, the power to appoint acting judges would not permit 'the appointment of so few persons as judges and so many to act as judges, as would permit the conclusion that the court was predominately, or chiefly, composed of acting judges'.[17]
The joint judgment linked the constitutional and statutory construction analyses, stating:
No matter whether the conclusion, that s 37 does not give unlimited power to make acting appointments, is seen as following from the words of the Act, or as reinforced or required by constitutional considerations, it is a conclusion that proceeds from an unstated premise about what constitutes a 'court'.[18]
While it is unclear how a statutory construction of s 37 requires an examination of what a 'court' is (in that s 37 refers only to judges, rather than the court as a collective or whole), the joint judgment identified the 'abstract premise' behind this conclusion as the maxim that 'the courts … must be, and be seen to be, institutionally independent and impartial'.[19]
The joint judgment then turned to the question of when the institutional independence and impartiality of a court may be compromised such that it is no longer a 'court'. According to the joint judgment, the institutional independence and impartiality of a court is not inevitably compromised by acting appointments. Their Honours rejected the idea that a quantitative criterion could usefully mark the boundary between a court with a permissible number of acting judges and a court predominately (and potentially impermissibly) composed of acting judges.[20] Rather, the test must always return to the underlying requirement of maintaining the fact and appearance of judicial independence and impartiality.[21] To this end the joint judgment adopted a reasonableness test: would the 'informed observer' 'reasonably conclude that the institution no longer is, and no longer appears to be, independent and impartial'?[22] Factors other than the mere number of acting appointments will be relevant to this inquiry, in particular the class of persons appointed to act as a judge,[23] the duration of the appointments, the kind of work, and the reason why it has been thought necessary to make the acting appointment.[24] This inquiry may also require a balancing test between necessity and institutional integrity. The joint judgment stated:
[T]he institutional integrity of the court is less likely to be damaged by response to pressing necessity than it is by the change of character that may be worked by a succession of short-term appointments for no apparent reason other than avoiding the costs associated with making full-time appointments or, perhaps worse, a desire to assess the 'suitability' of a range of possible appointees.[25]
Justices Gummow, Hayne and Crennan therefore dismissed Forge's argument and held that, in providing for the appointment of acting judges to the Supreme Court, s 37 was constitutionally valid. However, their Honours left open the question of whether acting appointments would ever be unconstitutional, noting that, to argue that Foster AJ's appointment was invalid, Forge needed to do more than point to the numbers of acting judges on the court: he needed to examine the circumstances of the appointments of Foster AJ and the other acting judges on the court at the relevant time.
Chief Justice Gleeson (with whom Callinan J, in a separate judgment, agreed) also rejected Forge's argument that the Kable principle leads to the conclusion that s 37 is invalid and that acting judges can never be appointed to a state Supreme Court. Dealing only with the constitutional argument (and not statutory construction), Gleeson CJ held that Chapter III requires that state courts continue to answer the description of 'courts', and, to do this, a body must satisfy minimum requirements of independence and impartiality.[26] Thus, Gleeson CJ accepted that the Kable principle might extend to govern the state laws regarding the composition of a state court that exercises federal jurisdiction.
However, the Chief Justice appeared to take a broader view of the power of state governments to appoint acting judges than the joint judgment. The reasons of Gleeson CJ, in contrast to the discussion in the joint judgment, indicate a greater acceptance of acting judges. Unlike the joint judgment, Gleeson CJ did not venture an opinion on when the appointment of an acting judge may infringe the Constitution. Rather, he stated that:
It is possible to imagine extreme cases in which abuse of the power conferred by s 37 could so affect the character of the Supreme Court that it no longer answered the description of a court or satisfied the minimum requirements of independence and impartiality. It is, however, a basic constitutional principle that the validity of the conferral of a statutory power is not to be tested by reference to 'extreme examples and distorting possibilities'. [27]
His Honour was particularly concerned to separate the policy questions regarding the desirability of acting judges from the justiciable issue of the validity of s 37.[28] He looked to history and court practice to demonstrate that there is 'no single ideal model of judicial independence, personal or institutional', and that there is 'room for legitimate choice' regarding the arrangements to secure this independence.[29] This choice, Gleeson CJ suggested, is best left to the executive government.[30] Judicial independence can be secured by a combination of institutional arrangements and safeguards, including the authority of the appointing body, the terms and conditions of office such as procedures for removal and fixed remuneration, and oversight of judges at a personal level, such as taking the judicial oath, and scrutiny by the Judicial Commission of NSW and the Independent Commission Against Corruption.[31] For Gleeson CJ, in the context of these safeguards, the renewability of acting appointments is not fatal to judicial independence and impartiality.[32]
Justice Callinan agreed with the reasons of Gleeson CJ, but made some additional observations about the desirability of acting judges. He agreed with Gleeson CJ that people hold differing views about the desirability of acting judges, but was prepared to give more weight to the Declaration of Principles of Judicial Independence, agreed to by the eight Chief Justices of the States and Territories in 1997. These principles stated that there was no objection to the appointment of acting judges, provided appointments were made with the approval of the Chief Justice, and were made in special circumstances.[33] Justice Callinan also noted that the appointment of acting judges could be beneficial for courts and for the system of justice. In doing so, his Honour appears to engage in the policy debate that Gleeson CJ was careful to avoid. He stated that younger appointees, with suitable qualifications, 'bring with them enthusiasm and vigour', and further noted that appointing acting judges to established courts would produce a better system of justice than creating specialist tribunals, and as such was the preferable practice.[34]
Justice Heydon also joined the majority in deciding that s 37 is valid. However, in contrast to the other judgments, Heydon J consciously refused to engage with the Kable principle. While his Honour listed the assumptions inherent in Forge's Kable-based argument, he regarded it as unnecessary in deciding the case before the Court to reaffirm or make conclusions about their authority.[35] Rather, Heydon J confined his judgment to the part of Forge's argument which turned on the meaning of the word 'court' in ss 71 and 77(iii) of the Constitution. Justice Heydon's method of constitutional interpretation is originalist: for him, the word 'court' in Chapter III now bears the meaning '[it] bore in the circumstances of … enactment by the Imperial parliament in 1900'.[36] Specifically, it refers to those courts that were colonial courts and became state Supreme Courts in 1901.[37] Justice Heydon drew extensively upon the history and membership of colonial courts before federation to demonstrate that acting judges were an accepted part of these courts, providing examples of constitutional drafters and prominent members of the early High Court who were themselves acting judges during their careers, and to other acting appointments that attracted such controversy and attention that they must have been in the minds of the constitutional drafters.[38] He concluded that 'the history of acting judges in the colonies before federation points to the conclusion that Ch III contemplates the validity of state legislation permitting the appointment of acting judges.'[39]
Justice Heydon also examined Forge's argument that the appointment of acting judges compromises the independence and impartiality of the Supreme Court of NSW. Like Gleeson CJ, Heydon J noted the statutory safeguards applying to judges and acting judges alike,[40] and that the work of both is equally public and subject to the same scrutiny and standards of judicial decision-making.[41] Justice Heydon was critical of the evidence presented by Forge in support of his argument, in particular the lack of actual evidence of the fact or perception that the appointment of acting judges threatened the independence and impartiality of the Court. He agreed with the joint judgment that Forge's reliance on the numbers of acting judges appointed is misleading and, in itself, not decisive. He also employed a reasonableness test to ascertain whether institutional independence and integrity is compromised. He concluded that an objective observer would regard the appointment of former judges as acting judges as suitably qualified persons whose circumstances and independence were indistinguishable from permanent judges.[42] On this basis, Heydon J rejected the argument that acting judges compromise the independence and impartiality of the Court, and held that the appointments of Foster AJ were valid.
Justice Kirby dissented from the decision of the majority and held that the number and type of acting appointments made to the Supreme Court of NSW in recent years amounted to an impermissible attempt to alter the character of the Supreme Court.[43] Like the joint judgment and Gleeson CJ, Kirby J based his constitutional analysis on the Kable principle, stating that 'in order to be courts suitable for the exercise of federal jurisdiction under the Constitution, state courts … were required to exhibit certain basic qualities as "courts"'.[44] Justice Kirby's analysis goes a little further, in that he also considered the adage that 'federal Parliament must take state courts as it find them' ought to be reconsidered in light of the Kable principle.[45] He held that while state courts can depart from the standards of s 72 of the Constitution, they still must comply with standards of independence and impartiality. This requirement is informed not only by the words of the Constitution and the Kable principle, but also by the federal structure of Australia's system of government (in which the judiciary is called upon to decide federal contests)[46] and international human rights law.[47]
The difference between the outcome of the decisions of Kirby J and the joint judgment may lie in the approach each takes to the evidence. Unlike the members of the joint judgment, who did not regard the number of acting appointments, in itself, as critical to the question of whether the institutional integrity of the Court is compromised, Kirby J referred to the figures provided by Forge and his own research to demonstrate that in 1989 there was a significant change in the composition of the Court and that since then, acting judges have come to constitute a settled proportion of the Supreme Court. As such, Kirby J held that the figures 'demonstrate a systematic and uninterrupted trend since 1989 to alter the composition of New South Wales courts by appointing acting judges in substantial numbers'.[48] As discussed above, other Justices expressed a concern that the quantitative analysis presented by Forge did not paint the whole picture, that, for example, the figures afforded no information on the backgrounds of the judges, nor did they disclose the nature or percentage of the Court's work that was performed by acting judges. Justice Kirby defended his quantitative analysis on the basis that Forge's case did not rely on numbers alone, but on the pattern and continuity of the trend evident in the numbers.[49] That the State of NSW, as respondent in the matter, did not present more detailed information on the number, duration and variety of acting appointments[50] and on the precise level of representation on the court over time,[51] suggested, to Kirby J, that the published information was accurate.
Justice Kirby also outlined the principal objections to acting judges, including dependency upon the executive for reappointment, and the breakdown in the judicial culture of an 'exclusive, dedicated, tenured service' that comes when acting judges combine judicial service with other work.[52] Justice Kirby also argued that, because acting judges lack the staffing, personal benefits and institutional resources of permanent judges, they typically appear to play a limited role[53] and may not be as fully engaged and committed as permanent judicial officers.[54]
For Kirby J, the appointment of a significant number of acting judges, reliant upon the executive government for the renewal of their appointments, represents an 'institutional shift' in the nature of the court.[55] Justice Kirby therefore held that the use of s 37 to appoint acting judges in this way undermines the integrity and independence of the Supreme Court, and as such is constitutionally impermissible. He held that s 37 should be read down to permit exceptional and occasional appointments of acting judges.[56] As the appointments of Foster AJ and other acting judges to the Supreme Court were not made in exceptional circumstances, but part of a constitutionally impermissible practice of appointing acting judges in such numbers as to alter the character of the Supreme Court, the appointment of Foster AJ was therefore invalid and the orders he imposed on Forge and others were of no legal validity.
Although Kirby J was the only judge in Forge v ASIC to find that the appointment of Foster AJ was unconstitutional, the joint judgment also suggested that there may be circumstances in which the appointments of acting judges to state courts are invalid. However, it is unclear exactly how and in what circumstances the appointment of an acting judge may be declared invalid.
It is unclear whether a particular appointment of an individual acting judge could infringe the Kable principle or be beyond the scope of s 37 as it is construed in the joint judgment. The joint judgment seems to suggest that a collective analysis is required — that there must be a trend or 'series' of acting appointments unjustified by a counter-balancing necessity.[57] It would appear that this is required by the formulation of the principle — if invalidity rests on whether the independence and impartiality of the court, as an institution, is compromised, the appointment would need to affect the court as an entity. It is difficult to see how a single acting appointment could so affect the court. (The joint judgment seems to suggest the apprehension of bias principle may sufficiently meet the specific case of an individual appointment.[58])
However, the joint judgment was clear that a finding that the institutional integrity of a court is compromised by acting appointments cannot rest on numbers alone, stating:
Whether, or when, the institutional integrity of the court is affected depends … upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what and, no less importantly, why it has been thought necessary to make the acting appointments that have been made.[59]
Therefore, while the appointment of a retired judge may be appropriate in the circumstances, the appointment of a legal practitioner to act as a judge, in order to assess his or her suitability for judicial work, or to ascertain whether he or she liked judicial work may be more contestable.[60] Nonetheless, it may be that such an appointment is justified by a 'pressing necessity' (such as a shortfall in available judges due to embarrassment, location or, as suggested by one of the Attorneys-General intervening in the case, a pandemic illness[61]) and may not, for that reason, compromise the independence and impartiality of the court.
The operation of this balancing test would, it seems, require evidence as to the circumstances (not merely the number) of all acting appointments made over a particular time in order to show that the institutional integrity of a court has been compromised. Such an undertaking might well lead to the problem of justiciability raised by Gleeson CJ. The appointment of judges and acting judges are matters for the executive government,[62] which is governed by political responsibility and accountability.[63] Looking beyond the number of appointees to the circumstances of their appointment may lead the Court, impermissibly, into areas of policy and political decision-making.
While the majority in Forge v ASIC did not find that the Kable principle had been infringed, four judges of the Court — their Honours in the joint judgment and Kirby J — left open the possibility that the words of Chapter III and the Kable principle might operate to prevent the appointment of acting judges in such numbers that a 'court' is predominantly composed of acting judges. This section discusses the extension of the Kable principle and the attempt in Forge v ASIC to tie it more closely to the text of the Constitution.
Forge v ASIC sees the development of a second aspect of the Kable principle. In Kable v DPP, the High Court held invalid legislation passed by the Parliament of NSW that empowered the Supreme Court of NSW to make preventative detention orders. A majority of the High Court held that conferring this function on the Supreme Court was 'incompatible' with the exercise of federal judicial power by that Court. The legislation (which expressly applied to one individual, Mr Kable, and permitted detention even though no offence had been proved) gave the appearance that the court was an instrument of the executive government — a role far removed from ordinary judicial processes and standards.[64]
Therefore, the 'institutional integrity' of the Supreme Court was undermined because of the function that the legislation required of the Court. The cases of Fardon v Attorney-General (Qld), [65] which also concerned preventative detention, and Baker v The Queen,[66] which concerned the determination of a 'minimum term' of imprisonment for a person serving a life sentence, proceeded on a similar basis, and, while the Kable arguments in these cases were not made out, the principle was endorsed and refined.[67]
In Forge v ASIC however, the general principle in Kable — that legislation that substantially impairs a court's institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid — was invoked to limit the ability of a state to legislate with respect to the structure and composition of a state court capable of exercising federal jurisdiction. This development was foreshadowed in North Australian Aboriginal Legal Aid Service v Bradley.[68] Bradley concerned legislation that permitted the Administrator of the Northern Territory to determine the remuneration of a Magistrate. While the Magistrate was appointed to hold office until the age of 65, his remuneration was fixed on two year terms. The High Court found that the legislation permitting this arrangement was valid, holding that integrity of the territory magistracy or judicial system was not jeopardised. The High Court in Bradley consciously left open for later consideration 'the application of Kable to a series of acting rather than full appointments which is so extensive as to distort the nature of the court concerned'.[69]
This extension of the Kable principle from state legislation that confers an 'incompatible function' to legislation that governs the structure and composition of a court itself is not so radical when considered in light of concurrent adjustments in the formulation of the principle itself over a number of High Court decisions.
The original principle, as formulated in Kable v DPP, has been described as derived from a broad reading of Chapter III of the Constitution,[70] protecting the integrated system of Australian Courts contemplated, but not expressly spelled out, in the Constitution. The judgments in Forge v ASIC, however, are concerned to tie the requirements of judicial institutional integrity, independence and impartiality back to the term 'court' as it appears in the text of the Constitution, rather than an implied integrated system of courts. For example, Gleeson CJ stated:
It follows from the terms of Chapter III that state Supreme Courts must continue to answer the description of 'courts'. For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution.[71]
The joint judgment more particularly sought to put what was the Kable principle of incompatibility beneath the umbrella of the constitutional term 'court':
Because Chapter III requires that there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a state so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable … But … the [Kable] principle is one which hinges upon maintenance of the defining characteristics of a 'court' … It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision making-bodies.[72]
Justice Kirby also explains the 'advent of the Kable principle' as part of the requirement that 'courts', as named in the Constitution, exhibit certain basic qualities.[73]
In this way, the Kable principle has been retrospectively reworked, and along with it, the formulation of the relevant test. The majority in Kable v DPP used different formulations, but all referred to 'integrity' and 'public confidence' in the institution of the judiciary.[74] By the time of Forge v ASIC, the criterion of public confidence was no longer in favour — as Kirby J stated, it is 'conclusory, sometimes inappropriate and usually unhelpful'.[75] Instead, 'institutional integrity' has become the 'touchstone' of the Kable principle.[76] Following Forge v ASIC, the relevant question is likely to be: is a function conferred on a Chapter III court, or the structure and composition of a Chapter III court, consistent with the character of a 'court', constitutionally defined?
Even if Forge v ASIC ties the Kable principle more closely to the words of the Constitution, it does not necessarily follow that the content of the principle will be clearer or more easily applied to particular circumstances. Criticisms levelled at the Kable principle — that it is an imprecise test that fails to adequately define notions of 'integrity, independence and impartiality'[77] — are equally applicable to a new test that seeks to ascribe a core constitutional meaning to the word 'court'. However, for the purposes of Forge v ASIC, a majority of the Court seemed to agree that independence and impartiality were essential characteristics of a 'court'.[78]
There was some disagreement among the members of the court in Forge v ASIC as to where the essential characteristics of a court may be discovered and how they may be maintained in practice, particularly given that it is clear that the standards set out in Chapter III are applicable only to federal courts and do not automatically apply to state courts exercising federal jurisdiction. The most guidance taken from the Constitution comes from implications drawn from federalism, which can be seen in Kirby J's reasons for judgment, discussed above.[79]
Receptiveness to international and foreign law varied between members of the Court. Chief Justice Gleeson was alone in looking to the detail of comparative law, particularly where it is based on constitutional provisions and human rights standards that provide for a fair trial, stating '[d]ecisions in [such] cases contain valuable analyses of the essential requirements of an independent and impartial court'.[80] In contrast, the joint judgment considered that foreign law is historically and locally contingent and its application in Australian law would obscure the particular historical and governmental setting of Australia. However the members of the joint judgment did concede that 'the most that can be derived from overseas decisions is that impartiality and integrity are generally seen as essential characteristics of a court.'[81] Justice Kirby, while guided by international human rights law and the interpretation of Art 14(1) of the International Covenant of Civil and Political Rights as requiring judicial tenure to be a prerequisite for judicial independence,[82] distanced his judgment from comparative law, on the basis that the legal and constitutional arrangements, even in other common law countries, are peculiar to those countries and not necessarily applicable to the Australian context.[83] While Kirby J did not reconcile this tension, it could be reconciled on the basis that foreign law is developed by reference to particular historical and local contexts, while international law claims universality. For Heydon J, comparative law provided no assistance because the various foreign human rights instruments all post-date the creation of Chapter III of the Constitution, and, accordingly, cannot assist in its interpretation.[84]
Given the caution surrounding the relevance of foreign law on the basis that it cannot capture the unique circumstances of Australian law, it is not surprising that Australian history plays a central role in the various judgments in Forge v ASIC. All Justices bar Callinan J make use of Australian history to give content to the word 'court' and its essential characteristics. However, members of the Court differ greatly in the purpose behind their examinations of history, and in the conclusions to be drawn from it. Chief Justice Gleeson and the members of the joint judgment looked to history to demonstrate that the standards of judicial independence and impartiality are not fixed, but contingent on time and place. Chief Justice Gleeson stated that:
Minimum standards of judicial independence are not developed in a vacuum. They take account of considerations of history, and of the exigencies of government. There are sound practical reasons why state governments might need the flexibility provided by a power to appoint acting judges.[85]
Similarly, for the joint judgment '[h]istory reveals that judicial independence and impartiality may be ensured by a number of different mechanisms, not all of which are seen, or need to be seen, to be applied to every kind of court.'[86] However, the joint judgment did not treat historical facts as decisive, stating that historical differences do not mean that one or other feature may not be part of the constitutional definition of 'court'.[87] Therefore, Gleeson CJ and the joint judgment use history to illustrate that, while, constitutionally, a court must be independent and impartial, the mechanisms for achieving this need not be fixed and will depend on context, justifying a case-by-case approach.
In contrast, Heydon J used history to attempt to give a fixed and objective meaning to the word 'court', by looking to what the word 'court' meant when Chapter III was written. In Heydon J's judgment, history therefore justifies the conclusion that Chapter III contemplates the validity of state legislation permitting the appointment of acting judges. In an unusual take on originalism, Heydon J looked to what early members of the court and constitutional framers may themselves have done or been aware of. In other words, Heydon J considered how the founders would have regarded a particular factual situation and based his conclusion on that. He did not look at the broader principle and purpose in establishing Chapter III, through, for example, an analysis of convention debates. This approach has some limitations, in that it seems to ignore the fact that Chapter III created a new judicial structure for a new federation, and might have represented a departure from colonial practice.[88] Perhaps in response to Heydon J's arguments, Justice Kirby also looked back to the laws and practices of 1900 and argued that the relevant legislation in 1900 made it clear that any acting appointments were confined to 'special circumstances'. As such, in Kirby J’s view, the appointment of a large and steady number of acting judges in 1900 would have been inconsistent with the 'special' character of the acting judge’s commission as well as with the actual practice of the time.[89]
The reliance on history to give content to the terms 'court' and 'independence' and 'impartiality' may reflect nothing more than the fact that courts are historical institutions, and cannot be defined except by reference to their traditional character and role. However, this approach to defining constitutional terms does demonstrate the circularity of the enterprise of stripping back the Kable principle to the word 'court' only to import much of the content of that word from beyond the text of the Constitution. Nor is history the only source of content for the word 'court': it is easy to imagine sociological or jurisprudential analyses coming to different (or even similar) conclusions about the characteristics of a 'court'. Ultimately, the term 'court' can contain implications as contingent and elusive as 'independence' and 'impartiality' as well as notions of 'public confidence' (which may be implicit in the emphasis given to the formulation that a court must be, and be seen to be, independent and impartial), 'due process', 'equal justice' or any number of other qualities.
While the High Court, by a significant majority, dismissed the constitutional challenge to the appointment of Foster AJ as an acting judge of the NSW Supreme Court, the decision in Forge v ASIC leaves several questions open. A majority of the Court, (the three members of the joint judgment and Kirby J) indicated that there may be scope for invalidating the appointment of acting judges (if sufficient evidence was led) on the basis that such appointments compromise the institutional integrity of the courts. Beyond the specific question of the permissibility of acting judges in state courts, the decision in Forge v ASIC also leaves the scope of the Kable principle in a state of uncertainty. Although the foundation of the principle appears to have shifted away from notions of public confidence in an integrated judicial system, and has come to rest on the one word, 'court', in the Constitution, the decision in Forge v ASIC illustrates that it does not follow that the content and operation of the Kable principle will become more precise. Indeed, the joint judgment acknowledges the uncertainty in the process of defining the word 'court' and giving content to its essential characteristics, when their Honours state: 'It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.'[90] In the end, the decision in Forge v ASIC seems to perpetuate rather than remedy the uncertain scope of the Kable principle in Australian constitutional law.
[*] BA LLB (ANU). Associate to the Hon Justice KE Lindgren, Federal Court of Australia. The author would like to thank Adrienne Stone for her assistance with this casenote.
[1] [2006] HCA 44; (2006) 229 ALR 223 ('Forge v ASIC').
[2] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 ('Kable v DPP').
[3] Supreme Court Act 1970 (NSW) s 37(4A).
[5] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 224 [1]–[2] (Gleeson CJ); 235 [49] (Gummow, Hayne and Crennan JJ).
[6] Forge v Australian Securities and Investments Commission [2004] NSWCA 448; (2004) 213 ALR 574.
[7] Section 72 states that 'the appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years', while the appointments of judges to other federal courts shall be for a term 'expiring on his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court'. If an act is silent as to the maximum age (as the Federal Court of Australia Act 1976 (Cth) is) the Constitution provides that the default maximum age is 70 years.
[8] R v Murray; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437, 452; Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481, 495–6.
[9] [1996] HCA 24; (1996) 189 CLR 51.
[10] This and related arguments have also been put in academic and political contexts. See further, Ronald Sackville, 'Acting Judges and Judicial "Independence"', The Age (Melbourne), 28 February 2005; Michael Kirby, 'Acting Judges — A Non-theoretical Danger' (1998) 8 Journal of Judicial Administration 69, 74–5; Philip Ruddock, 'Selection and Appointment of Judges' (Speech delivered at the Sydney University, Sydney, 2 May 2005); PW Young, 'Current Issues: Acting Judges' (1998) 72 The Australian Law Journal 653, 653–4; Douglas Drummond, 'Towards a More Compliant Judiciary? — Part I' (2001) 75 The Australian Law Journal 304, 313.
[11] Justice Kirby presents these figures in tables and graphs in Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 258–64 [135]–[144].
[12] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 239 [57]. This rule is also discussed in Kable v DPP [1996] HCA 24; (1996) 189 CLR 51, 103 (Gaudron J); 110–11 (McHugh J); and 139–42 (Gummow J).
[13] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 240 [61].
[14] Ibid 240 [63].
[15] Ibid 242 [70].
[16] See further the comments of Gummow and Hayne JJ during argument: Transcript of Proceedings, Forge v Australian Securities and Investments Commission [2006] HCATrans 22.
[17] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 243 [72] (emphasis in original).
[18] Ibid 243 [73].
[19] Ibid 244 [78].
[20] Ibid 248 [90].
[21] Ibid.
[22] Ibid 249 [93].
[23] Ibid 250 [98].
[24] Ibid 251 [101].
[25] Ibid 250 [99].
[26] bid 234 [41].
[27] Ibid 235 [46].
[28] Ibid 228 [19]–[20].
[29] Ibid 232 [36]–[37].
[30] Ibid 228 [19], 235 [45].
[31] Ibid 234 [43].
[32] Ibid 234–5 [44].
[33] Ibid 291 [239]–[240].
[34] Ibid 292 [241].
[35] Ibid 292–3 [245]–[246].
[36] Ibid 295 [256], quoting Barwick CJ in King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229.
[37] Ibid.
[38] Ibid 295–9 [256]–[267].
[39] Ibid 302 [277].
[40] Ibid 299–300 [269].
[41] Ibid 300 [270].
[42] Ibid 301–2 [276].
[43] Ibid 256 [124].
[44] Ibid 278 [192].
[45] Ibid 280 [198].
[46] Ibid 275 [185].
[47] Ibid 282–5 [204]–[214]. Justice Kirby cites the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, Art 14(1) (entered into force 23 March 1996) which provides that 'all persons shall be equal before the courts and tribunals [and] everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law' (at 283 [208]).
[48] Ibid 262 [141].
[49] Ibid 263 [143].
[50] Ibid 266 [150].
[51] Ibid 267 [153].
[52] Ibid 287–8 [222].
[53] Ibid.
[54] Ibid 266 [149].
[55] Ibid 288 [224].
[56] Ibid 289–90 [230]–[231].
[57] Ibid 250 [97], [99].
[58] Ibid 241–2 [66]–[68].
[59] Ibid 251 [101].
[60] Ibid 250 [98].
[61] Ibid 248 [89].
[62] Ibid 228 [20].
[63] Ibid 229 [26].
[64] Kable v DPP [1996] HCA 24; (1996) 189 CLR 51, 97–8 (Toohey J), 107 (Gaudron J), 117 (McHugh J).
[65] [2004] HCA 46; (2004) 223 CLR 575.
[66] [2004] HCA 45; (2004) 223 CLR 513.
[67] See Dan Meagher, 'The Status of the Kable Principle in Australian Constitutional Law' (2005) 16 Public Law Review 182.
[68] [2004] HCA 31; (2004) 218 CLR 146 ('Bradley').
[69] Ibid 164 [32]. See also Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 618 [104] (Gummow J).
[70] Fiona Wheeler, 'The Kable Doctrine and State Legislative Power over State Courts' (2005) 20 Australasian Parliamentary Review 15, 19.
[71] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 234 [41].
[72] Ibid 240–1 [63].
[73] Ibid 278 [192].
[74] See, eg, Kable v DPP [1996] HCA 24; (1996) 189 CLR 51, 107 (Gaudron J): 'The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process.' See also 98 (Toohey J), and 124 (McHugh J).
[75] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 279 [194].
[76] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 618 [102] (Gummow J).
[77] See generally, Meagher, above n 67, Wheeler, above n 70.
[78] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 234 [41] (Gleeson CJ), 241 [64] (Gummow, Hayne and Crennan JJ), 275–6 [181] (Kirby J).
[79] Ibid 276 [185].
[80] Ibid 230 [28].
[81] Ibid 245 [80].
[82] Ibid 282–5 [204]–[214].
[83] Ibid 277–8 [187]–[191].
[84] Ibid 293–4 [250].
[85] Ibid 234 [42].
[86] Ibid 246 [84].
[87] Ibid 247 [85].
[88] This point was made by Fiona Wheeler, during a Centre for International and Public Law Discussion Group on Forge v Australian Securities and Investments Commission, 5 October 2006, ANU College of Law, Australian National University.
[89] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 257–8 [127]–[130].
[90] Forge v ASIC [2006] HCA 44; (2006) 229 ALR 223, 241 [64].
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