The creature was the ACT body politic. Lawyers would call it a creature of statute. It was created (creatures are by definition things created) by Section 7 of the Australian Capital Territory Act in 1988: “”The Australian Capital Territory is established as a body politic under the Crown by the name of the Australian Capital Territory.”
Alas, the body had only two arms. Other bodies politic in the English tradition have three arms: the legislature, executive and judiciary. The ACT, until yesterday, was missing the last. The Self-Government Act of 1988 had only created and legislature and an executive.
A ceremony to mark the stitching on of the judicial arm was held in Courtroom No 1 of the ACT Supreme Court yesterday. Before yesterday, the court was under Commonwealth jurisdiction. Now it is under ACT jurisdiction, which means the ACT appoints judges, and subject to some entrenched safeguards, can remove them. It also funds the court and is responsible for its administration.
Six arms of government were represented: the Federal legislature (Margaret Reid and John Langmore), executive (the Minister for Justice, Michael Tate), and judiciary (Justices Allan Neaves and Bill Gummow of the Federal Court and Justices Watson and Mary Finn of the Family Court), and the ACT legislature (half a dozen Members of the ACT Legislative Assembly), executive (the Attorney-General, Terry Connolly) and judiciary (resident judges Chief Justice Jeffrey Miles, Justices John Gallop and Terence Higgins and non-resident judges Justices Kenneth Jenkinson and Donnell Ryan).
Former ACT Supreme Court judges Russell Fox, Xavier Connor, Douglas Macgregor and John Kelly, magistrates past and present, a sea of bewigged barristers, solicitors, and some members of the public also attended, though it was standing-room only and standing was not permitted thus most members of the public had to be satisfied with a video in the next court.
Mr Connolly said the independence of the judiciary was respected and guaranteed in the transfer. Indeed, the ACT Supreme Court was the only state or territory Supreme Court that had its independence entrenched in legislation.
The president of the Law Society, Russell Miller, said the transfer completed the process of self-government. It might make no discernible difference to the public “”because we have come to take for granted” that a Supreme Court with competent judges would uphold rights in a fair and impartial way. But the transfer placed in the hands of the people of the ACT (through their elected representatives) power over providing resources for the court.
The president of the Bar Association, John Purnell, took up the theme. The Northern Territory with 168,000 people had six judges and 12 courtrooms. The ACT with 300,000 had three judges a Master, Alan Hogan, and three courtroom. The judges’ and master’s devotion to duty, sitting late and sometimes at weekends, the increase in the Magistrates’ Court’s jurisdiction had run its course. It was time for a fourth resident judge.
If the present judges took their leave entitlements, the court would be solely dependent on non-resident judges.
Chief Justice Miles said a local character had been firmly stamped on the court with the appointment of Justices Gallop and Higgins and Master Hogan who all practiced here.
The delay in transferring the judiciary had enabled the judiciary and legal profession to remind the Commonwealth and ACT Governments of the ramifications of a small self-governing territory assuming power over the administration of justice.
Some decisions had to be made soon: whether the ACT should continue to send its prisoners out of its jurisdiction to NSW and whether the ACT should take over appeals from the court which now went to the Federal Court.
The court was under-resourced and inadequately accommondated. Three judges served 150,000 people in 1972; now they served 300,000.
Serious consideration should be given to the idea of the former Attorney-General, Bernard Collaery, for a legal precinct with courts, professional chambers, legal aid and welfare. He though land next to the court could be used. In the US people spoke of 100-year courthouses. The juryroom was still a disgrace which would not be tolerated in private industry of government. He welcomed the announcement this week of a new magistrates court building and the refurbishment of the present building (which contains both courts) for the Supreme Court.
He said, “”Today marks and end and a beginning. The Supreme Court is dead. Long live the Supreme Court.”