The ACT Chief Justice, Justice Jeffrey Miles, has put a mid-way course. He says we are neither; we are a half-way house.
In the latest Australian Law Journal he took issue with a view put the Deputy Editor of The Canberra Times, Jack Waterford. Waterford had said the ACT Supreme Court ought to be within the sovereignty of the people of the ACT.
Justice Miles said his purely personal response was: “”I wonder whether the people of the ACT think they have, or want sovereignty. I doubt whether the Commonwealth intended to give sovereignty to them. Look at the terms of the ACT Self-Government Act whereby the Commonwealth retains the power to dismiss the Legislative Assembly or to disallow its enactments.”
The ACT did not want statehood, nor did the Commonwealth want it to have statehood, he said. The ACT was created to provide a place for the seat of government.
“”Sovereignty in the ACT is shared between the people of the territory and the people of the rest of the Commonwealth. The Commonwealth has a special responsibility for the Territory. The Commonwealth ought to give the Territory the closest thing to a proper Constitution.”
On that basis, Justice Miles called for an entrenching provision by Commonwealth law vesting the judicial power of the territory in the ACT Supreme Court and guaranteeing tenure unless incapacity or misbehaviour are proved.
One of the difficulties of writing for learned law journals is the danger of being scooped. And, alas for Justice Miles, he was scooped by an article buried deep in the morass of words in the back book of Wednesday’s paper. That article, like Justice Miles drew attention to the disgraceful Staples affair.
It , too, said gutless federal politicians had used the artifice of repealing legislation setting up the Arbitration Commission to rid the Government of the turbulent Staples. They had then recreated the commission under a new name, the Industrial Relations Commission, without reappointing Staples to that body. And nary a word alleging misconduct had been directed at him.
That article, like the article of Justice Miles after it, thought a similar fate could befall a judge of the Supreme Court unless entrenching provisions under Federal law prevented any “”tin-pot” ACT politicians from indulging in the same trick. And like Justice Miles, it thought present arrangements were not strong enough to prevent that.
I agree with the Miles view that there should be an entrenching provision. However, given the ACT Supreme Court primarily serves the people of the ACT, I tend to the Waterford view that ultimately it should be responsible to them. The entrenching should be in the form of a law of the Territory that cannot be altered without a referendum.
To the extent that the people of Australia as a whole have an interest in the federal territory, it is in the territory as a seat of government. It has nothing to do with the settlement of standard lawsuits between citizens over such things as breach of contract, negligence and fencing disputes or on the trial of criminal matters.
Insofar as there are disputes in the ACT about the territory as a seat of government, jurisdiction should be vested in the Federal Court.
Justice Miles has rightly pointed out the unique legal state of the ACT under Section 125 of the Constitution. It can never be a state. It has only one purpose: to contain the seat of the Federal Government. However, people live here. They are entitled to enjoy the rule of law, like other Australians. That requires an independent judiciary. But, unlike Justice Miles, I think that independence can occur without a guarantee under Federal legislation. It can occur with a locally entrenched provision. But like Justice Miles I think the present arrangements, including the new Judicial Commissions legislation are unsatisfactory. But they can be fixed, with a little will from the local and Federal legislators.
If not, there is another solution. The difficult mix of federal and local interests in one territory highlighted by Justice Miles and Jack Waterford suggests that perhaps the Founding Fathers were wrong. The Federal Territory housing the seat of Government should have been much smaller _ just Parkes and Barton. The rest of Canberra would be in NSW (like parts of Washington being in Virginia). We would fight our cases in the NSW Supreme Court, have four or five seats in the NSW Parliament, and a decent road to the coast.