The ACT Labor Party’s commitment at its weekend conference to the creation of an ACT Court of Appeal is more a cosmetic change than a real one, but there is some merit in a formal change. At present appeals from a single judge of the ACT go to a panel of three judges in the Federal Court, one of whom is almost invariably one of the ACT resident Supreme Court judges, all of whom are also members of the Federal Court.
Under Labor’s plan there would be a fourth resident Supreme Court judge, and with the increased workload there is now a case for having one. Appeals would go to the ACT Court of Appeal of three judges. Federal Court judges, all of whom are also appointed non-resident judges of the ACT Supreme Court, would continue to sit on these appeals. Indeed, it is likely they would be held in the same courtrooms as now and much the same composition of judges would sit. The only difference would be the formal name.
There is some merit in the ACT mirroring the formal court structure of other states and territories and the ACT having control over the practice and procedure of the appeal court. However, the small size of the jurisdiction and the fact that it would have only four resident judges, makes the need for continued extensive use of Federal Court judges essential. They obviate the need to have more than one resident judge tied up with appeal work at any one time. They also bring expertise and extra judicial strength to the building up of a body of ACT law.
Inevitably, questions of funding arise. But given the way the Commonwealth Grants Commission works and the Federal Governments penchant for user pays, it would not make much difference whether the Federal Court judges were hearing appeals in the Federal Court or an ACT Court of Appeal; the balancing of the federal-territory account would be the same.