The Australian Capital Territory is in grave constitutional danger.
An argument is unfolding in the High Court in the Eastman case that threatens to set aside all of the cases decided by judges and acting judges of the ACT Supreme Court who were appointed after 1992.
Tangentially, it might result in the ACT losing its representation in the Federal Parliament.
David Eastman was tried for the murder of assistant police commissioner Colin Winchester before an acting judge of the Supreme Court. Eastman’s lawyers are arguing that the judge’s appointment was invalid so Eastman’s conviction was invalid.
Several sections of the Constitution are important in the argument.
Section 52 says the Commonwealth Parliament has the exclusive power to make laws with respect to the seat of government.
Section 122 says the Commonwealth Parliament may make laws for the government of any territory surrendered by any state.
Section 72 says the justice of any court created by Parliament shall be appointed by the Governor-General in Council (that is, by the federal government) and can only be removed by a vote of both Houses of Parliament on the ground of misbehaviour or incapacity, otherwise they stay until they are 70.
Section 71 says the judicial power of the Commonwealth is vested in the High Court and the other courts created by Parliament.
Several facts and events are critical.
The ACT Supreme Court was created by the Federal Parliament in 1933.
In 1992 the ACT Supreme Court (Transfer) Act was passed. It gave the ACT executive the power to make appointments to the ACT Supreme Court. It has made one, that of Justice Ken Crispin. In the past, appointments were only made by the federal government.
The transfer Act also allowed for acting appointments. There have been two: Justice Carruthers and Justice Alan Hogan.
The trouble with those three appointments is that they were not made by the Governor-General in Council and/or they were not to last until the person turned 70.
The argument of David Jackson, QC, was tested heavily by the judges this week, but their comments indicated that some, even a majority, found it appealing.
Jackson argued that the Commonwealth Parliament could not overcome the requirement that judges get permanent appointment by delegating the appointment down a level to the executive of a local assembly.
He argued also that judges should be appointed by the highest executive authority in the land. That argument is not merely symbolic in an environment where judges and the appointing of them have come under a lot of attack.
The position of courts in the territories has given trouble in the past. The acts of ACT magistrates (who retired at 65 and thus not appointed for the term required by the Constitution) were challenged. Different judges gave different reasons, but ultimately the High Court resolved that the territories power in Section 122 was wide enough for the Commonwealth to commit whatever sins it liked in its own territories and the requirements of Section 71 and 72 did not apply to territory courts. (A subsidiary life-saver was that magistrates were not high and mighty enough to exercise judicial power.)
But nowadays the separation of powers is gaining wider respect.
Judicial power is the application of law to individual cases where parties dispute how that law should apply. Legislative power (exercised by elected representatives) is the creation of law that is to apply generally across the land. Executive power (exercised by appointed officials) is the application and administration of that law up to the stage of a dispute requiring the judicial power (exercised by judges) to ultimately resolve.
The Constitution separates judicial power and invests it with the clout of independence and security of tenure for the judges who exercise it and this should be respected and applied in the case of territory courts. The territories (including the Northern Territory) are part of the Commonwealth and the judges in them exercise the judicial power of the Commonwealth, according to Jackson’s argument. (It seems a fairly inescapable argument to me.)
Of course, the court may not like the legal and constitutional chaos that might follow the annulling of the huge number of decisions and convictions recorded by these judges. In Chief Justice Gleeson’s dry humour: “”it is an argument that would relieve prison congestion”.
(Incidentally, one of Jackson’s subsidiary arguments was that power over the ACT was founded in Section 52, not 122. If that is right we lose our representation in federal parliament, but I don’t think the court will buy that one.)
If the court does find the judges’ appointments invalid, neither the ACT nor the Feds can fix it by retrospective legislation. The Constitution says that judicial power must be exercised by judges, not the legislature. The cases (civil and criminal) would have to be retried.
That would be chaotic, but the court quite recently rewrote past law on excise taxes causing huge fiscal disruption.
In constitutional law it is better to be inconveniently and ultimately right than conveniently and consistently wrong.