The move by ACT Attorney-General Gary Humphries to consider setting up an ACT Court of Appeal appears to be forced upon the ACT Government by the Commonwealth Government.
In the early days of the ACT, appeals went straight from the ACT Supreme Court to the High Court of Australia. After the creation of the Federal Court of Australia, appeals went to the Full Court of the Federal Court, typically of three judges.
As a general principle appeals are heard by more judges than at the level below, so any appeal from the ACT Supreme Court, typically a single-judge hearing, would have to be heard by a three judge panel.
Up to very recently, the present arrangements proved satisfactory. The ACT is, after all, a federal territory retaining the national capital and the Commonwealth has an interest in the judicial system here that it does not have in the states.
However, the arrangements are slowly coming unstuck. Under present arrangements it has been the practice that one of the ACT resident judges who also have commissions on the Federal Court sit on all appeals from the ACT Supreme Court. Before self-government, the Federal Government appointed all judges to the ACT Supreme Court. When it did so, the practice was that the new judge would be appointed also to the Federal Court. With dual comissions it was possible for an ACT resident judge to sit on appeals.
Since self-government, however, the ACT Government makes appointments to the ACT Supreme Court. It has made just one, Justice Ken Crispin. However, the Federal Government has not made Justice Crispin a member of the Federal Court, so he, unfortunately, cannot sit on appeals from the ACT Supreme Court. The three other ACT Supreme Court judges, Justices Jeffrey Miles, John Gallop and Terence Higgins, were appointed by the Federal Government and have Federal Court commissions. But Justices Miles and Gallop are close to retirement age. If they go, Justice Higgins would be the only resident judge available to sit on appeals. If the appeal was from one of his judgments, there would be no ACT resident judge on the appeal panel. That would be unsatisfactory.
Of the 50 or so Federal Court judges, only about 10 have dual commissions as additional judges of the ACT Supreme Court. The Commonwealth has agreed to make more, but that will not overcome the problem of appeals from the ACT Supreme Court losing ACT input.
It somewhat forces the ACT Government’s hand.
A better solution would be for the Federal Government to routinely appoint all ACT Supreme Court judges as Federal Court judges. But it appears to dislike the prospect of a territory government appointing judges to a court at the federal level. This is a shame, particularly as ACT Supreme Court judges would rarely if ever hear first-instance Federal Court cases and even if there were a problem, the Chief Justice of the Federal Court controls assignment of cases and need not assign any cases to ACT judges.
It may be, however, that the increasing specialisation of the Federal Court in trade practices, intellectual property and the like, make its judges less suitable for appeals from the ACT Supreme Court which are mainly criminal matters. But a suggestion for a joint appeal court with the Northern Territory should be rejected because the territories are so different. We may just have to shoulder some cost and create our own court out of the existing judges and perhaps one other.