There would have been enormous fury if David Eastman had been set free because of a technical defect in the appointment of the judge who tried him.
One judge, Justice Michael Kirby, would have set him free. The other six dismissed his application.
The court is yet to rule on the other leg of Eastman’s appeal: whether he was mentally fit to plead.
There were some fundamental issues in the appeal on the technical question of the judicial appointment. They involved what we call the separation of powers.
The legislative power is exercised when the elected representatives make laws that apply to everyone. The executive administers those laws. The judicial power is to determine disputes and matters arising under those laws.
A good petty example is a fishing law.
Legislative power: The law might say, “”The Minister for Fisheries shall determine quotas for various species of fish. The penalty for taking more than the quota is a $5000 fine. The Minister may issue fishing licences to people of good character with knowledge of Australian fish.”
Executive power: The Minister might set quotas at five trout per person per day, seven grey eels per person per day and so on.
The Minister’s bureaucrat might refuse me a licence because I know nothing about fish. A fishing inspector might prosecute me for fishing without a licence and for having caught 10 eels.
Judicial power: Was I unreasonably refused a licence. Are eels “”fish”? Did the Minister exceed his power in setting an eel quota?
These powers are exercised separately. The judicial power must be exercised by people who are independent. To that end the Constitution demands that judges are appointed until they retire at 70 and cannot be removed by the Executive alone; they can only be removed by parliamentary vote.
Because judges often rule on questions of whether the executive has used its powers correctly, the Founding Fathers thought they should not be beholden to the Executive for periodic re-appointment.
The judge who tried Eastman was appointed for a fixed term, not a term expiring at the age of 70. Moreover, he was appointed by the ACT Executive, not the federal Governor-General in Council. The Constitution demands that judges of federal courts be appointed by the latter.
How did the High Court overcome these seeming unjumpable hurdles.
It argued that the ACT Supreme Court is not a federal court, even though it was created by the Federal Parliament.
It argued the court is a territory court created under the territories power of the Constitution. Its role was limited to ACT matters, not Commonwealth-wide matters.
It is unlike, say, the Family Court or Federal Court which can hear cases from anywhere in Australia between parties from anywhere.
It occasionally exercises federal jurisdiction, for example, when it hears a copyright case under the federal Copyright Act, but it is still a territory court because when it hears those cases it only hears those disputes when a territory-connected party is involved.
In effect, the High Court has put the ACT Supreme Court on exactly the same footing as state Supreme Courts. The state and territory courts hear cases emerging from their territory, not from other territories and the legislative and executive functionaries in those territories legislative for the running of those courts and make the appointments.
That was a good technical way out of the difficult hole of setting a murderer free on a technicality. But that should not be the end of the matter. To some extent Justice Kirby is right. The separation of powers and the independence of the judiciary are important.
The High Court has given the ACT legislature and executive authority over territory courts. It is now time for those ACT authorities to ensure judicial independence by making it a rule that judges (and others exercising judicial functions) are appointed to age 70 and cannot be removed except on cause of incapacity or misbehaviour by the Parliament.