The ACT Chief Justice, Justice Jeffrey Miles, says the ACT judiciary is not fully independent.
In the latest Australian Law Journal he has expressed concern that present legislative arrangements mean an ACT government could do an ACT Supreme Court judge what the Federal Government did to Justice Jim Staples.
Justice Staples was a member of the Arbitration Commission. Legislation abolished that commission, replacing it with the Industrial Relations Commission, but Justice Staples was not reappointed to the new body. No allegation of misconduct was ever made against him.
Justice Miles said, “”There is nothing expressed in the Australian Capital Territory (Self-Government) Act which will prevent it from abolishing the Supreme Court altogether if it is minded so to do.”
He said that that proposition was not fanciful because there had been discussions about a new court structure for the ACT in the first three years of self-government.
The former Attorney-General, Bernard Collaery, “”brought an energetic and imaginative approach to the portfolio of Attorney-General. As a legal practitioner with several years of experience as a Commonwealth legal officer in Paris, he was not wedded to the continuance in the ACT of the traditional court system. He proposed a unified court system of two complementary parts.”
Further, the Executive had earlier expressed dissatisfaction with the way the ACT Supreme Court had exercised its jurisdiction in town planning.
In this environment, though the unified system was “”not without merit”, the independence of the Supreme Court and the appointment and removal of judged needed attention.
The upshot has not been entirely satisfactory, according to Justice Miles.
Changes to the Self-Government Act (the ACT’s constitution) provide: “”the Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the territory.”
That did not guarantee the court’s existence, unlike an earlier draft Bill prepared while Mr Collaery was Attorney-General which provided: “”the judicial power of the Territory is vested in the Supreme Court”.
Justice Miles repeated earlier statements that the court was under-resourced. The number of territory judges had remained at three since 1972 when the population of the ACT was 156,000. Now it was more than 280,000. Its building was too small. Hearings had to take place in commercial premises away from the main building.
He thought the system of non-resident Federal Court judges sitting as additional judges of the ACT Supreme Court had drawbacks, though it had worked well in the past. The increases in Federal Court work meant there were fewer opportunities for additional judges to sit and gain familiarity with local attitudes in sentencing and damages for personal injuries and to gain experience in ACT law.
Justice Miles took issue with a view put the Deputy Editor of The Canberra Times, Jack Waterford. Mr 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. It 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. He had no objection to the Territory legislature making other provisions about the Supreme Court.