Judgment Delivery - Transcript of Video
North Australian Aboriginal Legal Aid Service Inc v Bradley  FCA 1728
7 DECEMBER 2001
DARWIN (BY VIDEO LINK FROM MELBOURNE)
[Justice Weinberg sitting at bench inside court room. Associate walks to Associate Table]
Court officer: The Federal Court of Australia is now in session. Please be seated.
Justice Weinberg: Could you call the matter for judgment please.
Associate: In the matter of the North Australian Aboriginal Legal Aid Service Incorporated and Hugh Bradley and another, for judgment.
[Justice Weinberg at bench]
Justice Weinberg: In accordance with the practice of the Federal Court in cases of public interest, the Court has prepared this summary to accompany the reasons for judgment delivered today. It is intended to assist in understanding the background to the case, the issues that arose to be determined and the conclusions the Court has reached. It must be emphasised that this summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.
This proceeding arose out of the appointment by the Northern Territory of Australia, on 27th February 1998, of Mr Hugh Bradley as Chief Magistrate of the Northern Territory.
The North Australian Aboriginal Legal Aid Service Incorporated (NAALAS) operates in the ‘Top End’ of the Northern Territory, principally to provide a legal aid service for Aborigines living in the area it services. It seeks a declaration that the appointment of Mr Bradley was invalid.
On 20th of April 2000, NAALAS commenced this proceeding in the Supreme Court of the Northern Territory, initially against Mr Bradley alone. The Northern Territory was later joined as a respondent.
On 13th of June 2000, following application by both respondents, Justice Olney, sitting as a judge of the Supreme Court of the Northern Territory, gave summary judgment in their favour.
NAALAS appealed against that judgment to the Northern Territory Court of Appeal, which, on 16 November 2000, allowed the appeal.
The respondents sought special leave to appeal to the High Court. On 4th of May 2001, special leave was refused. The Court indicated that it was preferable that consideration of the respondents’ arguments be postponed until after relevant findings of fact had been made at trial.
On 6th of June 2001 Justice Olney ordered that the proceeding be transferred from the Supreme Court to this Court.
The genesis of this proceeding is to be found in the resignation, on 20th November 1997, of Mr Ian Gray, the former Chief Magistrate. Mr Gray’s resignation was well publicised, and was said to arise, in part at least, out of the introduction of the mandatory sentencing regime in the Northern Territory.
In the months that followed, Mr Bradley was approached to take the position of Chief Magistrate. After extensive negotiations, he was appointed by the Administrator, on the advice of the Executive Council. A large volume of documents relating to his appointment was produced on discovery by the Northern Territory. It emerged that, concurrently with that appointment, the government was considering the introduction of contract or fixed term appointments for magistrates.
The evidence makes it clear that these two processes became conflated during the early stages of negotiation with Mr Bradley over his remuneration and allowances. The proposal to introduce contract or fixed term appointments, and the belief that Mr Bradley would be appointed on that basis, attracted much criticism from within the legal community in Darwin and from other sources.
NAALAS relied upon two grounds in support of its claim that Mr Bradley’s appointment was invalid.
The first was that the appointment was made for one or more improper or extraneous purposes. NAALAS alleged that the Northern Territory had, by negotiating a two year Special Determination regarding Mr Bradley’s remuneration and allowances, improperly secured what was in effect a fixed term appointment, thereby subverting the requirement in the Magistrates Act 1977 that magistrates be appointed to the age of 65 years. It contended that the appointment defeated an implicit requirement of that Act that judicial independence be protected. This put Mr Bradley in the position of being beholden to the government for his future remuneration. It should be noted that the allegation of improper or extraneous purpose was directed solely against the Northern Territory, and was not directed against Mr Bradley.
Secondly, NAALAS contended that the special remuneration package negotiated with Mr Bradley was ultra vires, or beyond the powers conferred by the Magistrates Act, because it applied for a period of two years only, limited to expire before he reached the age of 65, and made no provision for his remuneration and allowances at the end of that two year period.
There was a third component to NAALAS’ argument, which it added only when it amended its statement of claim in this Court. That was that if, contrary to its allegations of improper and extraneous purpose, and its claim of ultra vires, the Act nonetheless authorised Mr Bradley’s appointment, a number of sections of the Magistrates Act were unconstitutional. These sections were said to violate the protection afforded by Chapter three of the Constitution to the principles of judicial independence.
Mr Bradley and the Northern Territory denied each and every allegation made against them. The Northern Territory challenged NAALAS’ standing to bring and maintain this proceeding, and both respondents contended that the allegations of improper or extraneous purpose were not justiciable.
In relation to the question of standing, the general rule is that a person has standing to sue, in a public law case, where the court recognises that that person has an interest in the subject matter of the litigation greater than that of the general public, or what is known as a ‘special interest’.
The evidence disclosed that NAALAS represents approximately 2000 indigenous people each year in courts of summary jurisdiction. It has responsibilities towards Aboriginal people, and the Aboriginal community generally, which extend well beyond those of providing legal representation. It occupies a pivotal role in the administration of justice in the Northern Territory.
If, as NAALAS contended, Mr Bradley was not validly appointed, he could not lawfully exercise judicial power. His decisions, many of which have affected the liberty of NAALAS’ clients, would be void, and of no effect.
The Court has concluded that, having regard to NAALAS’ status, and to the functions which that body performs, it has a sufficient connection with the subject matter of this litigation to amount to a ‘special interest’. Accordingly, the Court has found that NAALAS has standing to bring and maintain the proceeding.
As indicated earlier, both Mr Bradley and the Northern Territory also claimed that the issue of improper or extraneous purpose was not justiciable.
The Court has concluded that, having regard to the nature and gravity of the allegations made, the Court can properly hear and determine NAALAS’ claims.
In relation to the allegations of improper or extraneous purpose, NAALAS asked the Court to infer from the large body of documents tendered that Mr Bradley’s appointment was made for a purpose or purposes other than that of securing the administration of justice in the Northern Territory.
In addition to the documents tendered, three witnesses gave evidence. The Northern Territory called only Mr Shane Stone, the former Chief Minister and Attorney-General. Many persons who featured significantly in the relevant events were not called.
The Court has concluded that the inference of improper or extraneous purpose for which NAALAS contended was open on the primary facts. That inference could more readily be drawn because of the failure of the Northern Territory to call those other persons with knowledge of the circumstances leading to Mr Bradley’s appointment.
Nonetheless, NAALAS carried the onus of proof in relation to the allegations of improper or extraneous purpose. The Court has concluded that NAALAS failed to discharge that onus. The fact that a purpose capable of being so characterised may have driven the government’s earlier proposals to introduce contract or fixed term appointments for magistrates, and possibly the initial negotiations regarding Mr Bradley’s appointment as well, did not, on the evidence, lead to the conclusion that any such purpose subsisted, or that it operated upon the impugned decision.
In relation to the allegation that Mr Bradley’s appointment was ultra vires, the Court has determined that it must fail. The relevant provisions of the Magistrates Act must be given their ordinary and natural meaning. Those provisions do not demonstrate the existence of a legislative intent to secure judicial independence of the kind for which NAALAS contended.
With regard to NAALAS’ constitutional argument, the Court has concluded that on the current state of the authorities, the provisions of the Magistrates Act are not unconstitutional. The courts of the Northern Territory are not federal courts. They do not exercise the judicial power of the Commonwealth. The requirements of security of tenure and undiminished remuneration contained in section 72 of the Constitution do not apply to those courts. No implication can be drawn from Chapter three of the Constitution, or the Constitution taken as a whole, to support NAALAS’ claim that the existence of the Special Determination, if authorised by the Magistrates Act, rendered certain of its provisions constitutionally invalid.
The Court emphasises that its decision is not, and cannot be, concerned with the wisdom of Mr Bradley’s actions in accepting the Special Determination, or with the merits of the Northern Territory’s proposals for the introduction of contract or fixed term appointments for magistrates. Nor is the Court concerned with what it has found to be the clumsy manner in which the Northern Territory fixed Mr Bradley’s remuneration and allowances. Debate surrounding these matters may be conducted in another forum. The questions before the Court are questions of law, and can be determined only in accordance with law.
I have been asked by the parties to defer making any order as to costs until they have had an opportunity to read the reasons for judgment and make submissions and I propose to accede to that request.
The orders of the Court in this matter will be as follows:
Thank you. Adjourn the Court.