IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 17 OF 2001

BETWEEN:	NORTHERN AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC APPLICANT
AND:	HUGH BARTON BRADLEY FIRST RESPONDENT
	NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	DARWIN (BY VIDEO LINK FROM MELBOURNE)

CORRIGENDA

Amendment to the Reasons for Judgment of Weinberg J delivered on 7 December 2001.

Par 27 last sentence should read: "A corporation could not achieve standing simply by ..."

Par 286, line 1 should read "From the time that the government deferred or abandoned its plans to introduce ..."

Par 307, last sentence should read: "However, NAALAS submitted that ...".

Par 313, second last sentence should read: "Some of these possibilities seem ....".

Par 315, second last sentence should read: "It was Mr Bradley who said that he would commit ...".

Par 338, line 1 should read: "In my view, NAALAS' ultra vires ....".

Associate to the

Honourable Justice Weinberg:

Date: 10 December 2001

FEDERAL COURT OF AUSTRALIA

North Australian Aboriginal Legal Aid Service Inc v

Hugh Burton Bradley and the Northern Territory of Australia

D17 of 2001

SUMMARY

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 27 February 1998, of Mr Hugh Bradley as Chief Magistrate of the Northern Territory.

The North Australian Aboriginal Legal Aid Service Inc ("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 20 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 13 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 4 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 6 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 20 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 Ch III 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 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 s 72 of the Constitution do not apply to those courts. No implication can be drawn from Ch III 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.

The result is that the application has been dismissed.

The full text of the Court's judgment, reported as North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728, will shortly be available on the Court's website www.fedcourt.gov.au .

FEDERAL COURT OF AUSTRALIA

North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728

COURTS AND JUDGES - judicial review - appointment of Chief Magistrate of Northern Territory - remuneration and allowances fixed by Special Determination for two years - no provision for further remuneration and allowances - whether appointment invalid as failing to secure judicial independence.

ADMINISTRATIVE LAW - judicial review - application by North Australian Aboriginal Legal Aid Service Inc for declaration that appointment of Chief Magistrate of Northern Territory invalid - standing of applicant - whether its interest in subject matter of litigation greater than that of general public - whether "special interest" - whether incorporated body takes interest of individual members - whether allegations of improper or extraneous purpose justiciable -whether such purpose must subsist at time of making of impugned decision.

STATUTES - legislation conferring unfettered power upon Administrator to fix remuneration and allowances for magistrates - whether section should be read down to ensure that remuneration and allowances cannot be reduced save in specified circumstances - whether Act manifests intention on part of legislature to secure judicial independence - Magistrates Act 1977 (NT).

CONSTITUTIONAL LAW - judicial power of the Commonwealth - whether Ch III of Constitution applicable to Territory courts - whether Territory courts exercise federal jurisdiction - whether implication in Ch III and/or in Constitution that Territory courts be free from executive or legislative interference - whether implication extends to tenure and remuneration of Territory magistrates - scope of s 122 of Constitution - application of principles in Kable v The Director of Public Prosecutions (NSW) to Territory courts.

Magistrates Act 1977 (NT) ss 4, 4(3), 6, 7, 7(1) and 10

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT)

Aboriginal and Torres Strait Islander Commission Act 1986 (Cth) ss 7(1) and 10(1)

The Constitution ss 51(xxxix), 71, 72, 72(iii), 73, 73(ii), 77(iii), 80, 106, 111, 122 and Ch III

Judiciary Act 1908 (Cth) ss 39(2), 68 and 68(2)

Northern Territory (Self Government) Act 1978 (NT)

Stipendiary Magistrates Act 1957 (WA) s 7

Magistrates Court Act 1987 (Tas) s 10

Association Incorporation Ordinance 1963 (NT)

Constitution Act 1902 (NSW) ss 53, 54 and 55

Constitution Act 1975 (Vic) ss 77 and 85

Northern Australian Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia (2000) 10 NTLR 103 at 117 and 119 considered

Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114 referred to

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 530-531, 541, 547 and 548 applied

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36, 41-42 and 74 applied

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 applied

Bateman's Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 267 applied

British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257 referred to

Croome v Tasmania (1997) 191 CLR 119 at 126-127 and 137-138 referred to

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 referred to

Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 565 applied

Allan v Transurban City Link Ltd [2001] HCA 58 referred to

Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 referred to

The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186-187, 193, 202-204, 215, 217 220-222, 233, 261 and 283 applied

South Australia v O'Shea (1987) 163 CLR 378 at 410-411 referred to

Barton v The Queen (1980) 147 CLR 75 referred to

Maxwell v The Queen (1996) 184 CLR 501 at 533-534 referred to

Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 479 referred to

Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 398, 407, 411-412 and 418 referred to

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 referred to

Xenophon v South Australia (200) 78 SASR 251 at 253-254 and 263-265 referred to

Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18, 33-34 and 35-36 considered

Jones v Dunkel (1959) 101 CLR 298 referred to

Municipal Council of Sydney v Campbell [1925] AC 338 referred to

Thompson v Randwick Corporation (1950) 81 CLR 87 referred to

Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 67-68, 75 and 83-84 referred to

Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 77-78, 87, 98, 101, 102, 103, 106-107, 109, 111, 115, 116-117, 118, 134, 136, 137, 139, 141, 142 and 143 applied

Northern Territory v GPAO (1999) 196 CLR 553 at 576-577, 580-581, 590-591, 592-593, 597, 601, 603, 620 and 650-651 applied

Kruger v The Commonwealth (1997) 190 CLR 1 at 43, 56, 82, 107, 108-109, 141-143, 162-176 and 165-166 applied

The King v Bernasconi (1915) 19 CLR 629 at 635 and 637 considered

Spratt v Hermes (1965) 114 CLR 226 at 242-243, 255-256, 257, 264, 265, 266, 278 and 280-281 applied

Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599, 600-602, 603-604, 606, 613-614, 616 and 626-628 applied

Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 332, 336-341, 340, 348, 353 and 382 applied

R v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 referred to

Harris v Caladine (1991) 172 CLR 84 at 135 referred to

Grollo v Palmer (1995) 184 CLR 348 at 365, 376-377 and 392-394 referred to

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16 referred to

Attorney-General (Cth) v R (The Boilermakers' Case) (1957) 95 CLR 529 at 540-541 referred to

Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 referred to

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 referred to

Mitchell v Barker (1918) 24 CLR 365 referred to

Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 527 referred to

Gould v Brown (1998) 193 CLR 346 at 402 and 485-486 referred to

Re Australasian Memory Pty Ltd and Corporations Law; Brien v Australasian Memory Pty Ltd (1997) 149 ALR 393 at 431 referred to

John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 698 and 703 applied

Nicholas v The Queen (1998) 193 CLR 173 referred to

Lange v Australian Broadcasting Corp (1997) 189 CLR 520 referred to

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 150 DLR (4^th) 577 considered

Ly v Jenkins [2001] FCA 1640 considered

Le Mesurier v Connor (1929) 42 CLR 481 at 496 referred to

Peacock v Newtown Marrickville & General Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37 referred to

Russell v Russell (1976) 134 CLR 495 at 530 referred to

Adams v Chas S Watsons Pty Ltd (1938) 60 CLR 545 at 555 referred to

A Hamilton in The Federalist Nos 78 and 79 "The Judges as Guardians of the Constitution" and "The Position of the Judiciary" (A Hamilton, J Madison and J Jay The Federalist (1961, Harvard University Press pp 495 and 497))

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NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY and NORTHERN TERRITORY OF AUSTRALIA

D17 of 2001

WEINBERG J

7 DECEMBER 2001

DARWIN (BY VIDEO LINK FROM MELBOURNE)

TABLE OF CONTENTS

Par No

INTRODUCTION 1

The history of these proceedings 3

NAALAS' allegations 11

Mr Bradley's defence to NAALAS' allegations 12

The Northern Territory's defence to NAALAS' allegations 14

The issues 16

does naalas have Standing to bring this proceeding?

NAALAS' submission 17

The Northern Territory's objections to NAALAS' standing 24

The principles which govern standing 28

Conclusion regarding standing 51

is NAALAS' ALLEGATION OF IMPROPER PURPOSE JUSTICIABLE? 65

NAALAS' FACTUAL CLAIMS IN SUPPORT OF ITS ALLEGATIONS

OF IMPROPER PURPOSE 83

The paper trail

(a) The initial discussions regarding Mr Bradley's appointment 86

(b) Concurrent proposals to allow for magistrates to be

appointed on contract 90

(c) Mr Flynn's letter of 7 January 1998 99

(d) The Ministerial of 12 January 1998 101

(e) Preparation of a draft bill to amend the Magistrates Act 103

(f) Criticism of the proposed amendments 143

(g) Mr Flynn's draft Ministerial of 10 February 1998 145

(h) Mr Flynn's Ministerial of 12 February 1998 154

(i) Concurrent developments regarding the introduction

of fixed term appointments for magistrates 161

(j) Further criticisms of the proposal to introduce fixed

term appointments 165

(k) Mr Stone's response to the criticisms 166

(l) Mr Bradley's appointment by the Administrator 169

(m) The immediate aftermath 172

(n) Later developments 173

NAALAS' witnesses

(a) Mr Flynn 176

(b) Mr Toohey 195

The respondents' witnesses 207

Findings Regarding NAALAS' Factual Allegations 254

NAALAS' IMPROPER PURPOSE CASE 289

Findings regarding NAALAS' improper purpose case 301

NAALAS' ULTRA VIRES CLAIMS 327

The relevant legislative provisions 329

The respondents' submissions 333

Findings regarding NAALAS' ultra vires argument 338

NAALAS' CONSTITUTIONAL ARGUMENT 342

NAALAS' submissions 345

The respondents' submissions 365

CONCLUSIONS REGARDING THE CONSTITUTIONAL ISSUE 375

IS KABLE APPLICABLE TO THE TENURE AND REMUNERATION

OF JUDICIAL OFFICERS? 417