SUBMISSION 1: State SC Judge is subject to the same rules to that of a Federal Court judge

If the court pleases. Three questions call into consideration to the roles of the Australian Justice Commission members as described in section 25 subsections (a) and (b) under the Justice Act 2014.

First Submission - Introduction

Firstly, I would like to take the court to my first submission that a State Supreme Court judge, whom is ordinarily vested with federal judiciary power, and has been appointed to the Australian Justice Commission as per section 25 subsection (b), is also subject to the same federal judiciary rules pursuant to Chapter III of the Constitution, as that of a federally appointed justice to the Australian Justice Commission as per section 25 subsection (b) of the Act.

S77(iii) – Power to define jurisdiction

If we look at section 77 subsection (iii) of the Constitution which relates to of the power to define jurisdiction, with respect to any of the matters mentioned in section 75 and section 76 of the Constitution, the Parliament may make laws investing any court of a State with federal jurisdiction.

Kable – Gaudron – No distinction btn State/Fed Courts

I point out in Kable and Director of Public Prosecutions, 1996, volume 189, Commonwealth Law Reports, page 51 at page 101, Justice Gaudron held that section 77 does not distinguish between State courts and federal courts created by the Parliament as repositories of the judicial power of the Commonwealth. It does, however, recognise that the other courts which may be invested with federal jurisdiction are State courts. Later in Kable, your Honour, if you look at page 114, Justice McHugh expands upon Justice Gaudron ‘In exercising federal jurisdiction, a court of a State administers the same law as the Federal Court of Australia when it exercises the identical federal jurisdiction. The judges of a State court who exercise the judicial power of the State are the same judges who exercise the judicial power of the Commonwealth invested in their courts pursuant to section 77 subsection (iii) of the Constitution.’

Conclusion

I submit, your honour, that it would follow that, in context with the Justice Act sections 24, 25, 31 and 45, a State Supreme Court Judge whom ordinarily exercises the judiciary power of the Commonwealth, and has been appointed to the Australian Justice Commission as per section 25 subsection (b), would also be subject to the same rules to those federal justices that have also been appointed the Australian Justice Commission as per section 25 subsection (a).

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SUBMISSION 2: Federal Justice Persona Designata appointment incompatible to Chapter III Judge

Introduction – 2nd Submission

Your Honour, I would like to move to my second submission which calls into consideration the role of federal court justices appointed to the Australian Justice Commission under the Justice Act.

Justice Act 2015 (Cth) Sections 24 & 25

Your Honour, I would like us to turn to the Act and in particular, sections 24 and 25. In section 24 subsections (1) and (2), it states that a body shall be established with the responsibility of promoting public awareness and education in matters relating to the justice system. And that body shall be known as the Australian Justice Commission. Then at section 25, it describes of whom the Commission would be comprised, with sub-section (a) being three justices of a federal court, whether of the High Court, Federal Court or Family Court.

Statutory Interpretation of Justice Act – Prima Facie

Your Honour, when reading this plainly, at prima facie, a reasonable person would not think the function of the Commission has any incompatible characteristics relating to a Federal Court Justice being appointed as persona designata. [Emphasis added] However, I would like to point out the principal functions of the Commission as related in section 31 subsections (b) and (c), and section 45 subsection (1), are not so compatible to the exception of prima designate which, if the court pleases, I will submit as follows. [End and Pause]

Statement of incompatibility – Fed Court Judge S25(a)

Your Honour, I submit that the appointed role of the Commission is incompatible to a Chapter III judge, as described in section 25 subsection (a), whom is invested with a non-judicial function, as persona designata.

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Wilson’s 3-limb Test

In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, the majority established a three-limb test for incompatibility to persona designata, if it can be shown that: One, the functions required by a federally appointed justice of the Australian Justice Commission, is too closely connected with the functions of the legislature and Executive Government; or Two, the functions that are required under sections 31 subsections (b) and (c), and section 45 subsection (1), are not performed independently of any instruction, advice, or wish of the Legislature or Executive Government, other than a law or an instruments made under a law; or Three, the discretions purportedly possessed by a judge subject to Chapter III of the Constitution, are exercised on political grounds with respect to the provisions of sections 31 subsections (b) and (c), and section 45 subsection (1) of the Act, making the function of those judges incompatible with the office of a Chapter III judge.

Section 31(b) function – Recommendation to A-G

If it pleases your honour, I would like you to consider section 31 subsection (b) in more detail. It states that the first listed principal function of the Commission is to to make recommendations to the Attorney-General on measures for improving the legal system in Australia. Although this provision is neither judicial or quasi-judicial, it looks plain to see that; the provision fails all of Wilson’s three-limb test on incompatibility. I submit that, section 31 subsection (b) of this Act, is a function to aid the Minister’s discretionary executive and political powers, by having to make recommendations to the Minister on how to improve the Australian legal system. It could also be possible that the function of the judge cannot be performed independently of any instruction, advice, or wish of the Legislature or Executive Government as they are part of a panel of 15 members, with no statutory mandate on the reporting function of those judges. This provision has the capability of having a significant affect to the proprieties and rights of members of the community by what is recommended, and subsequently acted upon by the Minister. The Minister is not only head of a Constitutional executive power, but also a member of the legislature with political influence. In conclusion, I submit that this provision is invalid to Chapter III of the Constitution. [End and Pause]

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Section 31(c) and 45(1) Functions – Question from A-G & Report

Your Honour, if we can now consider section 31 subsection (c). It states that the third listed principal function of the Commission is to consider questions referred by the Attorney-General in accordance with section 45 of this Act, That being, the Attorney-General may refer a question to the Commission on any matter relating to or affecting the Australian legal system; and the Commission must produce a final report within a period of 6 months from the date on the matter referred. [Finish and Pause]

No Ministerial/Statutory Mandate

These provisions are extremely ambiguous with no clear mandate as to what questions the Attorney-General may put to the Commission, for what purpose, and for whom. Therefore, it gives an opportunity to read it very broadly, allowing the possibility for the judges’ integrity to be put into question, and even possibly forced into utilising their judicial power.

A Commission with no statutory Terms of Reference

Further your Honour, I point out that, although it is a Commission, it is not a Royal Commission that has a prescribed terms of reference. There is room for interpretation in the provision for the judges as part of the panel, to be asked a question of law. Referring to Chief Justice Brennan and Justices Dawson, Toohey, McHugh and Gummor1 in Wilson, they found that “the giving to the executive of advisory opinions on questions of law is quite alien to the exercise of the judicial power of the Commonwealth. The separation of the of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge.”

1 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 19[67]-20[67].

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A Commission vulnerable to making political decisions

Further, when comparing to the Wilson judgement at page 19, paragraph 66, if the Attorney-General has no policy instructions or intimation to give to the members of the Australian Justice Commission, the members of the Commission are vulnerable to making decisions that are political in nature, and/or in conflict of interest and integrity to the Chapter III judges. This is because the Attorney-General may refer a question ON ANY MATTER relating to or affecting the Australian legal system, and they are required to make recommendations to the Attorney-General on MEASURES FOR IMPROVING the Australian legal system.

Conflict of Judicial Integrity

Your Honour, I point out that it can be argued, like that dissented by Justice Kirby, in Wilson on page 48, paragraph 152, that Chapter III judges appointed to the Australian Justice Commission are capable of utilising particular qualities which are normal to a judge in Australia, that being: accuracy in the application of the law; independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion. However, as held in Grollo,2 the ultimate inquiry, is whether a particular extrajudicial assignment. undermines the integrity of the Judicial Branch. This incompatibility consists of a non-judicial function which is of such a nature, that the capacity of the Chapter III judges on the Australian Justice Commission to perform their judicial functions with integrity is compromised and or impaired.

Conclusion

Your Honour, I would like to point out in Wilson, that the function of the reporter set out in section 10 of the Aboriginal and Torres Strait Island Heritage Protection Act 1984, is more prescriptive than the functions described in the Justice Act 2015, and it was found to be in breach of compatibility to persona designata. in conclusion, it would follow that the separation of Chapter III judges whom have been appointed as members of the Australian Justice Commission, providing recommendations and advice to the Minister on matters relating the Australian legal system, has also been breached.

2 Grollo v Palmer (1995) 184 CLR 348, 365.

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SUBMISSION 3: Constitutional Validity – Justice Act 2014 s 25(b)

General Introduction

Your Honour, I would like to move to my third and final submission which calls into consideration the role of State Supreme Court judges appointed to the Australian Justice Commission under the Justice Act.

Affirm 1st and 2nd Submission

Should this Court: Affirm my submission, in that a State Supreme Court judge appointed to the Australian Justice Commission, is also subject to the same judiciary rules to that of the federal court justices appointed to the Australian Justice Commission, as per Chapter III of the Constitution. And, section 25 subsection (a) of the Act to be invalid to Chapter III of the Constitution;

Conclusion

Then it follows, that the State Supreme Court judges appointed to the Australian Justice Commission, as per section 25 subsection (b) are also invalid to Chapter III of the Constitution, due to the incompatibility of the exceptions persona designata doctrine three-limb test as per Wilson. If the court pleases, these are the important matters in oral argument that I wanted to make to my written submission.