Case: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31 ; (2004) 206 ALR 315
Outcome: applied
The fact that members of the Tribunal have no security of tenure in terms derived from the Act of Settlement 1700 (Imp) (appointment for life or until an age certain with removal only by the legislature) was relied on strongly by the applicants, but was not suggested to be conclusive. The critical test is whether, if the Tribunal is to be a court capable of exercising the judicial power of the Commonwealth, it be and appear to be independent and impartial: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31 ; (2004) 206 ALR 315 at [29] . One asks whether reasonable and informed members of the public would conclude that the Tribunal was free from the influence of the other branches of government in exercising its judicial function: Bradley at [65]. 70 Gleeson CJ observed in Bradley at [3] that there is no single ideal model of judicial independence, personal or institutional. For example, s 72 of the Constitution does not permit the appointment of acting judges to federal courts but acting judges for fixed on renewable terms are commonly appointed in some State and Territory courts. 71 In the case of inferior courts, less stringent conditions are necessary in order to satisfy security of tenure: Ell v Alberta [2003] 1 SCR 857 at 874 (Supreme Court of Canada), cited in Bradley at [63]. As Major J, in giving the judgment of the Supreme Court, went on to say (at 875): "The essence of security of tenure is that members of a tribunal be free from arbitrary or discretionary removal from office." 72 In Bradley at [35]-[38] McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ pointed out that, until quite recent times in Australia, State and Territory summary courts have been constituted by members of the public service and subject to the regulation and discipline inherent in that position. One might add that this circumstance is explicitly recognised in s 39(2)(d) of the Judiciary Act . The federal jurisdiction of a court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate or "some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction". At the time the Judiciary Act was passed, such magistrates would have been salaried officials, as distinct from honorary justices of the peace, and members of their State public service, with nothing like Act of Settlement tenure. (And, as late as the 1970s Stipendiary and Police Magistrates in some States were not required to be lawyers.) Moreover, the fact that Parliament thought it necessary to impose such a condition suggests that at the time of the drafting of the Constitution a few years earlier it was contemplated that even honorary justices, who had no security of tenure at all, would, in the absence of such a condition, constitute a court of a State. 73 To my mind, reasonable and informed members of the public would think that the Tribunal was free from influence of the other branches of the Tasmanian government, and particularly the Executive. On reading the Anti-Discrimination Act , such persons would observe that it specifically applied to the conduct of the Tasmanian government, and other governments. They would also note that the Tribunal was empowered to do most of the things courts do, to conduct hearings in public of disputes between parties, to summon witnesses, to find disputed facts and apply legal rules to facts as found, to give reasons for its decisions, and to make orders which can be immediately enforced. Let it be supposed somebody put to such reasonable and informed members of the public that the Minister could just ring up the Tribunal and tell it how to decide cases, and that if a member of the Tribunal did not do the Minister's bidding, he or she could be dismissed. Such reasonable and informed members of the public would point out that there are very practical political sanctions against such an eventuality. To take the most obvious example, where the Minister dismisses a Tribunal member because he or she dislikes a decision made against the government. Public, political and media attacks on the government would be inevitable. Ministers would know this, and members of the Tribunal would know Ministers knew this. The legal recourse that may be available to members of the Tribunal will be examined in a moment, but one cannot ignore the practical political setting in which the Tribunal exists. The Anti-Discrimination Act holds out to the Tasmanian public a clear promise that the Tribunal will hear and determine complaints of unlawful discriminatory conduct, that in doing so it will act fairly and independently and make orders remedying breaches of the Act, if necessary against the Tasmanian Government. A public expectation that the independence of the Tribunal will be respected by the Government is in itself a circumstance of some significance. 74 The legal remedies that may be open to a member of a putative court faced with adverse governmental action (or inaction) are relevant in assessing whether the requirements of appearance and reality of independence are satisfied. Such factors formed part of the reasoning in Bradley at [65]. 75 It would be open to a member of the Tribunal to challenge, and have set aside, a decision for suspension or dismissal on grounds under s 17(2) of the Judicial Review Act , including: &#8226; Breach of the rules of natural justice (par (a)); &#8226; Improper exercise of power (par (e)); &#8226; No evidence (par (h)). The improper exercise of power ground is defined by s 20 to include: &#8226; Taking irrelevant considerations into account (par (a)); &#8226; Failing to take relevant considerations into account (par (b)); &#8226; Exercise of the power for a purpose other than the purpose for which the power is conferred (par c)); &#8226; Bad faith (par (d)); &#8226; An exercise of power so unreasonable that no reasonable person could so exercise the power (par (h)); &#8226; Any other exercise of a power in a way that is an abuse of power (par (i)). 76 The last-mentioned ground would seem particularly apt for a dismissal grounded in Ministerial dissatisfaction with a particular decision of the Tribunal, or for reasons otherwise arbitrary or capricious. Moreover, there is a right, enforceable by the Supreme Court, to obtain reasons for a decision: ss 28 - 37 . Practically speaking, a member of the Tribunal with a right to challenge suspension or dismissal before an independent Supreme Court may be in a stronger position than a Supreme Court judge faced with a hostile government which happens to control both Houses of the legislature.