There hasn’t been much reaction (at least that I’m aware of) in response to the recent news that Justice Dodds-Streeton of the Federal Court is about to be re-appointed to the bench of the Supreme Court of Victoria.
I haven’t heard anyone sounding alarm bells to this unique arrangement that will see her Honour appointed to both State and Commonwealth benches simultaneously, which suggests the legal consequences of this have been thought out very carefully – or, alternatively, haven’t been thought out at all.
A few years ago the shared Commonwealth/State cross-vesting arrangements that had been in place since 1988 were struck down by the High Court as unconstitutional in Re Wakim; ex parte McNally (1999) 198 CLR 511. In the Boilermakers’ case it was held that Ch III of the Constitution is exhaustive of federal judicial power. The invalidation of that legislation required parliaments to scramble around to prevent a tidal wave of litigation.
Commonwealth courts cannot be vested with any power other than judicial power. This has caused some drama over the years as, following the lead of the US, federal judges have been increasingly vested with extra-curial powers such as the power to authorise search warrants, listening devices and other functions which are considered administrative in nature, rather than judicial. To this end, the award of additional powers has been permitted by use of persona designata, a legal fiction that makes a distinction between awarding powers or duties to a holder of a particular office, rather than the office itself.
This practice was found to have strayed too far in Wilson v Minister for Aboriginal Affairs (“the Hindmarsh Island bridge case”), where the appointment of a Federal judge as a Reporter under the Aboriginal and Torres Straight Islander Protection Act 1984 was held to be invalid. (the High Court’s decision is summarised in the Aboriginal Law Bulletin). There doesn’t necessarily need to be a conflict of interest between the two roles in order to offend Ch III. (For a detailed discussion of the public policy considerations, see the joint judgement of Brennan CJ and Deane, Dawson and Toohey JJ in Grollo v Palmer (1995) 184 CLR 348).
Forge v ASIC was a corporations case where the High Court considered the division of State and Commonwealth power in light of the Kable doctrine. Having previously decided that the Commonwealth Constitution requires state courts to be fitting repositories for Commonwealth power, the question of how far that enabled the Constitution to regulate the composition or operation of state courts was again raised. (Every self-represented litigant contesting a speeding fine seems to be able to quote the name of this case, but appears not to have read it.)
The appellant in Forge v ASIC, unhappy with the court’s judgment, chose to challenge the appointment of the judge who presided over the case. Judge Foster of the Supreme Court of New South Wales had been appointed as an acting judge after reaching the compulsory retirement age as a federal judge. The High Court, with some caution, affirmed the validity of the temporary appointment. In so doing, the High Court affirmed the principle in Kable but found the temporary judicial appointments in NSW did not offend it.
Is there supposed to be a distinction drawn between state and federal courts, or do the cross-vesting provisions of the Commonwealth Constitution make such a distinction superfluous? I’m not going so far as to say the dual appointment will be constitutionally invalid. Given that state courts exercise Commonwealth jurisdiction the two roles seem complementary.
But I’d say it will be a potential appeal point that every party going before Justice Dodds-Streeton (in either jurisdiction) will have tucked up their sleeve.