A close reading of the High Court’s unanimous ruling in the Bradley case reveals some disturbing, if not altogether unexpected thinking.
Protecting the judiciary’s hallowed fiscal turf appears to be one of the driving forces behind tossing out the argument that the Chief Magistrate of the Northern Territory was not validly appointed.
In February 1998 Darwin solicitor Hugh Barton Bradley was appointed Chief Magistrate of the NT. He was the choice of the then Chief Minister and Attorney General Shane Stone, “QC”.
This caused a bit of a tropical stink because while Bradley was appointed by the Administrator to hold office till 65 (or earlier retirement) his pay and perks were to be reviewed in two years.
Given the context of the time, the reconsideration of Bradley’s remuneration two years after taking up the gig didn’t seem right. After all, the former Chief Magistrate, Ian Gray, had departed the Territory in disgust over mandatory sentencing and the pressure this placed on magistrates; the dreadful Stone was keen to have his sentencing regime rigorously applied; and there was a scheme bruited to have magistrates appointed on 10-year contracts.
On top of that there were some magistrates who were regarded by most of the legal community as comprehensive duds at their job.
Stone wanted a firm hand on the tiller and someone who could clean up the magistrates and get them crisply enforcing his vicious little laws.
This is why the two-year review of Bradley’s pay and perks had a pong to it.
The North Australian Aboriginal Legal Aid Service Inc (NAALAS) was one outfit that was mightily appalled. It had been battling the Northern Territory government over mandatory sentencing and regarded the initial package as over-the-top and the two-year review as leaving an appointee open to political arm-twisting.
In 2000, NAALAS launched a NT Supreme Court challenge to the validity of Bradley’s appointment and lost before Howard Olney. On appeal to an imported court of wise men from the south (Priestley from NSW, Doyle from SA and Brooking from Vic) it succeeded unanimously.
It went back to Olney who cross-vested it to the Federal Court where NAALAS went down at the trial and on appeal.
NAALAS argued in the High Court that Bradley’s appointment failed the minimum criteria for the appearance of impartiality.
The High Court unanimously found otherwise after delving ad nauseam into the nooks and crannies of the Magistrates Act (NT). Section 4 empowers the Administrator to appoint an eligible person to the position of Chief Magistrate. Section 6 enables the Administrator to determine from time to time the terms and conditions and remuneration and allowances of magistrates, including the Chief Magistrate.
The position of the NT government was that there was nothing whatsoever sinister about Bradley’s appointment. When he was approached for the job he said he only wanted to do two years. He was then 54 years of age. So while the appointment was indefinite, or at least prospectively open to him for another 11 years, the pay determination was only for two years.
Gleeson CJ thought that because it was assumed initially that Bradley would only be in office for a short term, therefore “fairness both to him and the Northern Territory government required that [the remuneration and allowances] be altered if he decided to stay on indefinitely”.
NAALAS contended that the only proper course was to fix the terms and conditions for an indefinite period, on the basis that they could be altered by a later determination of the Administrator.
This course was required by the principles of independence, said the appellant. The fact that there was a later redetermination of his pay and perks did not detract from the failure of independence and impartiality that surrounded the moment of the Chief Magistrate’s appointment.
The court did not agree with that idea, with Smiler asking:
“How would such a course have left [Bradley] in a better, or more independent, position than the course that was taken?”
Maybe that was the wrong question. A better one might have been:
“Is the arrangement between Bradley and Stone open to the perception that should the new Chief Magistrate perform to the satisfaction of the government he is eligible for a sparkling new package?”
The perception issue was not weighted very extensively by the High Court. Pity. What seemed to be of more importance was the special two-year pay and perks review. That could only be applauded.
To quote from McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ:
“There is no more effective means of depleting the substance of remuneration to an officeholder than by inattention on the part of the legislative or executive branch of government.”
Warming to the theme they added:
“The legislative requirement of continued attention by the executive of the Territory to the preservation of adequate remuneration of the magistrates, including the Chief Magistrate, is apt to defend the interests of judicial independence and impartiality which inform the legislation.”
Smiler in a separate judgment was in complete agreement:
” the most effective way for any government to reduce the real incomes of judicial officers is to do nothing. No one suggests that this is the correct interpretation of s.6.”
From Judges’ Associate, Miss Ginger Snatch