On justice, rights and undermining them

Northern Territory readers may have noted brief mentions in today’s local media of the fact that the High Court yesterday dismissed an appeal by North Australian Aboriginal Legal Aid Service (NAALAS) in the matter of North Australian Aboriginal Legal Aid Service Inc v Bradley.

It’s a bit surprising that the media coverage was so desultory, because NAALAS v Bradley figured pretty prominently in the recent political history of the Northern Territory. It started out as just part of the legal and political campaign by Aboriginal legal aid services and others against the former CLP government’s now-discredited mandatory sentencing regime. But the case rapidly became an indecent obsession on the part of a small coterie of legal aid lawyers, especially when it became completely otiose after the Martin Labor government was elected and immediately abolished mandatory sentencing anyway. The lawyers had convinced themselves that NT Chief Magistrate Hugh Bradley was a CLP stooge propping up mandatory sentencing instead of fulminating against it from the bench (as his predecessor had done, albeit arguably completely improperly), and a “hanging judge” who was excessively harsh on and biased against Aboriginal defendants. One of those lawyers even attempted to collect statistics to prove this, but of course they did nothing of the sort.

Although NAALAS advanced numerous arguments seeking to invalidate Bradley’s appointment as Chief Magistrate (including arguments that the appointment was beyond power and/or made for an improper purpose), by the time the case reached the High Court, it appears that only one point was seriously advanced. That was the proposition that Mr Bradley’s terms and conditions of appointment, which gave him somewhat more generous pay and fringe benefits than the previous Chief Magistrate, tended to undermine public confidence in the impartiality and independence of the NT judiciary, because the more generous terms and conditions were only for a limited term of two years (and hence their continuation after that date was effectively in the gift of the politicians). In fact Mr Bradley’s appointment itself was the usual form of secure judicial tenure to age 65, but his initial more generous package was for a fixed period of two years, partly because it was anticipated that he might only stay in the job for that period and partly because he successfully negotiated a transitional arrangement having regard to the much higher remuneration he had been accustomed to earning as the senior partner of one of Darwin’s largest law firms.

The argument by NAALAS was an attempt to extend the constitutional principle first enunciated by the High Court in Kable v DPP (NSW) in 1996. The Kable principle held that, even though State and Territory courts generally were not constrained by the constitutional separation of powers that applies at federal level, they were nevertheless bound by a rather attenuated version of that doctrine, because State and Territory courts are able constitutionally (and frequently do in fact) exercise federal judicial power. Hence, the Kable principle holds, State and Territory legislatures and executives must not vest powers or functions in their courts, or otherwise act in such a way that public confidence in the integrity, impartiaility and independence of those courts is undermined.

Most lawyers (including this armadillo) other than those acting for NAALAS were distinctly pessimistic about the case’s prospects of success from the beginning, and yesterday we were proven correct when the High Court rejected NAALAS’s appeal in a rare unanimous decision. As Gleeson CJ remarked in relation to the Kable argument:

Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. All those arrangements are relevant to independence. The differences exist because there is no single ideal model of judicial independence, personal or institutional. There is room for legislative choice in this area; and there are differences in constitutional requirements. For example, s 72 of the Constitution does not permit the appointment of federal acting judges. On the other hand, acting judges are commonly appointed for fixed, renewable, terms in some State and Territory courts. This Court decided in Re Governor, Goulburn Correctional Centre; Ex parte Eastman that acting judges may be appointed in the Supreme Court of the Australian Capital Territory. In the Northern Territory, the legislation with which this case is concerned provides for the appointment of acting magistrates (s 9). (The legislation also provides for the appointment of justices of the peace as Special Magistrates (s 14).) …

It may be accepted that it was an object of the Magistrates Act to give Northern Territory magistrates a degree of personal and institutional independence significantly in advance of what they had previously enjoyed. Under the Act, a magistrate holds office until the age of 65, subject to earlier resignation (ss 7, 8). A magistrate shall not be removed from office unless specified conditions are satisfied (s 10). Appointment and removal is by the Administrator of the Territory (ss 4, 10). Magistrates upon appointment take oaths or make affirmations in the same form as Justices of this Court and the members of other federal courts. Section 62A of the Interpretation Act (NT) (“the Interpretation Act”) provides that, in interpreting an Act, a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote the purpose or object. It is, however, one thing to say that the Magistrates Act has a purpose of advancing the independence of the magistracy. It is a different thing to say that it has a purpose of securing such independence to the highest possible degree in every respect. As has been noted, there is no ideal model of independence, and both historically and at the present time, arrangements capable of affecting independence have varied, and continue to vary, between Australian jurisdictions. As a number of decisions of the Supreme Court of Canada demonstrate, it is possible to identify certain minimum conditions that must be satisfied if a judicial body is to be regarded as independent and impartial. Beyond those minimum conditions, however, both history and current practice reveal that there is significant room for divergence.

Section 4 of the Magistrates Act, which established the office of Chief Magistrate, empowers the Administrator to appoint to that office, or to the office of Magistrate, a person eligible for appointment in accordance with s 5. Section 6 provides that a Magistrate, including a Chief Magistrate, shall be paid such remuneration and allowances, and hold office on such terms and conditions, as the Administrator from time to time determines. …

There is no reason to give the general words of s 6 a strained and narrow construction which would prevent the making of a determination for an interim period, or a determination that for some other legitimate reason may come to an end in circumstances that require the making of a further determination. Such a construction does not advance any legislative purpose. It produces a result that is unreasonable. It should be rejected. …

In the events that occurred, because the determination of 27 February 1998 was structured on the assumption that the first respondent would remain in office for two years only, fairness both to him and to the Northern Territory Government required that it be altered if he decided to stay on indefinitely. That, in fact, is what occurred. The question of principle, however, is whether the making of a determination for a fixed period compromised the independence of the first respondent, bearing in mind that the only alternative course suggested is that his remuneration and allowances should have been set for an indefinite period with the possibility of further redetermination if and when the Administrator so decided. If that question of principle is answered in the negative, then the foundation of the appellant’s construction argument disappears, and its reliance on Kable is misplaced. The question does not arise in the abstract. It is a concrete, practical issue, to be resolved having regard to what is said to be the other course that could and should have been adopted. That the other course was available is clear. Whether it was the only available course, consistent with proper respect for the independence of the first respondent, is what is in question. I would answer that question in the negative. I am unable to accept that, in a practical sense, the determination of 27 February 1998, by reason of the form it took, left the first respondent in any position of dependency or disadvantage materially different from the position that would have applied had the determination been for an indefinite period. If the first respondent remained in office after the expiration of two years, the Administrator was obliged to make a further determination. The issues that would arise for consideration in that event would be the same as the issues that would have arisen, sooner or later, as the passage of time inevitably rendered the terms of an indefinite determination inequitable or inappropriate.

One of the interesting issues now will be whether and to what extent the Martin Labor government insists on full recovery of its (no doubt very substantial) costs from NAALAS. I hope they won’t be tempted, in a misguided piece of welfarist indulgence, to forego claiming the full cost recovery to which successful parties are entitled as a matter of course. Quite apart from the fact that the interests of NT taxpayers (who mostly don’t include NAALAS’s clientele) require that costs recovery be enforced, it isn’t even in the interests of Aboriginal people to shield NAALAS from the consequences of its ill-advised litigious adventure with taxpayers’ funds. “Self-determination” requires that the self-determining rights-holders must enjoy the fruits of their decisions and actions, whether they’re positive or negative. Otherwise it isn’t self-determination at all, it’s indistinguishable from a temper tantrum where an immature teenager stamps her foot, pouts and claims “I can do whatever I like and you can’t do anything about it. I have rights, you know!”

But rights by definition involve corresponding duties. It’s mostly understood that any right involves a corresponding duty to respect the similar rights of others, and that this mutuality principle puts an inherent constraint on the exercise of rights. However, it’s less widely accepted that any right also necessarily implies a broad duty that it must generally be exercised in a socially responsible manner. Of course, that can’t mean that every single individual exercise of a right must itself be responsible. That would involve at least two problems. First, a right constrained in that way would hardly be a right at all, it would be mostly just an obligation. Secondly, who decides whether a right has been exercised “responsibly”?

But in a more general (and not immediately legally enforceable) sense the responsibility constraint is a critically important one to be understood and observed. Unless you accept the archaic notion of “natural rights” that are God-given, fundamental and immutable, rights are by definition purely social constructs. They certainly don’t exist in the State of Nature “red in tooth and claw”. Even latter day rights theorists like Rawls, Nozick and Ronald Dworkin have been unable to demonstrate that the existence or content of any right can be determined intellectually by any process independent of the particular historical and social structure that spawned it. Of course, that proposition was almost self-evident to thinkers like Sartre, Foucault and Derrida, or even Wittgenstein, although it need not (and should not IMO) lead to an extreme pose of moral relativism where all positions are equally valid and legitimate.

Once we accept that rights are purely social constructs, we must also accept that their continued existence and general recognition will be dependent on maintenance of broad public acceptance that such rights are appropriate and supportable in the public interest. If any right (including the right of indigenous self-determination) is consistently exercised in a manner that most people see as seriously irresponsible, then the social support that ultimately creates and sustains that right will eventually fall away. A right to self-determination exercised in a way that actually perpetuates welfare dependency, rather than independent self-sufficiency, will eventually come to be seen as unsupportable by the vast majority of citizens. Legal or constitutional entrenchment of rights can certainly restrain the immediate practical effect of loss of public support for their continued existence, especially where short-term popular passions involve unfair “tyranny of the majority”. But not even a constitutionally-entrenched bill of rights will prevent their erosion and eventual extinction if a particular right is exercised irresponsibly for long enough. Even if the people don’t vote to curtail them, judicial interpretations by constitutional courts will eventually reflect prevailing public opinion, albeit after a time lag. Hence the US Supreme Court in the nineteenth century had little difficulty interpreting the Bill of Rights as mostly just guaranteeing the laissez-faire economic freedoms of large corporations.

The current bipartisan resolve in Australia to abolish ATSIC is most easily seen as a manifestation of this social phenomenon of eroding public support for a right leading to its extinction, because of endemic irresponsible behaviour over a long period of time. The Howard government’s current review of Aboriginal legal aid services is rather more controversial, and I’m personally unsure whether the majority of them have acted as irresponsibly as NAALAS has done in recent years. But I also don’t think it can be seen solely as a redneck wedge tactic.

Fortunately for us taxpayers, an ABC news story this morning suggests that the NT government is going to enforce costs against NAALAS, and that they are “around $1 million”. I would actually have expected the NT government’s costs to be even higher than that, and that NAALAS’s own costs would also run into hundreds of thousands of dollars, even though some of the lawyers involved apparently acted pro bono.

The other aspect of the denouement of NAALAS v Bradley will be whether the Martin government will agree belatedly to pay former CLP Chief Minister Denis Burke’s legal costs from a parallel matter where he was found guilty of contempt of court for daring to suggest that NAALAS’s action against Bradley was a gross waste of public money and a dereliction of duty on the part of the NAALAS lawyers and office bearers who chose to maintain it at vast expense instead of using their publicly-provided funds to properly defend the hordes of Aboriginal criminal defendants they were set up to represent. Burke (at least arguably) was dead right, and would no doubt see yesterday’s High Court decision as finally proving it. Moreover, there’s a very respectable argument that the contempt finding against him was legally erroneous, because of Australians’ constitutionally-guaranteed right to political free speech. Nevertheless, the incoming Martin Labor government declined to continue funding Burke’s appeal against the contempt finding, and he wasn’t prepared to risk funding it from his own (or CLP) resources. Of course, I don’t really expect the Martin government to retrospectively indemnify Burke for his legal costs; politics just doesn’t work that way. But I bet Denis will be muttering “I told you so” today in an embittered voice to anyone who can be bothered listening. Such is the fate of a political has-been (one with which I’m personally well-acquainted).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Norman
Norman
2022 years ago

Those who have been encouraging ALL of the various ‘disadvantaged’ groups to assume they have no such things as obligations or responsibilities are the ones with whom the primary reponsibility for wasteful litigation lies. As for the necessity of positing a non-rational basis for ‘rights’, the U.S. Founding Fathers were among the first to acknowledge this, when they decided that the only way to establish those rights they held so dearly, was to declare their “truth” as being somehow “self evident”.
An interesting and thoughtful post, Ken. More than two centuries after that famous declaration, surprisingly few of the academics who pontificate on moral issues, seem even remotely conscious of the logical difficulties inherent in ‘establishing’ what constitutes a right.

Jacques Chester
Jacques Chester
2022 years ago

The trick is to use self-validating axioms, Norman.

For instance, Austrian economics begins from the proposition that “Humans Act”, that is, they perform purposeful actions. It’s a self-validating axiom, because attempts to disprove it actually provide an evidentiary case of its truthfulness.

Likewise, “A human owns themself”. This one is less solid than the action axiom, because it is harder to prove ad absurdum. Nevertheless, if humans do not own themselves, on what basis do they exercise moral control of their own bodies?

Once you establish self-ownership, the whole nonsensical house on stilts can be built, with or without the approval of either Bentham or Sartre.