Forge v Australian Securities and Investments Commission (C7/2005)
William Arthur Forge & Ors Plaintiffs AND Australian Securities and Investments Commission & Ors Defendants
Australian Securities and Investments Commission v Forge (C12/2005)
Australian Securities and Investments Commission Plaintiff AND William Arthur Forge & Ors Defendants
Forge v Australian Securities and Investments Commission (S301/2005)
William Arthur Forge & Ors Applicants AND Australian Securities and Investments Commission & Anor Respondents

Judges: Gleeson CJ
Gummow
Kirby
Hayne
Callinan

HeydonCrennan JJ

Subject References:
Constitutional law (Cth)
Chapter III
State Supreme Courts
Acting Judges
Section 37 of the Supreme Court Act 1970 (NSW) provided for appointments to act as a judge, for a period not exceeding 12 months
Former Federal Court Judge appointed as an Acting Judge of the Supreme Court of New South Wales under a series of commissions pursuant to s 37 of the Supreme Court Act
Whether the appointments as an Acting Judge were validly made
Whether s 37 of the Supreme Court Act was valid
Whether Acting Judges, when appointed other than on an occasional and exceptional basis, substantially impair public confidence in the Supreme Court's institutional integrity and impartiality and prevent that Court from answering to the constitutional description of "Supreme Court of any State"
Distinctions between permanent Judges and Acting Judges
Significance of a substantial increase in the number of Acting Judges appointed to the Supreme Court, the incidence of reappointing such Acting Judges and the duration of such appointments since 1989
Whether changes in appointments of Acting Judges amounts to a fundamental alteration of the character and composition of the Supreme Court
Relevance of the fact that Acting Judges are typically retired Judges.
Constitutional law (Cth)
No objection to the appointment of the Acting Judge in question taken at trial or on appeal to the New South Wales Court of Appeal
Whether parties contesting the validity of appointment prevented from doing so by reason of acquiescence or waiver
Opposing parties did not submit acquiescence or waiver, if any, prevented objection to validity of appointment
Whether High Court should consider effect of acquiescence or waiver.
Constitutional law (Cth)
Judicial power of the Commonwealth
Vesting in State courts
Federal character of the Commonwealth
Power of State Parliament to confer function incompatible with exercise by State court of federal judicial power
Whether appointments of Acting Judges in large numbers consistent with judicial process and Chapter III of the Constitution.
Judges
Acting Judges
Validity of orders made by Acting Judge
Whether such orders valid regardless of validity of appointment of the Acting Judge by reason of the de facto officers doctrine.
Corporations law
Transitional provisions of Ch 10 of the Corporations Act 2001 (Cth)
ASIC brought proceedings, in 2001, against the parties contesting validity of the appointment of the Acting Judge in question alleging contravention, in 1998, of civil penalty provisions of the Corporations Law of New South Wales
Whether, after the repeal of the relevant civil penalty
provisions of the State corporations law and the enactment of the Corporations Act, the proceedings alleging contravention could be brought.
"Acting Judges"
"court"
"impartiality"
"institutional integrity"
"judicial independence"
"Supreme Court of any State"

Legislative References:
Constitution - ss 71; 72; 73; 75; 76; 77(iii)
Corporations Act 2001 (Cth) - Ch 10
Judiciary Act 1903 (Cth) - s 39(2)
Supreme Court Act 1970 (NSW) - s 37

Judgment date: 5 September 2006

Judgment by:
Heydon J

243. HEYDON J. The relevant circumstances and the key statutory provisions are set out in other judgments.

Acting judges

244. In Kable v Director of Public Prosecutions (NSW ) ^[247] this Court invalidated a State law because it conferred a function on a State court which was inconsistent with the institutional integrity of that court as a repository of federal jurisdiction. The applicants seek to extend the principles stated in that case so as to invalidate a law on the ground that it creates in a State court a particular characteristic - acting judges as members.

245. Assumptions in the applicants' argument . Certain legal assumptions underlay, or were clustered about, the applicants' arguments. Some were supported by authority; some have been raised in the past, but only as possibilities. Among them were the following:

(a)

the States must preserve a system of State courts to act as repositories of the judicial power of the Commonwealth ^[248] ;

(b)

it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description "Supreme Court" ^[249] ;

(c)

State legislation will be invalid where it compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction impartially and competently ^[250] ;

(d)

it is necessary that a State court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal ^[251] ;

(e)

the actuality and appearance of impartiality would be impaired if a Supreme Court were predominantly or chiefly constituted by acting judges;

(f)

the actuality and appearance of impartiality would be impaired if a series of acting, rather than full-time, appointments were made in such numbers as to distort the character of a Supreme Court ^[252] ;

(g)

if State legislation takes such a form as to make the State Supreme Court an unfit repository of federal jurisdiction, it is that legislation which is invalid rather than the Commonwealth legislation which confers federal jurisdiction on the unfit repository ^[253] .

246. The competing arguments in these proceedings did not centre on attempts to demonstrate the correctness or falsity of these propositions, but tended rather to assume their correctness. It is not necessary, for the purpose of deciding the present controversy, to reaffirm any of those propositions so far as they are supported by authority, or to reach any conclusion as to their correctness so far as they are not supported by authority. The arguments in these proceedings proceeded on the basis that even if those propositions were assumed to be correct, the applicants could not succeed without establishing something more.

247. Concessions by the defendants and the interveners . The defendants and some of the interveners from time to time conceded that, accepting some or all of the assumptions of the applicants' arguments, there were some kinds of State legislation which might be invalid. Thus the Australian Securities and Investments Commission accepted "the possibility ... that the institutional integrity of a court as an independent and impartial tribunal might be undermined in practice by the manner or extent of the appointment of acting judges". New South Wales conceded that "a Supreme Court consisting entirely of acting judges, each appointed only for individual cases, would probably infringe the Kable principle." The Commonwealth made a similar concession. South Australia conceded that a court could not be composed entirely of acting judges but on the basis of construing s 37 of the Supreme Court Act 1970 (NSW) in the light of the power to appoint permanent judges in s 26.

248. While many allowances must be made for the tact, and the tactics, of advocates, it was not necessary to make these concessions. They were not in any way tested in argument because no counsel advanced argument against them. It is possible that they are sound, but it should not be assumed that they are sound, and the decision whether they are sound must abide some case the facts of which make it necessary to resolve those questions one way or the other.

249. Construction of s 37. It would be possible to undercut significant parts of the applicants' submissions by adopting a particular construction of s 37 as permitting the appointment of only limited classes of acting judge. But apart from South Australia, no party or intervener attempted to do this. It is better to proceed on the basis that s 37 is capable of being construed broadly without finally deciding what its true construction is.

250. Foreign law . Considerable reliance was placed on cases on the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6; the Canadian Charter of Rights and Freedoms, s 11(d) and the Bill of Rights of the Constitution of the Republic of South Africa, s 34. These documents all post-dated Ch III. They did not lead to Ch III and they were not based on Ch III. Accordingly, no assistance is to be obtained from cases on these documents in construing Ch III and evaluating its impact on State laws.

251. Desirability of acting judges . I agree with the Chief Justice that it is important to distinguish between, on the one hand, one's personal view of the merits of appointing acting judges at all, or of appointing particular categories of persons as acting judges, and, on the other hand, those aspects of the phenomenon of acting judges which are relevant to the constitutional validity of the legislation providing for their appointment ^[254] .

The applicants' submissions

252. The primary position of the applicants was that any legislation permitting the appointment of part-time judges to Supreme Courts was invalid. An alternative and more qualified position which they advanced was that an acting judge sitting for a short period to clear up a list or meet some emergency in the court system might pass muster because the reason for the appointment would be explicable to a member of the public knowing the facts. But the circumstances in which this would be permissible were said to be "very special" or "very, very limited".

253. The applicants submitted that references to "courts" in Ch III of the Constitution were references to courts that are manned by a full-time permanent judiciary whose tenure is fully secure and whose remuneration is secure. They submitted that by the time the present proceedings were dealt with by the trial judge, the appointment of acting judges as a part of the Supreme Court of New South Wales had become so extensive and so institutionalised that it had impaired the integrity of that Court or distorted its character. This had come about because the proportion of acting judges was so great that the Court's independence and impartiality "was placed under threat, if not in fact, then as a matter of perception." That was "a view traditionally held among lawyers, politicians and others" and any "ordinary member of the public informed of the relevant facts would justifiably perceive [the appointments of acting judges] as a threat to the independence and impartiality of the courts." The appointment of acting judges offends "the principle that there are not to be two qualities or grades of justice in relation to the exercise of the judicial power". The applicants also submitted that s 72 of the Constitution "is an affirmation ... that acting justices should not exercise the Judicial Power [of the Commonwealth]." The applicants submitted:

"acting judges must of their very nature be seen as impermanent, possibly not qualified to be full time judges and not part of a stable structure ... They could ... also be perceived variously as fill-ins or appointed to save costs or supernumeraries or not committed fully to the task because of their potential to have other interests. ... [T]he existence or the perception of two classes of judges evincing two grades of justice is antipathetic to the Constitution".

254. The applicants further submitted that the appointment of acting judges would carry the risk that they would be perceived to be likely to curry favour with the executive and not to be free of influence from the executive.

The applicability of s 72

255. There is ample authority against the s 72 argument. It is clear that s 72 does not in terms require State judges to conform to its criteria. Chapter III refers several times to State courts, but s 72 is limited to federal courts ^[255] . Section 72 cannot be construed as requiring for State courts by implication what it does not require expressly. An acting judge in a Territory court may exercise the judicial power of the Commonwealth under s 71 of the Constitution while not being subject to the requirements of s 72, and in particular the proscription by s 72 of acting judges ^[256] . If so, given that a State court is as much one of the "other courts" mentioned in s 71 as a Territory court, the proscription by s 72 of acting judges does not apply to State courts either. This conclusion leaves open the question whether the quantity and character of the acting judges appointed under State legislation can cause it to be invalid.

Acting judges before federation

256. The arguments of the applicants turn on the meaning of the expression "such other courts" in s 71 and "any court of a State" in s 77(iii) of the Constitution. Those words now bear the meaning "they bore in the circumstances of their enactment by the Imperial Parliament in 1900." ^[257] In 1901 the expression "court" in those provisions must have meant those courts which had been Colonial Supreme Courts and had just become State Supreme Courts in the sense referred to in s 73. The expression "Colonial Supreme Court" referred to courts which had for a long time had provision for the appointment of acting judges: for six of the Colonies legislation had been enacted permitting this, and it was still in force in all six of them in 1901 ^[258] . That well-informed lawyers would have regarded the expressions "such other courts" and "any court of a State" as bearing the meaning of a court with the potential to contain acting judges is supported by the fact that it was Edmund Barton - a man deeply involved in the drafting of the Constitution and in the process by which it obtained popular acceptance - who as Attorney-General introduced into the New South Wales Legislative Assembly the Bill which became the Judicial Offices Act 1892 . Indeed, both Edmund Barton ^[259] and Richard O'Connor ^[260] , who played a comparable role in developing the Constitution and having it adopted, had served as acting judges of the Supreme Court of New South Wales before federation. There were other well-known appointments of acting Supreme Court judges before federation in New South Wales, for example Sir William Manning in 1848-1849 ^[261] . Three Queensland illustrations are Sheppard DCJ ^[262] , Ratcliffe Pring, a former Attorney-General ^[263] , and Windeyer J, from the Supreme Court of New South Wales ^[264] . In Victoria, Sir Henry Wrenfordsley, who had been Chief Justice of Western Australia in 1880-1883 ^[265] , was appointed an acting Supreme Court judge in 1888 ^[266] and Edward Hodges, "a leader of the Bar", in 1889 ^[267] . In Western Australia, Edward Stone acted as Chief Justice in 1881 and as an acting puisne Supreme Court judge in 1883-1884 ^[268] and Sir Henry Wrenfordsley was sworn in as Acting Chief Justice in 1890 ^[269] . In Tasmania, Sir James Dowling, Chief Justice of New South Wales, was an acting judge in 1845 ^[270] , J W Rogers was an acting judge in 1884-1885 ^[271] and Sir Henry Wrenfordsley was an acting judge in 1885-1887 ^[272] . In South Australia, Henry Jickling, a barrister, served as an acting judge of the Supreme Court in 1837-1839 ^[273] . Gresson J and Martin J were appointed temporary judges of the Supreme Court of New Zealand before they were appointed permanently, and four other temporary judges were appointed before federation (one after resignation as a permanent puisne judge) ^[274] .

257. These appointments are not the only examples of temporary appointments to the Supreme Courts of the Australasian Colonies prior to federation. Nor were all of them obscure events. Many of them were controversial and of wide interest.

258. In Victoria, Sir Henry Wrenfordsley's appointment in 1888 attracted conflicting but well-publicised responses. The Argus said he was "held in high esteem in this colony", but at a meeting of the Bar held to protest about the appointment he was described as a "journeyman judge, who went about with robes in his carpet bag" ^[275] .

259. In South Australia, Jickling J's appointment was controversial, and on one occasion he was hissed off the bench by the Bar and the public ^[276] .

260. In Queensland, the appointments of Sheppard DCJ and Ratcliffe Pring were challenged in litigation ^[277] .

261. The appointment of Windeyer J was necessitated by Queensland Investment and Land Mortgage Co Ltd v Grimley . Four of the five defendants were "leading members of Queensland society" and were sued for misconduct as directors of the plaintiff. One defendant, Sir Arthur Palmer, was a former Premier and Leader of the Opposition; at the time of the proceedings he was President of the Legislative Council and Administrator of the Colony. Another, Sir Thomas McIlwraith, had also been Premier and Leader of the Opposition, and at the time of the proceedings he was Colonial Treasurer. A third, E R Drury, was General Manager of the Queensland National Bank, which had a monopoly of banking business in the Colony. A fourth, F H Hart, was a leading businessman and a member of the Legislative Council ^[278] . The trial began on 5 November 1891 before Lilley CJ and a jury. Lilley CJ was another former Premier, had been a vigorous political opponent of Palmer and McIlwraith, and was on bad terms with them. The Chief Justice's son appeared as counsel for the plaintiff before him as in the past he often had, with considerable success.

262. For some time trial judges on the Supreme Court had participated in appeals from their own judgments. To prevent this happening, and while the trial was still proceeding, Sir Samuel Griffith, the Premier and Attorney-General, procured the passing of the Supreme Court Act 1892 . Section 4 prevented Lilley CJ from sitting on the appeal. Since two of the other four Supreme Court judges disqualified themselves, and since an appeal could only be heard by three judges, a temporary appointment was called for.

263. The Acting Judges Act 1873 , s 1, permitted a temporary appointment when a judge was absent on leave, but no judge was absent on leave. For that reason s 12 of the 1892 Act provided that if the Chief Justice certified that from any cause whatsoever a sufficient number of judges of the court competent to sit upon the hearing of any matter or proceeding in the Full Court could not be secured, or could not be secured without detriment to the ordinary business of the court, the Governor-in-Council could appoint a District Court judge or any person qualified to be a judge of the court to act as a judge of the court for the hearing of that matter.

264. The jury verdict was given on 21 May 1892 favourably to the defendants, but on 16 August 1892 Lilley CJ, after argument, made orders which disregarded and contradicted many of the answers which the jury gave. An appeal was then brought. Lilley CJ gave a certificate under s 12 on 23 August 1892. Sir Samuel Griffith decided to appoint Windeyer J, of the Supreme Court of New South Wales, and negotiated with Edmund Barton, Acting Premier ^[279] and Attorney-General for New South Wales, to this end ^[280] . A doubt then arose as to whether a judge of the Supreme Court of New South Wales was "qualified to be a Judge of" the Supreme Court of Queensland within the meaning of s 12, not being a barrister of the Supreme Court of Queensland, or of New South Wales or of Victoria or England or Ireland or an advocate of Scotland ^[281] . Barton told Griffith that it was essential that all doubts be removed. On 8 September 1892 the Supreme Court Bill No 2 was introduced by Griffith into the Legislative Assembly. Griffith said that the Bill dealt with the matter in "what I think I may call a federal spirit, by providing that a judge of any of the Australian colonies shall be qualified to sit as acting judge in the Supreme Court of Queensland to constitute the appellate court." The Bill passed the Legislative Assembly without opposition. By 9 September 1892, Windeyer J had indicated willingness to act. The Bill passed the Legislative Council, and received Royal Assent on 13 September 1892. Windeyer J was appointed an acting judge, and presented his commission on 14 September 1892 in a crowded courtroom. Griffith welcomed Windeyer J as one of the original members of the Queensland Bar, who had appeared in the Supreme Court of Moreton Bay before Queensland separated from New South Wales. The appeal was then heard over some days. On 12 October 1892 the appeal was allowed in a judgment read for two hours by Windeyer J to another crowded courtroom, and reported the next day at length in the Brisbane Courier ^[282] .

265. Sir Thomas McIlwraith then initiated steps to have Lilley CJ removed from office on the grounds of bias in his conduct of the trial, and within a fortnight the Chief Justice "bowed to the storm" and announced his intention to retire. Lilley CJ, after retiring the following year, and thus clearing the way for Sir Samuel Griffith's appointment as Chief Justice, stood for Parliament against McIlwraith but was defeated ^[283] .

266. These extraordinary happenings - Sir Harry Gibbs called the case a "cause célèbre" and described it as a "rather sad story" ^[284] - cannot have been forgotten by Barton, Griffith, or anyone else involved in drafting Ch III. Indeed, Griffith CJ recalled these events, no doubt among others, during the course of argument in Stockwell v Ryder ^[285] . The Brisbane Courier on 2 October 1906 contained the following passage:

"'I wonder', remarked Sir Samuel, 'whether it has ever occurred to any one to doubt whether under the Constitution any one can be appointed temporarily a Judge of the Supreme Court? I know it has been done for a great many years, and I wonder whether it has occurred to any one to doubt whether it can be done.' His Honour, then recollecting his own political days, added: 'I admit I have done it myself, but I have made mistakes just the same as other people.'"

It is not clear which Constitution Griffith CJ had in mind.

267. The applicants downplayed this background by saying that they accepted that at the time of federation it was well understood that the full-time judges in the Supreme Courts of the Colonies were "sometimes assisted by an acting judge or judges to meet special circumstances". The possibility that State legislation could achieve the same result now without invalidity was one which the applicants' primary submission eschewed, although its fallback position accommodated it. In the very vague terms in which it is put, the exception cannot be correct. The question remains whether s 37 by itself, or s 37 in the light of the appointments made under it, is open to the criticisms advanced by the applicants.

Safeguards in the New South Wales legislation

268. The arguments of the applicants did not deal effectively with the similarities between permanent and acting judges of the Supreme Court of New South Wales, particularly the similarities between the safeguards affecting the two classes.

269. Like permanent judges, acting judges of the Supreme Court of New South Wales are appointed by the Governor on ministerial advice by commission under the public seal of the State ^[286] . Like permanent judges, acting judges are qualified for appointment if they are legal practitioners of at least seven years' standing, or if they hold or have held a judicial office of New South Wales or of the Commonwealth, or of another State or a Territory ^[287] . Like permanent judges, acting judges are obliged to take not only the oath of allegiance but also the judicial oath (to "do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will") ^[288] . These oaths are not seen as mere words. Acting judges have "all the powers, authorities, privileges and immunities and fulfil all the duties of" permanent judges ^[289] . Among those immunities is immunity from suit, and among those privileges is the protection afforded by the law relating to contempt of court. The protection and immunity of both permanent and acting Supreme Court judges performing duties as judges extends to judges when performing ministerial duties as judges ^[290] . The remuneration of acting judges, like that of permanent judges, is, subject to parliamentary disallowance ^[291] , determined from time to time by the Statutory and Other Offices Remuneration Tribunal ^[292] , is directly appropriated from the Consolidated Fund ^[293] , is a statutory entitlement ^[294] and cannot be reduced during the term of the respective officers ^[295] . Both acting and permanent judges are only removable from office by the Governor after the Governor has received, first, a report of the Conduct Division of the Judicial Commission of New South Wales setting out its opinion that the matters referred to in the report could justify parliamentary consideration of the removal on the ground of proved misbehaviour or incapacity ^[296] and, secondly, an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity ^[297] . Both acting and permanent judges are subject to the same system of complaints and discipline administered by the Judicial Commission of New South Wales ^[298] and to the same capacity for scrutiny by the Independent Commission Against Corruption ^[299] . The intra-curial arrangements for the transaction of the business of the Court of Appeal apply indifferently as between permanent Judges of Appeal and acting Judges of Appeal, and the intra-curial arrangements for the transaction of the business of a Division apply indifferently as between permanent judges appointed or nominated to that Division and acting judges so appointed or nominated ^[300] . Hence the same practices in relation to the court administration apply - assignment of judges, sittings of the court and allocation of courtrooms.

270. Apart from those statutory provisions treating permanent and acting Supreme Court judges indifferently, both permanent and acting judges are subject indifferently to the general law and subject to the same duty to apply it. They are subject to the same possibilities and procedures of appeal and the same requirements of impartiality and of apparent impartiality. They must treat all parties equally, and protect the right of the parties to meet the case each is making against the other. They are bound by the same rules of natural justice. They are bound by the same duties to hear cases fairly, find facts accurately, and apply the law, correctly ascertained, to the facts found.

271. In addition, since the work of both permanent and acting judges takes place in public, and since the reasons for judgment of both permanent and acting judges are publicly available, acting judges are equally open to the same scrutiny by their peers, the profession and the public as permanent judges. Both acting and permanent judges share the same professional ethos, tradition and culture. They share the same concern for professional reputation. There is no legislative provision permitting interference by the executive or the legislature in the work of acting judges any more than there is in relation to permanent judges, and there are equally well-established customs precluding interference. It was not suggested by the applicants that the actual process and techniques by which acting judges tackle the issues thrown up for their decision differ from those employed by permanent judges.

Consequences of the statutory and other safeguards

272. From the considerations just outlined it follows that it is necessary to reject the following submissions made by the applicants:

(a)

that "there is a vast difference both conceptually and as a matter of perception between a court ... constituted by a full time judge and one constituted by an acting judge appointed for a short term";

(b)

that "[t]here is clearly a vast difference between a court constituted by full time Judges and one constituted by full time Judges and a substantial number of acting judges";

(c)

that "acting judges must ... be seen as impermanent, possibly not qualified to be full time judges and not part of a stable structure";

(d)

that acting judges "could ... be perceived variously as fill-ins or appointed to save costs or supernumeraries or not committed fully to the task because of their potential to have other interests"; and

(e)

that the appointment of acting judges gives rise to "the existence or the perception of two classes of judges evincing two grades of justice".

Threats to actual and perceived independence and impartiality

273. So far as the applicants contended that the proportion of acting judges appointed to the Supreme Court of New South Wales placed the independence and impartiality of that Court under threat either as a matter of fact or as a matter of perception, there was no actual evidence of that fact or that perception. It may be a view that some lawyers, politicians and others hold, but it has not been shown that many other persons hold that view. In the absence of evidence, it is necessary to resort to estimations of how reasonable bystanders would probably view matters.

274. To start with, it must be remembered that a perceived tendency to undermine public confidence in the impartiality of a Supreme Court is not by itself a touchstone of invalidity ^[301] .

275. The applicants submitted that acting judges are perceived to lack independence, because of a desire for further appointment, because of work done for the executive in the past by the appointee or the hope of offers of work from the executive in the future, and because they "can become beholden to other interests". The argument based on these amorphously expressed concerns proves too much: permanent judges too can hope for promotion to a higher court or a higher judicial office; they too can receive acting appointments in those courts or those offices (as has happened since the first half of the 19th century); they too can hope for work at the hands of the executive; they too may have done work for the executive in the past; and they too can become beholden to other interests in hoping for work, whether from the government or from private interests, on leaving the bench. There are institutional, professional and ethical checks against these risks, and there are obstacles raised by personal integrity, but all these checks and obstacles operate as fully for acting judges as for permanent ones. Any specific suspicions of actual or apprehended bias can be dealt with by ad hoc applications which can be considered on their merits in the ordinary way ^[302] .

276. The acting Supreme Court judges during the relevant period comprised ex-Federal Court judges whose career on that Court had been terminated on attainment of the retirement age of 70, other ex-Federal Court or Supreme Court judges, Masters and District Court judges. To the extent that estimations of likely public perceptions are relevant, an objective observer would be likely to see the acting appointments as, in the case of ex-judges, a continuation for a short time of an existing judicial career, and in the case of Masters and District Court judges, as service in a judicial role, different, but not radically different, from that in which they were already engaged; and would be likely to see the acting judges appointed as suitable and qualified persons whose circumstances and independence were indistinguishable from those of the permanent judges.

277. In short, the history of acting judges in the Colonies before federation points to the conclusion that Ch III contemplates the validity of State legislation permitting the appointment of acting judges. The arguments of the applicants concentrated on the numbers of acting judges as a proportion of the whole. Those are misleading figures, for not all acting judges work full-time during the period in which they are acting. To compare them with appointments of a single acting judge to a Colonial Supreme Court ignores the possible impact of even a single appointment of that kind on courts with the very low memberships of those days. But even apart from those qualifications, if the relevant criterion is the protection of judicial independence and impartiality, the conclusion of Gummow, Hayne and Crennan JJ ^[303] that the numbers of judges appointed alone cannot be decisive and that it is necessary to consider why they have been appointed and what safeguards are in place to protect judicial independence and impartiality must, with respect, be correct. There is no evidence as to why the acting judges were appointed. There are ample safeguards to protect judicial independence and impartiality. Section 37 of the Supreme Court Act 1970 (NSW) is not invalid.

278. I agree with the reasoning of Gummow, Hayne and Crennan JJ.

Orders

279. I agree with the orders proposed in relation to each of the proceedings by Gummow, Hayne and Crennan JJ.