Australia’s new Chief Justice, Robert French, once pointed out to Parliament it was easier to get a gig as a High Court judge than be appointed to the Native Title Tribunal (which he headed at the time). And he proved a dab hand at repartee when explaining that the overwhelming majority of commercial court cases in Australia were settled as a result of exhausted litigants being prepared to ‘cut a deal’.
In 1997, Australia’s new Chief Justice (from 1 September 2008) was appearing before a Joint Committee of Parliament on native title matters. Here’s part of what he had to say…
OFFICIAL HANSARD REPORTJOINT COMMITTEE on NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND Reference: Native Title Amendment Bill 1997 CANBERRA , Tuesday, 23 September 1997
The Committee speakers…Mr Daryl Melham, Member for Banks NSW, Labor (now Chair of the Caucus)Senator Eric Abetz, Tasmania, Liberal, then the Committee chair (now Deputy Leader of the Opposition in the Senate)Ian Causley, Member for Page NSW, National Party,Senator Jean Ferris, SA, Liberal (died April 2007)
WITNESS: FRENCH, Justice Robert Shenton, (then) President, National Native Title Tribunal, Victoria Avenue, Perth, Western Australia ….
With regard to (Native Title Tribunal) presidential member qualifications, I suppose that comes under the national native title tribunal appointments bill, which has already been introduced into the parliament, although these provisions were in, I think, earlier drafts of proposed amendments. I would simply like to reiterate what is already on the record, that I support the broadening of the qualification for a presidential member of the tribunal so that it is not required to be a judge or former judge but can extend to a person who is a legal practitioner of five years standing or more. Notwithstanding the arguments, which I duly respect, about the importance of the position of president and presidential member, it seems to me that there are people available, or potentially people available, who have the skills and the standing to do the job that is required. I do point out, for those who are concerned about downgrading, that it is only downgrading the qualifications to the same level of qualification as is necessary for appointment to the High Court. It is perhaps an anomaly that it is harder to be appointed to the tribunal than it is to the High Court. I know that is a theoretical rather than a substantive point.
Mr MELHAM—Once you are appointed to the High Court, you are a justice of the High Court. Even if you have those qualifications, why shouldn’t the status of a Federal Court judge go with it? You make the point that it may not be necessary. Upon your appointment—as if you became a justice of the High Court—why shouldn’t you carry that status with you? This does not stop the government from appointing non-judges. They just then give them judicial—
Justice French—In my respectful submission, I think that the appointment of somebody to an administrative body to do this kind of task, and concurrently conferring on that person the position of judicial office to qualify them for doing an administrative job, runs the risk of confusing what the judicial role is with the administrative role. We have had of course examples across the board, from governments of all colours, of that kind in the past.
Mr MELHAM—But, Justice French, there is then an inconsistency because the amendments do not take away—they do not just allow the five-year appointment. You can still appoint a justice of the Federal Court, or indeed a former judge. If the government was interested in that argument to separate it from the judicial role, then why aren’t the amendments excluding current justices and former judges? That is where there is an inconsistency.
Senator ABETZ—Because you do not want to disqualify them, of course.
Justice French—My submission—I think it was back in 1995 in a discussion paper which you might be familiar with—was that you should not have serving judges in the role of tribunal members.
Justice French—Because of the confusion of the function of the judge and the function of the mediator. The government has left that qualification in. From a personal point of view, I would be very happy just to see it as a legal practitioner of five year’s standing or more, and of course that would not exclude a retired judge, because a retired judge would ordinarily have that qualification. I do not want to say a great deal more about that because I know it is a subject of current political debate. I suppose it is just really a matter of repeating a point that I have made before on public record.
Mr CAUSLEY—How do you negotiate the relinquishment of native title rights when you do not know what they are?
Justice French—If you are talking about a compulsory acquisition, which is the sort of situation that I have just been describing, I suppose the parties really do not get into a highly detailed definition of native title rights. I know that this is a matter that you have raised on a number of occasions.
Mr CAUSLEY—Yes, I know. Would you then agree that some of these agreements are reached because of an absence of clear law and a need to get on with life?
Justice French—That is how most litigation is settled. I am being quite serious; I am not being flippant when I say that to you. I suppose about 70 to 80 per cent of commercial litigation cases are brought to court settled.
Mr CAUSLEY—Because you cannot afford to pursue it further.
Justice French—Sometimes it is because of that; sometimes it is because the parties have an ongoing commercial relationship and they want to settle their dispute. They are unsure about the outcome of the case. It may not be a matter of the cost of it but uncertainty about the outcome and a concern about the amount of time that is tied up just in litigating. If it were not for that sort of factor driving settlements, the courts of this country would be totally bogged down.
Senator FERRIS—As Father Frank Brennan said, they cut a deal.
Justice French—Yes, but that is what people do all the time—even in politics, I understand. ….