Judges in Vice-Regal Roles
| Author | Rebecca Ananian-Welsh,George Williams |
| DOI | 10.22145/flr.43.1.5 |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| Subject Matter | Article |
JUDGES IN VICE-REGAL ROLES
Rebecca Ananian-Welsh* and George Williams**
ABSTRACT
The Australian federation is built upon an enduring respect for the independence of
the judicial arm of government. This is reflected in the principle that the judiciary
should be kept separate from the legislature and executive. A practice seemingly at
odds with these values is the app ointment of senior judges to vice-regal offices.
Despite this, the practice has attracted scant academic attention, and has never been
challenged in the courts. In this article we examine the conferral of vice-regal roles on
serving federal, state and territory judges. We ask, first, whether such appointments
ought to continue to be made and, secondly, whether they are constitutionally
permissible.
The judge, by the way, was the King; and, as he was wearing his crown over the wig …
he did not look at all comfortable, and it was certainly not becoming.
– Lewis Carroll, 'Alice's Adventures in Wonderland'.1
I INTRODUCTION
On 12 November 2013, the 44th federal Parliament was officially opened.2 After a
Welcome to Country by Aboriginal people, Members and Senators made their way to
their respective Houses to await the proclamation calling them together. Just after
10.30am, the Usher of the Black Rod knocked on t he door of the House of
Representatives and announced: 'Honourable members, the deputy of the Governor-
General requires your presence'. Members made the ir way to the Senate Chamber,
where the Chief Justice of the High Court, Robert French, awaited them in the
President's chair. The Clerk of the Senate then read the Instrument of Appointment, in
* Lecturer, TC Beirne School of Law, University of Queensland.
** Anthony Mason Professor, Scientia Professor and Foundation Director, Gilbert + Tobin
Centre of Public Law, Faculty of Law, University of New South Wales; Australian Research
Council Laureate Fellow; Barrister, New South Wales Bar.
The authors are indebted to Chief Justice Trevor Riley of the Northern Territory Supreme
Court and Professor Anne Twomey for their invaluable feedback on earlier drafts. The
authors are also grateful for the assistance of the Department of Infrastructure and
Regional Development and to Daniel Reynolds for his research assistance. This article is
based on a report written by the authors for the Judicial Conference of Australia.
1 Lewis Carroll, Alice's Adventures in Wonderland (Lee and Shepard, 19 20) 163.
2 Commonwealth, 'The Opening of Parliament' (Senate Brief No 2, Department of the Senate,
Parliament of Australia, 2013) 7.
120 Federal Law Review Volume 43
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which Governor-General Quentin Bryce gave authority to her deputy, the Chief
Justice, to open Parliament. In due exercise of that aut hority, Chief Justice French
declared Parliament open and set about the task of sw earing in Senators and member s
of the House of Representatives.3
The appointment of senior jud ges to vice-regal roles has a long history i n Australia.
Chief Justice French was the eleventh Chief Justice, and the 20th justice, of the High
Court to act as deputy to the Governor-Gene ral in the opening of a federal Parliament.4
The first judge to perform this role was Sir Samuel Griffith in 1904.5 In some years, two
justices of the High Court have been appointed as deputies for the occasion.6 The
opening of Federal Parliament is merely one example of a serving member of the
judiciary being appointed as the Monarch's representative in a vice-regal role. In most
states, the position of Lieutenant-G overnor is traditionally filled by the Chief Justice of
the Supreme Court or, if he or she is unavailable, the next most senior judicial officer.7
Every year, state justices in vice-regal roles may be called upon to confer awards, open
or dissolve Parliaments, assent to bills, chair meetin gs of the Executive Council, and
perform a range of other executive functions as the Queen's appointed representative.
In the territories, judges are able to exercise similar vice-regal roles as Deputy or
Acting Administrators, though such appointments tend to only occur in the Northern
Territory.
Australia is built upon a respect for the independence and institutional integrity of
judges. Judicial independence from the executive and legislative arms of government
has been called a 'keystone in the democratic arch'8 and the 'bulwark of the
Constitution'. 9 Despite the conferral of vice-regal powers on judges standing in
apparent contradiction to the separation between the judicial and executive branches,
the practice has received little attention from comme ntators or the courts. 10 We seek to
3 Department of the Senate, Opening of the 44th Parliament (12 November 2013) Parliament of
Australia
<http://www.aph.gov.au/Ab out_Parliament/Senate/Opening_of_44th_ Parliament>;
Rosemary Laing (ed), Annotated Standing Orders of the Australian Senate (Department of the
Senate, 2009) 39–52.
4 Commonwealth, above n 2, 6–7.
5 Ibid 6.
6 Ibid 6–7. Between 1910 and 1943 the first sitting of each Federal Parliament was opened by
two Justices of the High Court both acting as deputies to the Governor-General on all but
one occasion (when Sir Isaac Isaacs opened parliament in 1917). On occasions when two
deputies were appointed it seems that one swore in Members of the House of
Representatives, and the other swore in Senators. See, eg, the description of the open ing of
Federal Parliament by Sir Frank Gavan Duffy and Sir George Rich in 1932: 'Federal Parliament
Opened by Vice-Royalty', Townsville Daily Bulletin (Townsville), 18 February 1932.
7 Anne Twomey, The Chameleon Crown: The Queen and Her Australian Governors (Feder ation
Press, 2006) 29.
8 Australian Bar Association, 'The Independence of the Judiciary' [1991] (Winter) Victorian
Bar News 1 18 [2.2].
9 Fiona Wheeler, 'Original Intent and the Separation of Powers in Australia' (1996) 7 Public
Law Review 96, 100, quoting Official Record of the Debates of the Australasi an Federal
Convention, Adelaide, 20 April 1897, 952 (Sir Edmund Barton). See also Judicial Integrity
Group, Commen tary on the Bangalore Principles of Judicial Conduc t, UN Office on Drugs and
Crime, Commission on Crime Prevention and Criminal Justice, (September 2007) 5.
10 Matthew Stubbs, 'The Constitutional Validity of State Chief Justices Acting as Governor'
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