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Federal Court of Australia - Full Court |
Last Updated: 4 April 2008
FEDERAL COURT OF AUSTRALIA
Clark v Commissioner of Taxation [2008] FCAFC 51
INTERPRETATION – referral of
questions of law from Administrative Appeals Tribunal – objections to
assessments of superannuation surcharge –
legislation – s7
Superannuation Contributions Tax (Members of Constitutionally Protected
Superannuation Funds) Assessment and Collection Act 1997 (Cth) ("the
Assessment Act") – whether a South Australian Magistrate a ‘judge of
a Court of a State’ – Austin v Commonwealth (2003) 215 CLR
185
HELD – applicant was a judge of a Court of a State at
the commencement of the Assessment Act
Acts
Interpretation Act 1901 (Cth) s 16C
Administrative Appeals
Tribunal Act 1975 (Cth) s 45
Courts Administration Act 1993
(SA) ss 6(1), 7
Federal Magistrates Act 1999 (Cth)
s 8
Federal Magistrates Act 1999 s 8
Income Tax
Regulations 1936 (Cth) Sch 14
Judge’s Pension Act 1971
(SA)
Judiciary Act 1903 (Cth) ss 39, 81
Magistrates
Act 1983 (SA) ss 4(2), 5, 10, 11, 12, 13
Magistrates Court Act
1991 (SA) ss 3, 5, 10, 44
Southern State Superannuation
Act 1994 (SA)
Superannuation Act 1988 (SA)
Superannuation Contributions Tax (Members of Constitutionally
Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth)
ss 5, 7, 9(2), 38
Superannuation Contributions Tax (Members of
Constitutionally Protected Superannuation Funds) Imposition Act 1997
(Cth)
Youth Court Act 1993 (SA) ss 5, 7, 9,
26
Commonwealth Constitution ss 79, 114
Butterworths
Australian Legal Dictionary
Jowitt’s Dictionary of English Law
(2nd ed)
Macquarie Dictionary (4th ed)
Oxford Dictionary of
Law (5th ed)
Oxford English Dictionary (2nd ed)
The
Australian Judiciary (Campbell and Lee, Cambridge University Press, 2001)
Austin v Commonwealth of Australia
(2003) 215 CLR 185 applied
Bavcevic v The Commonwealth [1957] HCA 67; (1957)
98 CLR 296 cited
Frederick v State of South Australia
[2006] SASC 165; (2006) 94 SASR 545 considered
Goward v The Commonwealth [1957] HCA 60; (1957)
97 CLR 355 cited
Re Bryant; ex parte Guarino [2001] HCA 5; (2001)
178 ALR 57 cited
The Queen v Moss; ex parte Mancini (1982) 29
SASR 385 cited
GREGORY
RONALD ALFRED CLARK v COMMISSIONER OF TAXATION
SAD 110 OF
2007
BRANSON, SUNDBERG AND DOWSETT JJ
3 APRIL
2008
ADELAIDE (BY VIDEO LINK FROM SYDNEY)
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT the questions of law referred to the
Court be answered as follows:
Question 1: Was the applicant "a judge of a court of a State" within the meaning of section 7 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) ("the Assessment Act") at the commencement of that Act?Answer: Yes.
Question 2: If the answer to question 1 is No, were the contributed amounts under the subparagraph (a)(i) of the definition of contributed amounts in section 38 of the Assessment Act in relation to the applicant and in connection with the Southern State Superannuation Act 1994 (SA) in the relevant financial years, "surchargeable contributions" of the applicant for those financial years within the meaning of s 9(2) of the Assessment Act?
Answer: Not required to be answered.
Question 3: If the answer to question 1 is No, are the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) and/or the Assessment Act invalid in their application to the applicant:
(a) on the ground that they so discriminate against the State of South Australia, or so place a particular disability or burden upon the operations and activities of the State of South Australia, as to be beyond the legislative power of the Commonwealth? or
(b) on the ground that the Imposition Act imposes a tax on property belonging to the State of South Australia contrary to s 114 of the Commonwealth Constitution?
Answer: Not required to be answered.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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QUESTIONS OF LAW REFERRED BY THE ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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GREGORY RONALD ALFRED CLARK
Applicant |
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AND:
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COMMISSIONER OF TAXATION
Respondent |
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JUDGES:
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BRANSON, SUNDBERG AND DOWSETT JJ
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DATE:
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3 APRIL 2008
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PLACE:
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ADELAIDE (BY VIDEO LINK FROM SYDNEY)
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REASONS FOR JUDGMENT
BRANSON AND SUNDBERG JJ
INTRODUCTION
1 At the request of the parties, and with the concurrence of the President, the Administrative Appeals Tribunal referred questions of law arising in a proceeding before the Tribunal to the Federal Court for decision (s 45 of the Administrative Appeals Tribunal Act 1975 (Cth)). The questions are as follows:
1. Was the applicant "a judge of a court of a State" within the meaning of section 7 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) ("the Assessment Act") at the commencement of that Act?
2. If the answer to question 1 is No, were the contributed amounts under the subparagraph (a)(i) of the definition of contributed amounts in section 38 of the Assessment Act in relation to the applicant and in connection with the Southern State Superannuation Act 1994 (SA) in the relevant financial years, "surchargeable contributions" of the applicant for those financial years within the meaning of s 9(2) of the Assessment Act?
3. If the answer to question 1 is No, are the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) ("the Imposition Act") and/or the Assessment Act invalid in their application to the applicant:
(a) on the ground that they so discriminate against the State of South Australia, or so place a particular disability or burden upon the operations and activities of the State of South Australia, as to be beyond the legislative power of the Commonwealth? or(b) on the ground that the Imposition Act imposes a tax on property belonging to the State of South Australia contrary to s 114 of the Commonwealth Constitution?
2 The proceeding before the Tribunal concerns Mr Clark’s objection to assessments of superannuation surcharge ("Assessments") made by the Commissioner under the Assessment Act as purportedly imposed by the Imposition Act in respect of the years of income ended 30 June 1997 to 30 June 2005 inclusive.
3 For the reasons given below we have answered the first of the referred questions: Yes. The remaining two questions therefore do not require answers.
STATEMENT OF AGREED FACTS
4 The parties agreed a Statement of Agreed Facts ("the Statement") to form the basis of the determination of the questions of law. The Statement, but not its annexures, is annexed to these reasons for judgment. However, it is convenient to set out here certain of the agreed facts contained in the Statement.
5 The applicant, Mr Clark, was appointed a stipendiary magistrate of the State of South Australia in December 1976 and remained in that position until his retirement on 2 July 2006 at the age of 62 years.
6 From the date of his appointment as a stipendiary magistrate, Mr Clark was appointed to sit in juvenile courts pursuant to the Juvenile Courts Act 1971 (SA). From the date of the establishment of the Children’s Court of South Australia under the Children’s Protection and Young Offenders Act 1979 (SA), Mr Clark was appointed a member of the Children’s Court. He remained a member of the Children’s Court until the Youth Court of South Australia was established on 1 January 1994 under the Youth Court Act 1993 (SA) ("Youth Court Act").
7 Mr Clark was appointed as a Magistrate of the Youth Court of South Australia on 1 January 1994. He was classified pursuant to s 9(7) of that Act as a member of the Court’s principal judiciary; that is a member of the judiciary who was to be occupied predominantly in the Youth Court. Mr Clark’s term as a member of the principal judiciary of the Youth Court ceased on 31December 2002. Thereafter, he was a member of the ancillary judiciary of that court until his retirement on 2 July 2006. All magistrates in South Australia are appointed to the ancillary judiciary of the Youth Court.
Magistrates Court
8 The structure and constitution of the Magistrates Court of South Australia is set out in Part 2, Division 2 of the Magistrates Court Act 1991 (SA) ("the Magistrates Court Act"). The jurisdiction of the court is set out in Part 2, Division 3 of the Magistrates Court Act. Section 10 of the Magistrates Court Act provides that the court has any jurisdiction conferred on it by statute. Not less than 60 South Australian statutes confer jurisdiction on the Magistrates Court. Not less than 72 Commonwealth statutes confer jurisdiction on the Magistrates Court.
9 Section 6(1) of the Courts Administration Act 1993 (SA) provides for the establishment of the State Courts Administration Council. The Council consists of (a) the Chief Justice of the Supreme Court; (b) the Chief Justice of the District Court; and (c) the Chief Magistrate of the Magistrates Court (s 7(1)). Section 7(2) provides that a member of the Council may appoint a judicial officer of the relevant court to be an associate member of the Council.
Youth Court
10 The jurisdiction of the Youth Court is set out in Part 2, Division 2 of the Youth Court Act. Pursuant to s 7, as it was at the relevant time, the jurisdiction of the Youth Court includes:
(a) jurisdiction to hear and determine proceedings under the Children’s Protection Act 1993 (SA); and
(b) civil and criminal jurisdiction conferred by the Young Offenders Act 1993 (SA)
(c) any other civil or criminal jurisdiction in relation to the adoption of children conferred by the Adoption Act 1998 (SA).
Remuneration and Terms and Conditions of Office
11 Mr Clark is deemed by s 4(2) of the Magistrates Act 1983 (SA) ("the Magistrates Act") to have been appointed as a stipendiary magistrate under that Act. Magistrates are appointed by the Governor upon the recommendation of the Attorney-General (s 5(1)) of the Magistrates Act) after consultation with the Chief Justice of the Supreme Court (s 5(4) of the Magistrates Act). To be eligible for appointment as a magistrate a person must be a legal practitioner of at least five years standing (s 5(5) of the Magistrates Act).
12 Section 12 of the Magistrates Act provides that a magistrate shall not be removed or suspended from office except as provided in that Act. Section 10 and 11 of the Magistrates Act provides as follows:
10. Suspension of magistrate from office
(1) The Governor may, on the advice of the Chief Justice, suspend a magistrate from office.(2) Where a magistrate is suspended from office under this section, notice of the suspension shall be served upon him.
(3) A magistrate shall not be suspended from office unless--
(a) there are, in the opinion of the Chief Justice, reasonable grounds to suspect that he is guilty of an indictable offence; or(b) an investigation or inquiry has been commenced under this Act for the purpose of determining whether proper cause exists for removing the magistrate from office.
(4) Except as otherwise determined by the Chief Justice, a stipendiary magistrate shall be entitled to remuneration in respect of a period of suspension from office.(5) A suspension imposed under this section shall, if the Chief Justice so recommends, be revoked.
11. Removal of magistrate from office
(1) The Attorney-General may, of his own motion, and shall, at the request of the Chief Justice made after consultation with the Chief Magistrate, conduct an investigation in order to determine whether proper cause exists for removing a magistrate from office.(2) When an investigation under subsection (1) is completed, the Attorney-General shall cause a written report upon the investigation to be prepared and copies of the report to be forwarded to the Chief Justice and the Chief Magistrate.
(3) Where it appears to the Attorney-General or the Chief Justice (whether from the results of an investigation conducted under this section or otherwise) that there should be a judicial inquiry to determine whether proper cause exists for removing a magistrate from office, the Attorney-General shall apply to the Supreme Court for such an inquiry.
(4) An inquiry under this section shall be conducted by a single judge of the Supreme Court.
(5) Where--
(a) a magistrate is convicted of an indictable offence; or(b) it appears from the findings made upon a judicial inquiry under this section that proper cause exists for removing a magistrate from office,
the Attorney-General shall apply to the Full Court for a determination of whether the magistrate should be removed from office.(6) Where the Full Court determines, upon an application under subsection (5), that a magistrate should be removed from office, the Governor may remove him from office.
(7) In proceedings before the Supreme Court under this section, the Attorney-General and the magistrate to whom the proceedings relate shall be entitled to appear and be heard.
(8) Proper cause for removing a magistrate from office exists if--
(a) the magistrate is mentally or physically incapable of carrying out satisfactorily the duties of his office; or(b) the magistrate is convicted of an indictable offence; or
(c) the magistrate is incompetent, or guilty of neglect of duty; or
(d) the magistrate is guilty of unlawful or improper conduct in the performance of the duties of his office.
13 Under s 13 of the Magistrates Act the remuneration of a stipendiary magistrate is at rates determined by the Remuneration Tribunal. The rate of remuneration may not be reduced by subsequent determination (s 13(3)).
14 Mr Clark is and has been entitled to benefits under two schemes by virtue of holding the position of stipendiary magistrate, namely:
(a) a pension scheme under the Superannuation Act 1974 (SA) and subsequently, the Superannuation Act 1988 (SA) ("SPS") and
(b) a superannuation scheme under the Southern State Superannuation Act 1994 (SA) ("SSS").
THE ASSESSMENT ACT
15 The object of the Assessment Act is to provide for the assessment and collection of the superannuation contributions surcharge payable on surchargeable contributions for high-income members of constitutionally protected superannuation funds (s 5).
16 It is agreed that each of the SPS and the SSS was at all material times a "constitutionally protected superannuation fund" for the purposes of the Assessment Act.
17 Section 7 of the Assessment Act provides:
This Act does not apply to a person who is a member because he or she is a judge of a court of a State at the commencement of this Act.
The Assessment Act commenced on 7 December 1997.
18 Section 38 of the Assessment Act defines "member" to mean a member of a constitutionally protected superannuation fund. The Assessment Act does not define the word "judge" or the phrase "a judge of a court of a State".
MR CLARK A JUDGE OF A COURT OF A STATE
19 In Austin v Commonwealth of Australia (2003) 215 CLR 185 ("Austin’s case") the High Court unanimously concluded that a Master of the Supreme Court of Victoria was "a judge of a court of a State" within the meaning of s 7 of the Assessment Act (Gleeson CJ at [3]; Gaudron, Gummow and Hayne JJ at [77]; McHugh at [206] and Kirby J at [265]). Their Honours, with the possible exception of Kirby J, apparently based this conclusion in part on s 75(2) of the Victorian Constitution and in part on the fact that the Supreme Court Act 1989 (Vic) was, at that time, listed in Schedule 14 to the Income Tax Regulations 1936 (Cth) ("the Income Tax Regulations").
20 Section 75(2) of the Victorian Constitution states:
The [Supreme] Court consists of the Judges of the Court and the Masters of the Court.
21 Until its repeal in 2007, Sch 14 of the Income Tax Regulations identified State legislation under which constitutionally protected superannuation funds have been established. The only persons who are members of a "fund" established under the Victorian Supreme Court Act are Masters of the Supreme Court. The pension provisions relevant to a Judge of the Supreme Court of Victoria are contained in the Victorian Constitution.
22 Austin’s case makes clear that a judicial officer of a State who is not by title designated as a "judge" may be, but is not necessarily, a judge of a court of a State within the meaning of s 7 of the Assessment Act. In Austin’s case at [79] Gaudron, Gummow and Hayne JJ, with whom in this regard Gleeson CJ (see [3]) and McHugh J (see [206]) agreed, stated:
The conclusion that, in respect of the Supreme Court of Victoria, the term ‘judge’ in s 7 of the Protected Funds Assessment Act includes both Masters and judges is not determinative of the position of officeholders in other State courts. The answer in each case will turn upon the relevant State legislation and the contents of Sched 14 to the Income Tax Regulations.
23 It is not in dispute that as at 7 December 1997, the date of the commencement of the Assessment Act, Mr Clark was a judicial officer of a court of a State, namely South Australia. As at that date Mr Clark was a stipendiary magistrate deemed to have been appointed pursuant to s 4 of the Magistrates Act. As a consequence he was a "Magistrate" within the meaning of the Magistrates Court Act (s 3). He was also a member of the judiciary of the Youth Court of South Australia as a Magistrate so designated by proclamation (s 9(4) of the Youth Court Act). Each of the Magistrates Court and the Youth Court is, and was at that time, a court of record (s 5 of the Magistrates Court Act, s 5 of the Youth Court Act).
24 It is therefore necessary to determine whether Mr Clark was at the relevant time a "judge" of one or both of those courts within the meaning of s 7 of the Assessment Act.
Commissioner’s Submissions
25 The Commissioner submitted that a South Australian magistrate is not a "judge" within the meaning of s 7 of the Assessment Act. He drew attention to the fact that the Acts Interpretation Act 1901 (Cth) contains a provision that gives meaning to the term "Magistrate" in Acts of the Parliament (ie s 16C) but no equivalent provision with respect to the term "judge". Little, if any guidance concerning the proper interpretation of s 7 seems to us to be obtained from this aspect of the Acts Interpretation Act.
26 The Commissioner further submitted that the purpose of s 7 strongly suggested that the Parliament intended that the surcharge would apply to State magistrates as the exemption for State judges, for which s 7 provides, was introduced to ensure parity between State and Federal judges. As there was no federal magistracy as at 7 December 1997, it was submitted, parity for State magistrates was not an issue. This submission, in our view, assumes an answer to the question of whether a South Australian magistrate was at that time a judge of a court of a State rather than assist in identifying the answer. If a South Australian magistrate was regarded by the legislature as a "judge", he or she would presumably have been regarded as entitled to the same parity as other State judges.
27 Similarly, the reliance placed by the Commissioner on s 81 of the Judiciary Act 1903 (Cth) seems to us to be, a best, equivocal. Section 81 provides:
The Justices of the High Court, and the Judges and magistrates of the several States and Territories who are empowered by law to authorize arrests for offences against the laws of the Commonwealth, shall have the like authority to hold to security of the peace and for good behaviour in matters arising under the laws of the Commonwealth as may be lawfully exercised by any Judge or Magistrate of the respective States and Territories in other cases cognisable before them.
28 Section 7 of the Assessment Act, unlike s 81 of the Judiciary Act, refers to "judges" rather than "Judges". It may be readily accepted that, in the phrase "Judges and magistrates of the several States and Territories", "Judges" are intended to be distinguished from magistrates. It may be assumed that in this context a "Judge" is a judicial officer who carries that title. However, the phrase "a judge of a court of a State" appears not to be concerned with niceties of title but rather to be concerned with the proper characterisation of the status of the person concerned.
29 The Commissioner additionally submitted that consideration of relevant South Australian legislation discloses a clear distinction between judges and magistrates. He drew attention to the Judge’s Pension Act 1971 (SA) which defines "Judge" (we observe, incidentally not "judge") as including the Chief Justice and any puisne judge of the Supreme Court, a Master of the Supreme Court and a Judge of the District Court but not a magistrate. The reverse position is reflected in the definition of "employee" in the SPS which defines "employee" to include "a statutory Officer of the Crown (including a Magistrate but not a Judge)". All that can relevantly be drawn from the above definitions, in our view, is that the South Australian legislature has chosen to make different provisions for the post-retirement financial security of its Magistrates than it has made for other judicial officers of courts of the State. The significance of this choice is to be assessed together with other indications relevant to the status of South Australian magistrates.
30 It is not, in our view, of great significance for present purposes that South Australian legislation draws a distinction between judicial officers on whom the title "Judge" is bestowed and judicial officers on whom the title "Magistrate" is bestowed. South Australia, like the other States and Territories – and more recently, with the creation of the Federal Magistrates Court, the Commonwealth – has established a hierarchy of courts and with it a hierarchy of judicial officers given various titles (eg Judge, Master, Magistrate). In enacting s 7 of the Assessment Act, the Parliament chose not to identify judicial officers by reference to the State courts on which they served or by reference to their various titles; rather it chose to identify the class "judges of a court of a State". It is therefore necessary to determine the intended ambit of this class having regard to the language and purpose of the Assessment Act and, in particular, whether the class includes a Magistrate within the meaning of the Magistrates Court Act or the Youth Court Act (or both). In the case of each Act ‘Magistrate’ means a person holding office as a Magistrate under the Magistrates Act.
History of Magistracy of South Australia
31 A relevant consideration in determining whether a Magistrate within the meaning of the Magistrates Court Act is intended to fall within s 7 of the Assessment Act is the status appropriately accorded to such a magistrate; that is, was such a magistrate on 7 December 1997 appropriately described as "a judge"? To answer that question it is appropriate to consider the history of the South Australian magistracy.
32 The history of the magistracy of South Australia is quite different from the history of the English magistracy. It also varies from the history of the magistracies of other States of Australia. The history of the South Australian magistracy was comprehensively reviewed by Well J in The Queen v Moss; ex parte Mancini (1982) 29 SASR 385 at 397-421. In that case the Supreme Court of South Australia sat in banco to determine whether an order of mandamus should issue to a Special Magistrate who had disqualified himself from hearing a complaint on the ground that he and counsel appearing for the complainant were officers of departments controlled by the Attorney-General. Although Wells J was a dissentient as to the outcome of the case, subject to a legal issue not here relevant, no criticism was made by the other members of the court of his Honour’s skills as an historian. Significantly, at 417 his Honour concluded:
It is, in my opinion, impossible to deny that the judicial responsibility of Magistrates had, probably, at least by 1916, certainly by 1921, so expanded and been so diversified that their contribution to the administration of justice, not only in the pure volume of work performed by them, but also in its importance and technical complexity, had [sic] brought them to the point where they were, in effect, junior professional judges.
33 As the Statement makes clear (see esp [8] above), the judicial responsibility of Magistrates holding office under the Magistrates Act has expanded considerably since Wells J described them as "junior professional judges". Moreover, as the Statement of Agreed Facts reveals, since that time their independence has been secured. They are no longer officers of a government department. Their remuneration is fixed by an independent tribunal and cannot be diminished. They cannot be dismissed without cause - which cause must be established by a determination of the Full Court of the Supreme Court. When exercising the jurisdictions of the Magistrates Court and the Youth Court they have the same privileges and immunities from liability as a Judge of the Supreme Court of South Australia (s 44 of the Magistrates Court Act; s 26 of the Youth Court Act).
Consideration
34 In Frederick v State of South Australia [2006] SASC 165; (2006) 94 SASR 545 White J was required to consider a submission that a Magistrate was an employee of the Crown in right of the State of South Australia. At [218]-[222] his Honour observed:
...The Magistrates Court is a court of record exercising a significant criminal and civil jurisdiction. It is the court of summary jurisdiction of this State. There is a right of appeal (other than in respect of minor civil actions) to the Supreme Court. A magistrate has the same privileges and immunities as a judge of the Supreme Court. A magistrate is bound by the judicial oath which he/she swears when commencing in office. Those factors alone indicate the important role of magistrates as judicial officers.
It is fundamental to the exercise of the judicial function that it be exercised in a way which is independent of the Executive Government. A statutory and legal framework has been put in place in this State to ensure not only that magistrates are, but have the appearance of being, independent of the Executive. Reference to the Magistrates Act itself indicates the limited role of the Attorney-General in relation to magistrates. Although the Attorney-General has a role in the appointment of magistrates and, in limited circumstances, in their removal, neither the Attorney-General, nor any other member of the Executive, exercises a supervisory role, or a function of control, over magistrates. It is the Chief Magistrate who is responsible for the administration of the magistracy generally. The control and direction to which the Chief Magistrate is subject is that of the Chief Justice, not that of the Attorney-General. Each individual magistrate is responsible to the Chief Magistrate in relation to administrative matters. It is the Chief Magistrate who directs a magistrate as to the duties to be performed and the time and places at which those duties are to be performed.
...
In addition to these matters, the Magistrates Court is a participating court for the purposes of the Courts Administration Act 1993 (‘the CA Act’). A principal object of the CA Act is to establish the State Courts Administration Council (‘the Council’) as an administrative authority "independent of control by Executive Government". The Council ... is responsible ‘for providing, or arranging for the provision of, the administrative facilities and services for participating courts that are necessary to enable those courts and their staff properly to carry out their judicial and administrative functions’. The CA Act provides for a Courts Administration Authority and a State’s Court Administrator as well as staff of the Authority. Although the staff (which does not include the judges of the Supreme Court, the judges of the District Court or magistrates) are persons to whom the Public Sector Management Act 1995 applies, they are not subject to the control of the Executive. Instead, they are responsible to the Administrator and, where applicable, to the head of the relevant court. In this way, the potential for control of members of the judiciary by control of the administrative systems and facilities which they need for their work and of their staff is removed.
The effect of the regime arising from the Magistrates Act, the Magistrates Court Act, and the CA Act is that magistrates are judicial officers who, as one would expect, exercise their judicial functions independently of the Executive. The regime established by these statutes is the antithesis of a regime for control which one would expect if magistrates are employed under a contract of service. (footnotes omitted)
Importantly, for present purposes, every aspect of the regime to which White J referred in the above passage was in operation as at 7 December 1997.
35 The Macquarie Dictionary relevantly defines a "judge" as "a public officer whose function is to adjudicate on matters brought before a court for decision". It is therefore clear that the ordinary meaning of the word "judge" is broad enough to encompass a Magistrate holding office under the Magistrates Act. The Constitution itself reflects this broad meaning when, by s 79, it provides that the "federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes". The word "judges" in this context includes magistrates (Re Bryant; ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57 at [8]). As noted above, it is agreed that not less than 72 Commonwealth statutes confer jurisdiction on the Magistrates Court of South Australia in reliance on s 79 of the Constitution.
36 Section 39(2)(c) of the Judiciary Act 1903 (Cth) enables the High Court to grant special leave to appeal from any decision of "any Court or Judge of a State". The High Court has granted special leave to appeal from decisions of State magistrates. See Goward v The Commonwealth [1957] HCA 60; (1957) 97 CLR 355 at 359-360 and Bavcevic v The Commonwealth [1957] HCA 67; (1957) 98 CLR 296 at 301. In neither case did the Court say whether the magistrate qualified as a Judge or because he or she was a member of a Court consisting of magistrates. In our view it was because the magistrate was a Judge. If the word "Judge" was limited to judicial officers called Judges, one would expect "Court" to be a body consisting of Judges. On that approach a magistrate would not qualify.
37 In our view, having regard to the factors above, including those identified by White J in Frederick v South Australia, a Magistrate holding office under the Magistrates Act was, as at 7 December 1997, a "judge" within the ordinary meaning of that term. For the reasons given in Austin’s case concerning the inclusion in Sch 14 of the Victorian Supreme Court Act, it is therefore of significance that both the SPS and the SSS were at the relevant time specified in Sch 14 of the Income Tax Regulations. Their specification in Sch 14 tended to confirm that a Magistrate holding office under the Magistrates Act was intended to fall within the expression "a judge of a court of a State" in s 7 of the Assessment Act.
38
We conclude that as at 7 December 1997 Mr Clark was "a judge of a
court of a State" within the meaning of s 7 of the Assessment Act.
Question 1 will therefore be answered: Yes. The other questions therefore do
not require answers.
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QUESTIONS OF LAW REFERRED BY THE ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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GREGORY RONALD ALFRED CLARK
Applicant |
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AND:
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COMMISSIONER OF TAXATION
Respondent |
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JUDGES:
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BRANSON, SUNDBERG AND DOWSETT JJ
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DATE:
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3 APRIL 2008
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PLACE:
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ADELAIDE
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REASONS FOR JUDGMENT
DOWSETT J:
39 I have read the reasons prepared by Branson and Sundberg JJ. Their Honours have concluded that the appellant was "a judge of a court of a State" within the meaning of s 7 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) (the "Assessment Act"). I agree with that conclusion, but my reasons are somewhat different.
40 Whether or not the phrase "judge of a court of a State" in s 7 of the Assessment Act includes a magistrate is a matter of statutory interpretation. It primarily involves the meaning to be given to the word "judge" in that context. Whilst such an exercise might generally be performed by reference to appropriate dictionaries, it is complicated in the present case by two matters. The first is that members of the legal profession (including judges and magistrates) may have particular views concerning the meanings of those words, which views are not held by members of the general public. Secondly, in recent years it has become widely accepted in the profession that magistrates should be treated as judges. As to the first matter, I proceed upon the basis that the Assessment Act is to be construed by reference to general usage and not to any special usage within the legal profession. However legal usage may be part of general usage. As to the second matter, I proceed upon the basis that perceptions within the legal profession, or amongst the general public, as to how magistrates should be treated are not directly relevant to the construction of the Assessment Act.
41 The words "judge" and "magistrate" are both used with broader and narrower meanings. Thus in the Oxford English Dictionary (2nd ed) the word "judge" is defined to mean ‘a public officer appointed to administer the law; one who has authority to hear and try causes in a court of justice.’ However that authority also notes that:
‘As a generic or descriptive term, judge is applicable to any person occupying such an official position, but by usage, it has, in the United Kingdom, become much restricted as a particular designation. Collectively, the members of the Supreme Court of Judicature are "His Majesty’s Judges"; so we say "the Judges of the Supreme Court", "Common Law Judges", "Chancery Judges", "Equity Judges", "Judges of Assize or of the Circuit Courts", ... . The persons presiding judicially, in inferior courts are usually called "justices" or "magistrates". In the United States "Judge" is more widely applied to the presiding officer of any judicial court below the Supreme Court, in which the official name is "Justice" ...; "Judge" has also been more used as a designation in some British colonies or dependencies.’
42 In my own experience a similar distinction has generally be drawn in this country, in both general and professional usage, between judges (of the superior courts) and magistrates (of the inferior courts). In the same Dictionary the word "magistrate" is defined as ‘A civil officer charged with administration of the laws, a member of the executive government, chief magistrate, first magistrate: in a monarchy the sovereign: in a republic, usually the president’. It is also said that the term is ‘In England and Ireland, a more frequent synonym for "justice of the peace".’
43 In the Macquarie Dictionary (4th ed) the word "judge" is defined to mean ‘a public officer whose function is to adjudicate on matters brought before a court for decision’. The word "magistrate" is defined, firstly, as ‘a person charged with executive functions’ and, secondly, as ‘a paid judicial officer presiding over a court of the lowest tier, and sometimes also performing other legal duties, for example, acting as coroner.’ The expression "magistrate’s court" is defined to mean ‘a court at the lower level of the judicial system, presided over by a magistrate. Powers vary between the states but can include criminal jurisdiction over summary offences and civil jurisdiction over small claims.’
44 In Jowitt’s Dictionary of English Law (2nd ed) a magistrate is said to be:
‘... a person charged with duties of government, and being either supreme, namely, the sovereign, or subordinate, namely, one of the officers who are appointed by or are subject to the sovereign; a judicial officer having a summary jurisdiction in matters of a criminal or quasi-criminal nature. Magistrates are of two kinds, honorary and stipendiary. The former class consists of justices of the peace, the latter class includes the magistrates appointed to act in certain populous places in lieu of the ordinary justices. These stipendiary magistrates have wider powers than ordinary justices.’
45 In Butterworths Australian Legal Dictionary, a judge is said to be:
‘A person invested with authority to determine matters requiring the application of a legal remedy (such as the adjudication of a dispute between parties) and to award appropriate punishment to offenders.’
46 It is also said that:
‘Judges from inferior courts, such as magistrates, enjoy less protection because their tenure is not constitutionally enshrined.’
47 In the Oxford Dictionary of Law (5th ed) a judge is said to be:
‘A state official with power to adjudicate on disputes and other matters brought before the courts for decision. In English law all judges are appointed by the Crown, on the advice of the Lord Chancellor in the case of circuit judges and High Court puisne judges and on the advice of the Prime Minister in the case of judges of the Court of Appeal and the Lords of Appeal in Ordinary.’
48 This definition obviously excludes magistrates because of the absence of any reference to a relevant method of appointment. In the same work a magistrate is said to be:
‘A justice of the peace sitting in a magistrates’ court. Most magistrates are lay persons and have no formal legal qualifications: they receive no payment for their services but give their time voluntarily. There are also, however, district judges (magistrates’ court) (formerly called stipendiary magistrates) in London and other major cities.’
Reference to American authorities suggests similar ambiguity in the use of these terms.
49 In The Australian Judiciary (Campbell and Lee, Cambridge University Press, 2001), the authors (at 17) ask the question ‘Who is a Judge?’ They answer that question as follows:
‘On a broad view the judges are all those persons who have been appointed to some judicial office, irrespective of how that office is designated and irrespective of the title given to the holder of the office. ... The magistrates also hold judicial offices, though they do not bear titles that immediately suggest they are members of the judiciary. This is a matter of concern to many magistrates. In some Australian jurisdictions the Masters of the Supreme Court have been declared by statute to be members of the Supreme Court.
If one adopts a broad definition of courts of law, and one that encompasses all bodies created by statute to exercise judicial powers, one has to include among the ranks of the judiciary a large number of persons who have been appointed to an institution which is not designated a court and which, under its constituent Act has been described rather as a tribunal or perhaps even a board. The offices to which members of such bodies are appointed will seldom be designated in such a way that the holders of office would be readily perceived to be judges. Rather they may be designated as president, deputy presidents, senior members or members.’
50 Before looking at contemporaneous documents which may be relevant to the question, I should refer to a feature peculiar to judicial officers appointed pursuant to the Australian Constitution. The Constitution appears to contemplate members of all Commonwealth courts, including the High Court, being "justices". See s 72. The word "judges" is used in s 79 which prescribes that ‘The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.’ Fairly clearly, this is a reference to justices appointed, and courts established, pursuant to the Constitution, and to state courts invested with federal jurisdiction pursuant to the Constitution. As Branson and Sundberg JJ have pointed out, in Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57 at [7] and [8], Hayne J held that the reference to "judges" in s 79 includes federal magistrates. It may follow that it also includes state magistrates. It is of interest that s 8 of the Federal Magistrates Act 1999 (Cth) provides that the Federal Magistrates Court shall consist of "justices", namely the Chief Federal Magistrate and other federal magistrates. It may be significant that Parliament chose to set up a court comprised of magistrates rather than a court comprised of judges. The statutes establishing the Federal Court of Australia and the Family Court of Australia prescribe that such courts be comprised of judges. Both are established as superior courts of record, whilst the Federal Magistrates Court is a court of record. This suggests that Parliament has distinguished between judges and magistrates based upon relative standing in the judicial hierarchy.
51 Much of the history of the magistracy has been summarised in a two-part article by Mr J Lowndes SM, entitled "The Australian Magistracy: From Justices of the Peace to Judges and Beyond". The article appears at pp 509 and 592 of 74 ALJ. Mr Lowndes is a Stipendiary Magistrate in the Northern Territory. In part one of the article he summarises many aspects of the history of the office. Clearly, it developed quite separately from the courts at Westminster, the predecessors of our superior courts of record. The article demonstrates the broadening responsibilities of the magistrates and the "professionalisation" of the Australian magistracy. At the beginning of part two of his article, Mr Lowndes recognises that "Magistrates preside over courts that lie at the bottom of the judicial hierarchy." He then continues:
‘However, the status of the magistrates should not be viewed solely in terms of the position that they occupy within the judicial hierarchy. There is a normative dimension to their status which takes into account the character and the breadth of the multiple and often complex functions performed by magistrates; the modern Australian magistrate is "a judge in all but name"’.
52 Mr Lowndes also refers to a paper delivered in June 1988 by the former Chief Magistrate of New South Wales, Mr C R Briese. Mr Briese said:
‘The Australian Magistracy has moved to a position where its role and official recognition of that role, is in a judicial no-man’s land. No longer are the Magistrates of Australia lay persons administering justice, but in the eyes of governments, or even in the eyes of some members of the judiciary, neither are they Judges. While Magistrates might in some official quarters be regarded as judicial officers, they are not permitted to have the title Judge, and Governments do not accord them recognition as Judges in terms and conditions of service.’
53 At 595, Mr Lowndes argues that "there are persuasive arguments in favour of elevating magistrates to the status of judges." At 597, he continues:
‘The term "magistrate" is historically linked to an institution which until recent times was not structurally independent of the executive arm of government. It is a derivative of the designation of "police magistrate" an office which had an undesirable linkage with the police force during the 19th century and the first half of the 20th. It is inappropriate to retain the title, "Magistrate" because of its lingering unhealthy connection with the executive arm of government during the early years of settlement, its inextricable link with the public service until recent times, and its consequent tendency to undermine the now generally accepted judicial independence of those officers who preside over our lower courts. As referred to by Andrew Cannon in the AAM newsletter of December 1998, as an integral part of the judiciary, magistrates must be afforded the same amount of independence as judges. The most effective way of ensuring such independence is to confer the title "Judge" upon magistrates.’
54 Whilst one may agree with all of these assertions, it is difficult to avoid the conclusion that the author does not consider that it is generally accepted in Australia that a magistrate is a judge. To say that a magistrate should be a judge is, in effect, to assert that he or she is not presently a judge.
55 Other contemporary documents draw a similar distinction. Thus in the Rules of the Australian Institute of Judicial Administration Inc it is provided that nine members of the Council ‘shall at the time of their election be judges of a Court of the Commonwealth of Australia, New Zealand, or of a State or Territory of Australia, or magistrates appointed to sit in a State or Territory of Australia ....’. In the document which led to the establishment of the National Judicial College of Australia, "Options for the Establishment of a National Judicial College" (May 2001), a clear distinction is drawn between judges and magistrates. See, in particular, Part 2. This report was prepared at the request of the Standing Committee of Attorneys General.
56 It is difficult to avoid the conclusion that, no doubt as a result of separate historical development, the office of magistrate has traditionally been distinguished from that of a judge. The basis of the distinction has been the respective standing of each in the judicial hierarchy rather than the nature of the duties performed. The distinction has been maintained in legislation establishing courts pursuant to the Constitution. In the various, relatively recent, extra-curial documents to which I have referred and, I suspect, in others, the distinction has also been observed. It is, I think, important that the distinction is based upon relative position in the hierarchy and not upon the type of work performed. For that reason expansion of the work undertaken would not logically lead to a change in nomenclature unless relative status were changed. For a very long time in Australia, the primary work performed by magistrates has been judicial. In performing such work magistrates have exercised the same skills and methodology as are typical of the work performed in the superior courts. Nonetheless, the distinctive title of magistrate has been maintained.
57 These considerations suggest that whether a judicial officer is a judge or a magistrate is dependent upon the authority pursuant to which he or she is appointed. If the relevant legislation authorises the appointment of judges, then he or she is a judge. If it authorises the appointment of a magistrate, then he or she is a magistrate. There may be circumstances in which such an approach could cause problems, particularly where the Commonwealth Parliament confers jurisdiction on state courts. However there appears to have been no substantial difficulties to this point in the history of federation, perhaps reflecting a high degree of uniformity amongst the states and territories in their use of the words "judge" and "magistrate". All of this suggests that Mr Clark was not a judge of a court of a State.
58 The decision in Re Bryant may suggest a different approach. Perhaps more importantly, in s 39 of the Judiciary Act 1903 (Cth), there are various references to state courts. Paragraph 39(2)(c) provides:
‘The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State, notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.’
59 As Branson and Sundberg JJ have demonstrated, the High Court has, on at least two occasions, interpreted the word "Judge" in that paragraph as to include a state magistrate. See Goward v The Commonwealth [1957] HCA 60; (1957) 97 CLR 355, and Bavcevic v The Commonwealth [1957] HCA 67; (1957) 98 CLR 296. There is much to be said for adopting a uniform approach to the construction of such references in Commonwealth legislation. For that reason I conclude that the reference in the Assessment Act to a judge of a court of a State, should be taken to include a state magistrate. The relevant question should therefore be answered: Yes.
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I certify that the preceding twenty-one (21) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Dowsett.
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Associate:
Dated:
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Solicitor for the Applicant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Counsel for the South Australian Attorney-General, intervening:
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Mr M Wait with Ms A Harris
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Solicitor for the South Australian Attorney-General, intervening:
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Crown Solicitor’s Office
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/51.html