Many judges have long been opposed to the appointment of acting judges — especially when it is on a regular basis. The central argument is that judges with a temporary tenure cannot be considered to be truly independent.

For years, critics such as the High Court’s Justice Michael Kirby have argued the power to appoint acting judges is being overused and that, in New South Wales at least, temporary appointees are now so regularly appointed they are undermining the independence of the judiciary.

The debate was thrashed out most recently last year in response to Victoria’s legislation to allow appointments for a maximum of five years. But the High Court case of Forge v The Australian Securities and Investments Commission last week again threw the spotlight on NSW, when the constitutionality of its appointment of acting judges was tested.

Although Justice Michael Kirby is well known for his views, it is perhaps somewhat surprising that in the end he was the only one who ruled the practice was contrary to Chapter III of the Commonwealth Constitution.

In his view, “the number and type of acting appointments made under the impugned provisions of section 37 of the Supreme Court Act 1970 (NSW) … are such as to amount to an impermissible attempt to alter the character of the Supreme Court.”

“They attempt to work a change in a fundamental respect forbidden by the federal Constitution. What was intended as a statutory provision for occasional and exceptional additions to judicial numbers, in special circumstances, has become a means for an institutional alteration that is incompatible with the role of the state courts.”

He added that these appointments have made the courts “beholden to the executive” to provide them with regular short-term reappointments of core numbers of the judiciary. “This is offensive to basic constitutional principle.”

Kirby himself points out that judges have been appointed for short periods from colonial times. His objection is that these appointments were always specifically for “special” reasons and on an “ad hoc” basis, one of which has long been to clear backlogs in the courts.

He contends there has been a systematic trend since 1989 to “alter the composition” of the NSW courts. He refers to figures on appointments of acting judges in NSW stretching from 1901 to 2005. From the figures, it is clear there was a jump in the number of temporary appointments from the late 1980s, and the numbers remained high from then on.

From 1901 to 1988, they show 69 acting commissions were made in the Supreme Court. Between 1989 and 2004, 158 acting commissions were issued.

“There comes a time when quantitative change turns into a qualitative change; when special need becomes a settled practice; when a number of individual commissions becomes an institutional restructuring,” Kirby said in his judgment.

The judge whose appointment was challenged by the plaintiffs, Acting Justice Michael Foster, had received five commissions.

Some of the other judges, including the Chief Justice, agreed section 37 could be used to change the character of the court and lead to impartiality, but did not think that the larger number of acting judges had led to such a change in the courts, and therefore had not contravened the Constitution.

For their part, the Commonwealth, all the states and the Northern Territory presented evidence in the High Court to back the case for the appointment of acting judges. One of their arguments was that the figures didn’t reflect the actual proportion of the workload undertaken by acting judges.

One of the chief critics of Victoria’s laws and the appointment of acting judges from the Bar is the chair of the Judicial Conference of Australia, Federal Court judge Justice Ronald Sackville. He points out the decision only decided the constitutionality of the appointment of acting judges in NSW at present; “it does not provide the last word on whether it is a desirable trend”. He said the judgment makes clear that temporary judicial appointments may not be constitutional if “the line is crossed” in future.

“If you look at the judgment there are really three versions,” Justice Sackville said. “There is Justice Kirby, whose position is quite clear. There is the joint judgment of Gummow, Crennan and Hayne; their position is that acting judges might indeed present a threat to the integrity of the court. Then there’s the position of the remainder, which seems to be that it’s a matter for Parliament to determine the role that acting judges play and that there are sufficient safeguards in the system.”

The NSW Bar Association is one body that has no qualms about the judgment. According to a spokesperson, it had strong objections in the 1990s when barristers could be appointed as acting judges in the Supreme Court and then go back to practice. The decision by NSW to only appoint retired judges in that court to acting positions dealt with their concerns.

Sackville, as well, is not so troubled by retired judges being used as acting judges but said the District Court still uses practising lawyers. “The District Court is equally important [as the Supreme Court]. It has different levels of jurisdiction, but the same issues arise. So I adhere to the policy views that I have expressed before.”

In his judgment, Chief Justice Murray Gleeson, argued that length of tenure is an “important aspect of the arrangements that support the individual and personal aspects of judicial independence; but it is only one of a number of aspects all of which have to be considered in combination”.

He conceded that it is possible that section 37 could allow the government to change the character of the Supreme Court so it was no longer independent or impartial, but there was no evidence that it had done so.

“It is … a basic constitutional principle that the validity of the conferral of a statutory power is not to be tested by reference to ‘extreme examples and distorting possibilities’. Possible abuse of power is rarely a convincing reason for denying its existence.”