Federal Court creates anomaly in re appointment of judges

With regret, the Federal Court had decided that when the Federal Constitution requires a person to be at least an advocate of 10 years before being appointed as a High Court judge, the Federal Constitution does not in fact mean an advocate in active practice. This stance is clearly contradictory to the Federal Court's own decision that when the Industrial Relations Act requires a person to be at least an advocate of 7 years before being appointed an Industrial Court chairman, that person has to be an advocate in active practice.

The effect of this decision is that a person can be qualified to be appointed as a High Court judge (a superior tribunal) even though that person is not qualified to be an Industrial Court chairman (an inferior tribunal). This cannot make sense.

The majority decision in the Federal Court deciding in this manner justified their decision by saying that a Constitution must be liberally interpreted. It is quite unthinkable that the Federal Court would choose to be liberal in interpreting this provision, but has consistently displayed a conservative streak when interpreting fundamental liberties including right to life, freedom of expression, freedom of association and religious freedom.

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