ACT attorney general says the separation of powers doesn’t apply in his toy town kingdom … Acceptable for judicial and non-judicial roles to overlap … High Court rulings not directly applicable in the territory … Polly Peck reports   

He wanted to visit Mugga-Mugga Cottage, one of the territory’s three heritage sites.

Contrary to the information on the front gate about visiting times, he found it closed. 

In the search for finer details he visited the Mugga-Mugga website and found the property came under the umbrella of the Cultural Facilities Corporation of the ACT, whose chairman was “Justice” Richard Refshauge.

Actually, Refshauge retired as a judge in May 2017, but as we know he hung on for years afterwards to finish off his pile of reserved judgments – see here and here. 

He is still listed on the ACT Supreme Court website as an acting justice. 

At the time our field agent was trying to visit Mugga-Mugga in early 2022, the CFC annual reports were being signed with the moniker “Acting Justice Richard Refshauge”. 

His roles as a part-time judge and the chairman of a government corporation were thereby joined at the hip. 

According to section 14 of the Cultural Facilities Corporation Act, the outfit that Refshauge chaired was subject to ministerial direction. In other words the minister could tell an acting justice what to do while His Honour was wearing his cultural hat. 

Maybe the separation of powers isn’t so important in a small jurisdiction like the ACT, despite the High Court’s thinking in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs – the case that said the grant of a non-judicial power to Justice Jane Matthews of the Federal Court for her to prepare a report on the Hindmarsh Island controversy infringed the sacred separation of powers. 

Our field agent wrote to all the big wigs in the territory asking for clarification and whether these judicial and non-judicial roles held by one person could lead to a legal challenge. 

Attorney General Shane Rattenbury eventually got out his quill and helpfully explained that the separation powers under the Commonwealth Constitution “did not strictly apply” in the ACT. 

Further, the Wilson case was not “directly applicable” in the ACT as its Supreme Court wasn’t a federal court. 

Consequently, the ACT government could appoint judges to non-judicial roles as long as there was no conflict. 

For even greater convenience the AG said that the section of the Act about ministerial directions to the CFC only applied to the board of the organisation and not individual members. 

Yes, you read that correctly. 

It’s good to know that it is now settled that High Court cases on the separation powers are not “directly applicable” to Canberra and its surrounds, and that the Commonwealth Constitution “does not strictly apply” to this independent toy town territory. 

Fortunately, Refshauge’s term as chairman of the CFC ended on June 30, 2022 and wasn’t extended. The new board doesn’t include any judges, acting or otherwise.

See letter from Shane Rattenbury MLA