Constitutional Aspects of Judicial Independence

PH Lane†


I. Introduction
There are three elements in the title of the paper — "constitutional", "judicial" and "independence." What is meant by each notion? "Constitutional" goes beyond a sheer Constitution. "Judicial" includes magistrates as well as judges. "Independence" obtains in areas other than the de rigueur protection against arbitrary executive removal.

II. The High Court and other Federal Courts
The appointment of the federal judges depends rather too much on the federal executive. Their removal is safeguarded by the prerequisite of a parliamentary address, and then on certain proved grounds only. There is a distinction between the prescribed High Court and the discretionary other federal courts.

III. State Courts
On general themes, some material in Part II applies to State courts. Next, State courts with their provisions about appointment, removal, etc, may be built on a Constitution. But, for the most part, a State Constitution is no more impregnable than any other State law is, such as a Supreme Court Act. There is another general matter, a distinction is made between superior courts of record and lower courts. To take particular cases, one can look at each State in turn, principally their Supreme Courts.

IV. Territorial Courts
The tenure of the Australian Capital Territory judges resembles the tenure of some State judges. The tenure of the Northern Territory judges resembles the tenure of federal judges.

V. Matters Related to the Above
There are matters — constitutional doctrines, principles, and so on — that underlie the constitutional and statutory provisions given in I-IV above, or simply matters related to I-IV above. These are matters such as Burke’s Act, separation of powers and judicial independence, extra judicial duties inflicted on judges and extra judicial functions taken on by judges, the persona designata fiction that erodes judicial independence.

VI. The Constitutional Foundation for Judicial Independence
Federal Court judges have the surest foundation, the basis in the Commonwealth Constitution. Non-federal court judges might look to the Act of Settlement, but with indecision. Alternatively, these judges might discover certain fundamental constitutional principles inhibiting parliament’s law making power. Thirdly, these judges might rely on the indispensable incidents of the rule of law as the constitutional foundation for the independence of the judiciary.


I. Introduction

There are three elements in the title of the paper — "constitutional", "judicial" and "independence." What is meant by each notion?

"Constitutional" aspects

The "constitutional" aspects of judicial independence refers to the source of judicial independence in some kind of constitutional document or principle, federal, State or territorial. The Constitution means, of course, a sheer formal document known as "the Constitution", say, the Commonwealth of Australia Constitution Act 1901 (Imp), the Constitution Act 1902 (NSW) or the Constitution Act 1975 (Vic), or a similar document, such as the Australian Capital Territory (Self Government) Act 1988 (Cth) or the Northern Territory (Self Government) Act 1978 (Cth).

But more — the Constitution must be taken to mean the constitutive documents that underpin the three arms of government. See McCawley v R (1918) 26 CLR 9, 51-52, which found no difficulty in declaring that "the Constitution ... may be looked for wherever any provision is made for the Constitution of any of its great organs of legislation, judicature, or executive power. The Supreme Court Acts of Queensland ... are in a legal sense ... part of the Constitution of the State" — Attorney General (NSW) v Ray (1989) 90 ALR 263, 277 included in a State Constitution within s 106 of the Commonwealth Constitution "the Constitution of its courts." Compare also Stuart-Robinson v Lloyd (1932) 47 CLR 482, 491, which allowed constitutional "provisions or terms, wherever found" to come within "the Constitution of each State", as understood in s 106 of the Commonwealth Constitution.

Hence the constitutional aspects of judicial independence will draw on such governmental constitutive documents as the Family Law Act 1975 (Cth), the Federal Court of Australia Act 1976 (Cth), the Supreme Court (Judges’ Independence) Act 1857 (Tas) or the Supreme Court Act 1935 (WA).

The Constitution must also be taken to include constitutional principles. Compare Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319, 389, which placed within the protection of s 106 of the Commonwealth Constitution (dealing with a State Constitution) "constitutional principle, embedded in the Constitution of the States."

So the constitutional aspects of judicial independence will have recourse to common law principles or doctrines, such as the "fundamental principle" that "a tribunal might [not] be both actor and judge", to adapt the Privy Council in Attorney General (Cth) v The Queen (Boilermakers) (1957) 95 CLR 529, 542, or the kind of traditional constitutional law doctrines enshrined in the Magna Carta 1215 or the Act of Settlement 1701 or expounded by Coke, Blackstone and Dicey; for example, Coke’s maxim "nemo debet esse iudex in propria causa" (see Broom’s Legal Maxims, 10th ed 1939, 68, 69), or the Diceyan rule of law that is sustained by an independent judiciary; on the rule of law, see Part VI.

"Judicial" independence

The constitutional aspects of "judicial" independence refers to the independence of justices on superior courts of record, say, the High Court, the other three federal courts (the Family Court of Australia, the Federal Court of Australia and the Industrial Relations Court of Australia), the State and territorial Supreme Courts or, what is the same thing, Courts of Appeal in those States that boast a Court of Appeal (New South Wales, Queensland and Victoria).

Judges on intermediate courts are included also in the safeguard of judicial independence, say, judges on Queensland or South Australian District Courts and judges on Victorian County Courts.

There is no reason in principle (viz the decision maker’s protection and impartiality) why judicial independence should not take in office holders on lower courts, say, Tasmanian Magistrates’ Courts and New South Wales Local Courts. Thus the Constitution Act 1902 (NSW) ss 52-53 offers protection to a "judicial office" within Part 9 of the Act; this judicial office extends as much to the office of a Magistrate of the Local Courts as to the office of the Chief Justice of the Supreme Court or the President of the Court of Appeal.

(Indeed, in principle also one may argue that there is a comparable independence for members of statutory tribunals, say, the Australian Industrial Relations Commission, or the Western Australian Workers’ Compensation Board or the, now abolished, Victorian Accident Compensation Tribunal which, however, had been granted the status and tenure of a County Court: see K Marks, "Judicial Independence" (1994) 68 ALJ 173, 180-181; see also BM Debelle "Judicial Independence" (1993) 67 ALJ 243 and PW Young, "Dismissal of Judges" (1993) 67 ALJ 83. But in regard to statutory tribunals, not every constitutional foundation within Part VI would apply. Some traditionally accepted, self evident, basic principle about a decision maker’s protection and impartiality would have to be invoked.)

Judicial "independence"

The constitutional aspects of judicial "independence" refers to an independence in at least five ways — in non political appointments to a court, in a guaranteed tenure and salary for the judges, in executive and legislative non-interference with court proceedings or office holders, in budgetary and administrative autonomy.

There is a distinction between appointment and removal of judges, a distinction that reflects the traditional role of the executive in the one act and not in the other. "The Crown’s power to nominate to judicial office — by contrast with the power to remove from judicial office — has always been at the Crown’s pleasure: see Blackstone’s Commentaries", Attorney General (NSW) v Quin (1990) 170 CLR 1, 34. On the executive’s exclusive role in judicial appointments and the courts’ reluctance (but not inability) to intervene, see ibid 18, 33, 64.

There is no doubt that — even if it is not the kind of remark that is openly made — "the federal executive has a certain amount of control over the federal courts by its power of appointing justices" under s 72(i) of the Commonwealth Constitution: Quick and Garran, The Annotated Constitution of the Australian Commonwealth,1901, 734.

But the observation was openly made, and made for courts generally, by K Marks, a former Victorian Supreme Court judge, in "Judicial Independence" (1994) 68 ALJ 173, 175 that —

"Ideally, appointment should be by politically neutral bodies who consider the training and suitability of candidates for judicial office [but] In Australia ... judges are appointed by the executive which is comprised of members of the ruling political party ... [hence] there is at times a community perception that political or other matters affect the outcome of a case."

Barwick CJ (as he then was) also called for a "politically neutral" body to appoint judges, federal, State or territorial. Instead of the use of political machinery that operates behind the formal act of the Governor General in s 72 of the Commonwealth Constitution, or the formal act of the Governor or Administrator in State or territorial legislation, Barwick proposed some kind of judicial commission to advise the Executive Government on judicial appointments. The commission might consist of judges, lawyers, knowledgeable laymen. The commission might actually choose judicial candidates or, at least, recommend them.

Barwick went on to plead "with a degree of emphasis that the time is here when some restraint should be placed upon and accepted by the Executive Government in its choice of judicial appointees." See Barwick, "The State of the Australian Judicature" (1977) 51 ALJ 480, 494.

The time that was "here" was 20 years ago — and the potential for, or anyway the perception of, judicial dependence on political appointments remains today. Not that the Barwick proposal requires a constitutional alteration (for s 72 (i) of the Commonwealth Constitution or, say, the Victorian Constitution) or a statutory amendment (for some States or the territories). The formal appointment to the bench could be effected by the Governor General in Council (to take federal court appointments), while the recommendation, or even the choice, might be made by a "politically neutral" body.

Turning from judicial appointments to judicial removals, Quick and Garran, quoted above, first noticed the federal executive’s "certain amount of control over the federal courts by its power of appointing justices", then added, "the federal executive and parliament jointly have a further amount of control by their power of removing such justices for specified causes": Quick and Garran, op cit, 734.

The executive’s power to remove judicial office holders, the number of ways of removal and the method of removal ... these are usually seen as the essential weakness in judicial independence. But, as shown at p 56, there are at least four other ways of weakening judicial independence.

However, as for removal, at the one extreme is s 72 (ii) of the Commonwealth Constitution. A federal judge can be removed by the Governor General in Council only on an address from parliament and then only on certain grounds which, moreover, must be proved. On top of this, the removal provision is safeguarded against alteration by the double-majority-cum-referendum rule in s 128 of the Commonwealth Constitution: see Part II. At the other extreme is, for example, s 4 of the Supreme Court Act 1933 (ACT): it provides for appointment by commission, but makes no provision for removal. Moreover, the Australian Capital Territory Act is an ordinary law that can be repealed or amended by an ordinary Act of the legislature.

A guaranteed remuneration, non diminishable during term, is usually associated with the removal provision, as in s 72 (iii) of the Commonwealth Constitution or, say, s 196 of the Constitution Act 1995 (Qld). The provision of a sure salary as a further assurance of judicial independence goes back as far as the Commissions and Salaries of Judges Act 1760, 1 Geo III c 23, s 3, securing judges’ salaries during the continuance of their commissions; cf the Act of Settlement 1701 in Part VI.

Executive control of the judiciary, apart from control in appointment and removal, was also noticed by Quick and Garran. "‘Parliament should abstain from all interference with the judiciary, except in cases of gross perversion of the law’", etc, Quick and Garran, op cit, 734, quoting Todd, On Parliamentary Government in England, 1889, volume 1, 574.

Thus, judicial independence can be compromised in ways other than the drastic way of removal. For instance, the legislature or executive may severely curtail a court’s jurisdiction, demote a judge to extra judicial duties including persona designata functions, or interfere with a court’s ongoing proceedings.

The Constitution Act 1975 (Vic) safeguards the Supreme Court’s jurisdiction — and indirectly judicial independence — by an entrenched manner and form provision: see Part III. Extra judicial duties and persona designata functions will be discussed in Part V.

As for an invalid legislative interference with specific court proceedings, and thereby an invalid diminution of judicial independence, see the principle established by Liyanage v The Queen [1977] 1 AC 259, especially at 289-290. That principle "must signify some infringement of the provisions which Chapter III [of the Commonwealth Constitution] makes respecting the exercise of the federal judicial power": R v Humby; Ex parte Rooney (1973) 129 CLR 231, 250 — in short, some infringement of the federal separation of powers doctrine.

Since State (or territorial) Constitutions have no, or no unalterable, separation of powers (see Part V), the Liyanage principle does not apply to State courts, as indeed the Liyanage principle did not apply to a New South Wales court in Building Construction Employees & BLF v Minister for Industrial Relations (1986) 7 NSWLR 352, and was held not to apply to Victorian courts in City of Collingwood v Victoria (No 2) [1994] 1 VR 652, 659-664, 670.

Budgetary and administrative independence finds an analogy in the accepted principle of guaranteed judicial salaries as, for example, in s 72 (iii) of the Commonwealth Constitution which was discussed above.

If a judge is to be independent, the judge should be accorded the practical wherewithal to be independent. It is not surprising to find judges arguing for real independence, an independence in resources (for example, courts, libraries, staff) and in administration. So argued the Chief Judge of the New South Wales Compensation Court, Judge F McGrath, "Judicial Independence" (1994) 68 ALJ 323, the Chief Justice of the Tasmanian Supreme Court, Mr Justice Sir Guy Green, "The Rationale and Some Aspects of Judicial Independence" (1985) 59 ALJ 135, 143-148, the Chief Justice of the South Australia Supreme Court, Mr Justice LF King, "Minimum Standards of Judicial Independence" (1984) 58 ALJ 340, 341-334; see also K Marks, a former Victorian Supreme Court Judge, "Judicial Independence" (1994) 68 ALJ 173, 174-175.

The High Court of Australia Act 1979 (Cth) Parts III and V (including ss 35, 36) gives a budgetary and administrative independence. The Family Law Act 1975 (Cth) Part IVA and the Federal Court of Australia Act 1976 (Cth) Part IIA, each with Act No 136 of 1991 (repealing provisions comparable to ss 35, 36), seem to give less. However, apparently Commonwealth administrative arrangements allow each of these last two courts the freedom of a one-line budget.

The independence of the judiciary may be seen from another perspective — from within rather than from without. In this sense judicial independence conjures up such rules of judicial integrity as "a tribunal might [not] be both actor and judge", or nemo debet esse iudex in propria causa. Other rules of judicial conduct underpin the "misbehaviour" ground for removal that obtains, for instance, in the Commonwealth Constitution s 72 (ii) or the Constitution Act 1902 (NSW) s 53(2); or rules of judicial conduct underpin the quamdiu se bene gesserint obligation that appears in the Queensland, Victorian, South Australian or Western Australian provisions on tenure given in Part III. To take one example, see the Constitution Act 1975 (Vic) s 77. Again judicial independence may be diminished from within by taking on extra judicial duties, giving extra judicial opinions or indulging the persona designata fiction; see Part V at p 77.

II. The High Court and Other Federal Courts

The appointment of the federal judges depends on the federal executive. Their removal is safeguarded by the prerequisite of a parliamentary address, and then on certain proved grounds only. The Commonwealth Constitution s 72 deals with the federal judges’ appointment, tenure and remuneration. The substantive part of s 72 reads —

"The Justices of the High Court and of other courts created by the parliament —
(i) Shall be appointed by the Governor General in Council;
(ii) Shall not be removed except by the Governor General in Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) Shall receive such remuneration as the parliament may fix; but the remuneration shall not be diminished during their continuance in office.
The appointment of a justice of the High Court shall be for a term expiring upon his attaining the age of 70 years ...
Subject to this section [ie subject to parliament’s fixing a lower age], the maximum age for justices of any court created by the parliament is 70."

Thus the appointment is controlled by the Governor General in Council, in practice by the current federal government. See Part I pp 56-58.

The removal is restricted to the method in s 72 (ii), Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 468. That is, amoval (sic) by the Governor General in Council alone is not possible; on amoval, see Burke’s Act (in Part V) and compare the Supreme Court (Judges’ Independence) Act 1857 (Tas) s 1 (in Part III). Burke’s Act on amoval is pro tanto repealed by the later Imperial Act, the Commonwealth of Australia Constitution Act 1901 (Imp). In the context of ending a judicial office (by a removal on an address and by an amoval), it would be anomalous if parliament, because it spoke literally of "removed", intended in s 72 (ii) merely to limit the conditions for a removal, while allowing the other method of terminating, namely amoval, to survive. In other words, "removed" in s 72 (ii) is used as a general, inclusive term, covering both methods of ending a judicial office; and s 72 (ii) chooses exclusively one method only, the method of removal. The parliamentary address must overcome a "hostile Senate", if there is one.

The alternative, and only, grounds are spelt out, and are to be proved. On the significance of "proved", see the pre-eminence of parliament in s 72 (ii). Suspension from judicial office is not provided for in s 72 (ii). Contrast the Constitution Act 1902 (NSW) s 54 or the Supreme Court (Judges’ Independence) Act 1857 (Tas) s 1; on both see Part III. Since suspension is like "a temporary removal", Quick and Garran, op cit, 733 argue that suspension should be within the confines of an address from both houses, as is removal.

Life tenure was originally, and decisionally, found in s 72 (ii), Waterside Workers’ Federation of Australia v JW Alexander Ltd above, so an appointment for a term of years was not possible, ibid. An acting appointment was also said to be not possible, semble, Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591, 610.

Tenure until a fixed age was effected by the Constitution Alteration (Retirement of Judges) 1977 (No 83). Even so, appointment for a term only or an acting appointment is still not possible, since neither is an appointment for a fixed age.

"Misbehaviour" or "incapacity" is a ground for removal under s 72 (ii) of the Commonwealth Constitution. "Misbehaviour", understood in a narrow sense, is judicial misbehaviour (in office) or criminal misbehaviour that indicates unfitness for any office. See Quick and Garran, op cit, 731, citing Todd, op cit, volume 2, 857; and see MH Byers in Odgers, Australian Senate Practice, 7th ed, 1995, 525; I Temby (1984) 58 ALJ 309, 309; G Griffith ibid 311; C Wheeler (1980) 14 UWALR 305, 306-307. An example of the last ground may be an attempt to pervert the course of justice; cf the allegations made in the cases of Mr Justice Murphy and Judge Foord in R v Murphy (1985) 63 ALR 53 and Foord v Whiddett (1985) 60 ALR 269.

"Misbehaviour", understood in a wide sense, includes the judicial or criminal conduct just given and, thirdly, (non-judicial and non-criminal) conduct rendering a judge unfit for office. See P Durack (1984) 58 ALJ 309, 311; Odgers, op cit, 525-526; especially the three Commissioners, Lush, Blackburn and Wells, who conducted the 1986 Murphy inquiry. These Commissioners, all former Supreme Court judges, unanimously "held" that misbehaviour is satisfied by conduct rendering a judge unfit for office. For example the conduct undermines the standing of the court or the authority of the judge (Lush), or is morally wrong (Blackburn), or destroys public confidence in the judge continuing his duty under the Constitution (Wells). See O’Bryan (1987) 61 Law Inst J 574; Odgers, op cit, 538-550; Parliamentary Commission of Inquiry re ... Justice Murphy (1986) 2 Aust Bar Rev 203. An example of this, the third ground for removal from judicial office, may be a dealing in financial and taxation matters; cf the allegations made in the case of Mr Justice Vasta, discussed in Part III, under "Queensland."

The three Commissioners went into the matter more than most exegetes; their interpretation should be respected. On the other hand, one may insist that the purpose of a provision like s 72 (ii) of the Commonwealth Constitution, as the purpose of the prototype Act of Settlement 1701, is "intended to secure them [the judges] against arbitrary interference by either the executive or the Legislature" (Harrison Moore, "The Constitution of the Commonwealth of Australia", 2nd ed, 1910, 103; McCawley v R (1918) 26 CLR 9, 59); and that this objective should be emphasised, rather than emphasise the subsidiary condition in the provision by enlarging the condition beyond what seems to have been its traditional content, as expounded by Todd, op cit, and endorsed by Quick and Garran, op cit, 731.

"‘Incapacity’ extends to incapacity from mental or bodily infirmity", Quick and Garran, op cit, 732.

Parliament’s pre-eminent role in s 72 (ii) of the Commonwealth Constitution is highlighted by the contrast between s 72 (i) and s 72 (ii): see Part I pp 56-57. It is for parliament to make the finding in s 72 (ii) on proved misbehaviour or incapacity, even if the "proved" suggests something in the nature of quasi-judicial proceedings; for instance, the duty of procedural fairness may apply, cf Lord Hailsham in (1984) 58 ALJ 309, 311-312.

A court, presumably the High Court, will interpret the meaning of the term "misbehaviour" or "incapacity" (cf Lord Hailsham, op cit, 310-311), just as the High Court interprets other constitutional terms. A loose analogy may be seen in the law on the role of the parliament and the role of the courts in parliamentary privilege. While the respective house of parliament conclusively decides for itself whether there has been a breach of privilege in a particular case, the courts determine the existence of the asserted privilege: R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 162.

The tenure and remuneration guarantee in s 72 (on the latter, see Part I) is safeguarded by s 128 of the Commonwealth Constitution. Thus any derogation from the judicial independence in s 72 can be effected only through the double majority and referendum that is stipulated by s 128 of the Constitution. The requirement was fulfilled for the Constitution Alteration (Retirement of Judges) 1977 (No 83), which watered down a federal judge’s tenure from a tenure for life to a tenure until a fixed age. In turn, any alteration of s 128 itself must comply with the requirements in this section because of its unqualified terms (as was done by the Constitution Alteration (Referendums) 1977 (No 84). Thereby s 72 on tenure etc is entrenched.

Such protection of judicial independence in regard to tenure and salary is found nowhere else in Australia, save in New South Wales (on which see Part III).

Federal courts, at any level, are as much protected by s 72 as the High Court. "The appointment, tenure and emoluments of justices, not of the High Court alone, but of all other courts created by the parliament, are defined by s 72", Harrison Moore, op cit, 200 (not quite: territorial judges are not so blessed, Spratt v Hermes (1965) 114 CLR 226). Then the provisions on tenure, which reflect s 72 of the Commonwealth Constitution, found in the Family Law Act 1975 (Cth), s 22 (1)(b), the Federal Court of Australia Act 1976 (Cth), s 6 (1)(b) and the Industrial Relations Act 1988 (Cth), s 362 (2) would seem to serve no purpose when read with the Acts Interpretation Act 1901 (Cth) 16A.

Federal courts, other than the High Court, are discretionary statutory creatures. "There is a mandate to create a High Court; there is a discretionary power to create other federal courts", New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54, 89; moreover, "Parliament may create federal courts, and over them ... it has ample power": Le Mesurier v Connor (1929) 42 CLR 481, 495.

It would seem then that Federal Parliament has the power to abolish, as it has the power to create, such statutory creations, and thereby end their judges’ judicial independence. Harrison Moore, op cit, 203-204, thought so. Probably as much as can be argued before the present High Court is that parliament can abolish a lower federal court, not as a "covert means" to circumvent s 72 (ii), but as "a genuine reorganisation of the court system", adapting Attorney General (NSW) v Quin (1990) 170 CLR 1, 19; and cf PW Young, "Dismissal of Judges" (1993) 67 ALJ 83. So parliament could probably abolish the Industrial Relations Court of Australia in order to merge it into the Federal Court system, say, as the Industrial Division of the Federal Court. Probably, too, it would be prudent for parliament to adopt the ad eundem gradum approach of the Constitution Act 1902 (NSW) s 56.

What parliament in fact did was to absorb the Industrial Court Judges into the Federal Court, leaving the Industrial Court on the statute book, presumably in deference to (its understanding of) s 72; divisions of the Federal Court were repealed. See the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

III. State Courts

On general themes, some material in Part II applies to State courts. A State court may have a constitutional basis. Particular cases, however, vary from State to State.

Some material in Part II on the judicial independence of federal judges relates, mutatis mutandis, to the judicial independence of State judges. Hence compare, for instance, the material in Part II on —

Some material in Part II on the judicial independence of federal judges will not apply to the judicial independence of State judges. Hence contrast, for example, the material in Part II on —

Another general remark — Superior court judges in the States are usually granted a more secure judicial independence than lower court judges or magistrates. Certainly in the past one could say that an appointment quamdiu se bene gesserint "describes an exceptional tenure, one which judicial officers of subordinate courts, for the most part, do not enjoy": Spratt v Hermes (1965) 114 CLR 226, 271. For instance, a Queensland Supreme Court judge can be removed from office after an address of the Legislative Assembly, whereas a District Court judge there is removable without such a parliamentary address (although, it is true, on a prescribed ground, viz, "incapacity or misbehaviour"). Contrast the Constitution Act 1867 (Qld) s 16 and the District Court Act 1967 (Qld) s 13. However, these days there is no general rule; for instance, County Court judges in Victoria hold their "offices during good behaviour", removable by the Governor in Council "upon the address of both houses of the legislature": County Court Act 1958 (Vic), s 9.

A survey of what follows — A Supreme Court judge’s tenure will last as long as there is good behaviour, or there is no address from parliament although the grounds are not prescribed (Queensland, Victoria, South Australia, Western Australia), or only on an address from parliament (Tasmania), or on an address from parliament but on prescribed grounds only (New South Wales). That tenure is found in a Constitution (Victoria, New South Wales, South Australia), or in a Supreme Court Act (Tasmania), or in both (Queensland, Western Australia).

All of this does not mean that a Supreme Court judge enjoys life tenure, subject to the qualifications listed. Supreme Court judges are compulsorily retired at 70 or 72 years of age, unless there is a law abolishing compulsory retirement. That is, the judges retire at a fixed age (compare the present s 72 of the Commonwealth Constitution) with the statutory possibility of acting appointments (contrast s 72); express provisions on acting appointments are in the Supreme Court Act 1935 (WA), s 11 and the Supreme Court of Queensland Act 1991 (Qld) s 14, inter alia.

New South Wales

Appointment to a judicial office is by an untrammelled executive act, that is, by the government of the day, as it is with an appointment to a federal judicial office, on which see Part II. For instance, see the Supreme Court Act 1970 (NSW) ss 26 and 31: "the Governor may, by commission ... appoint ... [from certain designated persons, a] Chief Justice or a Judge ... [or] appoint any judge to be a Judge of Appeal."

The Constitution Act 1902 (NSW) Part 9, inserted by the Constitution (Amendment) Act 1992 (NSW) specifically "to secure the independence of the judiciary", deals with "The Judiciary." However, a "judicial office" extends to magistrates, as well, see s 52 (1); and the protection may yet be extended to other courts, see s 52 (2)(d) (which is not entrenched).

Section 53 deals with "Removal from judicial office" — namely,

"(1) No holder of a judicial office can be removed from the office, except as provided by this Part [Part 9].
(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both houses of parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.
(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office."

Part 9 is an exclusive provision on removal, see s 53 (1), and cf Part II on "removal" versus "amoval." Hence Burke’s Act 1782 and the Act of Settlement 1701 (see Parts V and VI), if and as far as they apply to New South Wales, are pre-empted. The State Parliament can now repeal or amend Imperial or English Acts extending to the State, see the Australia Acts 1986 (Cth and UK), s 3.

The conditions controlling a removal in s 53 (2) of the New South Wales Constitution Act are similar to those in s 72 (ii) of the Commonwealth Constitution, mutatis mutandis: so, compare Part II. The "Governor" in s 53 (2) — the Commonwealth Constitution s 72 (ii) speaks of the Governor General in Council — will be the Governor in Council: see s 35B of the New South Wales Constitution Act.

Part 9, other than s 52 (2)(d), is entrenched by s 7B (1)(a) of the Constitution Act, requiring, inter alia, the electors’ vote to repeal or amend Part 9 or s 7B itself: see the Constitution (Entrenchment) Amendment Act 1992 (NSW) (1995 No 2). A later parliament, claiming its parliamentary sovereignty, could not act as if it were dealing with ordinary legislation, either because of the Rich-Dixon doctrine in Attorney General (NSW) v Trethowan (1931) 44 CLR 394, 419-420, 426, or because of the fundamental law in s 106 of the Commonwealth Constitution which prevents an alteration to a State Constitution, other than "in accordance with the [existing conditions in the] Constitution of the State", McGinty v Western Australia (1996) 70 ALJR 200, 206; Wilsmore v Western Australia [1981] WAR 179, 184.

The upshot is that the independence of the "judicial office" within Part 9 of the Constitution Act 1902 (NSW) is highly safeguarded, subject to the provisions on suspension, retirement and abolition in ss 54-56, and subject to the procedures and requirements possible under s 53 (3), on which see the Judicial Officers Act 1986 (NSW). On the abolition of judicial office in s 56, notice the conciliatory ad eundem gradum principle in the section.

Queensland

Judicial appointments are by an executive act. For example, see the Supreme Court of Queensland Act 1991 (Qld) s 12: "the Governor in Council may, by commission, appoint [from among designated classes, a person] ... to be a judge ..."; similarly, since 1991, for a Judge of Appeal, see s 33.

The Supreme Court Act 1995 (Qld) s 195 provides — "(1) The commissions of any present/future judges of the said Supreme Court shall be continue and remain in force during his, her or their good behaviour ... (2) However, it shall be lawful for Her Majesty ... to remove any such judge or judges upon the address of the Legislative Assembly." Queensland has had only one house of parliament since 1922. The Constitution Act 1867 (Qld) s 15 also deals with a commission quamdiu se bene gesserint, while s 16 with its "nevertheless" (ie despite s 15) deals with a removal of a judge "upon the address of the Legislative Assembly."

Thus, the Supreme Court Act or the Constitution Act, each with its separated provisions, shows that the judges within either Act can be removed by two methods — by the Governor in Council acting alone on some ground undisclosed in the Acts other than the general ground encapsulated in quamdiu se bene gesserint, or by the Governor in Council but only on an address from the Legislative Assembly which, however, is not limited even by the general ground of quamdiu se bene gesserint.

The condition, during good behaviour or quamdiu se bene gesserint, was added by the Act of Settlement 1701, displacing the Crown’s removal of judges at the Crown’s pleasure, McCawley v R (1918) 26 CLR 9, 58-59; Quick and Garran, op cit, 728. Now the executive can act only if there is not good, or "non bene", behaviour.

As for parliament’s free hand on an address, see Quick and Garran: a removal on an address is possible "apart altogether from any question of technical misbehaviour": Quick and Garran, op cit, 728. So the Queensland Acts, as the Act of Settlement 1701, allow the removal of "a judge either (1) for misbehaviour, or (2) if the house of parliament desire(s) it", McCawley v R (1918) 26 CLR 9, 59; cf Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591, 611.

The case of the former Mr Justice Vasta was based on the second method of removal. Mr Justice Vasta, a Supreme Court judge in Queensland, was removed in June 1989 by the Governor, on an address from the Legislative Assembly. The removal was preceded by a Parliamentary Judges Commission of Inquiry, composed of three retired superior court judges (Gibbs, Lush, Helsham), appointed under the Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld). This Commission found no misconduct in the judge’s carrying out of his duties of office as a judge; they also made findings on such matters as evidence in defamation proceedings and taxation transactions. The Legislative Assembly adopted these matters as the reason for its address to the Governor. See Odgers, op cit, 550-551; J Priest, Sir Harry Gibbs Without Fear or Favour, 1995, 124-125; Woodward, "Removal of a Supreme Court Judge" (1990) LXXI The Parliamentarian 212.

The two methods of removal from judicial office are not expressed to be the exclusive methods. Contrast s 72 (ii) of the Commonwealth Constitution or s 53 (1) of the Constitution Act 1902 (NSW). Burke’s Act then has a possible application, see Part V.

The judicial independence of the Supreme Court judges is placed in the Constitution Act (as well as in the Supreme Court Act). But this does not mean that that judicial independence is protected against repeal or amendment, as the New South Wales judicial independence is. For in New South Wales there is a manner-and-form provision and this, in turn, is in an entrenched provision. Hence the Queensland constitutional provision is as alterable as any other Queensland Act. For instance, Queensland’s Constitution Act was once impliedly amended by an ordinary Act, the Industrial Arbitration Act 1916 (Qld) (allowing a seven year term appointment of judges) that was found to be inconsistent with the earlier Constitution Act 1867 (Qld) (then prescribing a life appointment of judges). The Privy Council upheld the amendment, explaining that the Queensland Constitution was an "uncontrolled" Constitution: McCawley v R (1920) 28 CLR 106.

The same fragility of judicial tenure applies in all States, save in New South Wales. Victoria has a safeguard for its Supreme Court’s jurisdiction.

Victoria

Judicial appointments are by an executive act, that is, by the Governor with the advice of the Executive Council, see the Constitution Act 1975 (Vic) s 75, or the Constitution (Court of Appeal) Act 1994 (Vic) which inserted s 75B (2) into the Constitution Act.

The Constitution Act 1975 (Vic) s 77 (1) deals with removal of judges — "The commissions of the judges of the [Supreme] Court shall [subject to a fixed age] ... remain in full force during their good behaviour ... but the Governor may remove any such judge upon the address of the [Legislative] Council and the [Legislative] Assembly."

See the remarks made on the similar Queensland provisions above. But those remarks are subject to what follows. The judicial independence of office holders does not receive the protection that obtains in New South Wales. However, the jurisdiction of the Supreme Court is safeguarded; and an erosion of jurisdiction eats into judicial independence. The Constitution (Jurisdiction of Supreme Court) Act 1991 (Vic) inserted s 18 (2A) and s 85 (5) into the Constitution Act. As a result, any alteration to the Supreme Court’s "unlimited jurisdiction" granted by s 85 is, under s 85 (5), subject to the amending Act’s express reference to s 85 and the amending legislative member stating the reason for the alteration (to prevent "inadvertent legislative impairment of the Supreme Court’s jurisdiction": City of Collingwood v Victoria (No 2) [1994] 1 VR 652, 670). Then s 18 (2A) safeguards s 85 by requiring an absolute majority of both houses of parliament to alter s 85, or to alter s 18 (2A) itself, thereby entrenching s 85. Notice that a referendum is not required, unlike the provision in New South Wales.

Since this manner-and-form provision is in the State Constitution, the Rich-Dixon doctrine in Attorney General (NSW) v Trethowan and s 106 of the Commonwealth Constitution with McGinty v Western Australia and Wilsmore v Western Australia are attracted: see New South Wales.

The Constitution (Independence of Judges and Public Officers) Bill 1991 (Vic) proposed to guarantee tenure of Supreme Court and County Court judges and to require an absolute majority of both houses of parliament to alter these provisions. See [1991] Australian Legal Monthly Digest Dec, Table of Bills. The Bill has not been passed; by this time it must have lapsed.

Western Australia

Judicial appointments are by the usual executive act. See, for instance, the Supreme Court Act 1935 (WA) s 7 (1): "... [a judge is to be] appointed by the Governor by commission under the Public Seal of the State ...".

The Supreme Court Act s 9 (1) or the Constitution Act 1889 (WA), ss 54 and 55, deal with removal from judicial office. Consider s 9 (1) of the Supreme Court Act — "All judges of the Supreme Court shall hold their office during good behaviour, subject to a power of removal by His Majesty upon the address of both houses of parliament."

The Constitution Act s 54 deals with a commission "during good behaviour"; and s 55 with its "nevertheless" (ie despite s 54) deals with a removal of a judge "upon the address of both houses of the legislature."

See also the remarks made on the similar Queensland provisions.

South Australia

Judicial appointments are by the usual executive act, cf the Constitution Act 1934 (SA) s 74. The Constitution Act s 74 and s 75 deal with removal from judicial office. Section 74 provides — "The commissions of all judges of the Supreme Court shall be and remain in full force during their good behaviour ...". Section 75 provides — "It shall be lawful for the King to remove any judge of the Supreme Court upon the address of both houses of the parliament."

See also the remarks made on the similar Queensland provisions.

Tasmania

Judicial appointments are by the usual executive act, see the Supreme Court Act 1887 (Tas) s 5 — "appointment of the judges of the Supreme Court ... shall be by the Governor by letters patent." The Supreme Court (Judges’ Independence) Act 1857 (Tas) s 1, deals with removal — or suspension — from judicial office: "It shall not be lawful for the Governor, either with or without the advice of the Executive Council, to suspend, or for the Governor to amove [sic], any judge of the Supreme Court unless upon the address of both houses of parliament."

Thus there is one method of removal (or suspension), viz, a removal on an address of parliament; and no grounds are prescribed. The other common method of removal, implied in a commission quamdiu se bene gesserint, is excluded. If the Act is read as excluding all other methods of ending tenure such as that in Burke’s Act (see Part V), the Tasmanian Act of 1857, 20 Vic No 7, would be repugnant to Burke’s Imperial Act of 1782, 22 Geo III c 75, and the Tasmanian Act would be void under the Colonial Laws Validity Act 1865 (Imp), 28 & 29 Vic c 63, s 2; s 2 applies to "any colonial law which is or shall be ... repugnant to ... any Act of [the Imperial] Parliament extending to the colony", that is, even a colonial law in existence before the 1865 Act.

IV. Territorial Courts

Northern Territory judges’ tenure resembles federal judges’ tenure; Australian Capital Territory judges’ tenure resembles State judges’ tenure.

The territorial courts do not come within the protection of s 72 (ii) and (iii) of the Commonwealth Constitution, Spratt v Hermes (1965) 114 CLR 226; and the Commonwealth (Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591, 611-612) or the relevant territory (Svikart v Stewart (1994) 181 CLR 548, 574) can deal freely with the tenure etc of the territorial judges; but a conflicting Commonwealth law on tenure etc would prevail: Attorney General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59.

The Supreme Court Act 1979 (NT) s 32 (1) provides: "The Administrator may, by commission, appoint a person ... to be ... the Chief Justice ... [or] a judge of the court ..."; and s 40 (1) provides: "A judge ... may be removed from office by the Administrator on an address from the Legislative Assembly praying for his removal on the ground of proved misbehaviour or incapacity, but shall not otherwise be removed from office." There is only one house of parliament in the Northern Territory. Thus the grounds for removal are spelt out; they are to be proved; and the method of removal ((ie) on an address) is exclusive; but the provisions are not entrenched.

The Supreme Court Act 1933 (ACT) s 4 (1) provides: "The executive may by commission appoint judges, a Chief Justice ...". There is no removal or tenure provision, simply an appointment provision. The terms of tenure will be sought in a judge’s commission. If the commission is silent, presumably quamdiu se bene gesserint will be implied because of the practice for such a commission, going back to the Act of Settlement 1701, on which see McCawley v R (1918) 26 CLR 9, 58-59.

V. Matters Related to the Above

There are matters related to those in Parts I-IV, such as Burke’s Act, separation of powers and extra judicial duties.

There was — or perhaps still is — another way of interfering with judicial independence, again by terminating a judicial office. In this case the office must have been held by Letters Patent; and there is an additional ground about absence from the Colony/State. The Colonial Leave of Absence Act 1782 (Imp), 22 Geo III c 75, s 2, known as Burke’s Act, provided that if any person holding office by Letters Patent (decisional law included a judge) should be wilfully absent from the Colony wherein the same is or ought to be exercised etc, or should neglect the duty of such office, or otherwise misbehave therein, it should be lawful for the Governor in Council to amove [sic] such person from the office in question.

In the period 1840-1860 several superior court judges were amoved under the Act by the Governor in Council acting alone, that is, without a prior address by parliament: for example, Willis in New South Wales (Willis v Gipps (1846) 5 Moo PC 379), Montagu in Tasmania (Montagu v Van Diemen’s Land (1849) 6 Moo PC 489) and Boothby in South Australia.

However, in 1964 Burke’s Act was repealed by the Statute Law Revision Act 1964 (UK), c 79. The repeal is read by some as applying to Burke’s Act in its application to the United Kingdom alone; or the whole question is seen as "open." See Cowen and Derham, "The Independence of Judges" (1953) 26 ALJ 462, 464-465; Sir Guy Green, op cit, 139-140; Wheeler, op cit, 315-317.

But one may argue that, just as the 1782 Act had an extended application beyond Britain, so the 1964 Act, which was unqualified, had the same extension. The original Act and the repealing Act should be read as co-extensive.

After the Australia Acts 1986 (Cth and UK) s 3, a State Parliament can repeal or amend Imperial or English Acts extending to the State. Hence a State Parliament can repeal Burke’s Act, as far as it relates, if it relates at all, to that State, if only pro abundantia cautela. For this reason, one may argue that the Constitution Act 1902 (NSW) s 53 (1), inserted in 1992, repeals Burke’s Act as far as it relates, or may relate, to judicial officers within s 52 (1) of the Constitution Act.



The doctrine of separation of powers is said to be embedded in the Commonwealth Constitution, and so operates at the federal level, Attorney General (Cth) v The Queen (1957) 95 CLR 529; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. That doctrine does not obtain in the States (or in the territories, Spratt v Hermes (1965) 114 CLR 226), or if it does, it can be overcome by ordinary legislation, Building Construction Employees & BLF v Minister for Industrial Relations (1986) 7 NSWLR 372; Mabo v Queensland (1988) 166 CLR 186, 202; City of Collingwood v Victoria (No 2) [1994] 1 VR 652, 659-664, 670; R v Tilley (1991) 53 A Crim R 180, 182. But see the High Court in Kable v Director of Public Prosecutions (1996) 70 ALJR 814 with notes in (1997) 71 ALJ 10; (1996) 70 ALJ 945, 956: it still found no separation of powers in New South Wales, it is true, but it prevented the executive prejudicing the integrity of the New South Wales Supreme Court at least when this court is exercising federal jurisdiction (as in the instant case).

However, the postulate that justifies the separation of powers seeks to ensure, inter alia, the independence of the judiciary, either as an end in itself, or as a means to protect individual liberty and basic rights and property; see, for example, Polyukhovich v Commonwealth (1991) 172 CLR 501, 606-607, 684-685; O’Toole v Charles David Pty Ltd (1990) 171 CLR 232, 282, 284-285; Street v Queensland Bar Association (1989) 168 CLR 461, 521; Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 579-580; Hilton v Wells (1985) 157 CLR 57, 73-74, 81-82; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, 11.

That is to say, one may point out that the justification for a separation of powers is put forward as basic, self-evident constitutional doctrine, a doctrine that accordingly ought to be acknowledged at the State level — acknowledged by the legislatures in their law making (cf Street CJ in Building Construction Employees & BLF v Minister for Industrial Relations, discussed in Part VI), and acknowledged by the courts in their decisions, say, by giving an inhibiting prima facie construction to laws that prejudice the independence of the judiciary.



Extra judicial duties are at times inflicted on judges. Do these non-judicial functions compromise judicial independence?

Non-judicial duties may take the form of the conduct of a Royal Commission or other inquiry, or some function to assist the executive. Speaking in the context of Royal Commissions headed by judges, DI Menzies reminded his audience of the Chief Justice’s, Sir Owen Dixon’s, administrative activities during World War II as Australian Minister in Washington [as United States envoy], as Chairman of the Central Wool Committee, and so on. See Menzies’ comments in "Royal Commissions" (1955) 29 ALJ 253, 265. While Menzies implied that these tasks did not put "the judiciary in jeopardy", he also quoted the declaration of the Victorian Bar: "Judges must ... be entirely independent of the executive on whose actions they from time to time must sit in judgment."

Taking up Menzies’ reminder of his administrative duties, Sir Owen protested. "Looking back from this point of view, I am not sure that it was right. I do not wish it to be thought that, looking in retrospect, I altogether approve of what I myself did": ibid 272. In the context one supposes that Sir Owen Dixon agreed with the view and rationale of the Victorian Bar.

No doubt, a judge’s expertise, standing and impartiality serve the executive well by these extra judicial functions. But the question remains whether judicial independence may be, or at least be perceived to be, tarnished. Compare Gummow J in Marsden v Amalgamated Television Services Pty Ltd (1996) 70 ALJR 535, 538.

As for extra judicial opinions, the Privy Council remarked in Attorney General (Cth) v The Queen (1957) 95 CLR 529, 541: "it has by many been thought an unwise practice to try to anticipate judicial decisions extra judicially by obtaining the opinion or advice of the judges, the reason being that it is regarded as tending to sap their independence and impartiality."

The doctrine of persona designata strictly runs counter to the Victorian Bar’s declaration on the judges’ independence of the executive; on the doctrine see Hilton v Wells (1985) 157 CLR 57, or, in the context of State judicial power, Love v Attorney General (1990) 169 CLR 307. However, the High Court countenances the doctrine, invoking an "incompatibility condition", that is to say, provided the appointment of the judge as a designated person does not, for instance, whittle away, or prejudice, the judicial role, or the appointment causes no loss of public confidence in the judiciary, Grollo v Palmer (1995) 184 CLR 348, 365 and cf 392-395. The High Court continues to oppose the use of a judge, appearing to be a judge and an aide to the executive: Wilson v Minister for Aboriginal and Torres Stait Islander Affairs (Justice J Mathews and the Hindmarsh Inquiry) (1996) 70 ALJR 743. See further qualifications, perhaps, to the persona designata doctrine in deference to judicial independence, ibid.

In other words, the High Court, even as it allows the fiction of persona designata, still attempts to preserve the independence of the judiciary.

VI. The Constitutional Foundation for Judicial Independence

Federal courts look to the Commonwealth Constitution for judicial independence. Non-federal courts may look to the Act of Settlement, or to basic constitutional principles, or to the rule of law.

The judicial independence of federal courts finds the surest constitutional foundation, that explicitly spelt out in the Commonwealth Constitution, s 72 (ii) and (iii), even if this is in the limited area of tenure and remuneration only. Still, this foundation is protected against alteration by s 128 of the Commonwealth Constitution, which, moreover, entrenches s 72: see Part II.

The judicial independence of non-federal courts, other than the New South Wales courts within the Constitution Act 1902 (NSW) s 52 (1) (see Part V), have no similarly protected foundation, as have the federal courts. There may, however, be a foundation for such courts in other constitutional sources. The Act of Settlement 1701, 12 & 13 Will III, c 2, 7th clause, reads — "Be it enacted ... That ... judges’ commissions be made quamdiu se bene gesserint and their salaries ascertained and established; but upon the address of both houses of parliament it may be lawful to remove them." But the Act was rather evidence of the mood of the times than a constitutive enactment. Compare the publicist, John Locke, in his Treatise of Government written in 1690, promoting an inter-independence of the three arms of government. Montesquieu’s De l’Esprit des Lois (The Spirit of Laws) came a little later, in 1748 — "there is no liberty, if the judiciary [sic] power be not separated from the legislative and executive", as quoted by Gummow J in Grollo v Palmer (1995) 184 CLR 348, 393.

However, Lord Goddard CJ stated restrictedly that the Act applied to "English judges of the superior courts [in England] ... remov[able] by an address of ... both Houses of the Imperial Parliament": Terrell v Secretary of State for the Colonies [1953] 2 QB 482, 393.

It seems that, if the Act is to apply to State courts, a State Parliament must expressly confirm its application. At any rate, one can claim that the Act of Settlement is indicative of traditional ancient law on judicial independence and is part of our British heritage.

Street CJ in Building Construction Employees & BLF v Minister for Industrial Relations (1986) 7 NSWLR 372, 382-383, 387, took up the last remark about traditional law, but for him it filtered through the "peace, welfare and good government" notion in s 5 of the Constitution Act 1902 (NSW). Each of the other five States has the same element in its constitutional law making power.

In "s 5 [of the Constitution] ... ‘New South Wales’ ... means the body politic known as New South Wales ... [it] is essentially a parliamentary democracy — an entity ruled by a democratically elected parliament whose citizens enjoy the great privileges of freedom and justice under the protection of an independent judiciary ... such fundamental constitutional principles as the independence of the judiciary ... [382-383] ... look to the constitutional constraints of ‘peace, welfare and good government’ [in s 5] as the source of power in the courts to exercise an ultimate authority to protect our parliamentary democracy" [387], and presumably our judicial independence.

However, the High Court, adverting to those constraints, was not so sure that there were such restraints on law making, but put the matter aside as a "question which we need not explore": Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1, 10.

As much as one can claim is that Street CJ’s "fundamental constitutional principles", like the Act of Settlement above, reflect traditional ancient law on judicial independence and are part of our British heritage.

Dixon CJ had a constant theme on the common law as the ultimate foundation of the Commonwealth Constitution, see (1957) 31 ALJ 240; (1943) 17 ALJ 138; (1935) 51 LQR 590. There is no reason why Dixon would have limited his theme to the Commonwealth Constitution. That common law forms the matrix of State Constitutions also.

The Commonwealth Constitution is "framed in accordance with many traditional conceptions ... [some] of which are simply assumed. Among these I think it may fairly be said that the rule of law forms an assumption", Dixon J in Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193. While Dixon’s theme appears in the context of the Commonwealth Constitution, it applies as much to State Constitutions, for the rule of law is inscribed in an instrument "which is the groundwork of all our Constitutions — Magna Carta" of 1215, Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, 79, and see 75-76; see also Re Stanbridges’ Application (1996) 70 ALJR 640, 642 on Magna Carta and "the law of the land."

The courts are an integral part of the rule of law. Thus "the courts themselves see that this obligation [to justify a detention under ‘the law of the land’] is strictly and completely fulfilled", Ex parte Walsh and Johnson; In re Yates at 79. A detention is punitive and "exists only as an incident of the exclusively judicial function of adjudging ... [for] Every citizen is ‘ruled by the law’", Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27-28, and see 63. These propositions are paraphrasing Dicey’s summary of the rule of law — "the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts", Dicey, Introduction to the Study of the Law of the Constitution, 10 ed, 1959, 202.

The independence of the courts is, in turn, an integral part of the courts’ role in preserving the rule of law. Through this route — from the common law in Magna Carta with its rule of law and an intricately associated system of courts with their indispensable independence — the rule of law forms a constitutional foundation for the independence of the judiciary.



† Emeritus Challis Professor of Constitutional Law, University of Sydney, New South Wales.