Judicial Commission of New South Wales - Helen Cunningham (ed)
| FRAGILE BASTION |
© Judicial Commission of New South Wales and contributors with the exception of the work by Mr Bron McKillop where copyright is exclusively held by the author.
This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act no part of it may in any form or by any means (electronic, mechanical micro-copying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher.
The cover photograph depicts judges of the Supreme Court of New South Wales, in ceremonial robes, returning to the Supreme Court across Queens Square after attending a service at St James Church to mark the beginning of the Law Term.
"In a democracy, every educated citizen should have an understanding of the role of the judiciary, the manner in which the courts function and the history of the relationship between the courts and other organs of government. This is particularly important because (except in so far as the Constitution places federal judges, and particularly the High Court, in a special position) the independence and authority of the judiciary, upon which the maintenance of a just and free society so largely depends, in the end has no more secure protection than the strength of the judges themselves and the support and confidence of the public."
Sir Harry Gibbs GCMG AC KBE
| Acknowledgements |
Fragile Bastion — Judicial Independence in the Nineties and Beyond
The title of this work was inspired by Sir Ninian Stephen AK GCMG GCVO KBE who, in the 1981 Southey Memorial Lecture, described judicial independence as being a "fragile bastion." The text of this lecture is reproduced in (1982) 13 (3) Univ Melb Law Rev 334.
Permission to Reproduce
For permission to reproduce the paragraph which appears on page v of this text, and which is taken from The Foreword to The Supreme Court of Queensland 1859-1960 by Justice BH McPherson, the publishers wish to thank Butterworths, Sydney, Australia who published this work and also The Right Honourable Sir Harry Gibbs GCMG AC KBE author of the passage.
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| Contributing Authors |
Sir Anthony Mason was admitted to the New South Wales Bar in 1951 and practised extensively in equity, commercial law and constitutional law. In 1964 he was appointed a Queen’s Counsel and Commonwealth Solicitor General, a position which he held until being appointed a Judge of the New South Wales Court of Appeal in 1969. Subsequently, he was appointed a Justice of the High Court of Australia in 1972 and served as Chief Justice of Australia from 1987 to 1995. He was Challis Lecturer in Equity at the University of Sydney Law School from 1959-1964, Member of the Panel of Legal Experts of Intelsat from 1965-1969 and Vice Chairman of UNCITRAL in 1968.
On retiring as Chief Justice of Australia, Sir Anthony was appointed National Fellow, Research School of Social Sciences at the Australian National University, Canberra. He is Chancellor of the University of New South Wales and Chairman of the National Library of Australia. He is presently Arthur Goodhart Professor in Legal Science at Cambridge University and Fellow of Gonville and Caius College, Cambridge. Sir Anthony is also Chairman of the National Institute of Law, Ethics and Public Affairs, Griffith University, Chairman of the Law Foundation’s Advisory Council, Member of the Advisory Board of the Centre of Comparative Constitutional Law, Melbourne University and a member of the Advisory Board on the Australian Law Reform Commission’s inquiry into the adversarial system.
Sir Anthony is President of the Court of Appeal of the Solomon Islands and a Judge of the Supreme Court of Fiji.
Chief Justice Doyle was admitted to the degree of Bachelor of Laws from the University of Adelaide in 1966 and to the degree of Bachelor of Civil Law from Oxford University in 1969. He was the 1967 Rhodes Scholar for South Australia. He was admitted as a barrister and solicitor of the South Australian Supreme Court in 1970. He was a partner in an Adelaide firm of solicitors from 1970 to 1977. From 1977 until 1986 he practised at the Bar in Adelaide. His work at the Bar involved most branches of the law with a substantial involvement in appellate work. He was appointed a Queens Counsel in 1981. In 1986 he was appointed Solicitor General of the State of South Australia. He was appointed Chief Justice of South Australia in May 1995.
For a number of years he was a part time lecturer and examiner in the Faculty of Law at the University of Adelaide. He was a member of the Legal Services Commission of South Australia from its establishment in 1978 until 1986, and at the time of his appointment as Solicitor General he was Chairman of the Commission. He was President of the Bar Association of South Australia from October 1993 until his appointment as Chief Justice and had previously served a term as President of that Association from June 1989 until November 1990.
PH Lane, BA LLB LLM LLD (Syd) SJD (Harv), completed a part-time law course at the University of Sydney, graduating in 1957 with the University Medal in Law. He went on to Harvard Law School, taking an LLM course and later acquiring a Doctorate there. The University of Sydney conferred a second Doctorate, also in constitutional law.
Professor Lane began lecturing in constitutional law at the University of Sydney in 1958, becoming a professor and, in time, the Challis Professor of Law. Throughout, he has given — and continues to give — consultations in constitutional law, here and overseas.
In the same field Professor Lane has published between fifty and sixty articles and several books, some of which have reached five or six editions. His latest text, due to be published in mid-1997, is a 1000 page section-by-section Commentary on the Australian Constitution.
The Honourable Daryl Williams AM QC MP
Daryl Williams AM QC MP was nominated as Commonwealth Attorney General and Minister for Justice by the Prime Minister of Australia, John Howard, on 8 March 1996. He holds a law degree from the University of Western Australia and was selected as Western Australia’s Rhodes Scholar in 1965. He subsequently obtained a Bachelor of Civil Law degree at Oxford University in 1967.
From 1971 to 1975, he worked in Manila for the Asian Development Bank. Upon his return to Perth, he joined the Western Australian Independent Bar and resumed practice until his election to the House of Representatives in 1993. He was appointed a Queens Counsel in 1982.
Mr Williams was a Commissioner of the Law Reform Commission of Western Australia from 1982-1986 and chaired the Commission for a year. He was also President of the Law Society of Western Australia in 1984 and President of the Law Council of Australia in 1986-1987. He was appointed a member of the Order of Australia (AM) for services to the legal profession in 1989.
Married with two children, Mr Williams has been the Federal Member for Tangney since 1993. During 1993-1994, he was the Shadow Attorney General and Shadow Minister assisting the Leader of the Opposition on Constitutional Reform.
Mr Williams is admitted to practise as a barrister in Western Australia, New South Wales, Victoria and England and Wales.
The Right Honourable Lord Justice Brooke
Sir Henry Brooke was appointed to the Queen’s Bench Division of the High Court of Justice in England in 1988. In 1996 he was appointed a Lord Justice of Appeal. Lord Justice Brooke was Chairman of the Law Commission of England and Wales for three years up until December 1995 and was the foundation Chairman of the Ethnic Minorities Advisory Committee of the Judicial Studies Board for the period 1991-1994. Lord Justice Brooke has a particular interest in continuing judicial education and has contributed to The Judicial Review a journal of the Judicial Commission of New South Wales.
Sir Henry is married with four children. His father and elder brother have both been British Cabinet Ministers, and although he is himself apolitical, he served on the panel of junior counsel advising the Crown in common law matters for three years before he took silk in 1981, and has been quite heavily involved ever since then in matters involving public and administrative law.
Bron McKillop, BA LLB BEc (Syd) LLM (Harv) is a senior lecturer at the University of Sydney Law School where he teaches criminal law, criminal procedure, evidence, litigation and comparative law.
Mr McKillop has a particular interest in continental justice systems and in recent years has been a visiting lecturer at the Universities of Aix-Marseille, Poitiers, La Rochelle and Rennes in France. He has participated in continuing legal education programmes for the French Judiciary in Paris and has lectured in Australian Law at the French University of the Pacific in Tahiti and Noumea.
Mr McKillop is the author of some thirty articles, papers and reports on a diverse range of subjects. He is admitted to practise as a barrister at law in New South Wales and as an advocate and solicitor in Papua New Guinea.
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| Foreword |
The judicial oath is to do right by all manner of persons, without fear or favour, affection or ill-will. Strict impartiality is of the essence of the administration of justice. The public expect, from courts of justice, both the appearance and the reality of such impartiality.
The capacity of a decision-maker to be, and to appear to be, impartial is closely related to the independence of the decision-maker. A judicial officer who has the duty to resolve disputes between citizens and the government, who holds office at the will of the government, and who could be dismissed for making a decision of which the government disapproved, would be unlikely to command the confidence of the public.
Taking for granted the need for the judiciary to be independent, most people, including many in public life, never take the trouble to examine in any detail what the concept of judicial independence involves. That the courts as institutions, and judges and magistrates as individuals, should be independent is regarded as being so obvious that few people ever ask themselves what independence entails, and what conditions are necessary, or desirable, for its preservation. Judicial officers sometimes assert, as though they were self-evident, propositions about independence which would be challenged by parliamentarians or public servants. Some members of the community regard claims that certain conditions are necessary for independence as self-interested demands for privilege, or for immunity from ordinary requirements of accountability. The general popular acceptance of the value of judicial independence is, to an extent, superficial. There are important areas of disagreement, or misunderstanding, about the subject.
Independence and accountability are not inconsistent. Giving each appropriate weight, and reconciling their apparently conflicting requirements, however, may require a deeper understanding of issues than is demonstrated by people who use those terms as argumentative incantations.
In order to promote a better understanding by the public, and by judicial officers themselves, of this important subject, the Judicial Commission of New South Wales has produced this publication. The distinguished contributors who have generously agreed to prepare papers for inclusion have examined the subject from various angles: the history of the English judiciary’s relations with the Crown (or what would now be called the executive government); the origin and spread of the doctrine of the separation of governmental powers; the modern constitutional arrangements which underpin judicial independence in Australia; contemporary issues which have arisen in relation to that independence; and a comparison of our ideas on the subject with those of a major European jurisdiction.
One lesson to be learned from these papers is that the principles of judicial independence need to be made relevant to contemporary conditions and issues. They are not engraved on tablets of stone, and they were not formulated by some lawmaker of unquestioned authority. They have not always been acknowledged; their acceptance, although widespread, is not universal; and their practical application is often controversial.
Finally, those of whom judges and magistrates claim to be independent do not always relish that independence. Governments sometimes see judicial independence as a limitation upon their capacity to govern. So it is. This results in a degree of tension and, from time to time, challenges to claims, and sometimes even to established principles, of independence. It is the duty of the judiciary to maintain its independence, and to encourage the public to value it. In order to do that, the judiciary, the media and the community generally need to have a well-informed understanding of the subject. This publication will be a valuable aid to such understanding.
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| Editor’s Note |
In a formal sense the doctrine of judicial independence is variously reposed in constitutional conventions, principles of common law and customs of parliament. In a practical and more fundamental sense, it relies upon broad public understanding of, and community confidence in, the judicial branch of government to properly determine disputes as between the parties according to the law.
In the late 1990s, the independence of the judiciary has become the subject of renewed and intense focus by lawyers, academics, executive government, and most particularly, members of the media. Some of this scrutiny may be regarded as the sign of a healthy democracy; an essential, if not inevitable, outcome of rapid and profound changes in the social, economic and technological milieu of late 20th century western society. It is possible to argue that this questioning is a natural progression for members of a society endowed with rising levels of expectations, and for whom it is legitimate and increasingly common, to engage in public criticism of individuals and social institutions. Scrutinising the degree to which judges are accountable to executive government, and the community, for their exercise of judicial power may be viewed as an outward manifestation of a citizen’s civic entitlement.
The essential difficulty with this reasoning is that it is frequently invoked in the absence of a true appreciation of what judicial independence means or the significance of its role in the effective operation of a parliamentary democracy. The recent suggestion that High Court Judges be appointed for a term of ten years sharply reinforces a lack of understanding of the position which the judiciary occupy in the trinity of governmental powers.
The issues which arise here are first, the capacity of the judiciary to perform their designated function free from actual or apparent interference from the government of the day and secondly, why the work of judges and the courts generally is not better understood by the community.
This collection of essays seeks to make a contribution in this regard.