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The Appointment and Removal of Judges

The Appointment and Removal of Judges

Sir Anthony Mason AC KBE, formerly Chief Justice of Australia
now Arthur Goodhart Professor in Legal Science, Cambridge University
and National Fellow, Australian National University

The criteria and method of appointing judges and the procedures for their removal from office are topics which capture public attention and promote lively debate. To date, discussion of this issue has been predominantly informed by considerations of judicial independence. More recently, however, public scrutiny of the judicial process and the work of the courts, has focused attention on the composition of the judiciary and procedures for the appointment of judges.

In this context there are two principal and competing considerations; on the one hand, is the claim that the judiciary is unrepresentative of society and that procedures for appointment are not sufficiently open or participative; on the other, is the concern that the selection of judges on the basis of criteria other than capability for judicial work may contribute to a decline in the quality of and respect for the judiciary.

This essay discusses the way in which judges are currently appointed as well as considering a number of alternate approaches. It includes an assessment of the extent to which other options for appointment secure the requirements of independence and accountability essential to the operation of the judicial branch of government.


The criteria, mode and terms of appointment of judges, and the removal of judges from office, continue to be topics of lively discussion and debate. In the past the discussion has been heavily influenced by the paramount importance of securing judicial independence which has always been seen as a central pillar of the rule of law. Judicial independence continues to be central to the modern debate because concern has been expressed about recent developments which have tended to erode the protection of judicial independence in Australia[1]. Some of these developments have revealed a tension between judicial independence and judicial accountability.

At the same time closer public scrutiny of the judicial process and the work of the courts, arising partly but by no means entirely, from criticism by interest groups, has focused critical attention on the composition of the judiciary and the procedures for the appointment of judges. In essence the claim is made that the judiciary is unrepresentative of society. The unrepresentative composition of the existing judiciary is attributed to the lack of identified criteria for judicial appointment and the present procedures for appointment. Those procedures are neither public nor open and they do not involve public participation.

On the other hand, there is judicial anxiety and some professional anxiety about the quality of the judiciary in the years that lie ahead. That anxiety arises from the growing difficulty in attracting leading members of the Bar, the traditional recruiting ground for judicial appointments, to accept appointment, and the likelihood of appointments from outside the Bar. The difficulty stems from the escalating disparity between judicial remuneration and the earnings of the successful barrister, the demanding work-load of the modern judge and a diminution in the status of, and respect for, the judicial office. This situation is not unique to Australia. It is a feature of the common law jurisdictions, notably the United Kingdom[2] and the United States. Drawing upon sources outside the Bar may also weaken judicial independence. Independence is a very strong characteristic of the barrister.

These cross-currents are not unrelated. A failure to strike the right balance between judicial independence and judicial accountability will result in either an unacceptable weakening of judicial independence or inadequate accountability. Absence of mechanisms for accountability and lack of judicial performance standards lend greater weight to claims for more open procedures and public participation in the judicial appointment process.

The selection of judges from the Bar, whether exclusively or predominantly, has led and will continue to lead, for some time to come, to a judiciary that consists in very large degree of males, mainly of Anglo-Saxon-Celtic descent, the majority of whom have been and may continue to be educated outside the State educational system. And if one accepts as I do, that, in general, the professionally skilled barrister is more likely to be a successful judge than lawyers from a different background of experience, appointments of lawyers from a different background in order to make the judiciary more representative may well have an impact upon the quality of the judiciary.

That prediction is subject to one possible qualification. That qualification is — will judicial education programmes or more rigorous selection procedures and criteria make the critical difference? An affirmative answer to the question seems to rest more on pious hope than on solid evidence. Instant crash courses for appointees who are not experienced in the work of the courts have little to offer. If judicial education for newcomers is to have a significant impact then it will need to be more comprehensive and profound than anything yet put in place.

Different selection procedures and criteria may be more promising. We already have some examples of solicitors, academic lawyers and government lawyers who have proved to be successful judges. The problem is to identify the lawyers from a different background who have the appropriate capacity to adapt. And I should sound one note of caution. The judges who do not come from the Bar have predominantly succeeded in jurisdictions where they do not sit with juries in cases where complex evidentiary and procedural problems arise for immediate disposition.

A factor of increasing importance is the demand, backed by governments, that the courts dispose of work efficiently by adopting case management techniques and new procedures. This demand, motivated by a desire to reduce the costs of the court system to government, calls for the pro-active judge. Only the confident highly skilled professional conversant with court processes can aspire to becoming a pro-active judge. There is no place in the judicial case management world for the judge who allows the parties and their lawyers to dictate the course of the action. In other words, the drive for efficiency strengthens the case for the appointment of highly skilled professional lawyers rather than the appointment of lawyers from different backgrounds simply to make the judiciary more representative.

How then are these tensions to be resolved, particularly in the context of appointing and removing judges? The tensions may be seen at a social level as involving a conflict between the professional view of the judicial function and what I shall call, for want of a more accurate description, the community view of the judicial function. Sceptics may say that a more accurate description of the latter view would be "the social theorists’ view" of the judicial function. Although there is some measure of truth in that statement, it is becoming a community perception as well. The conflict, in essence, is between a more traditional conception of the judicial role, based on the application of settled principles of law to the facts as found or agreed, and a more open-textured conception in which judicial philosophy, values and community standards have a significant part to play. As one might expect, the truth lies somewhere between these two extremes.

The Nature of the Judicial Function

The foundation for any worthwhile discussion of the appointment and removal of judges must be the nature of the judicial function and the conditions essential to its effective performance. Without a clear understanding of that function, it is idle to list all the desirable qualities that one might hope to find in a perfect human being and then assert that they are the qualities we expect of a judge. The judicial function takes a variety of forms, each of which may call for particular qualities. Common to all the forms of judicial function is independent, impartial and neutral adjudication, though there is a question as to the possibility of achieving completely neutral adjudication. Independent and impartial adjudication denies the notion that the judge will bring to bear a view which represents that of a particular section of the community.

The traditional professional view that the judge applies principles of law, mostly settled, to the facts as found or agreed, covers much of the judicial work that is undertaken at first instance. Even that account of the primary judge’s function does not reveal that the preponderance of judicial time is occupied in fact finding. It is, however, important to realise that the work of a judge at first instance involves the application of statute law, the interpretation of which is often not free from doubt and the exercise of judicial discretions which call not only for fact finding but also for evaluation and assessment of relevant factors. In these activities the primary judge is called upon to apply community standards. It is enough to mention the standard of reasonableness, the standard of the reasonable person, which not only lies at the heart of the tort of negligence but also is an element in a number of principles of the common law. The standard of reasonableness is essentially a community based standard. Likewise the judge, in evaluating the conduct of the individual and the credibility of the witness, will have recourse to community standards.

These issues of fact were formerly resolved by juries. The jury has the advantage of being the authentic authority on community standards. In that respect jurors were regarded as the representative of the community, providing an important community input into the justice system, and speaking with the voice of authority on community standards. Jury verdicts were unreviewed except in exceptional circumstances and this in itself meant that appellate judges had a more limited role in applying community standards that is the case today. The decline in the use of the jury in civil cases has transformed the judge into the legal arbiter of community standards. Hence the claim that the judges should be more representative of the community.

The judge who sits in family law cases also works within a framework of community standards. In applying the provisions of the Family Law Act 1975 (Cth), the judge is required to exercise a variety of judicial discretions and to assess and evaluate various factors as well as human conduct and the evidence of witnesses. Indeed, but for the influence of a contrary tradition, and the expense and length of jury trials, a case could be made for the use of juries in family cases simply on the ground that so much rests on community understanding and standards.

However, the judicial function requires legal professional skills of a very high order. Take the particular problems facing the trial judge presiding at a complex jury trial whether criminal or civil, for example, a defamation trial. The problems are not only evidentiary and procedural; there is also the problem of crafting directions to the jury which will be sufficiently comprehensive yet comprehensible in the sense that they will instruct the jury. When the judge lacks professional skills of a high order, the costs of a lengthy trial may be wasted. Neither the litigants, nor the community nor the justice system can afford an enthusiastic and well-intentioned amateur.

Not to be overlooked are specialist courts such as environmental, town planning and industrial courts. Specialist courts create problems for judicial independence when governments abolish them and are faced with the prospect of re-appointing the specialist judge into the mainstream courts. Nevertheless, there is a strongly held view in the commercial community that corporations law cases and commercial cases should be heard only by judges skilled in work of that kind. Here again the demand is for the professionally (and technically) skilled expert rather than the judge who will add a representative flavour to the judiciary.

Similar comments may be made about the appellate judge. The burden of work undertaken by intermediate courts of appeal in Australia and in other major common law jurisdictions is truly daunting. There is no place here for those who lack professional skills of a high order if the volume of work is to be discharged promptly and at a high standard. The emergence of the permanent court of appeal with dedicated appellate judges is a recognition of that fact. With the appellate judge we are also looking for another quality, the ability to formulate, elucidate and elaborate general principles of law when that is necessary, with all that such an ability entails. In those cases in which the formulation of principle is not confined to doctrinal argumentation, a consideration of policy factors and other values may be required, when the judge’s judicial philosophy will be material. The judge’s judicial philosophy may be relevant in some cases which can be resolved on a doctrinal basis.

That brings us to the High Court where the requisite judicial qualities already identified are demanded, as well as qualities of a different order. The likelihood is that the High Court will find it necessary to devote an increasing proportion of its time to constitutional and public law issues. Even if that prediction is not fulfilled, the High Court’s principal preoccupation with constitutional and public law requires an understanding of government in the widest sense of that term and a greater capacity to formulate the general principles of law because that capacity is more frequently put to the test in the High Court than in an intermediate court of appeal. It follows that the judicial philosophy of a Justice of the High Court excites more attention and speculation than that of other judges.

Lessons to be drawn from the nature of the judicial function

The foregoing account of the nature of the judicial function gives scant support to the notion that the judge acts in a particular case as a representative of the section of the community of which he is a member or that his decisions are simply a reflection of his personal philosophy and values. The vast accumulation of law and legal learning is not just a camouflage or screen behind which the judge is giving effect to his values and prejudices. The overwhelming majority of cases that come before the courts are decided by reference to that accumulation of law and legal learning. It is only in the minority of cases that refinement and reformulation of principle become a critical factor. Hence the emphasis on the possession by the judge of the professional skills, the impartiality and the integrity which are qualities essential to the successful discharge of the judicial function. The recent emphasis on the need for efficiency, already noted, adds new force to the need for possession of professional skills of a high order.

Conditions relevant to the effective performance of the judicial function — a reasonably representative judiciary

The preservation of public confidence in the impartial and independent administration of justice is a vital element in the judicial function. Loss of confidence in the system whether due to its inefficiency or, more particularly, due to perceptions of a want of independence or impartiality on the part of the judiciary is extremely damaging to the effective working of the justice system. There is a risk therefore that an unrepresentative judiciary may result in a loss of confidence in the system, all the more so when the judges are called upon to apply community standards as part and parcel of their daily work. Once that is acknowledged, as it must be, it is important that efforts be made to ensure that the judiciary is more representative than it is at the present time and that its composition is fairly balanced.

I agree with much of what Professor Shetreet has had to say upon the subject, though in relying primarily upon a doctrinal ground, the principle of fair reflection, he goes rather further than I would go. It is worth repeating Professor Shetreet’s words —

"An important duty lies upon the appointing authorities to ensure a balanced composition of the judiciary, ideologically, socially, culturally and the like ... The judiciary is a branch of the government, not merely a dispute resolution institution.
As such it cannot be composed in total disregard of the society."[3] [my emphasis]

While I subscribe to the ideal of appointing a judiciary whose composition is reasonably balanced, and I consider that it is an important factor which the appointing authorities should have in mind in the making of judicial appointments, it is simply not practicable to appoint a judiciary that approximates in make-up the composition of society as a whole. For one thing, the possession of professional legal skills, like the possession of professional medical skills, is not evenly distributed throughout the community. Indeed, such skills are unevenly distributed. For another thing, the appointment of judges who are not highly skilled is much more likely to undermine public confidence in the administration of justice than the appointment of an unrepresentative judiciary. In other words, it would be a serious mistake to concentrate on the goal of fair representation to the detriment of seeking candidates with a high order of professional skills. Such an approach would compromise both the pursuit of efficiency and public confidence in the courts.

Not that the goal of fair representation should be abandoned. A candidate having the requisite professional skills and other qualities who would enhance the representative character of the judiciary should be preferred to another candidate who simply has the requisite skills and other qualities. And, if we look beyond the Bar, to solicitors, academic and government lawyers, we will improve the representative character of the judiciary over time, notably in terms of gender balance. Because judicial vacancies occur irregularly, they do not offer the opportunity of changing quickly or dramatically the composition of the judiciary.

Identifying suitable candidates who are not members of the Bar is not an easy exercise. The professional reputation of the barrister is well-known or readily ascertainable. His skills, generally speaking, provide an indication of suitability for judicial work. The same comment cannot be made about lawyers who are not barristers for the simple reason that their known abilities do not translate as readily into the performance of judicial work. One does not expect them to have the same familiarity with the problems of evidence, procedure and fact finding that arise in the course of a case, though experienced litigation solicitors will have more familiarity with those matters than other lawyers except experienced barristers. As noted earlier, a more intensive judicial education programme for appointees may well alleviate this problem. But such a programme would follow, not precede, appointment as a judge. So the programme of identification of suitable candidates remains.

In England, the "Guiding Principles" governing judicial appointments include the principle that "[b]efore being considered for any full-time judicial post, a candidate must have served in that or a similar post in a part-time capacity for long enough to establish his or her competence and suitability for full-time appointment"[4]. That opportunity, which provides a testing ground, arises from the use of Recorders and Assistant Recorders. We have no counterpart and, certainly in the federal sphere, the use of Recorders would not appear to be constitutionally permissible.

Subject to possible ramifications flowing from the recent High Court decision in Kable v DPP[5], we can appoint acting judges outside the federal sphere. There has been opposition to the appointment of acting judges on the ground that their appointment weakens judicial independence. The appointment of acting judges can be justified as a measure to overcome a temporary difficulty. But the use of acting judges rather than permanent judges in order to overcome long-term deficiencies in the court system is extremely difficult to support. All the more so when the appointments are not made with a view to providing judicial experience for those who are minded to become permanent judges and ascertaining their competence and suitability for such appointment. The Recorder system has distinct advantages despite its vulnerability to criticism on the score of judicial independence.

Criteria for Appointment

(1) Professional Legal Skills of the Kind Required in Judicial Work

It follows from what has been said that the principal quality requisite in the judge is the possession of, or the capacity to develop, professional legal skills of the kind required for judicial work. There is no point in preparing a catalogue of the requisite professional skills. They are well known — they include knowledge of evidence, procedure and practice, knowledge of the law, analytical ability, a capacity to dispose of a case smoothly and efficiently and a capacity to give a well-reasoned decision with reasonable promptness. Most of these skills will be more readily apparent in barristers than in other lawyers. In the case of non-barristers it may be a matter of identifying the possession of a capacity to develop those skills. That means identifying lawyers with a sound general knowledge of law or a relevant specialist knowledge (as the case may be) and an intellectual capacity to acquire in a relatively short time the requisite professional legal skills appropriate to judicial work. How may academic lawyers like Professor Finn (now Justice Finn) are there and how do we identify them?

(2) Personal Qualities

It goes, virtually without saying, that certain personal qualities are indispensable — integrity, impartiality, industry, a strong sense of fairness and a willingness to listen to and understand the viewpoint of others. No doubt other qualities are desirable. Because justice is no longer a cloistered virtue, an ability to communicate to the legal community and the public about the law and the work of the courts is more highly valued than it was. But it is not an essential quality, though it verges on the essential for those who aspire to be Chief Justice or the leader of a court. The qualities I have listed above are the most important for judicial work.

(3) Particular Qualities for Particular Courts and Judicial Offices

(a) General

It is obvious that particular qualities may be required for judges appointed to specialist courts. Likewise, particular qualities may be required for particular judicial offices. Here we are concerned not only with Chief Justices, heads of courts and divisional leaders, but also with appointments of judges who may have special administrative responsibilities.

(b) The High Court of Australia

Sir Garfield Barwick, when Chief Justice of Australia, was often heard to say that the High Court did not need judges who were "slaves to precedent." What judge worth his salt would admit to being a "slave of precedent"? Apart from agreeing with Sir Garfield on this point, I shall not attempt an "identikit" image of the ideal High Court Justice. What we are looking for is not so much the ideal of a High Court Justice as a High Court with a balanced composition. We know from experience that there has been a continuing division of opinion on some of the great issues of federalism, on the extent to which the Constitution protects individual rights and on the limits that attach to the law-making activities of the court. The existence of these issues makes it desirable that the composition of the court should be reasonably balanced.

Mode of Appointment

Existing Provisions

In conforming with s 72 of the Australian Constitution, the Justices of the High Court and other federal courts are appointed by the Governor General in Council. In practice that means an appointment by Cabinet, generally on the recommendation of the Attorney General. The appointment of State judges follows a similar pattern, a Cabinet decision preceding the formal appointment by the Governor in Council. Section 6 of the High Court of Australia Act 1979 (Cth) requires the Attorney General for the Commonwealth to consult with State Attorneys General about the appointment of a High Court Justice. What consultation in this context amounts to we do not know. It is believed that it may amount to no more than the Commonwealth Attorney requesting the State Attorneys to nominate a person for appointment. Consultation may vary from case to case and it would be surprising if the Commonwealth Attorney did not seek the views of other Attorneys on the qualifications of some candidates.

Apart from the consultation for which s 6 provides, there is no other statutory prescription for consultation in relation to judicial appointment. The discussion paper published by the then Attorney General Mr Michael Lavarch in September 1993 described the appointment process in these terms —

"The judicial appointment process, at the Commonwealth and State level, has generally been characterised by appointment of senior members of the Bar, selected after informal, closed consultation by Attorneys General which may have included Bar Associations, Law Societies, bodies such as the Law Council of Australia, other politicians and some judges — usually Chief Justices."[6]

The discussion paper goes on to make the point that little is known publicly about the appointment process and that no established internal rules for selecting judges have been developed[7]. The paper then makes the assumption, which it does not justify, that the current method of selecting judges should be reviewed.

The validity of the assumption may be disputed. As the paper itself concedes, "the standard of our judges is particularly high"[8]. That would indicate that the appointment process has succeeded in achieving its principal object. Presumably the reason underlying the assumption made by the author of the paper is that the appointment process should be reviewed because it has resulted in the appointment of a judiciary which is considered unrepresentative. If that be the reason it is because the field in which the search has been conducted has been confined to the Bar.

Another factor relevant to the mode of selection of judges is the judiciary’s position as an important branch or institution of government. The judges exercise public power in a way that has substantial impact upon the rights and interests of individuals and upon the making of important decisions by government, government agencies and other organisations. This has led to the suggestion that judges should be elected.

(1) Election of judges

In the United States recognition of the fact that the judges do exercise public power in this way led in a number of States to the popular election of judges for limited terms. The election of judges is bound to compromise their independence because it entails their campaigning for office and because it exposes the judges to the pressures of possible removal in consequence of popular disapproval of their judicial decisions. In other words, popular election exposes judges to the very pressures from which they are protected by executive appointment for life or until a prescribed retiring age is reached. There is also a justifiable concern that popular elections do not lead to a highly qualified judiciary.

Although the exercise of public power by non-elected judges is not a reason for electing judges, it is a reason for thinking that executive appointment by an unknown and ill-defined process which involves no more than private, confidential consultation is inadequate. There are a number of alternatives to the existing mode of appointment which call for consideration.

(2) Confirmation hearings

One suggestion, which enjoys some support from some journalists and the media is that, particularly for appointments to the High Court, confirmation hearings might be conducted and reports made along the line of the Senate Judiciary Committee hearings and reports into the nominations of Justices of the Supreme Court of the United States. Article II § 2 cl 2 of the United States Constitution authorises the President to appoint federal judges with "the advice and consent" of the Senate. Our Constitution contains no similar provision and so far the Senate has not asserted a claim to play a role through one of its Committees; nor for that matter has the House of Representatives. Under the present system of appointment it is not easy to see how a house of parliament could play a role because there is no real opportunity for a confirmation hearing in relation to an appointee before an appointment becomes effective. And there are obvious problems in conducting an inquiry into a judicial appointment after it becomes effective.

In any event, from what we know of confirmation hearings in the United States, they serve little or no purpose apart from occasionally providing a media spectacle and continuously politicising the appointment process. Politicising the appointment process may be an inevitable development so significant is the political impact of High Court decisions. But the important point is that the confirmation hearings in the United States tell us very little, if anything, about the candidate and his likely judicial philosophy that was not already known.

The problem is that in order to obtain illuminating insights into a candidate’s judicial philosophy and values you must have his responses to specific legal questions. When asked such a question the candidate can legitimately decline to answer on the ground that it is a question which might arise for decision by the court and therefore should not be answered without the candidate having the opportunity to hear and consider the arguments before committing himself to an answer. In the result, candidates voice general "motherhood" type statements in which they affirm the paramountcy of the text of the Constitution yet declare that they have due respect for precedent.

In Australia the long-standing tradition is that a government should not ask a candidate for appointment what are his views with respect to questions which may come before the court or with respect to general matters such as Commonwealth/State conflicts. The experience of Mr Piddington KC is a salutary reminder of responding to such questions, certainly when the answer is one which the government is looking for. Mr Piddington’s answer was thought to amount to a statement that his views were favourable to the Commonwealth. In that respect his answer was regarded as compromising his independence. but it was the question as much as the answer that was improper. The question was asked privately; it became public by accident.

Does it make any difference if the question is asked publicly in the course of an inquiry conducted by a Parliamentary Committee charged with the responsibility of reporting on a proposed appointment? As in the United States, it would not be right to expect a candidate to state how he would decide a particular case that might come before the court and that is how a candidate would respond. If he ventured a firm answer, there might well be reason to doubt his fitness for office.

Yet those who are familiar with the considerations which are taken into account in appointments made to constitutional courts know only too well that the candidate’s likely performance on critical issues is a matter of considerable concern to government. Government will inform itself as best it can on that subject without making inquiry of the individual. If the candidate is a judge of another court, his judgments may be revealing. If the candidate is a professional lawyer, more likely than not published articles and participation in conferences and seminars may provide some clues.

Nothing so far has emerged to indicate that confirmation hearings are the answer to critics who complain about lack of information and openness in the appointment process. And I should add that it is unlikely that a government would introduce legislation to provide for such hearings when, as they sometimes do in the United States, they would provide a problem for government in securing the appointments it might want to make. Confirmation hearings operate as a brake on the discretion of the executive to make judicial appointments. It is possible that a government could see the procedure as a means of restricting radical plans by their political opponents on obtaining office in the future to transform the judiciary. Notwithstanding the deficiencies of confirmation hearings, there are some lawyers in Australia and the United Kingdom who regard that procedure as inevitable if a Bill of Rights is introduced and oppose a Bill of Rights because it would lead to confirmation hearings.

(3) State participation in High Court appointments

It is convenient at this point to refer very briefly to a suggestion made by Senator Minchin in opening a constitutional conference in Brisbane on 8 August 1996, organised by the Griffith University. Senator Minchin raised the possibility of giving the States a formal role in the appointment of Justices of the High Court. He did not indicate how this might be achieved. He referred to the preponderance, in recent times, of appointments of Justices from New South Wales and to the fact that no South Australian had ever been appointed to the court. The reference to New South Wales appointments may conceivably reflect an acceptance of a belief held by a number of lawyers that New South Wales lawyers tend to see questions more from a Commonwealth perspective than do lawyers from other States. Senator Minchin’s comments reflect a long-standing State concern about Commonwealth control of High Court appointments. Indeed, s 6 of the High Court of Australia Act was enacted as a response to that concern.

In 1975 the Report of the Select Committee of the New South Wales Legislature Assembly[9] on the appointment of judges to the High Court commented adversely on the lack of appointments from States other than New South Wales, Victoria and Queensland as suggested that a less centralist interpretation of the Constitution might have prevailed if the smaller States had had representation on the court[10]. The Report associated centralist interpretation with Victorian and well as New South Wales judges. The Select Committee recommended that appointments to the High Court be made after considering "the recommendation of a majority of the High Courts Appointments Commission constituted by the Attorneys General for all States and the Commonwealth Attorney General"[11].

The States could be given a more formal role in the appointment procedures of High Court Justices. Failing constitutional amendment, a statute could provide for a recommendation by a judicial commission or statutory body on which the States are represented or to which their nominees are appointed.

(4) Advice by a judicial commission

Appointment by a judicial commission would be inconsistent with s 72 of the Constitution. Quite apart from this aspect of the matter, there is a powerful democratic argument against transferring the power of appointment away from the executive government to a commission consisting of persons who are not elected by the people. One justification for the exercise of judicial power by non-elected judges in a democracy is that the judges are indirectly appointed by the people in that it is the duly elected government that makes the appointments. That is a very important argument which tells against entrusting the power of appointment to others, whatever the advantages may be in pursuing such a course.

In 1977 Sir Garfield Barwick, when Chief Justice of Australia, suggested that such a judicial commission be established with the function of advising the executive government as to suitable persons to be appointed. Sir Garfield contemplated that the body should consist of judges, practising and academic lawyers and knowledgeable lay persons as well[12]. Judicial commissions or committees have been set up in a number of jurisdictions to play a part in the appointments process. The membership of such commissions or committees varies, sometimes there is a majority of judges and lawyers[13], sometimes there is a majority of non-lawyers[14]. The Report of the New Zealand Royal Commission on the Courts in 1978 recommended that a commission be established and that it should consist of the Chief Justice, a Supreme Court Judge, the Chief District Court Judge, the Solicitor General, the Secretary for Justice and two members nominated by the New Zealand Law Society appointed by the Governor General. The Report of the British Section of the International Commission of Jurists (JUSTICE) on the English judiciary[15] recommended that a commission be established consisting of 13 persons, of whom seven should be lay members.

If a commission or committee were to be established, its membership should be confined to not more than nine members of whom at least five should be judges and practising lawyers. The membership might consist of two judges, a nominee of the relevant Bar Association, a nominee of the relevant Law Council or Society and a nominee of the Council of Law Deans, one or two nominees of government and two lay persons who should be selected having regard to their capacity to represent the community. The commission or committee would have the responsibility of advising the Attorney General of the names of persons who were suitable to be appointed. But I would not favour limiting the government’s power to appoint to names put forward by the commission or committee. That would be to impose too strong a restraint on the power of government to appoint. The Commission or committee would be required to deliver a written report to the Attorney General, the report to be published.

Such a body if established would serve a useful purpose. But there are no present indications that governments are willing to establish such a body. Their advice would tend to inhibit the exercise of options otherwise available to government.

(5) Advertisement for and registration of applicants

In England, the Lord Chancellor has introduced a procedure whereby, for all posts below the High Court, the positions are advertised and only those persons who complete an application form will be considered for appointment[16]. Appointments to the High Court are by invitation only. The Lord Chancellor’s consultation process is designed to build up information about the suitability of an applicant for judicial appointment. A candidate can find out the tenor or the comments made about the candidate’s suitability on a non-attributed basis and will be given such advice as is possible on the strength of support from the professional community[17]. Candidates for appointment below the level of the High Court are interviewed by a judge, a senior official of the Judicial Appointments Group and an independent lay person with knowledge of the justice system.

Attorney General Lavarch, in his discussion paper, canvassed a similar procedure[18], but without distinguishing between courts. The discussion paper went on to say[19] —

"The collection of information for the purposes of keeping a register of information on potential candidates, advertising and interviewing for judicial office and the disclosure of information to the members of a Commission or consultative body could be achieved consistently with the requirements of the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth), so long as the persons providing the information to the Attorney General’s Department were aware of the purpose for which the information was collected, and the possibility of the disclosure of the information to the Commission or the consultative body."

This procedure has two main objects, both commendable. One is to widen the search procedure. The other is to give the appointment process greater openness. Unfortunately many candidates who would make suitable appointees to the higher courts, for example, the Supreme Courts, the Federal Court and the High Court, would not respond to an advertisement; they would not wish, for various reasons, to have their names included in a register of potential applicants to the appointed. For that reason it would be unwise to confine the appointments to the persons whose names are on the register.

Yet, as we know from experience, if the advertisement/registration procedure were introduced, its introduction might be accompanied by the usual fanfare of political trumpets, inviting us to believe that the new procedure would steer us into a brave new judicial world. That might in turn lead to a tendency to appoint from the register. Why make appointments that would signal that the scheme is not all that was promised?

If a register were to be established, it would presumably be open to public inspection, at least so far as names are concerned. There is little point in keeping a list and calling it a "register", unless it is open to public inspection. The existence of a register would encourage media speculation about a future or pending appointment, though such speculation is inevitable in a democracy. Perhaps media speculation might be transformed into support for a campaign by an individual or group lobbying for a particular appointment. Again, whatever one’s personal views may be, such campaigns are an incident of the democratic process.

The notion of a candidate for judicial appointment lobbying for appointment might strike those of an older generation as ungentlemanly or ungentlewomanly (is there such a word?), even as unthinkable. Indeed, to them the very notion of a candidate for judicial office would be anathema. But make no mistake — there have been candidates for judicial office who have not lacked active supporters in the corridors of power. Not that this matters; the political process is accustomed to dealing with approaches of this kind.

The foregoing discussion indicates that we would be better advised to follow the English procedure and refrain from applying the advertisement/registration regime to appointments to the higher courts. The objections to the advertisement/registration procedure do not have the same force in relation to appointments to other courts. In relation to those courts we may not be confronted to the same extent with the problem of obvious candidates declining to apply. At the same time, there is a greater need to ascertain who is willing to accept appointment and a greater need to make enquiries about people whose qualities will not be as well-known.

Whether the advertisement/registration procedure should apply to specialist higher courts such as the Family Court is a more troublesome question. No one would reasonably wish to treat the Family Court otherwise than as a higher court. But, having regard to the desirability of securing a balanced composition of judges on the Family Court, the advertising/registration procedure could have advantages for that court.

Another aspect of the advertisement/registration procedure is that suggestion made in the paragraph from the discussion paper quoted above, that candidates for judicial office should be interviewed. What are we seeking to ascertain on interview from the candidate for judicial appointment? It may be that, in relation to appointment to be made to courts other than the higher courts, an interview will reveal some previously unknown qualities of a candidate. The interview may also give the candidate a better understanding of the function which he is to discharge, if appointed. However, in the context of the superior courts, it is hard to think that an interview will reveal anything relevant that is not already known by repute about the candidate and from enquiries already made, unless a particular question arises that can be resolved only by the candidate or the Attorney General wishes to obtain some assurance relating to the terms and conditions of service.

It would be a misuse of the interview procedure if the candidate were to be interrogated about his judicial philosophy and values with a view to disclosing how he would respond to issues likely to come before the court for decision. So long as the interview panel is chaired by the presiding judge of the court, that risk may be disregarded. In the ultimate analysis the interview procedure should be seen as an element in the advertisement/registration procedure and not extended to appointments to the higher courts.

(6) Extending and formalising the present mode of appointment

That leaves the final alternative — extending and formalising the present mode of appointment. This is the procedure that I tend to favour in relation to appointments to the higher courts, supplemented by a procedure somewhat similar to the Lord Chancellor’s procedure in relation to appointments to other courts. The first point to be made about appointments to higher courts is that the public is entitled to know what procedures are followed in relation to appointments, and that they involve a thorough-going process of consultation and enquiry with professional groups and people who can speak for the public interest. The Attorney General should consult the Chief Justice or senior judge of the relevant court, the head of a relevant division, the presiding officer of the Bar Association and Law Society, the nominee of the Law Deans and lay persons who have the capacity to provide a non-professional (non-legal establishment) perspective on an appointment. The Attorney would, of course, be at liberty to consult anyone else. The Attorney should state the names of the persons who he has consulted. This process of consultation should apply also to appointments to other courts.

There is an advantage in limiting the number of persons who are required to be consulted. The longer the list the greater the difficulty in preserving confidentiality which is essential to the success of consultation. Without confidentiality there is little prospect of obtaining a frank expression of opinion.

It is of vital importance that professional and academic bodies should make it their business to identify suitable appointees who are willing to accept judicial appointment. That will assist in finding appointees who are not barristers. There is, of course, no reason why those persons who are willing to accept appointment should not make their willingness known to the Attorney General or his Department.

Terms of Appointment

Two aspects of judicial terms of appointment should be mentioned. The first relates to the growing gulf between professional and judicial remuneration. The difficulty in recruiting the best candidates from the legal profession will, unless it is resolved, ultimately result in a deterioration of the quality of the judiciary. Other factors, including criticism of the judiciary, diminution in the status of, and respect for, judges as well as the heavy burden of work sometimes without the back-up of adequate facilities, contribute to professional disinclination to take up judicial appointment. Accordingly, there is a need to address this problem if we are to maintain a highly qualified judiciary. In this respect, the failure of government to give effect to decisions and recommendations of the Remuneration Tribunal with respect to judicial salaries has had an adverse impact as well as reflecting on the independence of the tribunal which makes judicial salary determination.

The other aspect of judicial terms of appointment is the power to remove judges. It is convenient to discuss the matter in the context of removal but on the understanding that the power to remove a judge is closely associated with the terms of judicial appointment.

Removal of Judges

The Historical Foundations of Judicial Appointments and Removal

The Anglo-Australian foundations of judicial appointment trace back to the Act of Settlement 1701 (Imp) and the events which preceded it. Section III of the Act of Settlement provided that the commissions of the judges were no longer to be at the pleasures of the Crown. This section provided that —

"The judges’ commissions be made quamdiu se bene gesserint [during good behaviour] and their salaries ascertained and established; but upon the address of both houses of parliament it may be lawful to remove them."[20]

Although the interpretation of the section is not free from doubt, the generally accepted view was that the last clause constitutes an exception enabling parliament to remove a judge notwithstanding good behaviour[21]. The judges to which s III referred were the judges of the superior courts at Westminister.

Australian provisions governing the appointment and removal of judges

The provisions of s III are reflected in s 72 of the Australian Constitution.

Section 72 provides —

"The Justices of the High Court and of the 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 diminished during their continuance in office."

Initially s 72 did not make specific provision for a term of appointment. The section was interpreted by the High Court as providing for appointment for life[22]. However, by the constitutional amendments made to s 72 in 1977 it was provided that the appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of 70 years and the appointment of a Justice of any other federal court shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court, being an age of not more than 70 years. The parliament may fix a lower age in the case of Justices of federal courts other than the High Court.

The uncertainties of section 72

Section 72 appears to make comprehensive provision for the appointment of Justices to such federal courts as parliament may create under s 71 of the Constitution. Whether s 72 would apply if parliament were to seek to create a district court, a county court, or a magistrate’s court, is an unresolved question[23]. If s 72 were to apply to the appointment of a judge or of a magistrate to such a court, then s 72 would move beyond s III of the Act of Settlement which was confined in its application to the judges of the superior courts at Westminister. It may be possible to read s 72 as if it applies to justices of superior courts only, not to judges and magistrates of inferior courts, an interpretation which would have had more appeal in 1900 than perhaps today. In passing, it should be noted that the Boilermakers case might well present obstacles to the creation of a federal magistrate’s court exercising non-judicial functions.

Although s 72 (ii), unlike s III of the Act of Settlement, puts it beyond the houses of parliament to remove a judge without regard to misbehaviour or incapacity, there are unresolved problems affecting the application of this part of the section. To whose satisfaction is misbehaviour to be proved and according to what standard is it to be proved? Likewise, with incapacity.

The States

Section 77(1) of the Constitution Act of Victoria like the Constitutions of other States reflects the approach taken in s III of the Act of Settlement. When considering the similar provision in Queensland[24], Isaacs and Rich JJ observed in McCawley v The King[25] —

"At common law a judge held his office at the pleasure of the Crown. ... The Act of Settlement altered the common law and enacted that judges’ commissions should be during good behaviour. The qualification as to removal by the Crown on an address from both houses was added. The object of all this was to protect the judges, not from parliament, but from the arbitrary and uncontrolled discretion of the Crown. The legal result was that the Crown could only interfere with a judge either (1) for misbehaviour, or (2) if the house of parliament desired it. This obviously did not decrease the control of parliament ..."

Accordingly, under s 77, it would seem that parliament can remove a judge for any reason it chooses. There is also the possibility that the Crown could remove, without an address, on the ground that misbehaviour itself terminated a judge’s commission. But in that event, the issue of misbehaviour would be justiciable.

It has been suggested that the Colonial Leave of Absence Act 1782 (Imp), otherwise known as Burke’s Act, may be in force in Victoria[26]. That Act gave an additional power to the Governor in Council to remove judges on the ground of absence, neglect or misbehaviour, without the authority of parliament. But it would seem that the Act is not longer law in Victoria and that, if not repealed by United Kingdom legislation, it is inconsistent with the Constitution Act of Victoria[27].

The New South Wales Constitution Act of 1902 has been amended[28] so as to provide by s 53 that no holder of a judicial office, including a magistrate, can be removed from office except by the Governor, or an address from both houses of parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. Section 53 is similar to s 72(ii) of the Australian Constitution but it extends to all judicial officers. A judicial officer is given added protection by s 41 of the Judicial Officers Act 1986 (NSW)[29]. That section provides that a judicial officer may not be removed from office in the absence of a report of the Conduct Division of the Judicial Commission that sets out the Division’s opinion that the matters referred to in the report could justify parliamentary consideration of the removal of the judicial officer on the ground of proved misbehaviour or incapacity.

Recent experiences of allegations of misconduct on the part of judges — I refer specifically to those concerning Justice Murphy of the High Court of Australia and Mr Justice Vasta of the Supreme Court of Queensland — demonstrated the inadequacy of the existing arrangements. In each instance it was necessary to set up an ad hoc tribunal in circumstances of controversy. It would be preferable, as the Australian Bar Association has suggested, to establish in advance the appropriate machinery and the principles on which it is to operate[30]. Legislation might provide for a special tribunal (consisting of three superior court judges or retired judges) to determine whether a complaint of judicial misconduct or incapacity is substantiated and could justify removal.

But the tribunal should only be called upon to determine a substantial complaint, that is, one which, if made out, would appear to warrant dismissal. Otherwise the procedure could be used to harass judges. As the Australian Bar Association stated —

"proper vetting processes must be introduced to guard against action upon unjustifiable complaints from disgruntled litigants. These complaints, to the extent they are baseless, constitute a threat to the independence of the judiciary."[31]

For a similar reason, a complaint should be confined to specific allegations. It would be unfair to a judge to be subjected to a roving complaint of unfitness. The point was strongly made by the Commission of Inquiry into the conduct of Mr Justice Vasta[32].

The resolution of complaints not warranting judicial dismissal is an important topic which falls outside the scope of this essay. There have been cases which raise a legitimate question mark about a judge’s performance. This is more a matter of accountability and continuing judicial education which call for separate treatment, divorced from an examination of appointment and removal.

The abolition and re-structuring of courts

The constitutional provisions relating to the appointment and removal of judges do not provide expressly for what is to happen when the court to which a judge is appointed is abolished by the legislature. To abolish a court simply for the purpose of terminating the appointment of a judge or judges of that court would be to violate the constitutional provisions designed to protect judicial independence. However, the abolition of a court usually takes place as part of a planned re-organisation of the court structure, in circumstances where the legislature and the executive claim that the re-organisation is being undertaken in the public interest in order to provide a better or more efficient court system.

A judge’s entitlement to hold judicial office until he reaches retiring age or is removed in conformity with the relevant constitutional provisions does not preclude the legislature from re-structuring the court system when it considers that it is in the public interest to do so. The freedom of a legislature lawfully to put in place an improved or more effective court system should not be impaired, though one hopes that such initiatives will be approached with more circumspection than has been shown in the past. Opinions have been sharply divided on the question of the advisability of establishing specialist courts, particularly courts which operate in the highly contentious area of industrial relations. The division of opinion is not unrelated to the existence of ideological differences and these differences sometimes result in a government of one political persuasion seeking to undo, with legislative backing, the establishment of a specialist court by a government of a different political persuasion.

Convention respecting the continuation in judicial office of a judge of a re-structured court: Does it adequately protect judicial independence?

Although the constitutional provisions do not provide expressly for what is to happen in the event of a court re-structuring, it is possible to identify from the precedents a practice amounting seemingly at least to a convention. The practice is (1) that the judge of the old court would be appointed to a new court created to replace the old court or to a court of the same status; and (2) that if such an appointment were not available, the old court would not be abolished until its judges cease to hold office and in the meantime the judges would be entitled to the emoluments and entitlements of the old office, notwithstanding that the jurisdiction of the old court is transferred to the new court. Indeed, it is possible that s 72 mandates that practice.

Justice Kirby has reviewed the precedents which support the existence of the so called convention in his well known address "Abolition of Courts and Non-Reappointment of Judicial Officers"[33]. I shall refer only to the Australian precedents. In New South Wales, there has been a number of instances of the appointment or deemed appointment of all judges of the old court to the new or re-constituted court[34]. And, in the case of the Commonwealth following the decision in the Boilermakers case[35], the parliament went to some lengths to provide for the appointment of the judges of the old Court of Arbitration to the new Commonwealth Conciliation and Arbitration Commission. All the members of the old court were to be appointed to the new commission, or the new Commonwealth Industrial Court. The effect of the Boilermakers decision was that the old court was not constituted in conformity with Chapter III of the constitution. At the same time the old court was not abolished until after the last member of the old court had retired[36].

A similar approach was adopted in 1976 when the Federal Court of Australia was established. That court took over the jurisdiction formerly exercised by the Australian Industrial Court and the Federal Court of Bankruptcy. In relation to those courts, the statute provided that the court would be abolished upon a day, to be fixed by proclamation, "being a day on which no person holds office as a judge of" that court[37]. Although some only of the judges of the Australian Industrial Court were appointed to the Federal Court, all of the judges of the two old courts retained judicial office with the title, rank and entitlements of that office.

Whether what happened in these instances amounted to a convention or not, the approach to the re-structuring problem was, subject to one question still to be considered, consistent with reasonable respect for judicial independence. The judges of the old courts were appointed to the new court or, if not, they continued in their existing judicial office, retaining their rank, title and other entitlements.

The question still to be considered is whether non-appointment to the new court is itself a violation of the concept of judicial independence?[38] In other words, is it enough to continue the non-appointed judge in his old judicial office, though denying him the opportunity of performing judicial work because the relevant jurisdiction is exercised by another court? If the new court is exercising a jurisdiction which is similar to the jurisdiction exercised by the old court then one would have thought that the dictates of judicial independence would require appointment to the new court. Re-structuring should not become a vehicle for effectively disenfranchising a judge. The establishing of the Federal Court was, beyond any shadow of a doubt, a genuine re-structuring; it was certainly not undertaken with a view to disenfranchising judges. However, as the Federal Court’s industrial jurisdiction was similar to that of the Australian Industrial Court, it is not immediately apparent why all the judges of the latter court were not appointed to the new court.

No doubt when a court re-structuring takes place there is an understandable desire on the part of the executive to appoint to the new court judges of the highest calibre. Politicians naturally seek to ensure that the new court will be well received and there is a legitimate public interest in appointing to it judges of the highest calibre. There is therefore a tension between that public interest and the public interest in protecting judicial independence.

In general, that tension should be resolved in favour of judicial independence. Court re-structuring should not become the occasion for sidelining a judge simply because the executive considers that it can select a better judge or because the executive believes the judge falls short of the highest standards. It would be a different matter if a case for removal of the judge could be made out. But if such a case cannot be made out, using the re-structuring of a court as an occasion for sidelining a judge on account of reservations about his capacity and performance, is inconsistent with the protection of judicial independence and with the purposes sought to be achieved by the terms of judicial appointment.

Kevin Ryan[39] has pointed out that the constitutions of the major European countries forbid the transfer of a judge to another position[40]. Article 97(2) of the German Basic Law forbids interference with judicial independence which is in practical effect equivalent to dismissal. Thus, it is a violation of art 97(2) to exclude a judge, who is considered to be unsatisfactory, from judicial work. If the judge is considered to be unsuitable, the only procedure which can be taken against him is that provided for in the German Judicial Statute[41].

Although in the case of the non-appointed magistrates in Attorney General (NSW) v Quin[42], there was some evidence to suggest that unsatisfactory performance was the reason for non-appointment in some instances, the executive usually attempts to justify non-appointment on other grounds. They may include the claim that the judge is surplus to the number of judges required in the new court, or that the judge does not possess the skills or experience needed in a judge of the new court. The first claim has little to support it when you consider that the judge, if not appointed, still holds his old office yet has little or no work to do. Why not appoint him to the new court and ease the burden of the work there?

The second claim, superficially at least, has a greater attraction, particularly in cases where a specialist court is to be abolished and its jurisdiction merged in a court of general jurisdiction. It may be that the judge of the specialist court lacks the skills and the experience to undertake in a satisfactory way the work of the court of general jurisdiction. It is only natural that one would view such a claim by the executive with considerable scepticism. Many lawyers coming from a specialist background are appointed to courts of general jurisdiction. Sometimes they are appointed to or listed to sit in the jurisdiction in which they are experienced but that is not universally the case. Lawyers who are not experienced in day to day trial work have been appointed to judges of superior courts. Yet there may be cases where judges of a specialist court do lack the skills and experience to undertake the work of a superior court of general jurisdiction and there is no other available judicial office appropriate to their skill and experience to which they can be appointed.

Granted that there may be such cases, there is an argument that to require their appointment to a superior court of general jurisdiction for which they are not or may not be fitted places in jeopardy the interests of litigants and public confidence in the administration of justice. Section 56 of the Constitution Act 1902 (NSW), to which I shall refer later, is inconsistent with that argument. It simply gives a judge of an abolished court an entitlement to be appointed to a court of equivalent or higher status. If, in jurisdictions other than New South Wales, the executive is not to be under a positive obligation to re-appoint in such a situation, fairness to the individual judge and the protection of judicial independence may require that the matter should not be left to the unreviewable discretion of executive judgment and that the judge is entitled to a determination of the issue by an independent tribunal.

The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region affirmed by the Chief Justices are consistent, broadly speaking, with the views which I have expressed. Article 29 provides —

"The abolition of the court of which a judge is a member must not be accepted as a reason or an occasion for the removal of a judge. Where a court is abolished or re-structured, all existing members of the court must be re-appointed to its replacement or appointed to another judicial office of equivalent status or tenure. Members of the court for whom no alternative position can be found must be fully compensated."

This provision is to be compared with s 56 of the Constitution Act 1902 (NSW)[43]. Section 56(1) and (2) provide —

"(1) This part does not prevent the abolition by legislation of a judicial office.

(2) The person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in the same court or in a court of equivalent or equal status, unless already the holder of such an office."

Section 72 of the Australian Constitution apart, s 56 provides a greater measure of protection than any other Australian provision.

Magistrates and Judicial Independence

In earlier times there were historical and other reasons for not extending the requirement or protection of judicial independence to inferior courts. Judicial independence, as the very term suggests, was a concept associated with judges, notably the judges of superior courts. There was simply no place for it in courts constituted by lay justices. Much the same view was taken of courts constituted by police magistrates. And in Alexander’s Case[44], Isaacs and Rich JJ seem to have taken the view that no real purpose would be served by protecting the judicial independence of inferior courts, at least those at the lower end of the scale.

Why this view should still prevail is by no means clear. The litigants and the public expect impartial and independent adjudication from magistrates just as they expect it from judges. The common law principles relating to bias and ostensible bias apply to magistrates as well as judges. Magistrates’ courts undertake important work extending over a wider range of issues. They exercise an important jurisdiction in relation to summary offences. They are the principal point of contact that the community has with the court system. Today there are strong reasons for applying the concept of judicial independence to magistrates.

Nowadays, judicial independence is seen as a desirable, if not essential, characteristic of a wider court system, extending to judges of district and county courts. It was otherwise in earlier times. Courts of petty sessions were constituted by justices and later by police or stipendiary magistrates who were officers of the executive. Today consistently with the rule of the law, curial determinations should be made by judicial officers who are independent.

Tribunals and Judicial Independence

Although tribunals lie outside the scope of this article, the potential expansion in the sphere of operation of the concept of judicial independence does not stop at magistrates and inferior courts. Internationally, emphasis on the essentiality of judicial independence, particularly in developing and emerging countries, extends to tribunals as well as courts. Article 10 of the Universal Declaration of Human Rights affirms —

"[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights, and obligations of any criminal charge against him."

Article 14.1 of the International Covenant of Civil and Political Rights, ratified by Australia, provides —

"[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

Yet it is possible that these provisions do no more than require judicial independence in the case of determinations which in our system are made by courts.

In Australia there has been an inclination on the part of the executive to make use of the reputation for independence of the judge by appointing judges to undertake inquiries of a non-judicial kind[45], even to the point of giving the title "Justice" to persons engaged in the work of industrial conciliation and arbitration. Indeed, the emergence of the modern system of administrative justice, with its myriad of tribunals standing outside the orthodox court system, has naturally led to the view that the requirement for independence with its essential protections should apply to some at least of the tribunals in that system. Consideration of the validity of this view is hampered by the fact that the distinction between a "court" and a "tribunal" is by no means clear in Australian law. The uncertain nature of the distinction is but a reflection of the difficulty in providing a brightline definition of judicial power.

However, the vast range of administrative tribunals, the wide variation in the functions which they discharge and the issues which they are called upon to decide make it impossible to apply to all the tribunals standing outside the orthodox court system the regime which ought to govern the appointment and removal of judges. It is simply not possible to equate the appointment of members of all tribunals to the appointment of judges of courts, though an equation might be found to exist in these respects between members of some tribunals and judges of some courts. Certainly the legislature has made that judgment on occasions, the Australian Conciliation and Arbitration Commission being an instance.

Nor, for that matter, is it possible to equate the need for protection of judicial independence in Australia with the need to protect the concept in some developing and emerging countries where the threats of judicial independence are quite specific and evident for all to behold. The problems that are emerging in a society like Australia with its established legal institutions are rather different in nature and kind from the problems encountered in newly emerging countries. Here the principal problem has been the failures of legislatures and governments to respect fully the independence of judges and members of specialist courts or tribunals. This is not the occasion to discuss the details of the particular incidents. It is enough for me to identify them. They began with Justice Staples and the replacement of the Australian Conciliation and Arbitration Commission by the Australian Industrial Relations Commission[46]. This was followed by the controversy over the proposed abolition of the Industrial Court of South Australia without providing continuity of tenure for the judges of that court, a controversy which was ultimately resolved. At the same time there was a failure to re-appoint certain magistrates in New South Wales to the new Local Court when the magistrates’ courts in that State were re-structured[47]. More recently we had the abolition of the Accident Compensation Tribunal of Victoria. The failure to appoint the President and some members of that Tribunal to the County Court gave rise to widely publicised litigation in the Federal Court which has since been settled[48].

Arising out of its consideration of the controversy concerning Justice Staples, the Parliamentary Joint Select Committee made the following recommendations in its Report —

"5.26 In the light of the preceding discussion, the Committee concludes that the parliament should not support a constitutional amendment to limit its power to abolish tribunals and the statutory offices which it has created.

5.27 The Committee recommends that the following principles should be borne in mind by the parliament when considering the abolition of a quasi-judicial tribunal:

(i) Abolition of a tribunal should not be used to remove the holder of a quasi-judicial office unless the removal procedures applying to that office are followed;
(ii) Legislation to change the structure and jurisdiction of the quasi-judicial tribunal should, if possible, refrain from abolishing the tribunal;
(iii) When a tribunal is abolished and re-structured, all existing members of the tribunal should be re-appointed to its replacement; and
(iv) When a tribunal is abolished and not replaced, compensation should be paid to the members who have lost their positions and for whom no alternative position can be found.

5.28 Finally, the Committee recommends that further consideration should be given to embodying these principles in an Act of Parliament."

Unless we put in place provisions which preserve the independence of magistrates and members of tribunals, we run the risk that interference with the independence of magistrates and tribunal members will eventually contribute to the erosion of the concept of judicial independence as it applies to judges. The central element of judicial independence is the freedom of the judge to hear and decide cases without interference and uninfluenced by an outsider — be it government, pressure group or anyone else[49]. The purpose of that independence, it should be emphasised, is to serve as a protection and a privilege of the people, not of the judges.


  1. See, for example, Justice Michael Kirby’s Ronald Wilson Lecture 1994 "Abolition of Courts and Non-Reappointment of Judicial Officers", delivered on 28 November 1994, published in (1995) 12 Australian Bar Review 181.

  2. Very recently in an address to the Judicial Studies Board in England, the Lord Chief Justice, Lord Bingham of Cornhill expressed the view that the difficulty in attracting leading members of the Bar could weaken the judiciary: The Times, 10 December 1996.

  3. S Shetreet "Who Will Judge: Reflections on the Judicial Process and Standards of Judicial Selection" (1987) 61 ALJ 776.
    Professor Shetreet is not alone in subscribing to the principle of fair reflection: see The Judiciary in England and Wales, 1992, JUSTICE, London, pp 23-24; Report of the New Zealand Royal Commission on the Courts, New Zealand, 1978, para 665.

  4. "Judicial Appointments: The Lord Chancellor’s Policies and Procedures," Lord Chancellor’s Department, November 1995, p 6.

  5. (1996) 138 ALR 577.

  6. para 1.1.

  7. para 1.2.

  8. para 1.4.

  9. September 1975.

  10. ibid para 10.

  11. The recommendation was to be advisory only. The new procedure was to be incorporated in the Constitution. Section 6 may be seen as a diluted version of this proposal. Presumably Senator Minchin’s proposal would go even further.

  12. "The State of the Australian Judicature" (1977) 51 ALJ 480 at 494.

  13. The Israeli Committee consists of three judges, two lawyers, two members of the Knesset and two Ministers.

  14. The Ontario Judicial Appointments Advisory Committee consists of six lay members, one judge and two practising lawyers.

  15. A Report by JUSTICE, The Judiciary in England and Wales, 1992, London.

  16. "Judicial Appointments: The Lord Chancellor’s Policies and Procedures," Lord Chancellor’s Department, November 1995, pp 7-8.

  17. ibid pp 9-11.

  18. "Judicial Appointments — Procedure and Criteria" paras 6.2 and 6.3.

  19. ibid para 6.4.

  20. TFT Plucknett, Taswell-Langmead’s English Constitutional History (11th ed), 1960, London, p 463.

  21. See McCawley v The King (1918) 26 CLR 9 at 58-59, per Isaacs and Rich JJ.

  22. Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434.

  23. Isaacs and Rich JJ thought it would not apply: Alexander’s Case, ibid at 469; Powers J thought it would apply, ibid at 486-487.

  24. Constitution Act 1867 (Qld), s 15.

  25. (1918) 26 CLR 9 at 58-59.

  26. See J Waugh, "The Victorian Government and the Jurisdiction of the Supreme Court" (1996) UNSWLJ 409 at 412-413.

  27. For a discussion of the legal issues, see J Waugh, ibid.

  28. Constitution (Amendment) Act 1992 (No 106), Sch 1.

  29. ibid Sch 2.

  30. "The Independence of the Judiciary," a statement by the Australian Bar Association, March 1991, para 4.1.2.

  31. ibid, para 4.1.5.

  32. Report p 39.

  33. Ronald Wilson Lecture 1994, delivered at the Francis Burt Law Education Centre, University of Western Australia on 28 November, 1994, published in (1995) 12 Australian Bar Review 181.

  34. ibid p 186.

  35. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; affirmed in Attorney General for the Commonwealth v Boilermakers Society (1957) 95 CLR 529.

  36. Conciliation and Arbitration (Amendment) Act 1973 (No 138) (Cth); see Macrae v Attorney General (NSW) (1987) 9 NSWLR 268 at 278-279, per Kirby P.

  37. Conciliation and Arbitration (Amendment) Act 1976 (No 3) (Cth) s 4; Bankruptcy (Amendment) Act 1976 (Cth) s 8.

  38. This was one of the issues for determination in Betts v Attorney General (Victoria) in the Federal Court, in which the plaintiff was the President of the Accident Compensation Tribunal of Victoria. He alleged that the Tribunal was a court and that the separation of judicial power provided for by the Australian Constitution required that the courts and judges of the Australian States should be protected against legislative and executive interference: see Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577. The case has since been settled.

  39. "The Courts and Judicial Independence in Western Europe", a paper delivered to the Supreme Court and Federal Court Judges’ Conference, January 1992, p 54.

  40. See also the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region, 19 August 1995, art 30 published in (1996) 70 ALJ 299 at 301-302. Art 30 provides that a judge shall not unreasonably withhold consent to such a transfer.

  41. Wolf, Gehriets-verfassungsrecht aller Verfahrens-Zwiege, 6th ed, 1987, p 204, referred to by KW Ryan, "The Courts and Judicial Independence in Western Europe," fn 38, p 54.

  42. (1990) 170 CLR 1.

  43. Introduced by the Constitution (Amendment) Act 1902 (NSW) (No 106) Sch 1.

  44. (1918) 25 CLR at 469.

  45. But see now Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220. Is it right that the title "justice" or "judge" should be given to a person who does not exercise judicial power? Applied to such a person, the title is plainly a misdescription and conveys an erroneous impression of the judicial function.

  46. See "Tenure of Appointees to Commonwealth Tribunals" Report of Parliamentary Joint Select Committee, Commonwealth Parliamentary Paper No 289 of 1989.

  47. See Attorney General (NSW) v Quin (1990) 170 CLR 1.

  48. Betts v Attorney General (Victoria); see also (1993) 67 ALJ 83.

  49. The Queen v Beauregard (1986) 2 SCR 56 at 69-70, per Dickson CJ.

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