10r;~

TROBE UNIVERSITY LAW STUDENTS' ASSOCIATION

PRIMA FACIE

INDEPENDENCE OF THE JUDICIARY

THE BON JUSTICE MICHAEL KIRBY AC CMC'

'7~g; ,Four recent developments have made the topic of independence of the<.,""-

J9;~illry of pressing concern for me.

J~~!:",\%:,." BEBlJILDING THE JUDICIARY OF CAMBODIA;.;,,::::::;~;;,-~

~W;." The first is my work in Cambodia as Special Representative of the,~~r'::,

·§~¢retary.General of the United Nations. My task is to provide technical~\,Y:_\

:~,~pe and assistance to the government and people of Cambodia. I am

:l;b1iged to report twice a year to the Secretary-General'and to the General,/~'~·f\_;', '.:,';)~sembly and Commission on Hwnan Rights of the United Nations.

:}{iM~W;','

j·t\~Q~yiously. one of the key areas where progress must be made is in building\~·,~;)-tt1-:V/:~:' -"'Y',ijistitutions which uphold the rule of law. In a country devastated by war,

,;,_'@·r;;,:~"

;c~t~xolution, invasion and genocide, it is vital to replace brute power with law.

f.~I:· .~"j:,;~;, My first contact with Cambodia was in the training of judges in 1994.

\%:['hey would help to replace the anarchy left by the Pol Pot regime and its

k~;~0~:~ermath. Since then, more than two hundred judicial officers have been:.,.,.:.,......' .

:;,}ie·tt" .,,}~.~:appomted. Many of them were formerly teachers. Few judges or lawyers"~S+:'~C-", .~0;~J,em!IIDed in Cambodia after "year zero" in 1975. Naturally enough, the

}S~-;:<~:{-' .J~~~.~autocratic regime first disposed of lawyers. The judiciary was dismantled.

'I .. .". . '.' : '. •...·T·. '... ';

10r;~

TR()BE UNIVERSITY LAW STUDENTS' ASSOCIATION

PRIMA FACIE

INDEPENDENCE OF THE JUDICIARY

THE BON JUSTICE MICHAEL KIRBY AC CMC'

.. Four recent developments have made the topic of independence of the

'ju~i.Ciary of pressing concern for me.

BEBlJILDING THE JUDICIARY OF CAMBODIA

. The first is my work in Cambodia as Special Representative of the

·S~,:.retluy.Ge:ner.al of the United Nations. My task is to provide technical

and assistance to the govermnent and people of Cambodia. I am

(~~Iig~:d to report twice a year to the Secretary-General'and to the General

and Commission on Hwnan Rights of the United Nations.

Ob,~ouslv. one of the key areas where progress must be made is in building

:'ilii,titultiol~s which uphold the rule of law. In a country devastated by war,

~!,:r;~y'()lutiion, invasion and genocide, it is vital to replace brute power with law.

My first contact with Cambodia was in the training of judges in 1994.

;~!~~S;~)~,!lOy would help to replace the anarchy left by the Pol Pot re~e and its

Since then, more than two hundred judicial officers have been

Many of them were formerly teachers. Few judges or lawyers

in Cambodia after "year zero" in 1975. Naturally enough, the

till~tO(:ratic regime first disposed of lawyers. The judiciary was dismantled .

. "', . ,,--: ',',"'T', '." ';

lOP.3

t'iS being rebuilt. Things which we in Australia take for granted - court" -'~,~

',:JF~~, trained judicial officers, an independent legal profession, adequate

:~~tw~es for the basic tasks of the administration of justice and a culture of~:;;;L-t:iacp;ndence - all of these need to be re-established.

'~f~[~.-':"(:>ne of the chief obstacles which I have seen arises from the simple~~, .

~;. of the salary paid to the judicial officers. They are paid the equivalent

~:;~~1i~20 per month. This is the same as most senior public servants and the-",c"~~~:; ,

'~fiijpy., But whereas teachers can perform private tuition out of hours,"';'\\" ,.

~~j!al doctors can engage in private practice and even the militaJy can

'i2.~t highways and throw across checkpoints to extract fees for their~\,:!

__ 38l:s, judges can scarcely charge litigants for what they do.

~~~~~.';r~~§i.. Some Cambodian judges tell me that they survive only because their:~;~.¥}(f;.'~

"~"(;'{'York. Others have candidly acknowledged the receipt of presents from

~~rtg. litigants. Most indicate that they could get by on about '$USI20 a-", ,

Ali .. Then, if there were a will to uncorrupted, honest judicial endeavour,~p~:j[,needs could be satisfied. The urgent necessity to secure proper salaries

;~t'the judges of Cambodia is a major item in my report to the General~,C~·>~,.;

·;~Y&sembly of the United Nations in November 1995. Without becoming~~«0~?i~·fuZ.jijY91ved in the never-ending burden of supplementing the Cambodian general:ti¥'Y',·~'\""

~~ll'iJget, countries and institutions which support the restoration of the rule of

"'ll~':and the protection of human rights in Cambodia must, I have reported,

'i~~ider the implications for human rights of the current judicial~~.~~·x_1:~' .il!T3I1gements.

~f>~~. Those arrangements still carry the burden of colonial procedures.

£'~~f.ause of the lack oflibrary books and expertise, it is not uncormnon for the~-::B;:~'j',~

£.ffJ,~~ges, as in French colonial days, to consult the Ministry of Justice on legal

i'0~~~ 2.",\

;t'~.;~

. ",' "..- r;', ..•....

lOP.3

being rebuilt. Things which we in Australia take for granted - court

.. : trained judicial officers, an independent legal profession, adequate

"\,"C. ___ for the basic tasks of the administration of justice and a culture of

)en(ien1ce - all of these need to be re-established.

of the chief obstacles which I have seen arises from the simple

'. of the salary paid to the judicial officers. They are paid the equivalent

JU:S20 per month. This is the same as most senior public servants and the

But whereas teachers can perform private tuition out of hours,

doctors can engage in private practice and even the military can

. highways and throw across checkpoints to extract fees for their

judges can scarcely charge litigants for what they do.

:. Some Cambodian judges tell me that they survive only because their

Others have candidly acknowledged the receipt of presents from

litigants. Most indicate that they could get by on about '$US120 a

Then, if there were a will to uncorrupted, honest judicial endeavour,

",0' ___ could be satisfied. The urgent necessity to secure proper salaries

judges of Cambodia is a major item in my report to the General

~i!embly of the United Nations in November 1995. Without becoming

iIiY(JI"e:d in the never-ending burden of supplementing the Cambodian general

countries and institutions which support the restoration of the rule of

and the protection of human rights in Cambodia must, I have reported,

the implications for human rights of the current judicial

I Those arrangements still carry the burden of colonial procedures.

~t:~;.~~~:,au:5e of the lack oflibrary books and expertise, it is not uncommon for the

,51'~J~pges, as in French colonial days, to consult the Ministry of Justice on legal

2

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i;j:1H'~!

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10 C;,l

3

" BEllING PRINCIPLES ON JUDICIAL INDEPENDENCE

0"; In August 1995 I was sent a copy of the Statement ofPrinciples ofthe

1ependence af the Judiciary adopted in Beijing, China. In the preparation

d~~~se principles, the Chief Justice of Western Australia, the Honourable',.;B:.'-, ,

,t~tefJustice David Malcolm AC, has played a leading role. He was present;~u

lftithe Sixth Conference of Chief Justices of Asia and Pacific in Beijing when?'ii),-~

:ll~;Statement af Principles af the Independence af the Judiciary known as~~;;'

ili~,Beijing Statement af Principles was adopted. The meeting of Chief\'~-

rustices coincided with the Fourteenth Conference of LAWASIA whose

~~ary object is "to promote the administration of justice, the protection of-"'<;,:. >

'~an rights and the maintenance of the rule of law within the region".

frlis. But as the government is often a litigant, as the separation of powers

~slJrined in the Cambodian Constitution, this vestige of colonial rule must

Wj~;. Yel who is to supply the books and legal expertise that will take the

;kJj~~ of the skilled officials in the Ministry in Phnom Penh? These are the

;~~~tical difficulties ofbuilding an independent judiciary observing the rule of

~~in a country such as Cambodia."$'-;~~

:<~r···~

• ;~~ Australia, as it is at last recognizing, is part of the AsialPacific region..,,,::{,

':WI~is our great opportunity. We should make the most of it, including in the

~~r~oflaw.

,', The Beijing Statement embraces the doctrine in Article 10 of the

r~~il~iversal Declaratian ofHuman Rights, reflected in turn in Article 14(1) off'~:'ii',·

2,'t!le International Covenant on Civil and Political Rights, promising thatf~';:

,\.'

syeryone is entitled to a fair and public hearing by "a competent, independent

;~~d impartial tribunal established by law". The Beijing Statement" asserts:;~,%~.:'"

1fi~:

But as the government is often a litigant, as the separation of powers

~i~i:nshrin!:a in the Cambodian Constitution, this vestige of colonial rule must

Yet who is to supply the books and legal expertise that will take the

of the skilled officials in the Ministry in Phnom Penh? These are the

pra!ctJCaI difficulties of building an independent judiciary observing the rule of

a country such as Cambodia.

"l!EllING PRINCIPLES ON JUDICIAL INDEPENDENCE

In August 1995 I was sent a copy of the Statement of Principles of the

iJeD,ena'en"e of the Judiciary adopted in Beijing, China. In the preparation

principles, the Chief Justice of Western Australia, the Honourable

',' Justice David Malcolm AC, has played a leading role. He was present

Sixth Conference of Chief Justices of Asia and Pacific in Beijing when

. Statement of Principles of the Independence of the Judiciary known as

Beijing Statement of Principles was adopted. The meeting of Chief

coincided with the Fourteenth Conference of LAW ASIA whose

;;;m~rv object is "to promote the administration of justice, the protection of

rights and the maintenance of the rule oflaw within the region".

Australia, as it is at last recognizing, is part of the AsialPacific region.

"is our great opportunity. We should make the most of it, including in the

The Beijing Statement embraces the doctrine in Article 10 of the

un/V'''.M/ Declaration of Human Rights, reflected in turn in Article 14(1) of

,International Covenant on Civil and Political Rights, proInising that

~ve:ry(me is entitled to a fair and public hearing by "a competent, independent

impartial tribunal established by law". The Beijing Statement" asserts

3

I .Ii , ,

" ," : ~.'., • .c••

lCr:S

4

the judiciary has jurisdiction, directly or by way ofreview, overall issues ofa justiciable nature. "

the judiciary shall decide matters before it in accordance withits impartial assessment ofthe facts and its understanding ofthelaw without improper influences, direct or indirect, from anysource; and

To the extent consistent with their duties as members of theJudiciary, judges. like other citizens, are entitled to freedom ofexpression, belief, association and assembly. "

"(a)

"13. In the selection of judges there must be no discriminationagainst a person on the basis of race, colour, gender, religion,political or other opinion, national or social origin, maritalstatus, sexual orientation, property, birth or status, except thata requirement that a candidate for judicial office must be anational of the country concerned shall not be considereddiscriminatory. "

The Statement recognises that the structure of the legal profession

between societies. In some, the judiciary is a career service. In

independent judiciary is indispensable to the achievement of this

'kental human right. Independence of the judiciary requires that:

.;"L:';1:,,:',.

~>After a number ofparagraphs asserting the integral importance of thef· .

.~l!endence of the judiciary for the attainment of a rule of law society, the'iN~~C,

fement recognises:

.ifAs to appointment ofjudges, the Beijing Statement places emphasis on

i~;j~ice of the persons who are "best qualified for judicial office", chosen~~ ,

ijr\he basis of proven competence, integrity and independence." No;"'.C:; "

.••G·i!fg'prnlnation is to be tolerated in the selection of judges. Paragraph 13 is

~~mely wide in this respect:"'. -~~7~'

independent judiciary is indispensable to the achievement of this

.aan~enllal human right. Independence of the judiciary requires that:

· "(a) the judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and

the judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature. "

.', After a number of paragraphs asserting the integral importance of the

:Pellde.nce of the judiciary for the attainment of a rule of law society, the

a'jim~em recogruses :

To the extent consistent with their duties as members of the Judiciary, judges. like other citizens, are entitled to freedom of expression, belief, association and assembly. "

.' As to appointment of judges, the Beijing Statement places emphasis on

of the persons who are "best qualified for judicial office", chosen

basis of proven competence, integrity and independence." No

jS91lmination is to be tolerated in the selection of judges. Paragraph 13 is

~!Temel!y wide in this respect:

"13. In the selection of judges there must be no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, except that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory. "

The Statement recognises that the structure of the legal profession

between societies. In some, the judiciary is a career service. In

4

lOP.G

in Australia, judges are chosen mid career from the independent

"racl~ing legal profession. Under this system judges tend, by their careerell",,,, .;;;;~~aration, to bring to the judicial office an independent non-governmental:,B~!>{,!;{ild&k simply because their life has generally not been part of government

;~~t

"i'Vjce.

.',' The section on tenure of judges in the Beijing Statement is important.~+,'->

,glresses that judges must have security of tenure although it recognises that,o:'t;\.,~

~~gbme countries, the tenure ofjudges is subject to confirmation from time to,-",~,.'.-

~,~ by vote of the people or other formal procedure. The following"v-.. .graph should be noted :

"21. A judge's tenure must not be altered to the disadvantage of thejudge during her or his term ofoffice.Judges should be subject to removal from office only for provedincapacity. conviction of a crime. or conduct which makes thejudge unfit to be ajudge. "

The Beijing Statement records that ajudge whom it is sought to remove

office must have a fair hearing which confonns to established standards

Jlidicial conduct, the judgment in respect of which, whether the hearing is

camera or in public, must be published. There is then a paragraph of

nsiderable importance for what follows in this essay:

"29. The abolition of the court of which ajudge is a member mustnot be accepted as a reason or an occasion for the removal ofajudge. Where a court is abolished or restructured, all existingmembers ofthe court must be reappointed to its replacement orappointed to another judicial office of eqUivalent status andtenure. Members ofthe court for whom no alternative positioncan be found must befully compensated. "

5

. ~:." ,",:.,:_, .'...·.·'·.r.•. <

as in Australia, judges are chosen mid career from the independent

legal profession. Under this system judges tend, by their career

rcPllfatllon, to bring to the judicial office an independent non-governmental

90UIQoc,K simply because their life has generally not been part of government

The section on tenure of judges in the Beijing Statement is important.

[stt:ess,es that judges must have security of tenure although it recognises that,

lil,~()me countries, the tenure of judges is subject to confirmation from time to

'.' . by vote of the people or other formal procedure. The following

should be noted :

A judge's tenure must not be altered to the disadvantage of the judge during her or his term of office. Judges should be subject to removal from office only for proved incapacity. conviction of a crime. or conduct which makes the judge unfit to be a judge. "

The Beijing Statement records that ajudge whom it is sought to remove

must have a fair hearing which confonns to established standards

fJudlclal conduct, the judgment in respect of which, whether the hearing is

:C' .. lh.,~ in camera or in public, must be published. There is then a paragraph of

~t~~rl~id.eraible importance for what follows in this essay:

"29. The abolition of the court of which ajudge 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 restructured. all existing members of the court must be reappointed to its replacement or appointed to another judiCial office of eqUivalent status and tenure. Members of the court for whom no alternative position can be found must be fully compensated. "

5

lo r')",

'. ",' .,", ....;., ..~~.~ -. > ." • ~.

6

;'.:v";,ie' "It is the conclusion ofthe ChiefJustices and other judges ofAsia and~flhePacific ... that these represent the minimum standards necessary to$,;, be observed in order to maintain the independence and effectivet·:·, -"{.fimctioning ofthe Judiciary. "

~{' 11 is a heartening sign, much to be welcomed. that the judiciary of Asia~~~':~- '.

,'the Pacific have come together and given voice to this common cause.

';~~ the language of the Beijing Statement may be regarded as very

, its value in the context of countries of Asia and the Pacific is

There follow sections dealing with judicial conditions, the jurisdiction

@~ges, judicial administration, the relationship with the Executive, the""'),''~~ion of adequate resources and the relationship with militaIy tribunals

3,t er bodies. The Statement concludes:

\;In August 1995 I also took up my appointment as' President of the

: of Appeal of Solomon Islands. I sat in the impressive court house in~;;~"

ii!U"a with judges from Solomon Islands and New Zealand. I was

""C;'h~~ed by the Governor-General (Sir Moses Pitakaka), the Chief Justice'~;\'1'

f,tohn Muria) and a military guard-of-honour which I inspected in full-''FA

,onial robes. I saw at once the great blessing of an established judiciary

Jorirung to the rule of law and defending human rights which are part and

'~~~f of the common law and are also enshrined in the Constitution of-~-:.;;;,,'

:Lo,mon Islands. It is a hwnbling experience for an Australian lawyer to be

,~~d to sit in a court house in a country whose people have many sharednt,',

1!itions but, necessarily, enjoy a different culture. To be trusted by those,~;\;-),.

!.qple to bring law and justice is a great privilege. Despite many economic0' ,:~t~~:\-

~(R()ther problems, Solomons Islands has an infrastructure of law whichit?'i,'/t'::"

~',

10 !") " ,

follow sections dealing with judicial conditions, the jurisdiction

judicial administration, the relationship with the Executive, the

of adequate resources and the relationship with militaIy tribunals

bodies. The Statement concludes:

is the conclusion of the Chief Justices and other judges of Asia and Pacific ... that these represent the minimum standards necessary to observed in order to maintain the independence and effective

,functioning of the Judiciary. "

It is a heartening sign, much to be welcomed, that the judiciary of Asia

Pacific have come together and given voice to this common canse.

the language of the Beijing Statement may be regarded as very

its value in the context of countries of Asia and the Pacific is

August 1995 I also took up my appointment as' President of the

Appeal of Solomon Islands. I sat in the impressive court honse in

with judges from Solomon Islands and New Zealand. I was

by the Governor-General (Sir Moses Pitakaka), the Chief Justice

Muria) and a military guard-of-honour which I inspected in full

robes. I saw at once the great blessing of an established judiciary

fornlinlY to the rule of law and defending human rights which are part and

of the common law and are also enshrined in the Constitution of

~>~~)!l)nl0n Islands. It is a hUDlbling experience for an Australian lawyer to be

to sit in a court house in a country whose people have many shared

but, necessarily, enjoy a different culture. To be trusted by those

to bring law and justice is a great privilege. Despite many economic

,~;,.\Jlll<:r problems, Solomons Islands has an infrastructure of law which

6

H~8

much credit on those who established it and to the Solomon Islands,;~rs and judges who continue its great tradition. The fact that they

i'Xue to invite judges from Australia, Papua New Guinea and New

"d to sit in their Court of Appeal is a clear signal of the dedication of

. issive governments of Solomon Islands to the strong maintenance of the',;1<i.pf law. They know that judges of our tradition would not be parties to:~;

';'inttusion from the Executive branch into the judicial branch.",."\',

Solomon Islands I went to the Church Service at

;;irtabas Cathedral. Save for Westminster Abbey, I have never heard such

iIficent singing. The point I noticed was that there was not a single white~·9·.'·.letamong the priests who served the sacrament to one thousand_\~~; : .

fiiiegants. Religion has been planted deep. It has grown strong in the soil

~610mon Islands. It is now my responsibility, and that of the other'!.:'f,:."

1lilrlate judges, to do the same with the rule oflaw and the independence of'l.

iludiciary. That is why, from the beginning of my term as President, I have

Jgfed that a judge of the Solomon Islands High Court should sit as an

cl1ifig Judge of Appeal in the Court of Appeal. The objective, as in the

i~th' and in the other branches of Government, must be to transfer entirely

"Jrinciples of the independence of the judiciary and the rule of law to the

~~sand lawyers of Solomon Islands.

".' :,~.~.:-

~~t' ATIACKS ON JlJSIlCl IN AUSTRALIA~::,~{:--

,[~t(."In September 1995 I received the latest issue of the publication by the

~l?ire for the Independence of Judges and Lawyers (CIJL) Attacks onr:':(~ ,,: '

~~Iice. This is an annual report of CIJL on the harassment and persecution

,JJudges and lawyers around the world. It contains entries on nearly sixtyx'fr;. .i~iJntries. There are many in our region of the world and many with a poor~:~)';~~-

HeRutation for respecting the rule oflaw and. fundamental human rights.~~~~f

7

. ,... ;'.'." ... " ",", ,~, :.:~,

much credit on those who established it and to the Solomon Islands

and judges who continue its great tradition. The fact that they

to invite judges from Australia, Papua New Guinea and New

to sit in their Court of Appeal is a clear signal of the dedication of

governments of Solomon Islands to the strong maintenance of the

They know that judges of our tradition would not be parties to

'mtJusiClD from the Executive branch into the judicial branch.

·",m .. ," I was in Solomon Islands I went to the Church Service at

:'P.ornahas Cathedral. Save for Westminster Abbey, I have never heard such

singing. The point I noticed was that there was not a single white

the priests who served the sacrament to one thousand

Religion has been planted deep. 11 has grown strong in the soil

.Sbl,omclD Islands. 11 is now my responsibility, and that of the other

111n~',. to do the same with the rule oflaw and the independence of

i;juelici'iry. That is why, from the beginning of my term as President, I have

that a judge of the Solomon Islands High Court should sit as an

Judge of Appeal in the Court of Appeal. The objective, as in the

and in the other branches of Government, must be to transfer entirely

m~pm]cll)les of the independence of the judiciary and the rule of law to the

and lawyers of Solomon Islands.

ATIACKS ON JljSIJet IN AUSTRALIA

September 1995 I received the latest issue of the publication by the

for the Independence of Judges and Lawyers (CIJL) Attacks on

This is an annual report of CIJL on the harassment and persecution

~judiges and lawyers around the world. It contains entries on nearly sixty

There are many in our region of the world and many with a poor

tRmu1:atiC)n for respecting the rule oflaw and. fundamental human rights.

7

. , .... '.'.", ..... :.;.,~' .':~.

•••,><.; ••.••• '

10 r, 'J

8

It is rather sobering to see these paragraphs about attacks on\.,.

,lice in our own country, The original convention in Australia was that

;icial office-holders were respected and their tenure safeguarded. The\"

<~n~iple stated succinctly in the Beijing Statement was uniformly followed.-\.\-:,.;;

!ren, courts, Federal or State or tribunals of a court-like character were

,®Iished, the uniform procedure was to appoint all of the members of the}~;}"-----

9!mer court or tribunal to the new body that replaced them - or to provide the

~mbers with appropriate retirement arrangements acceptable to them and"l'_~_

~spectful of their former judicial or other independent office./

In the past, Australia tended not to be mentioned in this volume.,<~.'

'tt~Jn the latest part, four pages are devoted to departures from the

~~t.ndence of the judiciary and of persons who should enjoy similar1_...~7

%~~c.tion in Australia. Most of those mentioned by name are Victorian-h~t.,

~-holders. They include the President and ten judges of the Accident~::'X\s."

~~J'ensation Tribunal of Victoria; three members of the Administrative

~als. Tribunal of Victoria (MrNeil Wilkinson., Mr Ray Rooke and~"" ..

"~'Angela Smith) and the past Director of Public Prosecutions of Victoria,".,~;-(''''.

'iUiTBernard Bongiorno QC). The report also contains a summary of the

'll~on of the Industrial Court of South Australia and the effective removal

~~ .•. office of the President of that Court (Justice Jennings), four Deputy-;:.t-~;

>residents, and a number of industrial judges and magistrates in South-',-<'<

·~~aIia.-~~'\;'~

~fi; In an essay published in the Australian Bar Review ("Abolition of.~'~.. ,

~Ourts and Non-reappointment of Judicial Officers") I traced the origins of

~(~ .principle to the English Constitutional Settlement and the promise of

,j~dicial tenure of which we in Australia are heirs. That principle was not~~~1j:,1{X"

".' -

In the past, Australia tended not to be mentioned in this volume.

latest part, four pages are devoted to departures from the

dtpendlem:e of the judiciary and of persons who should enjoy similar

in Australia. Most of those mentioned by name are Victorian

They include the President and ten judges of the Accident

[jffi~lens:ati(>D Tribunal of Victoria; three members of the Administrative

. Tribunal of Victoria (MrNeil Wilkinson., Mr Ray Rooke and

~K~J1gCI" Smith) and the past Director of Public Prosecutions of Victoria,

(B~maJrd Bongiorno QC). The report also contains a summary of the

of the Industrial Court of South Australia and the effective removal

office of the President of that Court (Justice Jennings), four Deputy

and a number of industrial judges and magistrates in South

It is rather sobering to see these paragraphs about attacks on

in our own country. The original convention in Australia was that

office-holders were respected and their tenure safeguarded. The

stated succinctly in the Beijing Statement was uniformly followed.

courts, Federal or State or tribunals of a court-like character were

:illl9,lishled, the uniform procedure was to appoint all of the members of the

court or tribunal to the new body that replaced them - or to provide the

n~lIlbelrs with appropriate retirement arrangements acceptable to them and

l1;r,~i;pec:tful of their former judicial or other independent office.

In an essay published in the Australian Bar Review ("Abolition of

and Non-reappointment of Judicial Officers") I traced the origins of

principle to the English Constitutional Settlement and the promise of

j~dlicial tenure of which we in Australia are heirs. That principle was not

8

..... , ... ; ....... .

10'.10

s observed during colonial days. Perhaps that fact helps to explain the

iisilJn in s 72 of the Australian Constitution of the promise of tenure and~;:~T~

'llientoval to judges of the High Court of Australia and other Federal

illtSi A similar provision has lately been inserted into the Constitution Act

ot~:of New South Wales. This followed a referendum to entrench the'.';,'';'';.'',

,\',':

~sion of protected judicial tenure in the New South Wales Constitution

111 was overwhelmingly endorsed by the 'people in a referendum held at

e of the last State election. However, in other States of Australia and

: Federal sphere outside the Federal courts, the respect for independent.,-"'/

'ij'be'-holders depends not upon law or constitutional arrangements but upon....::'(.:0·

l~~ntions increasingly more honoured in the breach than in the observance.

it;;' In the Federal sphere the departure from the convention which occurred.r:i¢~Justice James Staples was not appOinted by the Hawke Government to',I

iiAtistralian Industrial Relations Commission, following the abolition of the~.'::'

!traJian Conciliation and Arbitration Commission, gave rise to a precedent

i~h showed what couId be done. That precedent was soon followed in

'~:'South Wales in the case of magistrates who were not appointed to the

JlIl Court of New South Wales upon the abolition of the old Court of Petty.".,':~

'~~'siOhS. There have been many other instances. I wish to concentrate upon,ie which have occurred in Victorian courts and tribunals.

, Members of the Administrative Appeals Tribunal of Victoria ('MT')

typically appointed for three year terms. But these office-holders were,R':i15,~ly automatically renewed in office. However, in March 1994, three~)'::

.)ppointees who had an earlier association with the Opposition Party were not'_\~.~~;<, .,\~~ppotnted by the Victorian Government. Of course, appointments are

9

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observed during colonial days. Perhaps that fact helps to explain the

in s 72 of the Australian Constitution of the promise of tenure and

to judges of the High Court of Australia and other Federal

:KOlln,." A similar provision has lately been inserted into the Constitution Act

New South Wales. This followed a referendum to entrench the

of protected judicial tenure in the New South Wales Constitution

" was overwhelmingly endorsed by the people in a referendum held at

of the last State election. However, in other States of Australia and

':~:. ".~,,.,,1 sphere outside the Federal courts, the respect for independent

qe:'lloklers depends not upon law or constitutional arrangements but upon

)li~e:ntiIDns increasingly more honoured in the breach than in the observance.

In the Federal sphere the departure from the convention which occurred

"J""""~ JaDles Staples was not appOinted by the Hawke Government to

'Aw,tralian Industrial Relations Commission, following the abolition of the

Illitraliam Conciliation and Arbitration Commission, gave rise to a precedent

showed what could be done. That precedent was soon followed in

Wales in the case of magistrates who were not appointed to the

Court of New South Wales upon the abolition of the old Court of Petty

There have been many other instances. I wish to concentrate upon

" 'which have occurred in Victorian courts and tribunals.

Ii: CF:

VICTORIAN ADMINISTRATIVE WEAlS JRIBIlNAL

" Members of the Administrative Appeals Tribunal of Victoria ('AAT')

typically appointed for three year terms. But these office-holders were,

automatically renewed in office. However, in March 1994, three

'!Ii~)intees who had an earlier association with the Opposition Party were not

ipp,ointed by the Victorian Government. Of course, appointments are

9

... ' . ',' ~.~', '- ' ... ' .. '

1071

'ip, the prerogative of the executive government. But the fonner

':~~Jltion of reappointment was defensive of the independence of the office­

~rs of the AAT, which perfonns duties in many ways similar to those of

'~~. The government was accused of undennining the independence of the

'~fl%.~al, especially important because of its function in adjudicating disputes'~}:;'$f;l!:~"

een the members of the public and the government and its agencies.

The Attomey-Genera1 (Mrs Jan Wade) denied that there was any

'cal motive whatsoever for the move. She claimed, rather unpersuasively,

she was simply seeking to find 'fresh faces'. The President of the Law

Ifute of Victoria, Mr David Denby, said that the legal community was~f,t'"

incem", ed about the non-reappointments. Professor Cheryl Saunders of the"~"'_! '~i~t:rsity of Melbourne stated that the insecurity arising from short-tenn

'~~tments to the AAT 'provides obvious potential for inroads to ~ made

~:the Tribunal's independence'. No convincing reason was given for the;~;:..'"

ifi;,reappointments of the three retirees. The only common feature of the

;~ members was their link, or that of their spouses, to the Opposition Party.

Mr Michael Wright QC, and other members of the Planning and Local

(\Iemment Bar in Victoria, wrote to the Melbourne Age drawing to public\,,~,

~ption the effect of the government's action in 'undennining the

t~¢pendence of the Tribuna1' :k~:<~,y~\~~ '.,

"Independence can exist, and can be seen to exist, only if members ofthe Tribunal have suffiCient security of tenure ofoffice to act withoutconcern for reappOintment. The legislation does not prescribe aparticular term q(office for members ofthe Tribunal. However, it hasbeen the invariable practice to reappoint permanent members of theTribunal who are ofgood behaviour and who are Willing to continuein office. A number of members of the Tribunal have accepted short­term appointments, in many cases of only three years, in the

10

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1071

prerogative of the executive government. But the fonner

iyentJOn of reappointment was defensive of the independence of the office­

h'QI(jers of the AA T, which perfonns duties in many ways similar to those of

The government was accused of undennining the independence of the

especially important because of its function in adjudicating disputes

the members of the public and the government and its agencies.

The Attomey-General (Mrs Jan Wade) denied that there was any

motive whatsoever for the move. She claimed, rather unpersuasively,

was simply seeking to find 'fresh faces'. The President of the Law

of Victoria, Mr David Denby, said that the legal community was

Ifflnned about the non-reappointments. Professor Cheryl Saunders of the

~ijiiv~rsity of Melbourne stated that the insecurity arising from short-tenn

&iIl1tJm:nts to the AA T 'provides obvious potential for inroads to be made

Tribunal's independence'. No convincing reason was given for the

~:re:apl~oinmlenlts of the three retirees. The only common feature of the

.. members was their link, or that of their spouses, to the Opposition Party.

Mr Michael Wright QC, and other members of the Plmming and Local

;;'o,~'ernmenl Bar in Victoria, wrote to the Melbourne Age drawing to public

the effect of the government's action in 'undennining the

~9¢l)en'ien,ce of the Tribunal' :

"Independence can exist, and can be seen to exist, only if members of the Tribunal have suffiCient security of tenure of office to act without concern for reappOintment. The legislation does not prescribe a particular term q( office for members of the Tribunal. However, it has been the invariable practice /0 reappoint permanent members of the Tribunal who are of good behaviour and who are willing to continue in office. A number of members of the Tribunal have accepted short­term appointments. in many cases of only three years, in the

10

" ,' ....... ,'

1C';'2

~>

"'expectation that this practice will provide the necessary security of',C', "

, tenure.

PM! Wright and his colleagues called upon the govenunent to reinstate

'ifh~ous practice. They warned of the destruction of 'fragile community

'lienee' in the Tribunal dealing with complaints against the govenunent.

'6nce again, the govenunent was unmoved.

,,; INPUSTRIAL RELATIONS TRIBUNAL

"'Consider also the case of the Industrial Relations Commission of

lona. The Employee Relations Act 1992 (Vic) replaced the Industrial

f~tions Commission of Victoria with the Employee Relations Commission

a's~~dJD I March 1993. The former Commission enjoyed both arbitral'_~",,~l

··)j\'£tions and judicial functions. The judicial functions were both original and

ij~lIate. There were fifteen members, any three of whom who were legally

'l~i.fied could constitute the Commission in Court Session. In this respect,_~i' _

h~'striicture of the Commission was not dissimilar to that of the former New;'i*\i/-':~-:~outhWaies Industrial Commission. By the Employee Relations Act 1992G~~~'_<e{Ic) s 175(1) it was provided that 'on the appointed day the former

;;,:,i~a~mission is abolished and the members of the former Commission go out

If%¥'Qffice'. The Act did not make provision for the appointment of members of~-~ .

'old Commission to the new. True, the President of the old Commission,

,~l:9tice Alan Bolton, was offered appointment as President of the new.~t~1:

*J;Iowever, he declined to accept the appointment. He reverted to his position!~~;;%-f~,{:;, ''-'t;!.,,;,!!S a full-time Deputy President of the [Australian] Industrial Relations. ~"- ......~~,':~

,c·~¢.Ommission.~:-;-

The Deputy Presidents and other members of the old Commission werec,;-s,'"'-'

,;~~dvised that they were to be regarded as having applied for appointment to~S\~,

~~\W.e new Commission unless they indicated otherwise, notwithstanding that-,',

11

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q, e'Xp<!ct(7Iicm that this practice will provide the necessary security of

. Wright and his colleagues called upon the govenunent to reinstate

nre'viOlIS practice. They warned of the destruction of 'fragile community

fid.mc,e··· in the Tribunal dealing with complaints against the govenunent.

. Once again, the govenunent was unmoved.

s

'.Consider also the case of the Industrial Relations Commission of

The Employee Relations Act 1992 (Vic) replaced the Industrial

Commission of Victoria with the Employee Relations Commission

1 March 1993, The former Commission enjoyed both arbitral

and judicial functions. The judicial functions were both original and

There were fifteen members, any three of whom who were legally

could constitute the Commission in Court Session. In this respect,

i,'sti:ucture of the Commission was not dissimilar to that of the former New

Wales Industrial Commission. By the Employee Relations Act 1992

s 175(\) it was provided that 'on the appointed day the former

,?QllImiss:ion is abolished and the members of the former Commission go out

If'Qfllice', The Act did not make provision for the appointment of members of

Commission to the new, True, the President of the old Commission,

Alan Bolton, was offered appointment as President of the new.

?tI()we:ver, he declined to accept the appointment. He reverted to his position

. a full-time Deputy President of the [Australian] Industrial Relations

The Deputy Presidents and other members of the old Commission were

\~adlvisl~d that they were to be regarded as having applied for appointment to

new Commission unless they indicated otherwise, notwithstanding that

11

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II

I

II

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their applications would 'not be treated more favourably than those of other

applicants'. It is clear that the letter to the former office-holders of the

Commission was drafted with the majority opinion of the High Court in

At/omey General for New South Wales v Quin (1990) 170 CLR I in mind.

Of the fifteen members of the old Commission, five declined to apply for a

position in the new Commission. They were offered a non-negotiable ex

gratia termination package as determined by the State Department of Industry

and Employment. The remaining members, including two Deputy Presidents

and eight Commissioners, sought appointment to the new body. As the

appointments were not finalised by I March 1993, the goverrunent made

temporary appointments for a period of three months. In the result, within

that time, the two Deputy Presidents were successful in their application but

only two of the eight Commissioners succeeded. The unsuccessful

Commissioners were offered ex gratia termination packages.

When informed of the operation of the Act, members of the old

Commission, through the President, expressed their concern to the Minister at

the failure of parliament to provide for automatic appointment of the members

of the existing Commission to its replacement body. Attention was drawn to

the report of the Joint Select Committee of the Federal Parliament on the

tenure of appointees to Commonwealth tribunals. In the final Annual Report

of the President of the old Commission, the retiring President observed:

"The policy of the Employee Relations Bill is not for consideration inthis Annual Report. However, it is appropriate that all members oftheCommission have been duly appointed by successive Governmentsuntil the age ofsixtyjive years under the Industrial Relations Act 1979and have performed their duties on the Commission with distinction.In these circumstances. all members of the existing Commissionshould be offered equivalent positions on the Employee RelationsCommission in accordance with the recommendations in the report of

12

I

I ( I

r ---L

1 C':'3

. applications would 'not be treated more favourably than those of other their

II' cants' It is clear that the letter to the former office-holders of the apP . Commission was drafted with the majority opinion of the High Court in

At/omey General for New South Wales v Quin (1990) 170 CLR I in mind.

Of the fifteen members of the old Commission, five declined to apply for a

position in the new Commission. They were offered a non-negotiable ex

gratia termination package as determined by the State Department of Industry

and Employment. The remaining members, including two Deputy Presidents

and eight Commissioners, sought appointment to the new body. As the

appointments were not finalised by 1 March 1993, the government made

temporary appointments for a period of three months. In the result, within

that time, the two Deputy Presidents were successful in their application but

only two of the eight Commissioners succeeded. The unsuccessful

Commissioners were offered ex gratia termination packages.

When informed of the operation of the Act, members of the old

Commission, through the President, expressed their concern to the Minister at

the failure of parliament to provide for automatic appointment of the members

of the existing Commission to its replacement body. Attention was drawn to

the report of the Joint Select Committee of the Federal Parliament on the

tenure of appointees to Commonwealth tribunals. In the final Annual Report

of the President of the old Commission, the retiring President observed:

"The policy of the Employee Relations Bill is not for consideration in this Annual Report. However, it is appropriate that all members of the Commission have been duly appointed by successive Governments until the age of sixty jive years under the Industrial Relations Act 1979 and have performed their duties on the Commission with distinction. In these circumstances, all members of the existing Commission should be offered equivalent positions on the Employee Relations Commission in accordance with the recommendations in the report of

12

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I',

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the Joint Selecr Committee. Statutory protections are provided to theholders q( office on quasi judicial tribunals so as to allow them tobring independence ofjudgment to the resolution of the issues whichcome before them. The resolution ofindustrial problems and disputesoften involves consideration ofcomplex and controversial issues and abalancing of various interests. To perform their role effectively,Industrial Tribunals must retain the confidence of the parties and thecommunity and must be independent of governments. employers andunions. The members ofthe Tribunalmust exercise their functions inafair and impartial way."

The serious injustice done to the members of the old Commission who

were. in effect, compulsorily retired by the legislative abolition of their offices

gained little attention in the media, It was the substantive provisions of the

legislation affecting pay and conditions of workers which dominated the

media coverage of its passage. When the Bill was in parliament, the Law

[nstitute of Victoria urged the Victorian Government to give an assurance of

reappoinnnent. The government failed to do so and, eventually, refused

appoinnnent to many. The Law Council of Australia urged the Minister for

Industry and Employment to confonn to the principles necessary for the

independence of office-holders in statutory tribunals.

The President of the Law Council, Mr Robert Meadows, expressed the

opinion that to require the members of the Victorian IRC to complete for

positions on the new body, was not consistent with established principle. The

Minister and the government rebuffed all of these representations. As the

headline in the Melbourne Herald Sun put it bluntly, the government

administered the '[a]xe for 16 IRC bosses', the 'bosses' involved were the

commissioned office-holders whose duty had been to act fairly and

independently and against whom no wrong or misbehaviour was ever alleged,

still less proved.

13

the Joint Select Committee. Statutory protections are provided to the holders q( office on quasi judicial tribunals so as to allow them to bring independence of judgment to the resolution of the issues which come before them. The resolution of industrial problems and disputes often involves consideration of complex and controversial issues and a balancing of various interests. To perform their role effectively, Industrial Tribunals must retain the confidence of the parties and the community and must be independent of governments, employers and unions. The members of the Tribunalmust exercise their functions in afair and impartial way."

The serious injustice done to the members of the old Commission who

were, in effect, compulsorily retired by the legislative abolition of their offices

gained little attention in the media. It was the substantive provisions of the

legislation affecting pay and conditions of workers which dominated the

media coverage of its passage. When the Bill was in parliament, the Law

Institute of Victoria urged the Victorian Government to give an assurance of

reappointment. The government failed to do so and, eventually, refused

appointment to many. The Law Council of Australia urged the Minister for

Industry and Employment to conform to the principles necessary for the

independence of office-holders in statutory tribunals.

The President of the Law Council, Mr Robert Meadows, expressed the

opinion that to require the members of the Victorian IRC to complete for

positions on the new body, was not consistent with established principle. The

Minister and the government rebuffed all of these representations. As the

headline in the Melbourne Herald Sun put it bluntly, the government

administered the '[a ]xe for 16 IRC bosses', the 'bosses' involved were the

commissioned office-holders whose duty had been to act fairly and

independently and against whom no wrong or misbehaviour was ever alleged,

stillless proved.

13

?

,'..,

10"':5

~C!DENT COMPENSATION IRmlJNAL

I now reach the most serious of the departures from the convention

which I have described. It affects an undoubted Court and undoubted judges.

By the Accident Compensation Act 1985 the Parliament of Victoria

established an Accident Compensation Tribtinal. Its members enjoyed the

auk status and precedence of a judge of the County Court of Victoria. Theyr ,

performed judicial duties. They were each to hold office as a judge of the

Tribunal during good behaviour until attaining the age of 70 years. They

could be removed from office only by the Governor of Victoria on an address

of both Houses of Parliament.

In November 1992 the Parliament of Victoria enacted the Accident

Compensation (WorkCover) Act 1992 (Vic). Section 10 of that Act abolished

the Tribunal. It made no provision for the continued existence for the office

of the judges or for their tenure. The result was that all of the judges who

were not reappointed to some equivalent office in the County Court or the

Victorian AAT were effectively removed from office. They were removed

without the proof of misbehaviour or by the exercise of the parliamentary

procedure promised to them by parliament and accepted by them on their

appointment. The result was an unprecedented protest from judges in

virtually every jurisdiction of Australia. The Victorian Attorney-General has

since said that she heard from 82 Australian judges. The International

Commission of Jurists, the Centre for the Independence of Judges and

Lawyers in Geneva, the Law Council of Australia, Law Societies and Bar

Associations throughout the nation, individual judges and others protested.

All to no avail. The government was given support by ill-considered

editorial opinions, as, for example, that in The Age. It acknowledged that

tribunals 'are here to stay' with an 'essential job' but asserted:

14

~C!DENT COMPENSATION IRmlJNAL

I noW reach the most serious of the departures from the convention

which 1 have described. It affects an undoubted Court and undoubted judges.

By the Accident Compensation Act 1985 the Parliament of Victoria

established an Accident Compensation Tribunal. Its members enjoyed the

rank, status and precedence of a judge of the County Court of Victoria. They

perfonned judicial duties. They were each to hold office as a judge of the

Tribunal during good behaviour until attaining the age of 70 years. They

could be removed from office only by the Governor of Victoria on an address

of both Houses of Parliament.

In November 1992 the Parliament of Victoria enacted the Accident

Compensation (WorkCover) Act 1992 (Vic). Section 10 of that Act abolished

the Tribunal. It made no provision for the continued existence for the office

of the judges or for their tenure. The result was that all of the judges who

were not reappointed to some equivalent office in the County Court or the

Victorian AAT were effectively removed from office. They were removed

without the proof of misbehaviour or by the exercise of the parliamentary

procedure promised to them by parliament and accepted by them on their

appointment. The result was an unprecedented protest from judges in

virtually every jurisdiction of Australia. The Victorian Attorney-General has

since said that she heard from 82 Australian judges. The International

Commission of Jurists, the Centre for the Independence of Judges and

Lawyers in Geneva, the Law Council of Australia, Law Societies and Bar

Associations throughout the nation, individual judges and others protested.

All to no avail. The government was given support by ill-considered

editorial opinions, as, for example, that in The Age. It acknowledged that

tribunals 'are here to stay' with an 'essential job' but asserted:

14

10 "'G

"The mistake is to think ofthem as coul1s. Their job is administrative:quasi judicial at best. It is the fault of successive Governments thatthey have become robed in the judicial mantle. The reasons areunderstandable. It is necessary to give them real authority todemonstrate that they are not merely creatures of the Executive. and10 at/ract decent talent. Understandable but wrong. Judicial statusand the independence which goes with it must be jealously reserved tothe occupants oftrulyjudicial office - the judges ofour coul1s. "

These were words of cold comfort to the judges, known as such,

promised such tenure, performing independent decision-making, thrown

suddenly out of office. Of the nine who were not appointed elsewhere, each

was provided with monetary compensation falling far short of the promise of

office to the age of seventy, to say nothing of pension and other rights. They

were afforded 'compensation' of money but not for the dispossession of office,

status, and loss of reputation. They have commenced proceedings in the

Supreme Court of Victoria. Those proceedings are under the scrutiny of a

number of international bodies including the Law Association for Asia and the

Pacific (Lawasia), the International Commission of Jurists and the

International Bar Association. The newly appointed United Nations Special

Rapporteur on the Independence of the Judiciary, Dato' Param

Cumaraswamy, when visiting Melbourne in December 1993, expressed his

concern. He promised to observe the former judges' proceedings closely.

They will also be closely watched by many others.

Preswnably to defeat similar claims in other contexts, legislation has

been enacted by the Victorian Parliament to alter or vary the Constitution Act

1975 (Vic) s 85 to prevent the Supreme Court from entertaining actions for

compensation or other amounts because a member of an abolished body has

lost office.

15

"The mistake is to think of them as courts. Their job is administrative: quasi judicial at best. It is the fault of successive Governments that they have become robed in the judicial mantle. The reasons are understandable. It is necessary to give them real authority to demonstrate that they are not merely creatures of the Executive. and 10 al/ract decent talent. Understandable but wrong. Judicial status and the independence which goes with it must be jealously reserved to the occupants of truly judicial office - the judges of our courts. "

These were words of cold comfort to the judges, known as such,

promised such tenure, performing independent decision-making, thrown

suddenly out of office. Of the nine who were not appointed elsewhere, each

was provided with monetary compensation falling far short of the promise of

office to the age of seventy, to say nothing of pension and other rights. They

were afforded 'compensation' of money but not for the dispossession of office,

status, and loss of reputation. They have commenced proceedings in the

Supreme Court of Victoria. Those proceedings are under the scrutiny of a

number of international bodies including the Law Association for Asia and the

Pacific (Lawasia), the International Commission of Jurists and the

International Bar Association. The newly appointed United Nations Special

Rapporteur on the Independence of the Judiciary, Data' Param

Cumaraswamy, when visiting Melbourne in December 1993, expressed his

concern. He promised to observe the former judges' proceedings closely.

They will also be closely watched by many others.

Presumably to defeat similar claims in other contexts, legislation has

been enacted by the Victorian Parliament to alter or vary the Constitution Act

1975 (Vic) s 85 to prevent the Supreme Court from entertaining actions for

compensation or other amounts because a member of an abolished body has

lost office.

15

10"";

'~HJLDREN'S MAGISTMTE

In Victoria, the Senior Magistrate of the Children's Court is appointed~,;

rid~; the Children's and Young Persons Act 1989 s 12. The currenti;{~:;l:

'~1!mbent is Mr G Levine, a well respected magistrate. According to media"1<,->,,-,:' "

~~fts: Mr Levine was spoken to in August 1994 by the recently appointed

\'t~fMagistrale of the State and told that the Attorney-General did not want

Win the post but wanted him to resign and return to duties as an ordinary

'·l~trate. The reports produced protests from the legal profession. One

:~~t;oner before the Children's Court reportedly remarked that, if true, the

fg~erence was 'scary'; suggesting that appointees to judicial posts were 'at'i',-

,beck and call of the government of the day to keep their job.'

In September 1995 the Senior Magistrate of the Children's Court

ed and was replaced.

CONCLUSIONS

The Melboume Age on 30 November 1994 in an editorial ''Matters for

~~gment"commented on my remarks to like effect as above, concerning the.~~~'

effective removal of office-holders in the way described above and elsewhere>:'&~:'.

'itiAustralia :-~:~::,:- '

"The principle ofjudicial independent is so central to the rights andfreedom of all Australians that it is rarely discussed We take it forgranted that judges will conduct trials and reach decisions withmeticulous impartiality and with total disregard for political currents.What's more, we take it for granted that the reverse also applies: thatno Australian govemment would risk the wrath of the electorate by.fiddling with the independence ofjudges or the legal process.

But are we justified in holding such comfortable views? JusticeMichael Kirby ... has his doubts. In a speech to a gathering ofjudgesand lawyers in Perth on Monday [he} reeled offa long list ofchanges

16

10"";

, '~HJLDREN'S MAGISTMTE

Victoria, the Senior Magistrate of the Children's Court is appointed

the Children's and Young Persons Act 1989 s 12. The current

OUn:lbe:nt is Mr G Levine, a well respected magistrate. According to media

. Mr Levine was spoken to in August 1994 by the recently appointed

Magistrate of the State and told that the Attorney-General did not want

"the post but wanted him to resign and return to duties as an ordinary

The reports produced protests from the legal profession. One

@ctitioner before the Children's Court reportedly remarked that, if true, the

rfer'enc:e was 'scary'; suggesting that appointees to judicial posts were 'at

and call of the government of the day to keep their job.'

In September 1995 the Senior Magistrate of the Children's Court

CONCLUSIONS

The Melbourne Age on 30 November 1994 in an editorial "Matters for

'f1gme.nt" commented on my remarks to like effect as above, concerning the

:ife,ethle removal of office-holders in the way described above and elsewhere

"The principle of judiCial independent is so central to the rights and , ", freedom of all Australians that it is rarely discussed We take it for

granted that judges will conduct trials and reach decisions with meticulous impartiality and with total disregard for political currents. What's more, we take it for granted that the reverse also applies: that no Australian government would risk the wrath of the electorate by .fiddling with the independence of judges or the legal process.

But are we justified in holding such comfortable views? Justice Michael Kirby ... has his doubts. In a speech to a gathering of judges and lawyers in Perth on Monday [he} reeled off a long list of changes

16

10~J

'c made by governments to the personnel. powers and procedures ofVcourlS and tribunals throughout Australia in recent years. The',.common result ofthese changes. in Justice Kirby's opinion. has been a'lessening of judicial independence. Furthermore. the situation is

/worst in Victoria. where 'the largest challenge to the conventions,cprotectingjudicial officers and other independent decision-makers has',' ,', d '"i, occurre ...

, 1be leader writer questioned the correctness of my assumptions about

i&0aJ from office of the Law Reform Commissioners and the Equal::~k'"

5qrtunity Commissioner (Ms Moira Rayner). But went on :

:;'Ji

;:~: ';'Where Justice Kirby is on safer ground is in warning that. in general.c", . the constitutions of Australian states prOVide scant protection for(judicial independence. Even here Mrs Wade would take issue with

'i'i;'" him. by claiming that section 85 of the Victorian Constitution and the~f;i:, Kennett-instituted scrutiny of acts and regulations committee· give

\c,c Victorians a greater surety ofjudicial independence than the citizens,'e;" of any other state. None the less. the legislative foundation for"\i judicial independence is fragile. 1ts continuing existence depends

largely on respect for established conventions. By drawing attention,to this fact. Justice Kirby has done us a service. "

It is not enough to draw attention to the problem. Action must be taken':',-:'--r:/

;(~~ 'We can no longer rely upon conventions previously long honoured. It is

~~~ntial that the culture of respect for judicial independence, and the~&-- . .:'independence of others who hold office who need similar independence from

.\,:1,:<. .

'tit Executive, should be re-established. On the path to re-establishing it, it;~r"~!lUld be desirable that other States of Australia should take the same course\;i' -

liS·New South Wales. They should entrench in their constitutions the same;'';~'-;

~~p'rllvision as now applies in New South Wales protecting judicial office-;".''";,~:.

~i*~plders, at all levels of the hierarchy, from removal except for proved""'d··-4:J\.:;}~,_ :i~ll)lcapacity or misconduct. They should also provide protection in the case of

~~~ abolition of courts so that judicial officers who belong to them must then

ii;~~,(

'~i 17F

..':' ' ..

10~J

by governments to the personnel. powers and procedures of /i:()Ul1rs and tribunals throughout Australia in recent years. The >c()mn10n result of these changes. in Justice Kirby's opinion. has been a les~.en,ing of judicial independence. Furthermore. the situation is

"·.'."M'·' in Victoria. where 'the largest challenge to the conventions <"r.>rOl'ecl'in!riu!di(:ial officers and other independent decision-makers has

. 1be leader writer questioned the correctness of my assumptions about

from office of the Law Reform Commissioners and the Equal

v,rtunillV Commissioner (Ms Moira Rayner). But went on :

;'C"WhlereJustice Kirby is on safer ground is in warning that. in general. constitutions of Australian states provide scant protection for

ju,dicial independence. Even here Mrs Wade would take issue with by claiming that section 85 of the Victorian Constitution and the

Kennett-instituted scrutiny of acts and regulations committee· give . . Victorians a greater surety of judicial independence than the citizens

. of any other state. None the less. the legislative foundation for judicial independence is fragile. 1ts continuing existence depends largely on respect for established conventions. By drawing attention

. to this fact. Justice Kirby has done us a service. "

It is not enough to draw attention to the problem. Action must be taken

can no longer rely upon conventions previously long honoured. It is

that the culture of respect for judicial independence, and the

lcelpen.deIlce of others who hold office who need similar independence from

Executive, should be re-established. On the path to re-establishing it, it

be desirable that other States of Australia should take the same course

B.·.~·."'~W South Wales. They should entrench in their constitutions the same

i/!1'~iplrovisicm as now applies in New South Wales protecting judicial office­

at all levels of the hierarchy, from removal except for proved

1.!.·~jcalpac:ity or misconduct. They should also provide protection in the case of

abolition of courts so that judicial officers who belong to them must then

17

. ": " ',':',." "'.'

i ~ .1

II

11

Ii il

10'".13

iJ;a~~ointed to a position of the same rank and salary. In the old days,

~~1i~§1ans of all political persuasions observed these fundamental conventions

!~ljy; In the past twenty years, under Federal and State governments, LaborI;,'<;:"',l":.

'1;;tCoalition, we have seen departures from these principles.~:~~:',;

,; My experience in Cambodia, Solomon Islands, and elsewhere in the#~:, .

_.cl; teaches me the importance of preserving the independence of judicial~~:~;'

i~~~l1olders and those who need similar independence to perform their

tK!~~~properlY. The Beijing Statement ofPrinciples of the Independence of

c~m~~~diCiaryapplies as much to Anstralia as it does to China, Burma and\_,:j~:~~',">," .

6fu~~' Jands. Allacks on Justice includes reports on affront to the""",,"".,}.t ".:.;

fli~1'Bendence ofjudicial office-holders in Australia. Lawyers of today should~;;?~::;\:"~'LXillilant about these attacks. It is not enough to talk and write about them.- v~,·

:.6n is required. That includes action to amend our State constitutions to~~:" ..Ifd.State judicial office-holders the same protections as are contained int:t.;!,:,

~';!,ederal constitution. Whilst we are about reflecting on Australia's~~-;;-

'\\i~tutional arrangements for the new millenium, this subject, more than

"\l'Dore fashionable, should be at the top of our list. It is time to stop the

5$,~.;cl\ngratuIations in Australia and to look seriously at the destruction of

'1k~brtant conventions protecting judicial independence.

,1~~!~..-..:,'i.

18

,poilltea to a position of the same rank and salary. In the old days,

of all political persuasions observed these fundamental conventions

~'~~if~; In the past twenty years, under Federal and State governments, Labor

SOlllition, we have seen departures from these principles.

experience in Cambodia, Solomon Islands, and elsewhere in the

.' teaches me the importance of preserving the independence of judicial

:¢'~Ioldlers and those who need similar independence to perform their

.. properly. The Beijing Statement of Principles of the Independence of

1~~'iJ.udi,~ial)l applies as much to Anstralia as it does to China, Burma and

Attacks on Justice includes reports on affront to the

epende:nce of judicial office-holders in Australia. Lawyers of today should

about these attacks. It is not enough to talk and write about them.

is required. That includes action to amend our State constitutions to

u,"""w judicial office-holders the same protections as are contained in

constitution. Whilst we are about reflecting on Australia's

!~111tiCtnal arrangements for the new millenium, this subject, more than

\~rsmolre fashionable, should be at the top of our list. It is time to stop the

~lf-i<:onl~atulatiorls in Australia and to look seriously at the destruction of

ioortant conventions protecting judicial independence.

18