Debeljak, Julie --- "Judicial independence in the modern democratic state" [1999] ALRCRefJl 7; (1999) 74 Australian Law Reform Commission Reform Journal 35

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Reform Issue 74 Autumn 1999

This article appeared on pages 35 - 39 of the original journal.

Judicial independence in the modern democratic state

By Julie Debeljak*

In recent years the judiciary in Australia has been subjected to increasing public scrutiny. The judiciary is faced with comment and criticism by members of the executive arm of government, politicians and the media. Genuine criticism and the freedom to express an opinion are imperative in a free and democratic society. As will be explained, so too is an independent judiciary.

Unfortunately much of the criticism of the judiciary is ill-informed. This threatens not only the independence of the judiciary, but the public’s confidence in the ability of the judiciary to protect citizens from unwarranted government intervention.

In this article I will demonstrate the extent to which the peace and order of our society depends on maintaining an independent judiciary. I shall outline the constitutional arrangement of Australia, explain the concept of ‘judicial independence’ and its importance, and outline ways it is protected and threatened in Australia.

Constitutional arrangements

To fully appreciate the need for an independent judiciary one must have a basic understanding of the way Australia is constituted, that is the way in which Australia is governed. There are three arms to governmental structures in Australia: the legislature, the executive (otherwise known as the government or Crown) and the judiciary. The legislature makes the law, the executive implements the law, and the judiciary adjudicates disputes arising under the law. The role of each branch is meant to be separate. This ensures that no arm of government becomes too powerful and allows each branch to act as a check or balance on the other. This doctrine is called the separation of powers and is guaranteed under our federal system of government. One aspect of the separation of powers doctrine is the independence of the judiciary from the legislative and executive branches of government.

The doctrine of the rule of law should also be understood. One element of the rule of law is that no person or body is beyond the reach of the law. Our society is based on government through laws and government under laws. Members of each branch of government, public servants and police are subject to the same rules that govern the lives of ordinary citizens. Another element is that laws will be administered impartially, ensuring that all persons subject to the law are treated equally.

The judiciary

The judiciary is made up of the judges and magistrates who preside in Australia’s courts. Each State and Territory within Australia has its own court hierarchy. Each hierarchy has a local court, usually called the Magistrates Court, which is presided over by magistrates. Magistrates decide the less serious criminal cases and small disputes involving individuals and businesses. The more serious criminal cases and disputes are presided over by judges in the County or District Courts, and the Supreme Courts.

There are also Commonwealth courts. The Federal and Family Court judges decide disputes arising under laws made by the Commonwealth parliament. At the top of the State, Territory and Commonwealth hierarchy of courts is the High Court of Australia. High Court judges decide appeals from all the courts mentioned, as well as consider important constitutional cases concerning whether government has the power to make particular decisions and whether parliament has the power to enact certain laws.

Judicial independence

The doctrine of judicial independence dictates that when deciding cases, judges and magistrates must be free from any improper external influences. There are two types of external influences. Firstly, the judiciary as a branch of government must be independent of pressures from the government and the influence of the parliament, which is known as ‘collective independence’. Secondly, individual members of the judiciary must be independent in two senses: they must have ‘substantive independence’, which means that in performing their judicial duties judges are answerable to no authority except the law; and they must have ‘personal independence’ from judicial colleagues and superiors.

Thus, judges and magistrates must make an assessment of the factual situation presented to them and then apply the law in a fair and impartial manner. Citizens would not be willing to submit to the decisions of the judiciary if they perceived that the judiciary was unfair or biased in its decision making process. Loss of confidence in the ability of the judiciary to adjudicate disputes may lead to disrespect for the law generally, threatening the peace and ordered running of Australia. As the then Chief Justice of the High Court, Sir Gerard Brennan, said:

“Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed.”¹ [emphasis added]

Another former Chief Justice of the High Court, Sir Anthony Mason, put it this way:

“Judicial independence is a privilege of, and a protection for, the people. It is a fundamental element in our democracy, all the more so now that the citizen’s rights against the state are of greater value than his or her rights against another citizen.”²

The last part of Sir Anthony’s comment must be given historical perspective. Before 1701 judges held office ‘during the King’s pleasure’. There was an incentive for judges to decide cases in a manner favourable to the Crown, or risk dismissal. It was not unusual for the Crown to appoint his or her allies as judges. In 1701 the Act of Settlement (UK) was passed, which established that superior court judges were to be appointed during good behaviour and could only be removed by the Crown on an address (or request) of both Houses of Parliament. This guaranteed judges freedom from the political influences of the Crown. As Sir Anthony Mason suggests, this is of even greater significance today given the increase in the powers of the Crown as against the citizen in the modern state.

Protection of judicial independence

Judicial independence is concerned with removing reasons to suspect the judiciary of partiality or bias. There are many rules and conventions in place which serve this purpose, some of which I shall now elaborate on. Although I shall refer specifically to the federal system, equivalent provisions exist at the State level.

Security of tenure is one way of protecting the impartiality of judges. Judges must be free to decide disputes before them without fear of adverse repercussions and without favour to any external party. This sentiment is reflected in the Act of Settlement, referred to above. Today it is entrenched in the Commonwealth Constitution. Judges of the High Court are appointed for a term that expires upon the judge attaining the age of 70. They can only be removed by the Governor-General In Council³ on request from both Houses of Parliament on the ground of proved misbehaviour or incapacity (s. 72). The same applies to judges of the Federal and Family Courts unless the parliament makes a law fixing an earlier age.⁴

Protection of the terms and conditions of work for judges also aids impartiality. Reducing the working load, salary or superannuation benefits of a judge is an indirect mode of improper influence as the threat of such action may influence the decision making process of the judge. The Commonwealth Constitution provides that a federal court judge’s remuneration shall be fixed by parliament and cannot be diminished during their continuance in office (s. 72). Judicial salaries have been reduced only once in Australia’s history, but this was during a period of national economic crisis and it applied to all judges. A related point is that courts need the tools to be independent in the sense that they need administrative and budgetary independence from the executive. The High Court has administrative and budgetary independence with the other courts enjoying such independence to varying degrees.⁵

Judges are said to be immune from suit. This means that judges cannot be sued for anything they say during court proceedings, nor can they be sued for making a mistake in exercising their judicial function. If a party to a case believes that the judge made a mistake, he or she can appeal to a higher court. Most court decisions result in at least one dissatisfied party. Judges would not be able to function properly and impartially were they operating under the threat of suit by a dissatisfied or vexatious party.

Threats to judicial independence

People may consider that the judiciary in Australia is immune from serious threats to its independence, given that we live in a democratic society governed by the rule of law. It is true that the judiciary does not face the blatant pressures from the government of the day or from parliament that may be witnessed in other countries. Yet vigilance is needed to preserve the independence of our judiciary and the confidence we have in the system that regulates our lives.

Traditionally, judges avoided public debate. Judges did not make public comments on cases (other than those that they heard) and did not attempt to publicly justify their decisions or counter criticisms made of their decisions. Rather, the Attorney-General, the chief legal officer of the executive, would speak on behalf of the judiciary generally. In addition, the Chief Justice of a court may have commented on the work of the court. However, the current Commonwealth Attorney-General and some State Attorneys-General are reluctant to defend the judiciary from misguided public debate and criticism. The media and public reaction to some ‘controversial’ decisions has led to this. The executive is a political creature, responsive to the views of the people. Accordingly, the executive caters to this adverse public reaction. In response, some judges have publicly attempted to explain their decisions and to clarify any misunderstandings the media or public may have. This threatens the independence of the judiciary as it draws judges into politics. Further, a judge’s view expressed during public debate may lead to a perception of bias in a later case.

The appointment of judges should be done by a politically neutral body that appoints judges on merit, that is according to their training and suitability for the job. However, in Australia it is the executive that appoints judges, the executive being comprised of members of the government of the day. Thus, the community - at times - may perceive that political matters affect the appointment of a particular judge and thereby potentially affect the outcome of particular cases. Headlines in the media illustrate this. For example, in relation to the appointment of Justice Kenneth Hayne to the High Court, the headlines read: ‘New High Court judge to temper activism’ and ‘Conservative to fill High Court vacancy’.⁶ Concerning the appointment of judges more generally: ‘Judges now picked for their political bias, says Kirby’, and ‘Wik anger: Premier seeks veto on High Court judges’.⁷ Finally, in relation to executive pressure on the judiciary: ‘Fischer lashes High Court on Wik’, ‘Chief Justice tells Fischer: stop attacks’ and ‘Chief warns against populist pressure’.⁸

Another method by which judicial independence is subverted is by abolishing courts. Some governments have abolished old courts or tribunals, reappointing only some former office holders to the replacement court or tribunal, or to another court or tribunal of equal standing. This occurred in 1982 when the magistracy of New South Wales was reorganised. Five former magistrates were not reappointed under a government policy not to reappoint judges considered unfit for judicial office. The NSW Court of Appeal decided that the decision was unlawful as the magistrates had not been given the opportunity to respond to the allegations regarding their fitness.⁹ More recently, the Kennett government in Victoria abolished the Accident Compensation Tribunal. Its members had the status of County Court judges and their removal was to be by the Governor of Victoria on request of both Houses of Parliament. The judges were not offered alternative offices of equal status. Justice Michael Kirby, of the High Court, summed up the impact of abolition of courts as follows:

“If regular resubmission of judicial appointees to a suggested test of ‘quality’ is permissible, whether directly or indirectly, we have shifted the basis of tenure in judicial and like appointments.”¹⁰

In other words, the concept of judicial tenure, and its underlying principle of judicial independence, is threatened if we indirectly reassess the ‘quality’ of judges under the guise of abolishing courts and tribunals so as to ensure ‘quality’ in the courts.

Conclusion

Judicial independence is often cited as the bulwark of a free and democratic society. Although our system of government does recognise the importance of, and protects the independence of, the judiciary, there remain many direct and indirect ways of destroying judicial independence in today’s society. This is especially so when the reach and power of the executive seems to be ever increasing. It is imperative for the continued peace and order of our society that people refrain from unduly endangering judicial independence. As Sir Ninian Stephen said:

“... an independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed.”¹¹

* Julie Debeljak is an Assistant Lecturer in Law at Monash University.

She is currently studying her PhD on aspects of judicial independence, separation of powers and the protection of rights. She is supported by grants from the Australian Research Council and the Judicial Conference of Australia.

Endnotes

1. G Brennan ‘Judicial Independence’ Speech, Australian Judicial Conference, Canberra 2 November 1996; available at http:www.law.monash.edu.au/JCA/brennan.html.

2. A Mason ‘The Independence of the Bench, the Independence of the Bar and the Bar’s role in the Judicial System’ (1993) 10 Australian Bar Review 1, at 3.

3. The term ‘Governor-General In Council’ refers to actions taken by the Governor-General on the advice of the executive, usually the Cabinet.

4. Under s. 23A of the Family Law Act 1975 (Cth), judges of the Family Court must retire

at the age of 65. In the absence of specific legislation, the default condition in the Constitution requiring retirement at age 70 applies to Federal Court judges.

5. See Parts III and V and ss. 35 and 36 of the High Court of Australia Act 1979 (Cth).

6. M Kingston Sydney Morning Herald 13 August 1997, at 1; B Lane The Australian, 13 August 1997, at 1.

7. B Lagan Sydney Morning Herald 6 Jan 1998, at 3; M Millett Sydney Morning Herald 19 Feb 1997, at 1.

8. J Woodford Sydney Morning Herald 11 Jan 1997, at 1; J Woodford, Sydney Morning Herald 28 Feb 1997, at 1; M Millett, Sydney Morning Herald 23 April 1997, at 3.

9. Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268.

10. M Kirby ‘Abolition of Courts and Non-reappointment of Judicial Officers’, (1995) 12 Australian Bar Review 181, at 192.

11. N Stephen ‘Southey Memorial Lecture: Judicial Independence - A Fragile Bastion’ [1982] MelbULawRw 3; (1982) 13 Melbourne University Law Review 334, at 339.