March 17

Judicial independence in issue

The French political philosopher Montesquieu, one of the greatest figures of the Enlightenment, declared England in the seventeenth and eighteenth centuries to be a ‘republic hiding under the form of a monarchy’.  He praised the English constitution as an ideal model for republican government.

He saw the separation of the three powers, the executive, the legislature and the judiciary as ensuring political liberty. The essential part of this is that the judicial power only be separate. Since Montesquieu, the Westminster model has emerged where the executive and the lower house are intertwined. This has advantages and retains the independence of the judiciary.

…principle challenged….

The separation of the judiciary had, he believed, to be real, and this was certainly the case in England since the Glorious Revolution. Until then the judges held office at pleasure. Thereafter judges held office efuring good behaviour. They could only be found to have breached this bya resolution of the two houses of parliament, yet another argument for having more than one house.

The principle is under threat in some jurisdictions through an increasing reliance on acting and untenured judges. One former British colony, Singapore, was once criticised for an excessive reliance on the use of acting judges, especially in the use of younger acting judges.  With the unwise rule that judges must retire by a specific age, there has been an increasing reliance in some Australian jurisdictions on commissioning recently retired judges as acting judges.

….New South Wales tests the principle….


NSW judges must retire at 72, but can then be appointed as acting judges on a full- or part-time basis until the age of 77. Those acting had by early 2010 made up about a fifth of the judges on the Supreme and District courts. This is a useful device, but open to the temptation to for politicians to award some and punish others. 

This creates the situation where a judge will know that if he rules aginst the government he will not be rewarded.  It is not suggested that a judge would be affected by this. But it is an unhealthy situation.

We now have an example of the danger of this practice ( Joel Gibson “Judge rejection 'threatens' court independence,” The Sydney Morning Herald  8 March 2010).

As a Land and Environment Court judge last year, Justice David Lloyd is said to have embarrassed the government by ruling that the Minister for Planning Frank Sartor was biased when he approved Catherine Hill Bay and Gwandalan land developments by the Rose Group.

The developer's contribution to the state of 300 hectares of conservation land, in exchange for the minister's sympathetic consideration of the developments, amounted to a land bribe, the judge ruled. Now the government has failed to appoint him as an acting judge, notwithstanding the recommendation of the Chief Justice and the problems associated with the shortage of judges in New South Wales.

…thin edge….

This is a thin edge of the wedge and should concern all constitutionalists. Rather than having untenured judges, it would be better if the retirement age were extended to 77 or better, removed altogether. It is unfortunate that at the federal level, there was no opposition to the Fraser government proposal in 1977 to require judges to retire at the now too young age of 70. It should have been at an age to be determined by Parliament,  rather than being made a constitutional rule.

There was a failure by the politicians in 1977 not to present a case against the proposal.  There was a failure by the media not to test it. Fortunately in 1999, there were those who would argue against the bien pensant consensus.


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