Section 7: Judges

In Australia, constitutions or other legislation provide for appointment of judges by the executive arm of government. Judges of courts that are established under the Commonwealth Constitution (the High Court, the Federal Court and the Federal Circuit and Family Court of Australia) are appointed by the Commonwealth executive. Judges of courts established by a state are appointed by their state’s executive; ACT court appointments are made by the executive and Northern Territory appointments are made by the Territory Administrator.

Judges are addressed in court as ‘Your Honour’, and are referred to in writing as ‘Justice’, eg, ‘Justice Smith’. For formal written correspondence they would be addressed as ‘The Honourable Justice Smith’. In judgments they are referred to as ‘Smith, J.’

There are statutory criteria for eligibility to be appointed as a judge (such as legal qualifications and a minimum period of practice as a lawyer). Those appointed are generally lawyers with extensive experience as a practising barrister, but sometimes solicitors and law academics are also appointed as judges.

In contrast, in the United States many judges (depending on the laws in the state concerned) are elected. In other cases in the United States, judges are appointed by the executive government, but the appointment must be confirmed by the legislature. For example, a judge can only be appointed to the Supreme Court of the United States with the consent of a majority of the US Senate.

Judicial independence

For centuries in England judges were subject to the control of the King, and heavy punishments were used against judges who gave decisions that contradicted the King or prevented the monarch taking some action. Loss of office, banishment or even execution could be the fate of judges who defied the monarch. The Act of Settlement of 1701 (UK) gave judges some security in judging cases involving the Crown, by providing that they would hold office ‘while of good behaviour’ and could only be removed from office ‘upon the address of both Houses of Parliament’.

The concept of judicial independence means that neither parliament (the legislature) nor the government (executive) can influence or determine the outcome of any particular case before a court, so that judges are able to act impartially and to make up their own minds about the merits of the case.

The elements of judicial independence today are identified as :

  • security of tenure (removal only for misconduct)
  • appointment until a fixed retirement age
  • payment of an adequate salary out of public revenue (that is, judges should not accept private payments)
  • judges should be immune from being sued for performing their functions.

(B Debelle, 'Judicial Independence and the Rule of Law', (2001) 75 Australian Law Journal 556 p 561.)

Tenure and remuneration

It is extremely rare, and only in the most exceptional circumstances, that a judge is removed from office. The circumstances in which a judge can be removed are set out in the Constitution or other legislation. The tight restrictions on removing judges are a safeguard against the executive or legislature using removal from office as a threat against a judge in order to influence the judge’s decision. They are an important means of ensuring the independence of the judiciary.

In general, a judge can only be removed by the Governor-General or the Governor at the request of both Houses of Parliament (that is, if a majority of Members of each House of Parliament vote to request the removal). For example, the Commonwealth Constitution provides that judges of the High Court and other federal judges ‘shall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’ (section 72).

In New South Wales, section 53 of the Constitution Act 1902 (NSW) provides that a judge can only be removed from office by the Governor on an address from both Houses of Parliament, seeking removal on the ground of proved misbehaviour or incapacity. In addition, a judge can only be removed if the Conduct Division of the Judicial Commission has made a report to the Governor setting out its opinion that the matters referred to in the report could justify parliamentary consideration of removal of the judge (Judicial Officers Act 1986 (NSW), section 40 ). See the Judicial Commission below for more information.

There are age limits set out in the Constitution or in legislation setting compulsory retirement ages for judges. For example, the Commonwealth Constitution provides that the appointment of a judge of the High Court expires when the judge reaches the age of 70 (section 72); the same limit applies for judges of other federal courts. Most states have followed suit except for NSW and Tasmania, where the age of retirement for judges is 72. Magistrates retire in some jurisdictions at 65, but in Victoria it is 70, and in NSW and Tasmania it is 72. Most states have provision for acting judges, and in NSW the age limit for this role is 75.

To protect the independence of judges, it is important that their remuneration should be fixed by law and not be capable of being reduced during their term of office. For judges of federal courts, section 72 (iii) of the Commonwealth Constitution provides that the remuneration of a federal judge may not be diminished during the judge’s continuance in office. At the state level, remuneration of judges is usually fixed by statute. For example, in New South Wales, judicial salaries are set under the Statutory and Other Offices Remuneration Act 1975 (NSW), and cannot be reduced.

Judicial accountability

If judges cannot be sued, in what ways are they accountable for their decisions? It has been argued that the public nature of court proceedings and judgments, with the requirement for reasons, provides an important means of accountability:

Public confidence is also maintained by the fact that judges are clearly accountable in the most public way for their decisions. Litigation is conducted in public. There is an obligation to give reasons for decisions. Those reasons are public. Those reasons are also liable to appeal. If not appealed, they are open to academic and other criticism. Thus, the work of judges takes place in the open and in a public way and is a manifestly transparent process. (B Debelle, ‘Judicial Independence and the Rule of Law’, (2001) 75 Australian Law Journal 556 at 563.)

The other side of the independence of the judiciary from interference by the executive is that judges in their turn do not become involved in the political process. In a speech given in New York in 2000, then Chief Justice Gleeson summed up the difficult balance in this way:

Like other members of the community, individual judges will, on occasion, disapprove of some of the laws enacted by Parliament. Provided their capacity to administer the law impartially is not compromised, they are free to criticise the law, and to propose change. In fact judges regularly point out defects in the law, and make proposals for law reform. … Impartiality is a condition upon which judges are invested with authority. Judges are accorded a measure of respect, and weight is given to what they have to say, upon the faith of an understanding by the community that to be judicial is to be impartial. Judges, as citizens, have a right to free speech, and there may be circumstances in which they have a duty to speak out against what they regard as injustice. But to deploy judicial authority in support of a cause risks undermining the foundation upon which authority rests.

Duty to give reasons

A judge has a duty to give sufficient reasons for his or her decision. The reasons should be sufficient so as to inform the parties of the broad outline and constituent facts of the reasoning on which the court has acted.

Judges are required to give decisions according to law, not according to the popularity of their decisions with the government, with the parties or with the public in general. It is the role of the courts to apply the law according to precedent, legal reasoning, standards and principles, and it is by this means that the courts gain credibility with the public. Australia’s first Commonwealth Attorney-General, Alfred Deakin, noted that ‘What the legislature may make, and what the executive may do, the judiciary at the last resort decides’.

Judicial Commission of New South Wales

The Judicial Commission of New South Wales is a body established by statute: the Judicial Officers Act 1986 (NSW). Its main functions are:

  • to assist the courts to achieve consistency in sentencing;
  • to organise and supervise an appropriate scheme of continuing education and training of judicial officers;
  • examination of complaints against judicial officers; and
  • to give advice to the Attorney General on matters concerning judicial officers.

The Judicial Commission operates independently of the executive government. It is made up of ten members, being six judges, one legal practitioner and three non-lawyers who are of high standing in the community. The President of the Judicial Commission is the Chief Justice of New South Wales.

The Judicial Commission can investigate complaints against New South Wales judicial officers about matters concerning the ability or behaviour of a judicial officer. It does not deal with complaints against federal judicial officers, or with allegations of criminal conduct or corruption. Under the Judicial Officers Act 1986 (NSW), a complaint may be made by a member of the public or alternatively referred to the Commission by the Attorney General. There is no federal equivalent to the NSW Judicial Commission.

Wigs and gowns

Judges and barristers in a number of courts wear special traditional clothing (consisting of a wig and gown and other elements of clothing) when appearing in court. In addition to the wig and gown, barristers also wear a bar jacket, wing collar and neck bands (a short white necktie, also called a jabot). This traditional clothing, known as court dress, dates from formal gentleman’s attire worn in England in the 18th century. Solicitors in NSW are not permitted to wear special court dress when they are appearing in court.

Barristers (also called ‘counsel’) are lawyers who are skilled in advocacy and specialise in appearing before courts (particularly the higher courts) in addition to giving legal advice. Solicitors are lawyers who, in addition to giving legal advice, act for clients in non-litigious matters (such as in the purchase or sale of a house). Solicitors will occasionally appear before lower courts to represent clients.

There are many variations in court dress. The particular type of clothing worn depends on the court concerned, the status of the judge or the barrister, and the type of proceedings. For example, judges of the Court of Appeal of New South Wales wear red robes and long (‘full-bottomed’) wigs. Magistrates wear black robes but generally not wigs (except on particular formal occasions). Barristers wear black robes and shorter wigs. Senior barristers are known as ‘Senior Counsel’ and wear robes made of silk, while junior barristers wear gowns of wool, cotton or polyester. Senior Counsel wear a different (longer) wig on ceremonial occasions from that which is worn by other barristers. In NSW before 1993, Senior Counsel were known as Queen’s Counsel (QC), and were appointed by the NSW Governor. Senior Counsel are now appointed by the NSW Bar Association.

Each court determines what kind of dress will be worn by judges and by barristers appearing before judges. For example, in the Federal Court, robes are worn but not wigs. Some judges choose not to wear the formal dress that is traditional for their court. As a general rule, traditional court dress is not worn by barristers appearing before tribunals, or by the members of tribunals, or by barristers appearing in Local Courts. In the High Court, the judges wear robes and no wigs, but the barristers who appear before them follow the rules of the jurisdiction in which the case originated.