Sure, judicial independence is important; it underpins of our democracy and is essential to the rule of law. It has virtually been taken for granted in Australia until this week when the chief justices of the state and territory supreme courts issued a declaration of principles asserting the need for greater attention to be paid to their independence.
Why has it come to this?
The judges assert this is the mere putting into writing by Australian judges of the Beijing principles which were adopted by a meeting of chief justices in Beijing in 1995. They say the timing is not linked to recent attacks on the judiciary by members of the executive arm of government.
Maybe. None the less, the independence of the judiciary has come under threat and it makes the judges’ statement more apposite.
But before we nod sagely in agreement with the judges, there is an argument that they have at least partly brought this sorry state upon themselves. The other part can be put down to executive governments (particularly those that control legislatures) trying to clip judicial wings because they cannot get their own way.
Let’s deal with executive abuse first.
It usually boils down to an arrogant assertion that the executive is the elected government and should be able to do what it likes; whereas the judiciary is not elected nor accountable to anyone.
When the judiciary gets “”too independent” members of the executive have engaged in personal and general abuse, and more severely in retaliation against individual judges or groups of judges by abolishing their courts and not repainting them to the new court that does that work.
Both sides of politics do it. The Nationals’ Tim Fischer and Rob Borbidge have engaged in personal and/or general attacks on High Court judges. Labor’s Ducan Kerr roundly attacked members of the High Court over the Theophanous case rather than the reasoning in the case itself.
The Liberal Government of Jeff Kennett abolished the Accident Compensation Tribunal and sacked the nine judges on it. The Labor Government of Bob Hawke abolished the Industrial Relations Commission and reconstituted it without reappointing Justice Jim Staples.
These were appalling attacks on the independence of the judiciary and put many judges on notice that they are their subject to the whim of the executive. They should not have happened.
In Australia, we are fortunate that the Australian Constitution gives a fari amount to protection to federal judges against this sort of thing.
It provides three critical protections. It says that the judicial power of the Commonwealth is vested in the High Court and other courts created by Parliament. The judges are appointed by the executive, but cannot be removed except by petition of both houses of parliament on the ground of proven misbehaviour. Their pay cannot be reduced during their tenure.
Because of the these provisions, the judges of the High, Federal and Family Courts did not sign this week’s declaration. There was no need to.
The three protections should virtually guarantee the independence of the judiciary and the rule of law (at least in the federal sphere).
First, the Constitution prohibits the legislature or the executive from handing over the judicial power to anyone else other than judges with guaranteed tenure. It means that the interpretation and application of law in disputed cases will be dealt with by judges who, though appointed by the executive, have secure tenure against removal and are therefore independent.
This is the meaning of the separation of powers. The legislature makes law of general application. For example: “”A person of good character who passes a fishing test over 18 can get a fishing licence from a fishing inspector for $20”. The executive administers the law by appointing the inspector who issues licences. “”Bill Bloggs: licence approved/not approved.” The judiciary determines any dispute arising from the executive’s administration after applying the law to the facts of the particular case. It could overturn the inspector’s refusal on the grounds that Bloggs is of good character.
Why is this separation of powers so important? It would be appalling if the legislature could pass laws about particular cases: for example, “”Bloggs may never have a fishing licence.” That would defeat the principle and justice of equality before the law. It would be equally unjust if the executive was the final arbiter of the application of the law. “”Sorry, Mr Bloggs you have failed your fishing licence because I don’t like the colour of your hair. There is no appeal.”
Yet, executive governments regularly to exclude the courts so that they can exercise greater power — all in the interests of a good society, mind you. The High Court has often thwarted their attempts.
The separation of powers also means that the law applies to the members of the executive, too. It does not matter that they have been elected to high office; they, too, must obey the law. And it is essential that an independent judicial officer (not an obviously biased other member of the executive) determines whether they have obeyed the law (not just the criminal law but all the law laid down by Parliament about administrative procedures and other things).
So the judges are right in stressing the importance of judicial independence. Without it, the separation of powers is threatened. And without the separation of powers individual rights are at the mercy of government.
But this does not apply by force of the Constitution in the states; it only applies in the federal sphere.
Well, how was Justice Jim Staples done down?
There are two weakness in the Constitution. The first is that Parliament has the power to create courts and vest them with federal jurisdiction. For example, the Family Court was created to judge family matters and the Federal Court was created to judge trade practices, tax, copyright and some other federal matters. But the Parliament (or the executive government that controls it) can equally uncreate these courts. That leaves the judges without a job. Worse it can go through the sham of abolishing the court (thereby removing the judges) and then re-creating it under another name with new judges more to the Government’s liking.
This is what happened to Justice Jim Staples court and it was never adequately challenged.
The other weakness is that the Parliament can create various tribunals which are not really courts and whose “”judges” have limited tenure. It is arguable that the Industrial Relations Commission that Staples was a member of was not really a court, though it is not a very sound argument.
And when it comes to increasing the executive power over the judiciary, both sides of politics connive in it (as they did with Staples).
But the judiciary must also carry some blame in this. The legal profession and judges have allowed themselves to be suborned by the executive over the years by accepting positions on various quasi-judicial bodies, tribunals, commissions of inquiry and the like and enjoying the trappings of office like being called “”judge” or “”justice”.
It would be nice if a line in the sand could be drawn and the powers be more clearly separated. It would be nice to have no more quasi-judicial tribunals and no more judges doing executive work with commissions of inquiry.
Why can’t we? Well, the essential trouble is the hopeless inefficiency of the courts and poor decision-making in the public service, perhaps combined with the growing complexity in life.
All these tribunals have grown up because public servants have either not been willing or capable to make good decisions in the first place, giving rise to too many individual objections (in things like immigration, customs and the like). When these objections go to court, the cumbersome legal system causes huge costs and delay. The “”solution” has been the half-way house of an administrative tribunal which is neither executive nor judicial but a bit of both.
But it is an unsatisfactory solution because tribunals that upset the executive can get stood on.
If the courts, particularly at the lower level, had been more efficient, the executive would never have had an excuse to set up these tribunals. If courts at the higher level wrote judgments with greater simplicity and brevity they would have given better guidance to the administrators for future cases.
The real solution is to genuinely vest all judicial power in judges with tenure and hand the rest of the decision-making to public servants. Thus, for example, a public servant would determine a native title or immigration claim and the individual would appeal to a court headed by an independent judge. But that can never happen while the courts are so inefficient.
True, the executive is partly to blame for under-funding, but the sad fact is that the judiciary has partly brought this on itself.
Even so, there is no need for the rot to go further, it would be a good idea to strengthen judicial independence at the federal level by ensuring that all those who exercise judicial power (interpreted widely) are truly independent with secure tenure and that this is extended to the states.
If that happened the executive would have to question whether all these tribunals are really necessary given the cost of funding them on a tenured basis.