Selection of Judges (Notes)
Judges are appointed by the Gov. and usually from the ranks of barristers of min. of 7 years standing (most have 20 yrs experience at the bar).
High court judges are appointed under s.72 of the constitution.
State court judges under s.81 of the Vic. Constitution (governor - in - council).
High court judges may be dismissed by the governor general on address by both houses of the parliament and state judges by address from both houses.
It is an unquestioned principle that judges should be independent from other components of the Gov., and this is well illustrated by the fact that, aside from a mandatory retiring age (70 yrs in Victoria- except those who were appointed prior to 1986, in all other jurisdictions - other states, high court, family court and federal court - also 70 yrs of age). Judges cannot be removed except in the gravest circumstances of misbehavior and then as I have mentioned earlier with the approval of both houses of parliament. Moreover, since colonial times, no judge has been removed from the office (few judges come very, very close? Mr. Justice Murphy, judge Ford in N.S.W. and Mr. justice Vasta in Queensland).
The independence of the judiciary, including magistracy, is also ensured by state legislation immunising judges from legal proceedings in respect of their handling of cases in court (they also enjoy a couple of other conventions: (1) improper for a Gov. or any other party to try to influence a judge, - such conduct may be criminal. The (2) convention is that judges’ salary cannot be lowered during office as part of a general wage reduction).
What are the benefits or otherwise of this system? (Academic tenure: v. contract)
Pluses: free to speak/make changes
free to go against the establishment
Minuses: dead wood/no produce/act with impunity/become senile and
perhaps abuse the role? How?
First, drawing judges from the ranks of barristers - and by definition - from the most successful of barristers that has some implications: Judges are predominantly male (from barristers’ ranks) most likely from area covering a corporate work. Predominantly from private schools. Also they are largely represented in exclusive all - male clubs of extremely high social standing and power (Melbourne club, Victoria, Australia clubs etc.)
Justice Michael Kirby - in his book on judges comments on some of these characteristics. He points out that judges are typically chosen from those most likely to support the status quo (p.21) and in many cases are not well fitted to take on the task at the outset. At present, he notes, it is assumed that years of practice as a barrister is sufficient - and necessary - to qualify for judicial office.
However, there is a grave danger that the cloistered life of a successful law practice may not reflect or represent the variety of the community it serves. Justice Kirby notes that most judges know of no other system and they assume that there is some better, (i.e. they tend towards gross conservatism. Some are embarrassed to admit to imperfections in the system, and are especially blind to their own weaknesses. Many, after a working life in the commercial field are totally unprepared to hear criminal matters. He further suggests that as the laws in society become increasingly complex and diverse - and as the barrister profession specialises even more in a specific area- it is going to be increasingly difficult to find judges with the diversity yet experts in the diverse areas of law that comes before the courts.
Kirby advocates the training of judges in other disciplines such as sociology, psychology, criminal justice, criminology and so forth, to supplement the narrow specialisation they are subject to. Another critic, Stan Ross, calls for more appoints from ranks other than the exclusive bar- more women, academics solicitors, people from diverse ethnic background etc. in a deliberate attempt to reflect community values. The majority of the judiciary does not meet these calls for more training of judges with great enthusiasm.
Some critics argue that the independence of the judiciary would be harmed by training, by establishing an orthodox penology, untested in the courtroom for example, when such reform were proposed in the UK. Lord Devlin said: " I must say at the onset that the showpiece of the newly proposed scheme, the months of incarceration (meaning attendance at courses), strikes me as a dazzling manifestation of the unacceptable force of socialism, i.e. an excessive zeal for setting up at public expense institutions for requiring people into doing things which any sensible person does for his benefit, at his own expense and in his own way."
Other judges - critical of altering the status quo - have revealed strong prejudices against opening up the profession to groups other than male/white/British origins.
Mr. Justice Hutley, in his
submission of the N.S.W. law reform commission stated: "the clan type loyalty
which I understand is the basis of much aboriginal and migrant morality is fundamentally
inconsistent with the individual integrity which is required of a lawyer." He
also pointed out that the only one woman lawyer (at the time (he was) a judge)
had performed competently when appearing before him.
Written By Evan Sycamnias