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Constitutional and Legal Affairs - Senate Standing Committee - Reports - Retiring Age for Commonwealth Judges, October 1976


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Parliamentary Paper No. 414/1976

The Parliament of the Commonwealth of Australia

REPORT ON RETIRING AGE FOR COMMONWEALTH JUDGES

Senate Standing Committee on Constitutional and Legal Affairs

October 1976

Brought up and ordered to be printed 21 October 1976

The Acting Commonwealth Government Printer Canberra 1977

MEMBERS OF THE COMMITTEE

Senator A. J. Missen (Victoria) Chairman Senator J. N. Button (Victoria) Senator F. M. Chaney (Western Australia) Senator D. M. Devitt (Tasmania) Senator the Hon. J. R. McClelland (New South Wales)

Senator P. E. Rae (Tasmania)

Secretary: Mr Michael Dixon The Senate Parliament House Canberra

Telephone: 72 6737

CONTENTS

Paragraphs Page

1. THE REFERENCE ................................................................1-5 1

2. INTRODUCTION ................................................................6-7 2

3. NEED TO AMEND THE CONSTITUTION.............................8-32 3

(a) The Federal C o u r t s ..........................................................8-17 3

(b) Courts of the Commonwealth T e r r i t o r i e s ....................... 18-23 5

(c) Alternatives to constitutional a m e n d m e n t....................... 24-30 6

(i) The United States S c h e m e ........................................ 25-27 7

(ii) Reducing Pension S c h e m e ........................................ 28-30 7

(d) Form of legislation............................................................... 31-32 8

4. SHOULD A RETIRING AGE FOR JUDGES BE ESTABLISHED..................................................................... 33-46 9

(a) Courts of other jurisdictions ........................................ 34-40 9

(i) State Supreme C o u r t s ............................................... 34-35 9

(ii) Great B r it a in ............................................................... 36 9

(iii) New Z e a la n d ............................................................... 37 9

(iv) Canada........................................................................... 38 10

(v) United States of A m e r i c a ........................................ 39 10

(vi) F ran ce........................................................................... 40 10

(b) Compulsory re tire m e n t................................................... 41-46 10

5. PRESCRIBING A RETIRING AGE ................................... 47-58 12

(a) The High C ourt..................................................................... 49-50 12

(b) Other Federal C o u r ts ......................................................... 51-54 12

(c) Courts of the Commonwealth T e r r i t o r i e s ....................... 55 13

(d) Retrospective or prospective operation of the retiring ages .................................................... 56-57 13

(e) Voluntary re tire m e n t......................................................... 58 13

6. RECOM M ENDATIONS......................................................... 59-61 14

7. REPORT...................................................................................... 62-63 15

ANNEXUREA Current retiring ages in years for judges, magistrates, public servants and a c a d e m ic s ............................................................................................16

ANNEXURE B Ages of Commonwealth j u d g e s ...............................................................17

SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS

1. THE REFERENCE

1. On 3 June 1976 the Senate resolved to refer to the Standing Committee on Constitutional and Legal Affairs for inquiry and report the following matter:

Whether the Constitution should be amended to provide that judges o f Common­ wealth Courts should be required to vacate their office upon the attainment of a fixed age.

2. Pursuant to the resolution of the Senate the Committee is required to report to the Senate on the matter as soon as possible but no later than the first sitting day in November, 1976.

3. When speaking to the motion to refer the matter to the Committee, Senator Missen, Chairman of the Committee said: Law societies and other bodies who wish to make representations would be welcomed by the Senate Committee.

(.Hansard, Senate, page 2323, 3 June 1976)

4. The Committee sought and received submissions from the Attorney-General’s Department, the Law Council of Australia, and Mr R. J. Bimey, a Member of the House of Representatives, who has expressed interest in the matter.

5. Initially the Committee found it necessary to defer its further consideration of the matter pending the completion of its inquiry into the amendments of the law made by the Misrepresentation Ordinance and the Manufacturers Warranties Ordinance of the A.C.T. which had been previously referred to the Committee.

However in view of unavoidable delays in obtaining some submissions in respect to that reference and the extension of its date for completion, the Committee has proceeded to complete its report into the subject reference. The Committee has held four private meetings in relation to the reference.

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2. INTRODUCTION

6. Implicit in the terms of reference are the following questions: (a) What are the Commonwealth Courts?

(b) Is it necessary to amend the Constitution before the Parliament can legislate to set a retiring age for judges o f Commonwealth Courts?

(c) Is it appropriate to establish a retiring age or ages for the judges?

7. The Committee has interpreted the expression ‘Commonwealth Courts’ as including both ‘Federal’ courts and the courts of the Australian territories. Federal courts include the High Court and other courts established by the Commonwealth pursuant to section 71 of the Constitution. The courts of the territories are established pursuant to section 122 of the Constitution. The importance of the distinction between the two court structures lies in the differing powers of the Commonwealth to legislate in relation to them. This matter is discussed later in this report.

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3. NEED TO AMEND THE CONSTITUTION

(a) The Federal Courts 8. Judges of the federal courts are appointed to hold office pursuant to section 72 of the Constitution which states: 72. The Justices of the High Court and of the other courts created by the

Parliament —

(i) Shall be appointed by the Governor-General in Council:

(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

(iii) Shall receive such remuneration as the Parliament may fix; but the remun­ eration shall not be diminished during their continuance in office.

9. The purpose of section 72 is to secure the independence of the judiciary from interference from both the executive and the legislature. The provision has its origins in the early constitutional development of England, when the judges were appointed during the king’s pleasure and courts were often filled by the monarch’s

supporters. By the time the Australian Constitution was drafted, in England and in the Australian colonies judges’ salaries were secure and judges could only be removed for misbehaviour or upon an address by both Houses of Parliament.

10. A lengthy and guaranteed term of office is important to secure the independence of the judiciary. Indeed at the time the Constitution was drafted both in England and in the Australasian colonies, judges of the superior courts were appointed to hold office for life. However it is clear that the respective

parliaments retained the power to legislate to limit the term of office of judges.

11. The problem with section 72 is that it does not expressly state whether a federal judge is to hold office for life or whether Parliament has the power to limit the term of office of federal judges. The intent of section 72 had to be found by the traditional methods of statutory interpretation.

12. An early commentary on section 72 was made in 1901 in the work entitled The Annotated Constitution of the Australian Commonwealth which was written by J. Quick and R. R. Garran both of whom were prominent lawyers involved in the preparation of the Constitution. In commenting on section 72, they state:

. . . The sub-section dealing with appointment makes no provision as to tenure; but sub-section 2, prescribing the only mode of removal, shows that the tenure is during ‘good behaviour’, with special restrictions as to the mode by which misbehaviour or incapacity is to be proved and adjudicated on. ‘The legal effect of the grant of

an office during “ good behaviour” is the creation of an estate for life in the office. Such an estate is terminable only by the grantee’s incapacity from mental or bodily infirmity, or by his breach of good behaviour. But, like any other conditional estate, it may be forfeited by a breach of the condition annexed to it — that is to say, by

misbehaviour.’ (page 729, note 293)

. . . the peculiar stringency of the provisions for safeguarding the independence of the Federal Justices is a consequence of the federal nature of the Constitution, and the necessity for protecting those who interpret it from the danger of political interference. The Federal Executive has a certain amount of control over the Federal

Courts by its power of appointing Justices; the Federal Executive and Parliament jointly have a further amount of control by their power of removing such Justices

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for specified causes; but otherwise the independence o f the Judiciary from inter­ ference by the other departments o f the Government is complete. And both the Executive and the Parliament, in the exercise o f their constitutional powers, are bound to respect the spirit of the Constitution, and to avoid any wanton interference with the independence of the Judiciary, (pages 733-4, note 297)

13. The matter was argued before the High Court in 1918 (Waterside Workers' Federation o f Australia v. J. W. Alexander Ltd (1918) 25 C.L.R. 434) when the High Court had to decide whether the Commonwealth could appoint federal judges for a term of seven years. The argument in favour of a limited term found favour with only two of the seven judges, Higgins and Gavan Duffy JJ. In his judgment Higgins J. said:

. . . This section has to be interpreted on the same common-sense principles as any other section, and without prepossessions as to what the section means, or ought to mean, (page 472). . . . the Crown, in appointing its servants, judicial or ministerial, can appoint for such term as it pleases — whether at will or for life or for years — unless so far as restrained by law. (page 472)

Now, there is nothing said in the section expressly about life tenure. There is not one word in the section that is not consistent with a tenure for seven years as much as with a tenure for life; . . . That the provision for removal is consistent with

a term of years, under the Constitution, is shown by sec. 103. This provides, as to members of the Inter-State Commission that they ‘shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses o f the Parliament . . . praying for such removal on the ground of proved misbehaviour or incapacity’, (pages 472-473)

‘Removal’ during a term is essentially different from leaving at the end of a term; and a power to remove during a term on the address of both Houses for proved misbehaviour, etc., if conferred, operates as a qualification o f the term, whatever the term may be. The words used in sec. 72 do not even confer a right of removal on an address o f both Houses; they are in an unusual negative form — ‘shall not be removed except’ etc. They do not prevent a tenure for life without any power to remove whatever. Sec. 72 does not grant a tenure, but operates to restrain, in some respects, the nature o f any grant. It seems to me, in short, that under sec. 72 of our Constitution there is nothing to prevent a tenure for years, if Parliament (or the Government) so decide. A tenure at will is incompatible with sec. 72; for no Justice is to be removed except on an address from both Houses praying for removal on the ground of proved misbehaviour, etc.: but a tenure for years is not incompatible. The

Constitution, by sec. 72, does not make a life tenure imperative in all appointments, but provides against that which is the greatest danger — the danger of an offended Government removing a non-compliant Justice, or reducing his remuneration, (pages 473-474)

So far as the tenure of the High Court Justices hitherto appointed, there is no tenure for years. They hold office until an address from both Houses, (page 474)

. . . But whether the tenure is technically for life is unimportant — these Justices cannot be removed till an address from both Houses. If future commissions be issued in the same form, they will have the same effect, (page 475)

14. However the argument that federal justices could only be appointed for life, found favour with the majority of the court (Griffith C. J., Barton, Isaacs, Powers and Rich JJ.). In their joint judgment, Isaacs and Rich JJ. state: . . . But the Federal Constitution is specific that judicial power shall be vested in

Courts, that is, Courts of law in the strict sense . . . And it also requires that those Courts to be constituted by ‘Justices’ — which means simply the Judges of the Federal Courts — whose tenure and salary rights are governed by the provisions of sec. 72. That section is distinct. The Justices are to be ‘appointed by the Governor-

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General’. That is the only function o f the Governor-General in relation to the matter, (pages 467-468)

. . . Once the office is filled, if no statutory provision were made, the common law would say that the appointment was at pleasure . . ., and the Judge could be displaced, or removed as it is said, at the will o f the Executive. If any competent Statute says differently, that Statute must be obeyed. Here the law of the Constitu­ tion, inalterable by Parliament or otherwise than as the Constitution itself . . . declares explicitly and in negative terms — which fact differentiates sec. 72 from

corresponding enactments elsewhere — that a Justice so appointed shall not be ‘removed’ except by the Governor-General, and then only in a certain way, for certain reasons proved to exist, (page 468)

. . . If Parliament may fix a term it may fix any term it chooses, as, for instance, until the Houses or either o f them shall present an address expressing want of confidence in the Justice, irrespective of misbehaviour. This, of course, would nullify the second clause, (page 469)

. . . the suggestion overlooks the fact that sec. 72 is one of the strongest guarantees in the Constitution for the security of the States. The Constitution places by sec. 74 the whole fate of the State Constitutions, where they compete with the Federal Constitution, in the hands o f the High Court. That Court’s decision in such a question is final, unless in the exercise of its discretion it grants a certificate permitting an appeal to His Majesty in Council.

It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or incapacity. It is not like the case of a unitary Parliament having one interest only to consider, namely, the one territory. It is the case o f a

Federation, where the central legislative and executive bodies are largely competitive with, and in a sense adverse to, the State authorities, (pages 469-470)

15. The judgment of the High Court was affirmed by the Privy Council in 1930 in another matter, (Shell Co. o f Australia Ltd v. Federal Commissioner o f Taxation (1930) 44 C.L.R. 530). In the judgment of the Privy Council it was stated: . . . their Lordships desire to make it quite clear that, as at present advised,

they are not prepared to assent to the view that it is competent, either with

or without legislation by the Federal Parliament, to appoint Justices of the High Court or of the other Courts created by the Parliament under sec. 71 of the Constitution, with other than a life tenure of their office, (pages 545-546)

16. These judgments have been reaffirmed from time to time by the High Court, and while members of the Committee are attracted to the judgment of Higgins J., they conclude that the weight of authority is against it. Senator James McClelland expresses doubts as to whether Alexander’s case was rightly decided and believes

that the Parliament might well be able to legislate successfully to impose a retiring age for federal judges but the majority of the Committee have little confidence in the successful outcome of this course.

11 * * * * * 7. There is however one important point of principle in the judgment of Higgins J. and that is, even if the Parliament had the power to limit the term of office of federal judges, once a judge was appointed either for life or a term of years, parliament could not legislate to shorten his term of office. This principle is

important to the recommendations of this Committee.

(b) Courts of the Commonwealth Territories 18. The legal position of judges of territory courts is quite different from that of federal courts. The power for the Commonwealth Parliament to legislate for the territories is derived from section 122 of the Constitution. (In the case of the

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Australian Capital Territory the Commonwealth has an additional power to legislate from section 52 (i) of the Constitution.)

19. The High Court has held (Spratt v. Hermes, (1965) 114 C.L.R. 226) that pursuant to section 122 of the Constitution, Parliament is given a total power to legislate for the territories and there is no limit on these powers by reference to a subject matter as there is in section 51 of the Constitution. Accordingly when the Commonwealth creates courts for its territories it does so pursuant to section 122 of the Constitution and not section 71. With respect then to the courts of its territories, the Commonwealth is in much the same position as the States are with their courts.

20. The Commonwealth can and has imposed an age limit on judges of territory Supreme Courts, being 70 years in the A.C.T. and the Northern Territory and until July 1976, 65 years in Christmas Island and the Cocos (Keeling) Islands. However the position is complicated by the practice of appointing judges of the Australian Industrial Court (for whom there is no retiring age) to hold concurrent commissions as judges of territory courts, see Annexure B. There is no age limit set for judges of Norfolk Island and, since July 1976, none for judges of Christmas Island and the Cocos (Keeling) Islands as a judge for these courts must be ‘a judge of another court created by the Parliament’ and would accordingly cease to be a judge of these courts when he ceased to be a judge of ‘another court’.

21. In the legislation providing for the removal of judges of the Supreme Courts of the A.C.T. and the Northern Territory, the Commonwealth has not followed the State legislation but has adopted the more stringent provisions of the

Constitution, so that the same procedure must be observed for the removal of the judges of these two territory courts as for the removal of judges of the federal courts. Having regard to this, the Committee has noted with concern the position of judges of the island territories. There is no express provision for the removal of judges of these territories, other than the requirement that they would cease to be judges of the territory courts when they ceased to be judges of 'another court’,

which provision is specifically expressed in the Christmas Island and Cocos (Keeling) Island ordinances and implied in th e Norfolk Island Act 1961.

22. The Committee believes that the differing requirements for the several territories is unsatisfactory and that all should be made uniform with the legislation for A.C.T. and the Northern Territory. Judges on Christmas Island and the Cocos (Keeling) Islands are appointed pursuant to ordinance and not an Act of Parliament. This is clearly unsatisfactory, because of the importance of such appointments. The Committee believes that the legislative provision for the appointment of judges and the establishment of the Supreme Courts for each territory should be made by Act of Parliament and not by ordinance.

23. The Committee is of the opinion that the Commonwealth should legislate by Act of Parliament for the appointment, retirement and dismissal of the judges of the island territories in a manner uniform with the legislation already enacted for the A.C.T. and the Northern Territory.

(c) Alternatives to Constitutional Amendment 24. It is clear from what has been stated above that, as the Constitution stands, it is not possible for the Commonwealth Parliament to legislate directly to establish a compulsory retiring age for federal judges. The Committee is aware that from time to time pension schemes have been proposed which fall short of a mandatory

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retiring age but which offer strong inducements for judges to retire at a particular age.

(i) The United States Scheme 25. One such scheme is that adopted in the United States of America. In a statute enacted in 1937 federal judges who have served ten years on the bench may ‘retire’ at the age of 70 years on full pay, subject to temporary calls to duty at the discretion of the Chief Justice of the U.S. In some circumstances a retired judge may retain

his quarters and his staff. A retired judge will not receive any additional salary upon recall although of course he would receive normal travel and other expenses associated with his duties.

26. On the other hand a U.S. federal judge may choose to ‘resign’ at the age of 70, and provided he has served ten years on the bench, he will receive a pension equal to his full salary for life. A judge who has resigned will lose his right to chambers and staff. But he will be entitled to practice law, or take up any other

position whereas a retired judge cannot. In a statement made on 4 August 1976, the Attorney-General, Mr R. J. Ellicott, Q.C., announced that a scheme similar to this is currently being considered by the Government in relation to a proposal

to establish a new federal causes and appeals court.

27. The Committee has noted the remarks of one commentator on the U.S. judicial system:

Despite the liberal provisions o f the act, the average federal judges — in particular, the judge of the Supreme Court — are reluctant to leave active service. Far more vacancies occur as the result of death in harness, particularly at the higher levels. Of the eighty-nine Supreme Court vacancies between 1789 and 1967, death in office

was responsible for forty-eight with forty-one representing voluntary retirement — although since the passage of the 1937 statute, of twenty-two vacancies, the latter was responsible for fifteen. It is human to cling to power and influence, and par­ ticularly so to a role of such significance and general esteem.

(Henry J. Abraham, The Judicial Process, 2nd edn p. 43)

(ii) Reducing Pension Scheme 28. This suggestion first came to the attention of the Committee in 1974 during the course of its consideration of the Family Law Bill 1974. Under such a scheme a retiring age would be fixed and judges who retired at this age would receive a very

generous pension. Judges who retired after this date would receive a pension at a lower rate which decreased with advancing years.

29. Although it may be argued that a pension is not part of a judge’s remuneration the Committee has considerable doubts about the constitutional validity of such a scheme having regard to the words of section 72 (iii) of the Constitution that the remuneration of federal judges ‘shall not be diminished during their

continuance in office’. Having regard to the comments of Henry J. Abraham cited above the Committee doubts whether such a scheme would be any more effective than the U.S. Scheme. In any event the Committee feels that the community would object to such a scheme as a matter of social policy.

30. The Committee believes that neither of these schemes or any variant of them would be completely satisfactory in securing early judicial retirement should that be desired. An amendment to the Constitution would be a much more satisfactory method of achieving that result.

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(d) Form of legislation 31. In the case of federal courts the Committee is of the opinion that it is necessary to amend the Constitution if it is desired to establish a retiring age for judges of the federal courts.

32. In the case of the courts of the Commonwealth territories the Committee is of the opinion that the Commonwealth has the power to appoint judges of the territory courts for a term of years and to set a retiring age for them.

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4. SHOULD A RETIRING AGE FOR JUDGES BE ESTABLISHED

33. The Committee now turns to consider the third matter raised by the terms of reference; whether it is appropriate to establish a retiring age or ages for the judges. In doing so the Committee has reviewed the practice elsewhere.

(a) Courts of other jurisdictions

(i) State Supreme Courts 34. In all States a retiring age has been fixed for Supreme Court judges. This age is 70 in all States except Victoria where it is 72. In all States, except Tasmania, judges hold their office during ‘good behaviour’ and can be removed by the Crown

for misbehaviour without any address by Parliament. In these States judges can be removed by the Crown upon an address by the Houses of Parliament, in which case misbehaviour does not have to be shown. In Tasmania the Crown cannot ‘amove’ a Supreme Court judge except upon an address by both Houses of Parlia­

ment; again misbehaviour does not have to be proved.

35. In Tasmania, Victoria and Western Australia, the legislation introducing a judicial retiring age specifically excluded judges appointed prior to the date of commencement of the legislation. On the other hand, in Queensland and N.S.W.,

the legislation applied to judges appointed both before and after the commence­ ment of the legislation. (The South Australian legislation was unusual, as the Act applied to all future judges and only to those existing judges who elected to contribute to and accept the pension granted by that Act). In none of these States has there been a lessening of the independence of the judiciary as a result of the

legislation. No evidence has been tendered to the Committee to suggest that any weakening of judicial independence has resulted from the provision of a retiring age in the various States.

(ii) Great Britain 36. Judges of the superior courts hold their office ‘during good behaviour’ subject to a power of removal by the Queen upon an address presented to the Queen by both Houses of Parliament. Judges of the superior courts are required to

vacate their office upon the attainment of the age of 75 years. Judges of lower courts are required to vacate their office upon the attainment of the age of 72 years. Judges are not protected in any way from a change in their tenure of office by statute, as Parliament retains the power to alter the tenure and emoluments of

office of judges. However, the emoluments or tenure of office of incumbent judges have not been reduced. When the Parliament legislated to set retiring ages for judges, the legislation was expressed not to apply to judges who held office at that time.

(iii) New Zealand 37. The position of judges of the superior courts of New Zealand is very similar to that of judges of the Supreme Courts of the Australian States. Judges who must retire at 72 years are appointed to hold office during good behaviour and may be removed only by the Queen upon an address by the House of Representatives.

(There is only one chamber in the New Zealand Parliament.) The legislation which introduced a judicial retiring age specifically excluded judges who hold office at that time.

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fiv) Canada 38. Judges of the Supreme Court of Canada (the equivalent of the Australian High Court) and of the Federal Court are appointed to hold office during good behaviour but are removable by the Governor-General on address by both Houses of Parlia­ ment. Judges of the Supreme Court cease to hold office upon the attainment of the age of 75 years. Judges of the Federal Court cease to hold office upon the attainment of the age of 70 years.

(v) United Sates o f America 39. Judges of the ‘Constitutional’ courts, that is those appointed pursuant to the ‘judicial’ power in the Constitution (Article iii) hold their office during ‘good behaviour’, for life. The removal of federal judges can only be done by the constitutional process of impeachment and conviction. This process requires impeachment by a vote of a simple majority of the House of Representatives, followed by a conviction by a vote of two-thirds of the members of the Senate present and voting.

(vi) France 40. In France the judiciary is a career system and a branch of the national civil service. It is however quite secure and independent. Provision was made in the 1958 Constitution for the judiciary to have life tenure, being removable only for

‘misconduct in office’ upon the recommendation of the High Council of the judiciary which acts as a disciplinary court forjudges.

(b) Compulsory Retirement 41. The Law Council’s Committee, in its submission, expressed the view that a retiring age is appropriate for judges of Commonwealth Courts other than the High Court and believed that the age of 72 years was not too high. The Law Council’s Committee was divided in its view as to whether justices of the High Court should or should not retire at a fixed age, but was unanimous in its view that the tenure of High Court judges, including retirement age and removal, ought to continue to be dealt with by a provision of the Constitution itself and ought not to be within the control of the Parliament. In the case of other federal courts, the Law Council’s Committee was of the view that removal ought to be dealt with by a provision of the Constitution, while the fixing of a retirement age could appropriately be within the power of the Parliament. The Law Council’s Committee was also of the view that changes ought not to be made to the tenure of judges already in office.

42. The Committee has considered arguments both for and against compulsory retirement for judges. The principal argument against a compulsory retiring age for judges centres around the independence of the judiciary and the constitutional

role of the High Court. It can be argued that the Commonwealth, which is usually a party to principal constitutional cases, could anticipate judicial retirements under a fixed retirement system and pursue legislation and appoint judges so as to

advance the cause of the government of the day.

43. This argument assumes that the Commonwealth can take a long range view in planning constitutional challenges. The opportunities for abuses of this nature must be few. The power of the Government to introduce legislation to increase the number of judges on the High Court, or any other federal court would be more significant. In these circumstances the distinction between life appointments and

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judges with a fixed retiring age is not central to any issue of political appointments to the bench.

44. The arguments against introducing a compulsory retiring age for judges have less application to the judges of other federal courts. In relation to these courts the Committee notes that there is a wider degree of acceptance of the advantages of the imposition of a fixed retiring age forjudges of these courts.

45. In the view of the Committee there are a number of compellinig reasons for introducing a compulsory retiring age for all federal judges: (a) It is necessary to maintain vigorous and dynamic courts, which require the input of new and younger judges who will bring to the bench new ideas

and fresh social attitudes. The Committee had such a problem in mind when it reported to the Senate in October 1974, in its report relating to the clauses of the Family Law Bill 1974, (para. 36) and expressed concern at the constitutional requirement that judges of the Family Court be

appointed for life. (b) The relatively high average age of federal judges does, to some extent, limit the opportunity for able legal practitioners to serve on the bench while at the peak of their professional abilities and before suffering the

limitations of declining health. (c) In Australia and to a growing degree in comparable countries, there is an acceptance of the need for a compulsory retiring age for judges. In most Australian States and the mainland territories this age is 70 years.

(d) The introduction of a compulsory retiring age may result in the automatic removal of judges still capable of some years of service, but it will avoid the unfortunate necessity of removing a judge who, by reasons of declining health, ought not to continue in office, but who is unwilling to

resign.

46. Having considered these arguments the Committee is of the opinion that compulsory retiring ages ought to be prescribed for federal judges.

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5. PRESCRIBING A RETIRING AGE

47. In considering the manner in which a retiring age should be prescribed, two matters must be resolved: (a) what is a suitable maximum retiring age for judges of Commonwealth courts; and,

(b) in what manner should the retiring age be fixed.

48. The Committee believes that the answers to both these questions will depend, to a degree, upon the jurisdiction and responsibility of the Court concerned.

(a) The High Court 49. The High Court is given a special status in the Constitution. It is seen as equal to the Executive and the legislature. It is essential then to secure its continued independence from interference from the other arms of government. With this in mind the Committee is of the view that the retirement age for justices of the High Court ought to be established in the Constitution itself.

50. The Committee believes that having regard to the retiring age most commonly established for judges of State and territory Supreme Courts, an appropriate retiring age for justices of the High Court would be 70 years of age.

(b) Other Federal Courts 51. At present there are three superior federal courts: The Australian Industrial Court The Federal Court of Bankruptcy

The Family Court of Australia

52. The functions of each of these Courts vary quite markedly. No doubt in the future the Commonwealth will have occasion to create other federal courts. It is the opinion of the Committee that there would be an advantage in leaving Parliament with some flexibility to establish by statute different retiring ages for different

courts.

53. Experience in England, in New Zealand and in the Australian States and territories has shown that the independence of the judiciary has not been threatened by allowing the Parliament to retain the power to prescribe a retiring age forjudges. Accordingly the Committee believes that the Constitution should be amended to provide that Parliament should have the power to establish by statute the retiring ages for judges of federal courts other than the High Court provided however this age is not over 70 years.

54. The Committee believes that an appropriate retiring age for judges of the abovementioned three superior federal courts would be 65 years and that the Commonwealth Parliament should legislate accordingly when an appropriate amendment to the Constitution has been made.

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(c) Courts of the Commonwealth Territories 55. The Committee has noted above that the Commonwealth has already legislated to prescribe retiring ages for judges of territory courts. Subject to the

comments made by the Committee with respect to the mode of the legislation relating to the appointment, retirement and dismissal of territory judges, the Committee does not see any reason to alter the retiring ages already prescribed. In the case of the judges of the island territories, the Committee believes a retiring

age of 65 years would be appropriate.

(d) Retrospective or prospective operation of the retiring ages 56. The prescription of a retiring age for an existing judge whose appointment is for life would of course be an interference with the tenure of office of that judge and

to that degree a possible interference with the judge’s independence. The Committee has noted that in many jurisdictions (U.K., New Zealand, Victoria, Western Australia and Tasmania) the legislation introducing a judicial retiring age specifically excluded judges appointed prior to the date of commencement of the legislation. Such legislation avoided the possibility of there seeming to be an inter­ ference with the independence of judges by the legislature.

57. The Committee noted above (para. 14 page 5) the comments made in the dissenting judgment of Higgins J. in the Waterside Workers' Federation of Australia v. J. W. Alexander Ltd (1918) 25 C.L.R. at page 475. The Committee believes that it is of fundamental importance that the independence of the High

Court and the other federal courts should be seen to be observed. For these reasons then the Committee is of the opinion that: (a) The constitutional amendment prescribing a retiring age for justices of the High Court should be expressed to apply only to those justices appointed

after the date of the adoption of the amendment; (b) That the constitutional amendment relating to the retiring ages for judges of the other federal courts: (i) should be expressed to apply only to those judges appointed after the

date of the adoption of the amendment; (ii) should provide that the tenure of office of federal judges shall not be reduced during their continuation in office.

(e) Voluntary Retirement 58. In the event of the suggested constitutional alterations being made, some judges appointed prior to the date of the amendment may wish to retire when they attain the ages prescribed for ‘future’ judges. However in doing so they may

prejudice their rights granted by the Judges ’ Pensions Act 1968. The Committee is of the opinion that in these circumstances section 6 of that Act should be amended to provide that where a judge appointed for life wishes to retire at the ‘prescribed’ age that judge would, as of right, be entitled to a full pension.

13

6. RECOMMENDATIONS

59. That the appropriate steps be taken to amend section 72 of the Constitution to provide in the Constitution: (1) That all justices of the High Court appointed to hold office after the date of the amendment to the Constitution shall retire at the age of 70 years.

(2) That all judges of the other federal courts shall hold office for such period as Parliament provides, provided however: (a) the maximum retiring age for judges of all the other federal courts shall be 70 years; (b) the tenure of office of federal judges shall not be reduced during their

continuation in office; and (c) the amendment shall not apply to judges appointed to federal courts prior to the date of the amendment of the Constitution.

60. That after the amendment has been made the Parliament should legislate: (1) to prescribe a retiring age of 65 years for judges of the existing ‘other’ federal courts; (2) to amend section 6 of the Judges ’ Pensions Act 1958 to provide that where

a judge of either the High Court or the other federal courts who was appointed prior to the amendment of the Constitution wishes to retire at the ‘prescribed’ age the judge will, as of right, be entitled to a full pension.

61. Legislation should be introduced to provide: (1) that a retiring age of 65 years be introduced for judges of the Supreme Courts of the island territories; (2) that the Norfolk Island Act 1957, the Christmas Island Act 1958 and the

Cocos (Keeling) Islands Act 1955 be amended to provide for the establish­ ment of the respective Supreme Courts and for the appointment, retirement and dismissal of Supreme Court judges uniform with the provisions in the Australian Capital Territory Supreme Court Act 1933­

1973 and the Northern Territory Supreme Court Act 1961-1973.

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7 . REPORT

62. Senator James McClelland, a member of the Committee participated in the preparation of this report, and expressed his general support for the terms and recommendations of the report when in draft form. Owing to his sad bereavement, he was not able to be present at the settling of its final terms but concurred in its

unanimous recommendations.

63. The Committee having considered the matter referred now reports to the Senate that its inquiry has concluded.

A lan M issen

Chairman

Parliament House Canberra

October 1976

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A n n e x u r e A

CURRENT RETIRING AGES IN YEARS FOR: JUDGES, MAGISTRATES, PUBLIC SERVANTS AND ACADEMICS [a] Authority Judges Magistrates and Public Servants Academics |b]

New South Wales 70 60 (male)

55 or 60 (female)

(c)

Victoria 72 60 (male)

55 or 60 (female)

(d)

Queensland 70 65 60 or 65

South Australia 70 60 or 65 (male)

55 or 60 (female)

60 or 65

Western Australia 70 60 or 65 60 or 65

Tasmania (e) 70 60 to 65 (male)

55 to 60 (female)

60 to 65

Commonwealth (f) 60 or 65 60 or 65 (g)

A.C.T. and N.T. 70(h) — —

(a) Where an option is indicated, an employee decides at which age he will retire. (b) University academics only. Most recent published information is for 1972. (c) Varies from university to university. Retiring age for Sydney, New South Wales and New England Universities is 55, 60 or 65 for women, 60 or 65 for men; Macquarie University is 55 or 60 for

women, 60 for men; and Newcastle University is 55 or 60 for women, 60 or 65 for men. (d) Information is available only for Monash University which has retiring ages of 60 or 65. (e) In Tasmania an employee may choose to retire at any age in the ranges shown, but must give six months’ notice. (f) No set retiring age. (g) An employee retires on 31 December of the year in which he turns 65 years. (h) Except for additional judges being judges who hold concurrent commission as judges of

Commonwealth courts. These have no set retiring age. Compiled at request by the Statistics Group of the Legislative Research Service, Commonwealth Parliamentary Library, from information obtained from State and Commonwealth Attorney-General’s Departments (or equivalent), Public Service Boards, and Courts, and front the Vice-Chancellor's Committee booklet Superannuation.

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A n n e x u r e B

AGES OF COMMONWEALTH JUDGES

Notes 1. Attention is drawn to the comments made in the letter dated 4 August 1976 from the Attorney-General’s Department. 2. Subsequent to the receipt of the Department’s letter, the following changes

have taken place:

(a) High Court Sir Edward McTiernan has resigned and the Honourable Keith Arthur Aickin has been appointed in his stead. He was aged 60 years at the date of his appointment.

(b) Industrial Court Sir John Spicer has resigned.

(c) Fam ily Court o f A ustralia Mr Hubert Rofeno Frederico was appointed as a judge in Melbourne. He was aged 45 years at the date of his appointment. Mr Joseph Shore Goldstein was appointed as a judge in Sydney. He was aged 41 years at the date of his appointment.

3. Provision is made in the legislation establishing the supreme courts of the territories for the appointment of ‘a person who . . . is a Judge of another court created by the Parliament to be an additional Judge’, to supplement the ordinary judges of these courts. A retiring age, if prescribed, does not

apply to an ‘additional Judge’ who ‘ceases to hold office if he no longer holds office as a Judge . . . of another court created by the Parliament’. Pursuant to these provisions, judges from the Industrial Court have been appointed to the Supreme Courts of the territories.

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ATTORNEY-GENERAL’S DEPARTMENT

Ca n b e r r a , a .c .t . 2000

4 August 1976

Dear Mr Dixon Retiring Age o f Commonwealth Judges

I refer to your letter of 21 June 1976 in which you seek the Department’s views on a matter referred to the Committee concerning the vacation of office by Commonwealth judges upon the attinment of a fixed age and ask for a list of all Commonwealth and territorial courts and judicial tribunals, setting out the names of the judges of each court in full, their ages and their status in the court.

I refer also to your subsequent telephone conversations with Mr Govey on this matter and confirm that this Department does not maintain comprehensive official records of the ages of members of the judiciary appointed by the Commonwealth.

The attached list sets out the names of the justices and judges of the federal and territorial courts. In some cases the ages of judges and justices were available from the appointment files, in other cases they were obtained from Who’s Who in Australia 1974 or abstracted from the list of ages of justices and judges of federal

and territorial courts which you provided. The ages of some of the judges of the Family Court are at the date on which their appointment was made. In these cases the date the appointment was made is shown.

I understand from your discussions with Mr Govey that the information required with respect to tribunals would concern tribunals exercising judicial functions, whose members would necessarily be appointed for life. There are no tribunals which come within this category.

I shall provide you with the views of the Department on the matter referred to the Committee in a subsequent letter.

Yours sincerely

J. B. F isher

for Secretary

Mr M. Dixon Secretary Standing Committee on Constitutional and Legal Affairs Parliament House CANBERRA, A.C.T. 2600

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JUSTICES AND JUDGES OF FEDERAL AND TERRITORIAL COURTS Names, Status and Ages (at 1 June 1976, unless otherwise shown)

Title Name Age

HIGH COURT OF AUSTRALIA

Chief Justice The Right Honourable Sir Garfield Edward John Barwick, G.C. M.G. 73 Justices The Right Honourable Sir Edward Aloysius McTieman, K.B.E. 84 The Right Honourable Sir Harry Talbot Gibbs, K.B.E. 59

The Honourable Sir Ninian Martin Stephen, K.B.E. 53

The Honourable Sir Anthony Frank Mason, K.B.E. 51

The Honourable Kenneth Sydney Jacobs 58

The Honourable Lionel Keith Murphy 53

AUSTRALIAN INDUSTRIAL COURT

Chief Judge Sir John A. Spicer 77

Judges The Honourable Mr Justice Edward A. Dunphy 68

The Honourable Mr Justice Percy E. Joske, C.M.G. 80

The Honourable Mr Justice Reginald A. Smithers 73

The Honourable Sir John A. Nimmo, C.B.E., O.St.J. 67

The Honourable Mr Justice Albert Edward Woodward, O.B.E. 47 The Honourable Mr Justice Robert J. A. Franki 60

The Honourable Mr Justice John B. Sweeney 64

The Honourable Mr Justice Phillip G. Evatt, D.S.C. 53

The Honourable Mr Justice Robert James Baldwin St John 50 The Honourable Mr Justice Raymond M. Northrop 50

The Honourable Mr Justice Francis G. Brennan 48

FEDERAL COURT OF BANKRUPTCY

Judges The Honourable Mr Justice Charles A. Sweeney, C.B.E. 61

The Honourable Mr Justice Bernard B. Riley 63

OTHER SUPERIOR COURTS Supreme Court of the Australian Capital Territory

Judges The Honourable Mr Justice Russell W. Fox 55

The Honourable Mr Justice Richard A. Blackburn, O.B.E. 57 The Honourable Mr Justice Xavier Connor 58

*The Honourable Mr Justice Edward A. Dunphy ♦The Honourable Mr Justice Percy E. Joske, C.M.G. ♦The Honourable Mr Justice Reginald A. Smithers ♦The Honourable Mr Justice Albert E. Woodward, O.B.E.

♦The Honourable Mr Justice Robert J. A. Franki ♦The Honourable Mr Justice John B. Sweeney ♦The Honourable Mr Justice Phillip G. Evatt, D.S.C. ♦The Honourable Mr Justice Robert James Baldwin St John

♦The Honourable Mr Justice Raymond M. Northrop ♦The Honourable Mr Justice Francis G. Brennan

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Title Name Age

Supreme Court of the Northern Territory

Judges The Honourable Mr Justice William E. S. Forster 55

The Honourable Mr Justice James H. Muirhead 51

The Honourable Mr Justice Richard C. Ward 59

♦The Honourable Mr Justice Edward A. Dunphy ♦The Honourable Mr Justice Percy E. Joske, C.M.G. ♦The Honourable Mr Justice Reginald A. Smithers ♦The Honourable Mr Justice Albert E. Woodward, O.B.E. ♦The Honourable Mr Justice Robert J. A. Franki ♦The Honourable Mr Justice John B. Sweeney ♦The Honourable Mr Justice Phillip G. Evatt, D.S.C. ♦The Honourable Mr Justice Robert James Baldwin St John ♦The Honourable Mr Justice Francis G. Brennan

* Additional Judges See Australian Industrial Court list for ages.

FAMILY COURT OF AUSTRALIA

Chief Judge The Honourable Justice Elizabeth A. Evatt 42

SYDNEY

Senior Judges The Honourable Mr Justice Kenneth W. Pawley* 58

The Honourable Mr Justice Raymond D. Watsont 53

Judges The Honourable Mr Justice William G. Dovey 52

The Honourable Mr Justice Basil M . Hogan 57

The Honourable Mr Justice Bryce E. Ross-Jones 48

The Honourable Justice Josephine Μ. H. Maxwell 38

MELBOURNE

Senior Judge The Honourable Mr Justice Keith J. A. Asche 50

Judges The Honourable Mr Justice Henry C. Emery 52

The Honourable Mr Justice John F. Fogarty 42

The Honourable Justice Margaret Lusink 54

The Honourable Mr Justice Thomas R. Joske 43

The Honourable Mr Justice Steven Strauss 54

ADELAIDE

Senior Judge The Honourable Mr Justice John Marshall* 54

Judges The Honourable Justice Kemeri Ann Murray 44

The Honourable Mr Justice Thomas H. McGovern 54

The Honourable Mr Justice John T. Gun** 47

BRISBANE

Senior Judge The Honourable Mr Justice Alan G. Demackt 41

Judges The Honourable Mr Justice Graham R. Bell 39

The Honourable Mr Justice Travis E. Lindenmayer 36

The Honourable Mr Justice William S. Simpson 49

CANBERRA The Honourable Mr Justice John E. Ellis 41

HOBART The Honourable Mr Justice Rodney C. Wood 44

* As at date appointment made (28 August 1975) f As at date appointment made (20 January 1976) ** As at date appointment made ( 8 July 1976)

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COURTS OF EXTERNAL TERRITORIES (See Australian Industrial Court list for ages) SUPREME COURT OF NORFOLK ISLAND The Honourable Mr Justice Percy E. Joske, C.M.G. The Honourable Mr Justice Edward A. Dunphy

SUPREME COURT OF CHRISTMAS ISLAND The Honourable Mr Justice Edward A. Dunphy

SUPREME COURT OF COCOS (KEELING) ISLANDS The Honourable Mr Justice Edward A. Dunphy

21