Understanding Judicial Independence in Australia

What is an independent judiciary?

A system of courts and judicial officers separate from the executive and legislative branches.

Why are judges appointed independently?

Appointed independently from the legislative and executive powers to ensure that the rule of law is not impeded and judges are free from interference and intimidation from external forces.

What two things can judges not do simultaneously

Cannot be both a member of parliament and a member of the judiciary.

What must judges base their decisions o?

• merit

• evidence presented in court

• legal precedents

• relevant laws

Who appoints federal judges and who can dismiss them?

appointed by the government

dismissed by parliament

On what grounds can judges be dismissed?

under S72 (ii) of the constitution, dismissal can only occur on the grounds of incapacity of misbehaviour.

What is the mandatory retirement age for federal and family judges?

Federal- 70 years

Family- 65 years

What is permanency of tenure?

Judges are appointed by the executive government, they will have that position till retirement, unless they are dismissed.

What is fixed remuneration?

Judges salaries are prohibited from being decreased during their tenure on the Bench. The government can however raise the salaries if they wish.

What is the purpose of fixed remuneration?

• prevents manipulation of salaries to a low level that would force judges to retire.

• without, external pressures might interfere with the judge ability to decide a case free from external pressure.

• Makes it attractive for good lawyers to accept appointments.

What are the strengths of judicial independence?

• community confidence

• freedom of speech

• No governmental interference

Weaknesses of judicial independence?

• judges are appointed, not elected, so they are not held directly accountable to the community for their decisions.

• Dismissal is difficult and very subjective

• a lack of diversity in judges

• role as passive observers is limited

• retirement age limits representation

• high minimum wage could lead to political bias