Page 124 - Week 01 - Wednesday, 8 April 1992
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(2) amend the ACT Self-Government (Consequential Provisions) Act 1988 by inserting in Part II a provision that the terms and conditions of transferring Judges shall be no less favourable than those of the Judges of the Federal Court of Australia; and
(3) amend the Federal Court of Australia Act 1976 to:
(a) permit the acceptance by Judges of that Court of commissions as additional Judges of the ACT Supreme Court; and
(b) confirm the continuation of the appointments as additional Judges of the ACT Supreme Court held at the time of transfer of the ACT Supreme Court.
This action is a significant step forward in the self-government process. The self-government Act can rightly be regarded as the constitution of the Territory. The amendments which are requested by this motion will make that constitution a more complete and effective document.
When the Commonwealth first drafted the self-government Act, it did not propose to transfer the court system to Territory responsibility. Amendments in the Senate changed that approach, and in accordance with the amended legislation the Magistrates Court has already transferred to the Territory, and the Supreme Court will transfer on 1 July of this year.
The self-government Act, in creating an ACT body politic, provides for the existence and powers of two of the arms of government that are traditional in Westminster-type systems, namely, the legislature and the executive. It is silent on the third arm of government, the judicature. It is now, as a prelude to the transfer of the Supreme Court, an appropriate time to address that situation.
The motion members have before them is a proposed request by the Legislative Assembly to the Commonwealth Parliament that it amend the necessary legislation to provide constitutional safeguards for the Supreme Court and the judiciary. The document has been prepared in consultation with the Commonwealth and indeed the judges. I will say a few words about the main provisions.
Section (1) provides safeguards for the existence and jurisdiction of the Supreme Court and for the independence of judicial officers through guaranteed tenure and remuneration. Paragraphs (b) to (d) inclusive of section (1), when translated into legislation, will provide a means for removing a judicial officer, but only under strictly specified conditions. These provisions are crucial to the independence of the judiciary and will safeguard it from any, albeit remote, possibility that judicial officers could be removed capriciously by a future executive or legislature.
It is now almost 300 years since the English Act of Settlement of 1701 established the principle that judges, acting in their judicial capacities, are immune from both the executive and the parliament. That principle remains the cornerstone of judicial independence in systems of justice that are derived from that United Kingdom experience. Judicial independence has traditionally been achieved by providing that judges can be removed from office only by an address of
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