Page 125 - Week 01 - Wednesday, 8 April 1992
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parliament on the grounds of proved misbehaviour or incapacity. In Australia such independence is conferred on Federal judges by the Commonwealth Constitution. The Governor-General, His Excellency the Honourable Bill Hayden, observed at a recent judges conference in Canberra:
I do not believe that there is a commentator who would disagree with the proposition that an independent judiciary is an indispensable requirement of the rule of law.
I believe that the motion gives the Territory the lead in protecting the independence and integrity of its judiciary. Rather than being a fetter on the Territory, the entrenchment of the Supreme Court and of the removal process is the Territory giving the lead to other jurisdictions that have not built into their constitutions adequate provision for the integrity of their judicial systems.
Events in recent years in the Commonwealth and Queensland parliaments have dramatically focused public and judicial attention on the question of removal of judges from office. In an address to the Australian Bar Association in 1990, Mr Justice McGarvie of the Supreme Court of Victoria pointed out that those events demonstrated that traditional parliamentary procedures in such cases were unable in any satisfactory way to ascertain what had occurred or whether what had occurred could warrant removal of a judge from office.
In 1988 the Constitutional Commission recommended changes to the Commonwealth Constitution to provide that no Federal or State judge could be removed from office, except by the Governor-General or Governor, as the case may be, on an address by the relevant parliament citing grounds of proved misbehaviour or incapacity following investigation by a judicial tribunal.
While the recommendations of the Constitutional Commission have not been acted upon, this is a highly significant statement. It would now be hard to imagine that any Australian parliament would contemplate removal of a judge without first referring allegations of misconduct or incapacity to an impartial judicial body for investigation. The proposed changes to the self-government Act will mean that a judicial officer could be removed only following the investigation and reporting of an independent judicial commission.
Paragraphs (e) and (f) safeguard judicial salaries by providing that they are to be determined by the Remuneration Tribunal or, in the absence of a tribunal determination, as specified in Territory legislation. These provisions are identical to those for high-level Territory officers, as set out in section 73 of the self-government Act.
Paragraph (g) prevents a government reducing the remuneration of a judge during his or her continuance in office. Most jurisdictions have similar provisions. This is a necessary element if judicial tenure is to be guaranteed. It is a safeguard against the unlikely possibility that a government would seek to circumvent the security of tenure provisions by reducing a judge's salary to, in effect, force him or her from office. Paragraph (h) provides similar safeguards for a judge's retiring age.
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