To understand the expression ‘the independence of the judiciary’ you first must understand what is meant my judiciary. The judicature is:
The judicial power of the commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a chief justice and so many other justices, not less than two, as the Parliament describes.
Using this definition contained in the Australian Constitution, the expression ‘the independence of the judiciary’ to my understanding refers only to independence in making decisions in court cases. It means that in making such decisions a judge must be individually independent and free from pressures which could influence a judge in reaching a decision in a case other then by intellect and conscience based on a genuine assessment of the evidence and an honest application of the law .
The independence of the judiciary also incorporates that the judiciary is totally isolated from the other branches of the government these branches being the executive and legislative arms which make up the separation of powers as outlined in the Australian Constitution. Judicial independence is of the utmost importance to our judicial system, and to our system of government, because without judicial independence they become useless institutions. The importance of an independent judiciary is to maintain the rule of law, the rule of law being the principle that no member of society is above the law, every member of society is bound by the law, and everyone is equal before the law.
The International Covenant on Civil and Political Rights (ICCPR) states the fundamental rights that every human being is entitled to and includes rights referred to in the section, “Procedural Guarantees in Civil and Criminal Trials” . Article 14 (1) states:All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by lawThe appointment of a judicial branch of government, as outlined in the Australian Constitution and the guarantee that it is completely separate and independent of the other branches, represents the main way by which most states seek to adhere with the principles contained in the previously stated provision of the ICCPR.
As Sir Anthony Mason said:The separation of judicial power is not only protection against the exercise of arbitrary power, but it also assists in maintaining the independence of the judiciary and contributes to public confidence in the administration of justice.
This statement highlights the importance in ensuring that the judicial power remains separate to ensure that the public can have confidence in the application of the judicial process. Public perception of judicial impartiality is the essence of judicial independence.
The independence of the judiciary can be threatened in Australia because total separation of the judicial power is near impossible in the real world. In many countries, including Australia, the Executive Government appoints judges and. this may be seen to threaten the independence of the judiciary.
The executive can affect the judicial through the manner in which it seeks to exercise its power of judicial appointments. By exercising this power the executive can shape the future directions in judicial interpretation, especially by a court which has the task of constitutional interpretation, such as the High Court of Australia. This was seen in the request of Deputy Prime Minister Tim Fischer for appointment of ‘Capital C conservative’ judges in the wake of the Wik decision.
The Constitution says that the separation of power is divided between the three arms of government so there can be a system of checks and balances in place to ensure the power of the other two is being exercised in accordance with their outlined role. But can we really have a complete separation of power, when the Prime Minister works within the Executive and Judicial arms of government.
However the independence of the judiciary is put to the test when it comes to judges being guided by their understanding of the law, the facts of the case and the pull of conscience to a judgement which is opposed to what the other branches of the government may want.
As Kirby CJ highlighted the High Court of Australia has on a number of occasions, over the past 100 years upheld the Constitution and has made judgements which have gone against the principles of the elected Governments and Parliaments. ‘In 1948 it struck down the nationalisation of the private banks . In 1951, it declared unconstitutional an attempt to dissolve the communist party and to deprive communists of basic rights . In 1992 it overturned much earlier law to uphold the rights of Australia’s indigenous people in their land .
In 1996 it held that such rights were not necessarily extinguished by the grant of pastoral leases which cover about half of the land of the Australian continent .’ These court decisions show that judicial independence has not been threatened in Australia over the last 100 years. The above decisions would be highly unlikely in a country where judicial independence was not guaranteed by the letter of the Constitution.
A Privy Council case which dealt with separation of arbitrary and judicial powers was the Boilmakers Case (1956) . The High Court held that it was ‘unconstitutional for the Commonwealth Court of Conciliation and Arbitration to be vested with both arbitral and judicial powers because of the acceptance in the Constitution of the separation of legislative and judicial powers’ .
As a result, the Conciliation and Arbitration Act 1904 was amended to establish two separate bodies.
From 15 August 1955 to 2 March 1956 a Full Court of the High Court of Australia, heard an application by the Boilermakers Society for a writ of prohibition on the grounds that the exercise of the earlier orders was ‘. . . contrary and repugnant to the provisions of the Constitution of the Commonwealth and, in particular, Chap. III thereof.’The application was upheld by a majority of the Court. The decision was also affirmed in an appeal to the Privy Council.
This case set a precedent that the Parliament cannot invest Ch III courts and/or judges with non-judicial power, which further instates that independence of the judiciary within Australia.
A further Case which also highlights that the independence of the judiciary is not threatened in Australia is the case Brandy v Human Rights and Equal Opportunity Commission (HREOC)  . This case reinforced that the HREOC was not originally given the power or authority to enforce its judgements, as it was not a court in accordance with Ch III of the Australian Constitution. If the judgement was to be legally enforced upon the respondent then the matter would have to be heard in the Federal Court.
The court held that it was an invalid exercise of judicial powers by the HREOC, which highlights that the independence of the judiciary is being upheld within Australia.
Sir Ninian Stephen observed that ‘an independent judiciary, although formidable protector of individual liberty is at the same time a very venerable institution, a fragile bastion indeed’ . In 1989 he was of the view that judicial independence was still flourishing in Australia. A year later, Sir Daryl Dawson was confident that it was ‘alive and well’.
Judicial independence does not mean that judges are not accountable for their decisions and judgements. Judges are just as accountable as the executive and legislative arms of government just in a different way.
This was highlighted in a paper prepared in 1998 for the New South Wales Parliament on Judicial Accountability, the author noted that Australia has important procedures operating to make the judiciary accountable to the community, these procedures are informal measures; judges are obliged to hear argument from both parties; judges are obliged to conduct hearings in public, which makes them more accountable; judges must give reasons fortheir decisions; and their judgements are subject to appeal.
There are a number of ways in which the independence of the judiciary is maintained within Australia. These include, most significantly, the provisions in the Australian Constitution guaranteeing security of tenure and fixed remuneration for federal judges and magistrates.
Chapter III of the Constitution outlines in s72 that:(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 remuneration shall not be dismissed during their continuance in office.
These protections are intended to ensure members of the judiciary may carry out their functions without fear or favour, in accordance with their oath of office.
To further cement its independence in relation to the Government and in relation to Parliament S 71 of the Constitution which states ‘shall be vested’ means that the High Court cannot be eliminated by Parliament. Section 72(ii) means that the Government cannot remove a judge except by persuading Parliament that there is proved misbehaviour or incapacity. Section 72(iii) is to make sure that the Government or Parliament cannot punish a judge financially for decisions it does not like.
The independence of the judiciary is necessary to ‘the rule of law’, to ensure that the Government itself acts in accordance with the law.
For the Independence of the judiciary to remain strong within Australia public confidence is essential. It is important that the judiciary be, and be seen to be independent. From the cases above and decisions made by the High Court it can be seen that judicial independence is still ‘flourishing within Australia’ and will continue to flourish if the judiciary can secure and preserve the confidence of the public.
1. Journal Articles/Books/ReportsBooks-Elizabeth Ellis, Principles and Practice of Australian Law (2nd Edition 2009)-Enid Campbell and H.P Lee, The Australian Judiciary-Christopher Enright, Federal Administrative Law2. Cases:- R v Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94 CLR 254- Wik Peoples v Queensland (1996) 187 CLR 1- Bank of New South Wales v The Commonwealth (1948) 76 CLR 1- Australian Communist Party v The Commonwealth (1951) 83 CLR 1- Mabo v Queensland [No 2] (1992) 175 CLR 1- Brandy v HREOC  183 CLR 245; 127 ALR 13. Legislation:- International Convention on Civil and Political Rights, Art 14- The Australian Constitution4. Other- John Kilcillen, ‘The Australian constitution: First Reading’ Macquarie University 2004- Kirby, Michael Justice, International Bar Association Human Rights Institute, Independence of the Judiciary 12-14th June 1998- A Lamer, ‘The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change’ (1996) 25 Monash University Law Review 209- General Jeffer Michael, The Opening of the Judicial Conference of Australia Colloquium, 6th October 2006
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