Independence of Judiciary in Australiaa) How is the independence of the judiciary guaranteed in Australia?While the Westminster system had largely developed because of the doctrine ofseparation of powers, the Australian system of government is largely based onthe Westminster. This doctrine of separation of powers proposes that the threeinstitutions of government, the legislature, the executive and the judiciaryshould be exercised as separate and independent branches. It is this doctrinethat stresses the need for the independence of the judiciary from the other twogovernment institutions in order to protect the freedom of individuals. It isunder this doctrine that no person can be a Member of Parliament and a judge atthe same time. The doctrine of separation of powers offers several advantages,it proposes separate, specialized and efficient branches of government and italso reduces the abuse of government power by dividing it.
a) Why is the independence of the judiciary an important feature of Australia’ssystem of justice?The judiciary is the government branch that is concerned with the administrationof justice. The judiciary is absolutely separate from the executive and thelegislature, so it can check the concentration of government power. Theindependence of the judiciary is crucial of a democratic community because whenjudges are presiding over cases, there must be no interference and intimidationfrom the external forces. The independence issues touches upon the conflict ofauthority and freedom.
If the doctrine of separation of powers did not exist,the authority would not be prevented from interfering in the administration ofjustice, therefore the basic freedoms of the citizens would not be guaranteed. It is up to the judiciary to exercise according to the law. It would be withoutthe independence of the judiciary that the principles of rule of law and naturaljustice would be jeopardy and other institutions of government would interferein the administration of justice. There are three main elements of the independence of the judiciary they are,permanency of tenure, dismissal by parliament and fixed remuneration. Permanencyof tenure means that judges are appointed by the executive government and have apermanent tenure until they have to retire at the age of seventy. It was aconstitutional referendum in 1977 that placed this requirement on federal judges.
Also state laws have been made, for the state judges to retire at the same age. The only exception is the Family court justices; they have to retire at the ageof sixty-five. Judges can only be dismissed on the grounds of proved misbehaviour or incapacityand can only be dismissed by parliament representatives. This is a very seriousundertaking and has been used in the Australian parliament, but no federaljudges have ever been dismissed. The constitution provides that a salary of ajudge cannot be reduced.
This is to prevent manipulation of salaries to a lowlevel, which would force judges to retire from the bench. This would be suitableto an indirect interference in the independence on the judicature. Howeverparliament can increase judges salary if the wish to. Judges also must not interfere with each other’s deliberations and decisions. While judges hear and make judgments and administer laws, the doctrine ofprecedent is so entrenched as a rule of conduct that it is the golden rule forjudges to follow legal principles created as precedents in superior courts.
Judicial independence is also necessary because a judge cannot hear an appealfrom a case that she or he have just presided over, this would lead to aninconsistency in deciding the appeal. Judges also have judicial independence. They have a law that protects them fromhaving threats of civil litigation for their statements in their judgments. Itis also a criminal offence for a person to interfere with a judge’s performancewhile they are performing their duties. The rule of law is strictly applied; toacknowledge that everyone has an equal standing before the law and acceptedjudicial practices must be followed.
b) Give two examples how judges must comply with the rule of law. The doctrine of precedent is a fixed rule of the judicial conduct. It is theinferior courts that have the obligations to follow the legal principles createdin the superior courts. This when decisions made in the superior courts becomebinding precedents on inferior courts and judges cannot ignore them.
For exampleif a District Court judge ignores the legal principle made in the Supreme Court,then on appeal it certain that the decision will be reversed because acceptedjudicial rules were not followed. It is the principle of independent judiciary that conforms to the rule againstbias. Everyone expects their justice to be administered by a member of thejudiciary who is independent form the legislative and executive powers of thegovernment and completely impartial to the case before them for resolution. Judges are expected to be disqualified themselves when they have anyinterference with the financial or other interests in the outcome of a case.
This is the fundamental principle for the application of constitutional law asit is to criminal law. For example a person, who is challenging the legality oflegislation at a great cost, would expect the judge to resolve the case on itsmerit rather than the power of the government institution.
