Judicial Independence

Question 1

What is the mnemonic device for representative government?

Answer 1

Stalin Used Overly Oppressive Rules, Regulations and Procedures in Russia.

(Salaries for members of Parliament, Universal franchise, Open parliamentary debates, One vote/one value and secret ballot, Regular elections, Parliamentary privilege, Right to protest, freedoms of association and political association.

Question 2

What is the legislative and what is their main role?

Answer 2

Parliament, consists of elected members of parliament.

Main role is lawmaking (statutes or Acts of Parliament)

Question 3

What is the executive and what is their main role?

Answer 3

Government, includes administrative bodies (government departments).

Main role is enforcing laws made by parliament.

Question 4

What is the judiciary and what is their main role?

Answer 4

Courts and tribunals.

Main role is resolving legal disputes.

Question 5

What is judicial independence?

Answer 5

Judicial independence is the separation of courts and judicial officials from the legislative and executive.

Question 6

What are the 5 key elements of judicial independence?

Answer 6

Appointment and dismissal, permanency of tenure, fixed remuneration, judicial privilege, free from influence.

Question 7

What is appointment and dismissal?

Answer 7

The clear division of roles regarding the appointment and dismissal of judges. This is to prevent one arm of government having complete control over the courts.

Question 8

Who appoints and who dismisses federal judges?

Answer 8

Federal judges are appointed by the government, but dismissed by parliament.

Question 9

Why can federal judges be dismissed and where is this in the Constitution.?

Answer 9

Federal judges can only be dismissed for very limited and specific grounds outlined in section 72 (ii) of the constitution. This section states that federal judges can only be dismissed for incapacity or misbehavior. Judges cannot be removed for political reasons.

Question 10

What is the tenure for a federal judge?

Answer 10

Federal judges have a permanent tenure but must retire at age 70. Except for Family Court judges who must retire at 65.

Question 11

What is the retirement age for judges and magistrates in most states?

Answer 11

Most states also have laws to make judges and magistrates retire at 70.

Question 12

Why is the permanency of tenure important?

Answer 12

Permanency of tenure is important as it reduces the possibility of judges being influenced by the people who appoint them.

Question 13

What does the constitution state in regard to fixed remuneration?

Answer 13

Under the Constitution, judges salaries cannot be reduced during their tenure. This is to prevent salaries being manipulated to force judges to retire.

Question 14

Can governments increase judges’ salaries?

Answer 14

Governments can increase judges’ salaries if they wish. They do this frequently to attract high quality judges.

Question 15

What is judicial privilege?

Answer 15

Judicial privilege is the freedom of speech judges have while presiding over a case and delivering written judgements. It means that judges can’t be sued for defamation or threatened with criminal prosecution. However, they must adhere to strict judicial rules of propriety.

Question 16

Can judges be involved with external forces?

Answer 16

Judges must be completely free from interference and intimidation by external forces.

Question 17

Can a judge be a member of a political party?

Answer 17

A judge cannot be a member of a political party whilst working as a judge as this may jeopardise their indepence.

Question 18

Why must judges remain independent?

Answer 18

Judges must maintain independence from the other two branches of government to maintain community confidence in the impartial administration of justice.

Question 19

What are some strengths of judicial independence?

Answer 19

• Only independently appointed judicial officers can bring about just outcomes to disputes after two competing cases have been presented to them
• Community has greater confidence in judicial outcomes if convinced decisions are made independently of the other two arms of governance, parliament and government, and solely in accordance with law.
• Mechanisms exist in the Constitution to support community confidence judges exercise independence - set age of retirement, fixed remuneration.
• Judges in lower courts are bound to comply with the doctrine of precedent so there is a greater chance of consistency and predictability in court outcomes
• Freedom of speech, but with strict rules to ensure professionalism of speech.

Question 20

What are some weaknesses of judicial independence?

Answer 20

• Judges are appointed, not elected, so they are not held directly accountable to the community for their decisions
• As the High Court is the nation’s superior court, there is no higher court to review its decisions
• Accountability to the community is limited
• The dismissal of judges is difficult and it is very subjective
• Judicial appointments do not reflect cultural or gender diversity in Australia
• Role as passive observers limited
• The set retirement age can also be a negative as it limits representation in the judiciary, particularly regarding experienced and qualified judges
• The high minimum wage could be an incentive for political bias as raises are funded by the partisan government