Compulsory retirement ages for judges – is it time for a reformulated “proved incapacity” test?

All Australian jurisdictions have compulsory retirement ages for judges. In this blog post I discuss the reasons for and against compulsory retirement and why compulsory retirement may continue to be the best option until a more satisfactory test can be formulated. 

1. The introduction of compulsory retirement ages

New South Wales was the first state to introduce a mandatory retirement age in 1918, with all states having some form of compulsory retirement age by 1944. The Commonwealth was far behind the states in introducing compulsory retirement ages, mainly due to the fact a referendum was required to create any changes to the tenure of judges.

 

Australian High Court and Federal Court judges have been subject to compulsory retirement ages since 1977 when a successful referendum was held and the Constitutional Alternation (Retirement of Judges) Act 1977 was passed to insert the compulsory retirement provisions into the Constitution. Prior to this, federal court judges could only be removed from office for proved incapacity or misconduct.

 

 2. What are the compulsory retirement ages

Commonwealth

High Court judges are appointed for a term “expiring upon his attaining the age of seventy years” (s.72 Commonwealth Constitution). Judges appointed to a court created by Commonwealth parliament are appointed for a term expiring when the judge reaches the age fixed by parliament. The age fixed by parliament cannot be more than 70 years (s.72 Commonwealth Constitution).

 

State

Supreme court judges in state jurisdictions are also required to retire at the age of 70 (except in NSW where the compulsory age of retirement is 72). State constitutions are flexible, so the mandatory retirement age is often found in statute as opposed to the relevant state constitution.

 

Table showing retirement ages across a selection of jurisdictions  

Court	Compulsory retirement age for  judges	Source	Compulsory retirement first introduced
High Court	70 years	s.72 Commonwealth Constitution	1977
Federal Court	70 years	s.72 Commonwealth Constitution	1977
Supreme Court of South Australia	70 years	s.13A Supreme Court Act 1935 (SA). See also s.74 of the Constitution Act 1934 (SA)	1944
Supreme Court of Victoria	70 years	s.77 Constitution Act 1975 (Vic)	1937
Supreme Court of New South Wales	72 years	s.44 Judicial Officers Act 1986 (NSW)	1918
Supreme Court of Queensland	70 years	s.23 Supreme Court of Queensland Act 1991 (Qld)	1921
Supreme Court of Western Australia	70 years	s.3 Judges Retirement Act 1937 (WA)	1937

 

3. Rationale for compulsory retirement

Several reasons were put forward in the 1977 referendum for introducing a compulsory retirement age for High Court and Federal Court judges, with the key reasons being:

1. A need to open up positions for new judicial appointments in order to maintain vigorous and dynamic courts;
2. Community support for compulsory retiring ages for judges; and
3. A need to avoid removing a judge for “proven incapacity” where a judge is unfit for office due to declining physical or mental health.

Of these three reasons, the third is the focus of this blog post. In my view, the first point has an equally valid counterargument being the need for stability in the judiciary and the maintenance of the perception of judicial independence. As judges are appointed on advice of the government of the day, having a high turnover of judges is not ideal for perceptions of judicial independence. There is also the loss of legal excellence in the judiciary that comes with a compulsory retirement age that is set when many judges are just reaching their prime. It is the norm, not the exception for judges retiring due to the compulsory retirement age to continue working in the law full time after finishing working in the judiciary.

4. Example: High Court retirements

If we look at High Court retirements, the first judge to retire on meeting the compulsory 70 years retirement age was Justice McHugh in 2005, with all other previous High Court judges retiring for different reasons prior to reaching 70 years of age.

 

After retiring from the High Court, Justice McHugh continued to work in the law was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. In 2015 he headed the Special Commission of Inquiry into the Greyhound Racing Industry in NSW which led to the decision to ban greyhound racing in NSW from 1 July 2017. Justice McHugh is currently 80 years old and still working. That is 10 years in which Justice McHugh could have remained on the High Court if there was no mandatory retirement age.

 

All retiring High Court judges since Justice McHugh have retired upon or slightly before reaching the compulsory retirement age of 70:

1. Justice Callinan retired from the High Court in 2007 upon reaching the mandatory retirement age and has conducted a number of government inquiries and reviews since including the Commission of Inquiry into the outbreak of equine influenza in Australia in 2008, the review of the Crime and Misconduct Commission in Queensland in 2013, and the review of the effectiveness of NSW’s liquor lock out laws in 2016. Justice Callinan is working hard almost 10 years after he met the High Court’s compulsory retirement age. 
2. Justice Kirby retired from the High Court in February 2009, shortly before he reached the mandatory retirement age and has since continued to work lecturing as an adjunct professor at the University of Tasmania, advising on reform of the Commonwealth of Nations in his role on the Eminent Pearsons Group and supporting various causes including animal rights.
3. Justice Gummow retired from the High Court in 2012 upon reaching the age of 70, and in 2013 recommenced lecturing in equity at the University of Sydney as well as various subjects at the Australian National University. In 2013 Justice Gummow was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. Note the trend here of Hong Kong taking advantage of Australia’s senior legal talent made available by the compulsory retirement age.
4. Justice Heydon retired from the High Court in 2013 upon reaching the age of 70 and has worked hard post retirement, heading the Royal Commission into Trade Union Corruption in 2015.
5. Justice Hayne and Justice Crennan retired from the High Court in 2015 upon reaching the age of 70, and have been less active than their colleagues in the legal profession post retirement.

These are just a number of examples from the High Court, but the trend is reflected in other courts. Judges are retiring at the compulsory retirement age, not beforehand, and continue to work in the law or related areas after their retirement.

5. The difficulty of formulating a workable alternative

Judges are judicial office holders, and cannot be removed from their office in the way a normal employee can have their employment terminated by an employer. A judge’s tenure can end in four ways:

1. Resignation;
2. Removal for proved misconduct;
3. Removal for proved incapacity; and
4. Judge meets the compulsory retirement age.

 

Section 72(ii) of the Commonwealth Constitution states that Justices of the High Court and of the other courts created by parliament “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 misbehavior or incapacity”. State jurisdictions have similar legislative provisions.

 

One of the main reasons compulsory retirement was introduced was to avoid the need to remove a judge for “proved incapacity” when a judge fails to recognize it is time to retire. The process of proving incapacity at common law is arduous and no judge wants to end their career in a battle of psychiatric assessments. If a judge was found to have proved incapacity, the finding could also cast doubt on recent decisions, which could in turn effect confidence in the judiciary. Introducing the blanket retirement age of 70 avoids this problem, but it is also a significant waste of legal resources when judges are forced to retire when at their legal peak.

 

Assuming for now we could like to keep these capable judges in the judiciary, the next question is whether you will keep the compulsory retirement age. Most commentators appear to assume the continuation of some kind of compulsory retirement age with the most popular solution to simply raise the retirement age of judges. A commonly suggested age is 75. However, as the High Court retirees of the past decade show, a lawyer may be fit to work as a High Court judge past the age of 75. My view is that instead of assuming incapacity at a certain age, it may be possible to create a tweaked “proven incapacity” test and process for determining incapacity that does not drag a judge through public disgrace and enables a judge to keep their integrity intact. Looking at the four ways in which a judge can be removed from office, this would involve removing the fourth category and altering the third category to provide more certainty on what would constitute “proved incapacity”.

 

1. Change is unlikely to occur soon

Removing the compulsory age of retirement and inserting a more detailed “proved incapacity” test in the Commonwealth Constitution will require a referendum. Significant community support is required before a referendum will even be considered. If change is to occur it will be at the state level first. However, given the population of judges is small in any given state, there is unlikely to be the public or political desire to make changes to the compulsory retirement age or remove the retirement age and insert a new proved incapacity test. Until the public or parliament become interested in the issue, we will continue to see judges retiring at age 70 while still having so much to contribute to the judiciary, the legal profession and the rule of law.