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.

The removal of a judge by parliament – legislative supervision of the judiciary (aka “how to get rid of a judge”)

How can a judge be dismissed? What is the process and has it been done before? In light of the Commonwealth parliament commencing an investigation into Vice President Lawler of the Fair Work Commission, there has been renewed public interest in how a judge can be dismissed. Some of the reporting on the process has been inaccurate and misleading. This blog post summarises the statutory and common law requirements to remove a judge from office.

Four step process

While the exact procedure to dismiss a judge varies between jurisdictions and courts, the process can be distilled to four steps:

1.       Initiation of process is in the hands of the legislature itself – usually requires an inquiry by a former judge or judges

The legislature must initiate the process of dismissing a judge. Usually the first step is to instigate an inquiry into the judge’s conduct. The inquiry is initiated on motion by a House of Parliament. Inquiries are usually headed by a former judge or judges. Private individuals cannot move a court to compel the legislature to start a motion, as this interferes with the privileges of parliament. This principle was affirmed in Re Reid; Ex parte Bienstein (2001) 182 ALR 473 at 478-9 where a party in a family law matter sough to compel the President of the Senate, Margaret Reid to initiative an investigation and remove a judge of the Family Court of Australia.

NSW and the ACT are unique in that they have Judicial Commissions with functions that include examining and dealing with complaints about judges (Judicial Commissions Act 1994 (ACT) (ACT JC Act); Judicial Officers Act 1986 (NSW) (NSW JO Act). In NSW the Judicial Commission is involved from the outset in complaint management and investigations, while in the ACT the Judicial Commission is only involved for the duration of the investigation once the Legislative Assembly has passed a resolution for the examination of a complaint (s.18 ACT JC Act).

In NSW, the Judicial Commission has a Conduct Division with the function of examining and dealing with complaints referred to it under Part 6 and with formal requests referred to it under Part 6A. A complaint can be made to the Judicial Commission by any individual, and Ministers can also refer complaints (ss.15 and 16). The Judicial Commission initiates the process by making a preliminary examination and deciding whether to refer the complaint to the Conduct Division (ss.20 and 21). The Conduct Division is made up of a panel of three, with two of the panel members being judicial officers and the third being a community representative (s.22). The Conduct Division must examine complaints referred to it and can initiate an investigation into a complaint (s.23).

The ACT Judicial Commission operates differently to the NSW Judicial Commission, the main difference being that the ACT Judicial Commission does not become involved until the Legislative Assembly passes a resolution for the examination of the complaint (s.18). In such a case, the executive must appoint a judicial commission to investigate the complaint, and the investigation and findings must be provided to the Attorney-General in the time period specified. Only parliament has the power to initiate an investigation, in a similar way to other jurisdictions that do not have a judicial commission. The ACT Judicial Commission is constituted by three current or retired judges (s.7) and has no direct community representative.

2.       Judge has a common law right (statutory in the ACT under s.15 of the ACT JC Act) to be heard in their own defence

The judge is usually given this opportunity to respond to or explain allegations made against them during the conduct of the investigation, if not before hand.

3.       There are only two grounds a judge can be removed for, misbehaviour and incapacity, either one or both must be proved depending on the relevant jurisdiction and court

Section 72(ii) of the Constitution states that a “Justice of the High Court and 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 misbehaviour or incapacity”. These two grounds of proved misbehaviour and incapacity in s.72 apply to High Court judges, Federal Court judges, Federal Circuit Court judges, Family Court judges and judges of other courts created by Parliament under Chapter III of the Constitution. The grounds for removal in other jurisdictions are similar. In jurisdictions where no grounds for removal are stated, technically the legislature could remove a judge on any grounds, but no parliament in Australia has ever proceeded on this basis. It would be unprecedented for an Australian parliament to remove a judge on a bare address without grounds of misbehaviour or incapacity first being proved.

Legislation governing the grounds for removal in other jurisdictions includes:

1.       Constitution of Queensland 2001 (Qld) s.61(2) applies to the removal of Queensland Supreme Court and District Court judges – “proved misbehaviour justifying removal from office” or “proved incapacity to perform the duties of office”.

2.       Constitution Act 1889 (WA) s.55 does not specify grounds for removal, but s.54 uses the phrase “good behaviour” indicating a judge could be dismissed where “good behaviour” is not demonstrated.

3.       Constitution Act 1902 (NSW) s.53(2) applies to the removal of a number of NSW judges including judges of the Supreme Court, District Court, and Land and Environment Court – “proved misbehaviour or incapacity”.

4.       Constitution Act 1934 (SA) s.75 applies to the removal of South Australian Supreme Court judges, does not specify grounds, but s.74 indicates grounds for dismissal could include where a judge has not demonstrated “good behaviour”.

5.       Constitution Act 1975 (Vic) s.77(1) applies to the removal of judges of the Supreme Court and County Court, and Magistrates - “removal on the ground of proved misbehaviour or incapacity”.

6.       Supreme Court Act 1978 (NT) s.40(1) applies to the removal of judges of the Supreme Court of the Northern Territory - “removal on the ground of proved misbehaviour or incapacity”.

The investigation tabled with parliament will make findings and recommendations as to whether misbehaviour or incapacity has been established.  Misbehaviour is a broad category that clearly includes serious criminal conduct but may also encompasses everything from severe conflicts of interest to corruption and bribery. Incapacity can be physical or mental. An example of what would constitute mental incapacity is the findings of the investigation conducted into Justice Vincent Bruce of the NSW Supreme Court in 1998. Numerous complaints had been made about Justice Bruce who was persistently late in writing judgments. The investigation found this behaviour was attributable to Justice Bruce suffering from severe depression. While the investigation found there was proved incapacity, NSW parliament did not proceed with the address and Justice Bruce resigned.

4.       Motion for removal must be passed by both Houses and forwarded to the Governor or Governor-General who then revokes the appointment of the judge.

Judges are rarely dismissed. In the 1800s only four Supreme Court judges were removed and in one of these cases the motion was invalidated by the Privy Council. The inquiries instigated in the 1900s include:

1.       The 1987 investigation instigated by Queensland parliament into the behaviour of Justice Angelo Vasta of the Queensland Supreme Court;

2.       The inquiry into the conduct of Justice Bruce of the NSW Supreme Court in 1998; and

3.       The inquiry commenced into the conduct of Justice Lionel Murphy of the High Court in 1981. Justice Murphy died before next steps could be taken.

It is very rare for a situation to arise where parliament would be required to pass the requisite motions to advise the Governor or Governor-General to revoke a judge’s appointment. Most judges choose to resign when the investigation is initiated or after the investigation has concluded rather than be dragged through an investigation and/or be dismissed by the Governor or Governor-General.

There is limited recourse outside this process

There is limited recourse outside for the behaviour of a judge outside the parliamentary process described above. The Chief Justice of a court can somewhat deal with performance issues through managing a judge’s work load. For example, by allocating the judge simple matters or reduce the number of matters the judge is hearing. However, even if a judge was allocated no matters, the judge would continue to be paid remuneration until dismissed by the Governor or Governor-General after a parliamentary motion has been successfully passed. While the system is not perfect, it does assist with maintaining judicial independence.    

How much are judges paid and why - the importance of judicial remuneration

Have you ever wondered how much judges are paid? Have you ever wondered why they get paid this amount? In this blog post I examine judicial salaries in major Australian federal and state courts and explain the reasons why judges receive high rates of pay. Note that this blog post focuses on salary only. Judges receive a number of other benefits under salary packaging, so the base rate of salary does not reflect full entitlements.

A.      IMPORTANCE OF JUDICIAL SALARY

Judicial salary, like judicial tenure, is an important component of ensuring judicial independence. I am referring to judicial independence in two contexts:

1.       Judicial independence as a component of the separation of powers

In a pure execution of the separation of powers, the executive, legislative and judicial arms of government are separate in operation and influence. In practise, due to the mixed adoption of American and British government systems at Federation, the executive and legislative arms of government in Australia are not separate. However, the judicial arm of government is separate from the executive arm and the legislative arm, an essential component of the separation of powers in Australia (Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 540-1). In the Boilmakers Case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 270) the High Court held that the Constitution facilitates this separation by ensuring:

                -judicial power can only be vested in a Chapter III Court; and

                -non-judicial powers cannot be vested in a Chapter III Court.  

Judicial salary assists judges to operate separately from government. While judges are appointed by the executive, judicial salary is set by the relevant independent remuneration tribunal.

2.       Judicial independence as a component of the rule of law

One pillar of the rule of law is that the law is applied equally and fairly so that no-one is above the law. As the judiciary enforce the law, it is essential that they remain independent to enable the law to be applied consistently and fairly. High judicial salaries assist with judicial independence as a judge is less likely to succumb to bribery or corruption when they earn a large amount through their ordinary salary.

While judicial salaries may appear high, many judges take a pay cut when they commence their office as a judge. Many judges are appointed from the Bar where it is not uncommon for a Queens Counsel or Senior Counsel to earn upward of $500,000 annually. On appointment, these lawyers take a $100,000+ pay cut. The judicial salary needs to be high enough to attract Australia’s most experienced and lawyers and protect judicial independence while not being too excessive, as judges’ are paid by the government from taxpayer’s money.

B. CURRENT SALARIES OF SELECT FEDERAL AND STATE COURT JUDGES

High Court

Current salary:

Chief Justice $536,070

Judge $486,480

Law behind the salary:

Section 12 of the High Court of Australia Act 1979 (Cth) provides that the Chief Justice and Justices of the High Court shall receive salary and allowances fixed by Parliament from time to time. Parliament created the Remuneration Tribunal and gave the Remuneration Tribunal the power to determine salary, allowances and other matters for office holders including judicial offices (s.7 Remuneration Tribunal Act 1973 (Cth)). The current salary of High Court judges is set out in the current determination, “Remuneration Tribunal Determination 2015/10 Judicial and Related Offices - Remuneration and Allowances”.

Federal Court

Current salary:

Chief Justice $453,960

Judge $412,550

The law behind the salary:

Section 9 of the Federal Court of Australia Act 1976 (Cth) provides that the Chief Justice and judges of the Federal Court are to receive the salary and allowances as fixed from time to time by Parliament. Parliament created the Remuneration Tribunal and gave the Remuneration Tribunal the power to determine salary, allowances and other matters for office holders including judicial offices (s.7 Remuneration Tribunal Act 1973 (Cth)). The current salary of Federal Court judges is set out in the current determination, “Remuneration Tribunal Determination 2015/10 Judicial and Related Offices - Remuneration and Allowances”.

Victorian Supreme Court

Current salary:

Chief Justice $465,548

Judge $412,550

The law behind the salary:

Section 82 of the Constitution Act 1975 (Vic) states that the salaries, allowances and pensions of judges of the Supreme Court are to be paid at the rate applicable under the Judicial Salaries Act 2004 (Vic). Section 4(4) of the Judicial Salaries Act 2004 (Vic) states that Supreme Court judges are to be paid the salary payable to Federal Court judges under s.9 of the Federal Court of Australia Act 1976 (Cth). $412,500 is the current salary payable to Federal Court judges, so Supreme Court judges in Victoria will be paid this amount. Under ss. 4 and 6 of the Judicial Salaries Act 2004 (Vic) the Chief Justice is entitled to 112.86% of the salary of a Supreme Court Judge. 112.86% of $412,500 is $465,548.

Victorian County Court (District Court)

Current salary:

Chief Judge $412,550

Judge $357,433

The law behind the salary:

Section 10 of the County Court Act 1958 (Vic) states that judges are to be paid in accordance with the Judicial Salaries Act 2004 (Vic). Sections 4 and 6 of the Judicial Salaries Act 2004 combined provide that County Court judges are entitled to a proportion of the annual salary of a Supreme Court judge. The Chief Judge of the County Court is entitled to 100% of the rate of a Supreme Court judge. This is $412,550. A judge of the County Court is entitled to 86.64% of the rate of a Supreme Court judge. This is $357,433.

NSW Supreme Court

Current salary:

Chief Justice $482,470

Judge $431,160

The law behind the salary:

Section 29 of the Supreme Court Act 1970 (NSW) provides that judges are entitled to remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 (NSW). Section 13 of the Statutory and Other Offices Remuneration Act provides that the Statutory and Other Offices Remuneration Tribunal (SOORT) is to make annual determinations on remuneration to be paid to judges and other specified office holders. The relevant determination is SOORT’s “2015 Annual Determination for Judges and Magistrates”.

NSW District Court

Current salary:

Chief Judge $431,160

Judge $386,160

The law behind the salary:

Section 15 of the District Court Act 1973 (NSW) provides that judges are entitled to remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 (NSW). The Chief Judge of the District Court is entitled to the same remuneration as a judge of the Supreme Court (s.15A District Court Act 1973 (NSW). Section 13 of the Statutory and Other Offices Remuneration Act provides that the Statutory and Other Offices Remuneration Tribunal (SOORT) is to make annual determinations on remuneration to be paid to judges and other specified office holders. The relevant determination is SOORT’s 2015 Annual Determination for Judges and Magistrates.

SA Supreme Court

Current salary:

Chief Justice $462,020

Judge $412,550

The law behind the salary:

Section 12 of the Supreme Court Act 1935 (SA) provides that the Chief Justice and judges of the Supreme Court are entitled to salary and allowances at rates determined by the Remuneration Tribunal. The relevant Remuneration Tribunal determination is Determination 9/2014 which provides salaries and allowances in Determination 5/2013 shall continue to apply. The current salary noted above is taken from Determination 5/2013.

SA District Court

Current salary:

Chief Judge $412,550

Judge $364,320

The law behind the salary:

Section 13 of the District Court Act 1991 (SA) provides that the Chief Justice and judges of the District Court are entitled to salary and allowances at rates determined by the Remuneration Tribunal. The relevant Remuneration Tribunal determination is Determination 9/2014 which provides salaries and allowances in Determination 5/2013 shall continue to apply.