Bills Digest no. 82 1977
Constitution Alteration (Retirement of Judges) 1977
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
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the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Summary
Contact Officer & Copyright Details
Passage History
Constitution
Alteration (Retirement of Judges) 1977
Date introduced: 16 February 1977
House: House of Representatives
Purpose
The purpose of the proposed law is to
amend s. 72 of the Constitution so as to provide a maximum retiring
age for Justices of the High Court and of other Federal Courts.
Background
Section 72 provides for Justices of the
High Court and of other courts created by the Parliament to be appointed
by the Governor-General in Council. It further provides that they
are not to 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.
As a result of interpretation by the High Court in Alexander’s
Case,(1) the section has been seen as requiring that
every Justice of the High Court and of any other court created by
the Parliament be appointed for life subject only to the power of
removal for proved misbehaviour or incapacity as laid down in the
section.
There has been a growing acceptance of
the view that federal judges, like their counterparts in the States,
should be subject to maximum retiring age. This view was endorsed
by the Senate Standing Committee on Constitutional and Legal Affairs
in a report in October last year, and by the Hobart
meeting of the Australian Constitutional Convention. The provisions
of the proposed law accord with the recommendations of both these
bodies.
Summary
The first paragraph to be added to s.72
provides for the term of appointment of a High Court Justice to expire
upon his reaching the age of 70. There is a prohibition upon appointment
of a person who has attained that age.
Paragraph 3 sets a maximum age of 70 for
Justices of other federal courts. However, paragraph 4 gives the Parliament
power to legislate for a retiring age below 70 for Justices of federal
courts other than the High Court. The Parliament may amend or repeal
such a law at any time but such repeal or amendment will not affect
the term of office of a Justice appointed before the repeal or amendment.
Paragraph 2 spells out that the term of
a Justice of a federal court other than the High Court is to expire
upon his attaining the age that is the maximum age for that court
at the time of his appointment. It also prohibits appointment of anyone
who has already attained the maximum age.
Paragraph 5 of the proposed law makes
it clear that Justices of the High Court or other federal courts may
resign, a point not previously clear on the face of the Constitution.
Paragraph 6 provides that the changes
made by the Constitution Alteration (Retirement of Judges) 1977 are
not to affect Justices already appointed; that is, present Justices
are to continue as life appointees. However, it is clear from paragraph
7 that a present Justice who accepts appointment to another office
of the same court having a different status or designation (e.g. a
Judge who accepts appointment as Chief Justice) will thereupon become
subject to the new retirement provisions.
- (1918) 25 C.L.R. 434.
Law and Government Group
17 February 1977
Bills Digest Service
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ISSN 1328-8091
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