Chapter 1

Chapter 1

Introduction

1.1        On 5 February 2009, the Senate referred an inquiry into Australia's Judicial System, the Role of Judges and Access to Justice to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 17 August 2009.

1.2        This reference was withdrawn on 19 March 2009 and in its place, the Senate referred two separate inquiries: one into Australia's Judicial System and the Role of Judges; and one into Access to Justice.

1.3        The terms of reference for the new inquiry into Australia's Judicial System and the Role of Judges require the committee to have particular reference to:

  1. procedures for appointment and method of termination of judges;

  2. term of appointment, including the desirability of a compulsory retirement age, and the merit of full-time, part-time or other arrangements;

  3. jurisdictional issues, for example, the interface between the federal and state judicial system; and

  4. the judicial complaints handling system.

Conduct of the inquiry

1.4        The committee advertised the inquiry in The Australian newspaper on 11 and 25 February and 8 and 22 April 2009. Details of the inquiry and associated documents were placed on the committee’s website. The committee also wrote to a total of 59 organisations and individuals inviting submissions by 31 July 2009.

1.5        The committee received 39 submissions directly to this inquiry, and 5 submissions made to the earlier joint inquiry were relevant to these terms of reference. All 44 submissions are listed at Appendix 1. Submissions were placed on the committee's website for ease of access by the public.  The committee also received significant additional information which also is listed at Appendix 1 and is available through the committee's website.

1.6        The committee held public hearings in Sydney on 11 June 2009, Melbourne on 12 June, Perth on 13 July 2009 and Canberra on 17 November 2009. A list of witnesses who appeared at the hearings is at Appendix 2, and copies of the Hansard transcript are available through the internet at https://www.aph.gov.au/hansard.

Scope of the report

1.7        The structure of the report is as follows:

  • Chapter 2 provides an outline of the context for the inquiry and an introduction to the issues;

  • Chapter 3 discusses methods of judicial appointment and selection criteria, including whether there is a need in Australia for a judicial appointments commission;

  • Chapter 4 addresses judicial terms of appointment, including tenure and age of retirement, and the use of acting and part‑time appointments;

  • Chapter 5 considers jurisdictional issues and the interface between the federal and state judicial systems, such as judicial exchange, the possibility of a national judiciary, and the cross‑vesting of cases;

  • Chapter 6 discusses termination of a judicial appointment (other than through retirement or reaching the compulsory retirement age) before dealing with existing complaint handling procedures and some concerns about the current arrangements; and

  • Chapter 7 explores options for more sophisticated judicial complaints handling: primarily the possibility of establishing a judicial complaints commission and whether an intermediate process is needed in the interim.

1.8        Of relevance to reading this report is consideration of what is meant by the term judicial officer. In New South Wales, the Judicial Officers Act defines judicial officer to mean:

  • a judge or associate judge of the Supreme Court of New South Wales;

  • a member (including a judicial member) of the Industrial Relations Commission of New South Wales;

  • a judge of the Land and Environment Court of New South Wales;

  • a judge of the District Court of New South Wales;

  • a magistrate; and

  • the President of the Administrative Decisions Tribunal.

The definition of "judicial officer" does not include people such as Arbitrators, Registrars, Chamber Registrars or legal practitioners.[1]

1.9        The committee also notes that the Association of Australian Magistrates argues that 'there is no longer any reason to distinguish "magistrates" from "judges", as the obligations of the judicial role do not differ.'[2]

1.10      This report does not specifically define the terms judge, judicial officer, or judicial commission on each occasion that they are used. However, for the purposes of this report the committee has adopted the New South Wales approach insofar as the term 'judicial officer' applies to officers of a range of courts, including magistrates. It will be a matter of future detail to determine the precise meaning of the term judicial officer in any particular circumstance.

Acknowledgement

1.11      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearings.

Note on references

1.12      References in this report are to individual submissions as received by the committee, not to a bound volume. References to the Committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

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