Contents
Sir Anthony Mason, ‘The Courts and their Relationship with
Government'
Murray Gleeson, ‘Public Confidence in the Judiciary’
Zelman Cowen & D P Derham, ‘The Constitutional Position
of the judges'
Sir Anthony Mason, ‘The Courts and their Relationship with
Government’, Address to Bicentennial Australian Legal Convention,
Canberra, 29 August 1988
Judicial independence of courts and tribunals – government policy
– media comment - relationship with Attorney-General – funding
and efficiency – relationship between judges and court administrators
Intrusion of the executive into the judicial realm is the theme of this
paper. Sir Anthony Mason (a judge of the Australian High Court 1972-1995
and Chief Justice 1987 – 1995) identifies tensions between government
and the courts, including irritation in government over the impact of
some judicial decisions and concern in the courts about the impact of
government decisions on court funding and management. While they should
be prepared to respond to criticism courts and tribunals must take care
to avoid compromising their independence. The expansion of administrative
justice brings further conflict over pursuit of government policy. The
Attorney General may not always be enthusiastic to defend the courts.
It is government that decides how much will be spent on courts and tribunals,
and there is increasing expenditure on court administrators provided
by government departments. Decisions about funding and administration
may impair judicial independence, and ‘administration of the court
system in which judges do not have any influential voice puts judicial
independence at hazard’.
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Murray Gleeson, ‘Public Confidence in the Judiciary’
Judicial Conference of Australia, April 2002
< http://www.hcourt.gov.au/speeches/cj/cj_jca.htm>
Judicial independence – integrity of system – tenure –
conduct of judges
The Chief Justice of the High Court of Australia talks about the institutional
integrity of the courts and distinguishes it from the more ephemeral
reputations of judges. His topic is the maintenance of public confidence
in the courts as a fair and democratic system, so that ‘people
and governments routinely accept and comply with judicial decisions’.
Such ‘confidence is not maintained by stifling legitimate criticism
of courts or their decisions’. There must be ‘ a satisfaction
that the justice system is based upon values of independence, impartiality,
integrity and professionalism’.
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Zelman Cowen & D P Derham, ‘The Constitutional Position
of the Judges
(1956) 29 Australian Law Journal 705
Judicial independence – relations with executive and legislature
– communication with the legislature through the minister - judicial
salaries
A dispute over the salaries to be paid to judges of the Supreme Court
between the judges and government in Victoria in 1954 is the backdrop
of this article. A constitutional question arose when the Premier of
the State refused to convey a request from the Chief Justice to Parliament.
The Chief Justice alleged the Court had been denied its only route of
communication to the legislature. The authors consider the constitutional
history of the issue back to the Act of Settlement of 1701 and identify
differences between the structure of government in England and the State
of Victoria. Absent the position of Lord Chancellor, traditionally the
channel of communication in Victoria has been through the Attorney General,
despite provision in the Supreme Court Act for it to report annually
to the Governor of the State. The authors conclude that judges of the
Supreme Court are in a special position as one branch of government
and their request to communicate to the legislature through the ministry
should have been respected.
Links
Daryl Williams, Australian Commonwealth Attorney General,
Judicial Conference of Australia, Colloquium 2001, Opening Ceremony,
April 2001
http://www.law.gov.au/ministers/attorney-general/articles/judicial.html
Murray Gleeson, Chief Justice of High Court of Australia
‘Public Confidence In The Judiciary’, Judicial Conference
Of Australia, Launceston
27 April, 2002
http://www.hcourt.gov.au/speeches/cj/cj_jca.htm
Justice Simon Sheller, ‘Statement of Judicial Conference of Australia
regarding the Honourable Justice Michael Kirby AC CMG’, April
2002, Vol.14 No.3 Judicial Officers’ Bulletin 17-19
http://www.jca.asn.au/kirby.html
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