Bills Digest no. 82 1977
Constitution Alteration (Retirement of Judges) 1977
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
(Retirement of Judges) 1977
Date introduced: 16 February
House: House of Representatives
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.
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
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
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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© Commonwealth of Australia 2006
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