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This reference was withdrawn on 19 March 2009 and in its place, the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:
-
procedures
for appointment and method of termination of judges;
-
term
of appointment, including the desirability of a compulsory retirement age, and
the merit of full-time, part-time or other arrangements;
-
jurisdictional
issues, for example, the interface between the federal and state judicial
system; and
-
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.
Navigation: Previous Page | Contents | Next Page