[musical introduction] [image of the Court crest overlaid with the words ‘The Role of Judicial Officers in Australia’]
[image of John Eric Middleton being sworn in as a judge of the Court] I John Eric Middleton do swear that I’ll bear true allegiance to her Majesty Queen Elizabeth the Second, her heirs and successors according to law, that I’ll well and truly serve her in the office of a judge of the Federal Court of Australia and I’ll do right to all manner of people according to law without fear or favour, affection or ill-will so help me God.
[image of Justice Ronald Sackville]
Justice Sackville – ‘The essential responsibility of a judge is embodied in the judicial oath. It is to decide cases according to law. [image of official oath] Now that means that the judge is bound by his or her oath or affirmation to apply the law. A judge is not free to decide cases according to his or her personal conceptions of what a just result might be.’
[image of five judges sitting on a full court hearing] Australia has more than one thousand judicial officers, that is judges and magistrates who comprise what is referred to as the judiciary or third branch of government.
[Rolling heading: Judicial independence, Appointment selection and removal, What judicial officers do, Impact of decisions, Public confidence, The alternative]
[image of court in session] This DVD explains the nature of judicial independence, appointment selection and removal of judicial officers, what judicial officers do, the impact of their decisions, the importance of public confidence and what Australia would be like if it did not have judicial independence at the heart of its democracy. [separate images of two judges in full court hearing] While it focuses primarily on the Federal Court the essential philosophy is common to all courts at a state, territory and federal level.
[Heading: Judicial Independence]
[image of Justice Ronald Sackville]
Justice Sackville – ‘Well under the Australian Constitution there is a separation of judicial power from the executive power and from parliament which exercises, of course, legislative power. One of the key elements of judicial power is that judges are independent of the executive, independent of parliament and that means that judges must have security of tenure and they must be free from any outside influence in the decisions they make. That is the essence of judicial independence.’
[image of Justice Robert French]
Justice French – Judicial independence really is the independence of the judge from government, from vested interests, from any fear or bias in favour of particular people. [image of five judges entering court for a full court sitting] It means that the judge brings his or her own judgment about the case and they are not worried about any personal consequences because their position is protected. [separate images of judges in court] So for example government or some powerful commercial interest didn’t like a decision the judge couldn’t be sacked just because it didn’t like the decision. So it ensures that what the judge brings to bear is independent judgment which is not going to be influenced by outside forces, whether it be government or commerce or other sorts of vested interests.
[image of Justice Catherine Branson]
Justice Branson – ‘The most important thing about judicial independence is that it’s a protection for litigants; it’s not a protection for judges. Someone aptly said once that it’s designed to ensure that every litigant come to court with nothing but their arguments, that is that no-one is favoured because of who they are or what they represent.’
[Heading: Appointment, Selection and Removal] [image of early Constitution Act] The independence of judicial officers is protected under the Constitution. [image of Constitution Act publication] Judges are appointed by the Governor-General on the recommendation of the Attorney General. [image of the hierarchy under the Constitution] The Attorney-General is the nation’s first law officer and part of the executive branch of government. This person is responsible for recommending judicial appointments to cabinet. [image of judges entering court for swearing in ceremony for new judge] [image of judge being sworn in]
Judicial officers have tenure until they turn seventy and they can only be removed by the governor-general with the support of both houses of parliament for proven misbehaviour or incapacity. [image of Parliament House, Canberra] Parliament fixes their remuneration and this can’t be reduced while they’re a judge. Similar safeguards are enshrined in state constitutions and legislation. [image of judge being sworn in]
[image of the Hon Philip Ruddock, Commonwealth Attorney-General]
Hon Philip Ruddock – ‘Well I think it’s a fundamental right that judicial officers should be independent of government in the decisions that they take and that’s why they’re appointed in the way in which they are. They’re given an appointment for a term, the basis upon which judicial officers might be dismissed is highly constrained and deliberately so and that is to ensure that judicial officers can make their decisions without fear or favour. They’re not going to be able to be, in the colloquial language, “got at” by the government whether it be by the government as a whole or by particular ministers.
[image of judge making judicial oath] I think the system works very well if you look at the quality of appointments, you look at the way in which they exercise their judicial powers, it is independent. I think it’s a system that is demonstrated with appointments made by different political parties over a long period of time has been robust enough to deliver a highly, a highly creditable outcome for the Australian people.’
In the Federal Court judges do three main things, manage cases, hear cases and make decisions. [images of court sitting] Under the court’s docket system they will manage the litigation process from beginning to end. [image of barristers’ bench] Before a case even gets to trial many procedural steps will need to be taken. [image of judge receiving document] On the other hand a judge will sometimes encourage parties to resolve their differences. In the Federal Court the majority of decisions are written. This is perhaps the biggest challenge.
[image of Justice Ronald Sackville]
Justice Sackville – ‘In a court such as this where we quite often get complicated matters and even cases that only take a short time to hear can give rise to complicated issues of law and sometimes fact, there is no doubt that writing a judgment is a very difficult, intellectual exercise, can raise complicated issues, can take a lot of time to resolve and it’s hard and quite lonely work. [separate images of judges in chambers working on judgments] The judge has to do that in his or her chambers working away quietly. Again it’s a misconception that some people have to think that the role of the judge is limited to sitting in court between 10 and 4 or 10:15 and 4:15. [image of Chief Justice talking to other judges] That’s just the hearing part. On the other hand conducting a trial can be extremely demanding. [images of electronic courtroom set up for long trial] As it happens I’m in about day 108 of a major trial which of course is a very long trial by the standards of the court but there are many cases that might go for several weeks. [images of the hearing judge] It is extremely demanding to have to listen day after day and concentrate upon evidence, make rulings upon evidence, deal with the factual issues as they arise. So each element of the judicial function has its difficulties.
[Heading: Impact of decisions]
[images of public figures arriving at court and in court] Judicial officers make decisions that can have wide ranging social political and economic consequences but is this something they ever think about? [images of celebrations and public rally]
[image of Justice Catherine Branson]
Justice Branson – ‘I think judges are always very conscious of those things but not in a way that would distort what they believe is the proper outcome of the case. If one knows that the outcome you believe the law requires will be politically unpopular and may indeed cause political trouble this can’t deter you from bringing down what you believe to be the right result. [images of public rally, police escorting vehicle, protests and demonstrations] It might influence the way you express your reasons for judgment.’
[image of Justice Ronald Sackville]
Justice Sackville – ‘I think that is the most acute dilemma that a judge faces; any judge or magistrate I think will encounter that difficulty. Let me remind you that our responsibility under our judicial oath is to decide cases impartially and according to law. The law is something that we are bound to apply. That is true even if we may individually disagree and from time to time that may be the case. Not every judge will necessarily agree with every piece of legislation that has been enacted by the Commonwealth Parliament. [image of Parliament House, Canberra panning out to view of city of Canberra] Nonetheless our duty is to give effect faithfully to the intention of parliament in accordance with legal principles for the interpretation of statutes. Sometimes one feels that the result that has been reached in the individual case is not entirely just but we do not have the authority to reach a decision simply because we think it is unfair.’
[Heading: Public Confidence]
[image of court in session] Independence provides judicial officers with great power. However, this brings with it intensive scrutiny and accountability.
[Headings: Public hearings, Decisions published, Appeals to higher court] Cases must be heard in public and reasons must be published. The losing side can always appeal to a higher court where the case must also be heard publicly. [image of court in session] This means the work of the judiciary is under constant vigilance by the public, lawyers, legal scholars, media and the judicial officers of higher courts. Do judicial officers then enjoy a public confidence?
[image of the Hon Philip Ruddock, Commonwealth Attorney-General]
Hon Philip Ruddock – ‘Well it’s my job to ensure that they do and I think it’s very important that people recognise that judges are not in a political process, they are independent. They have a judicial role to undertake and it is a separate and different role to those of us that are in public officer who vie for election and so it is in fact important for maintenance of public confidence that the politicians recognise the important role that judges play.
[image of Justice Catherine Branson]
Justice Branson – ‘I think there’s very considerable public confidence in the judicial system. There has been in recent times and I think perhaps always has been debate about judicial sentencing in criminal matters. [image of court building, media and victim support groups] That’s not of course something that the Federal Court is required to do but that aside I think there is very significant confidence in Australia’s judicial system both state and federal.’
[image of Justice Ronald Sackville]
Justice Sackville – ‘As long as people can be satisfied that judges and magistrates are doing their job in that way, free from outside influence, attempting to be fair then there will be confidence in the relevant sense. [image of court building, media and victim support groups] Confidence is not popularity, it is faith in the integrity, independence, impartiality of the system and I think that courts generally are held in high regard as far as that is concerned.’
[Heading: the Alternative]
[image of members of the public] Life in Australia would be totally different if it did not have a system that recognises the separation of powers doctrine and judicial independence.
[image of Justice Catherine Branson]
Justice Branson – ‘The democracy would break down. It isn’t possible to have a democratic system without an independent judiciary. Part of democracy is that the rule of law applies. Nobody in a democracy is above the law. Everybody must abide by the law. That means you must have a branch of government that can bring down rulings about what the law requires, rulings that bind the government as well as the people.’
[image of Justice Robert French]
Justice French – ‘Well what sort of things could happen are the sort of things that happen in some other countries. Judges might be rung up by ministers or spoken to on the golf course by somebody or a minister might say we want such and such an answer to this case because it’s very important to the government. Now that sort of influence, secret influence is the antithesis, the very opposite of what our justice system is about, where everything has to be open and transparent and everything that is said to the judge about the case which could influence the outcome of the case is said in open court so that people have an opportunity to comment on it, to answer it and so forth.’
[image of Justice Ronald Sackville]
Justice Sackville – ‘If we didn’t have judicial independence we would have no meaningful rule of law. It is an essential component of the rule of law which is a measure of our own independence and our own freedom that judges are free from these influences. Although it’s something that we tend to take for granted in this country. People assume that we have an independent and incorruptible judiciary. In the absence of such a judiciary then as Lord Acton said “absolute power can corrupts absolutely” and it would mean that decisions that affected the lives of ordinary people could be made by politicians, made by those who had more influence through money. That is the reason why the rule of law depends at its very heart on the concept of judicial independence and the security of tenure of the judges.’
[Closing image of Court crest overlaid with the words ‘Produced by the Federal Court of Australia, Public Information Unit, Melbourne, Australia, www.fedcourt.gov.au]
