The Australian Judges – Who do they think they are?

Presented by 
the Hon Justice JA Dowsett, Federal Court of Australia

at the

Centre for European Studies Conference
Reappraising the Judicial Role – European and Australian Comparative Perspectives

Australian National University, Canberra
14 February 2011

We who spend our lives in the legal system tend to assume that the Law, the Courts, the Judges are forces of nature, that they have always existed in more or less their present forms.  Of course, the reality is otherwise.  All three institutions as we know them are the products of complex evolutionary processes.  The point is demonstrated by this quotation from a book written by Robert Stevens, an English barrister and legal scholar:
As of 1997, one could have said categorically that in England the judges were not a separate or co-equal branch of government.

That proposition is almost startling to an Australian or American judge.  We see it as self-evident that there is a third, independent branch of government.  Given the enormous English influence upon the structure of the Australian judiciary and, until relatively recently, upon its work, it caused me to wonder about how and when our current public perceptions of the judiciary, and judges’ self-perceptions had emerged.  After all, much of the mystique of the judiciary is based upon the perception that it is a venerable and ancient institution.  No doubt the Australian Constitution had a role to play in creating the image of an independent judicial branch of government, but it could not be the sole factor bringing about this wide divergence in views concerning the place of the judiciary in the constitutional arrangements of England and Australia.  I decided to have a look at some of the key events in the long history of the English and Australian judiciary, with the purpose of identifying the point at which the judge, according to our current perceptions, first emerged.  As a result I suggest that any respect based on perceptions of a long and venerable history may not be fully justified.

I referred to two works by Ralph V Turner, an American historian specializing in English and French medieval history.  Concerning the Act of Settlement I referred to the work of Robert Stevens, whom I have already mentioned, and to Dr McPherson’s work on the reception of the common law abroad.  Stevens also offers relevant information and comments concerning the more recent history of the English judiciary.  Much of what follows is derived from those sources.  My tentative conclusions depend upon them.

Turner seeks to construct pen pictures of judges who served the Angevin kings, particularly Henry II, Richard, John and Henry III, relying upon contemporary writings.  This was the period during which professional judges were first seen in England, taking over the administration of justice in the name of the king.  Some judicial characteristics which emerged at that time are still current.  For example, the Angevin judges shared our pre-occupation with due process.  Secondly, they were greatly concerned to protect tenants from wrongful dispossession.  Proceedings of that kind constituted the major foundation for the assertion of royal jurisdiction across the whole of England, displacing local and customary courts.  The same sensitivity about protecting tenants was, to me, a major pre-occupation of the law and the courts, at least in Queensland, when I started practice in 1972.  The difficulties inherent in evicting tenants, especially periodic tenants, almost suggested an institutionalized bias against landlords.

As to attitudes towards the judges, Turner’s sources suggest that in medieval times, there was a wide-spread pre-occupation with judicial greed and ambition and the risk of bribery.  These concerns were linked to the perception that the judges were frequently not from great families, but rather men selected by those around the king, from amongst those known to them.  The fear was that ambitious and greedy men might rise above their natural stations, contrary to the fundamental assumptions of the feudal system.

There are clear echoes of these perceptions in our own times, although current concerns focus on slightly different things.  The greed which concerned medieval writers arose out of the judges’ entitlement to charge fees for doing their jobs, a system which was not finally abolished in England until the early part of the nineteenth century.  Vestiges of the practice remained, at least in Queensland, until the early 1970s when the judges’ associates lost the right to charge fees for copies of reasons for judgment and for arranging special hearings, such fees being received to their own use.  Although the word “greed” is not used much in criticizing modern judges, it is implied in criticisms of the perceived generosity of judicial remuneration and travel arrangements.  Today, concerns about the social backgrounds of judges focus on a perceived preference in appointment practices for white Anglo-Saxon males, although I doubt the current validity of that perception.  In another context one sometimes hears the suggestion that it is in the interests of the Establishment that capable barristers continue to see judicial appointment as an honourable acknowledgement of their achievements in practice thus, in a sense, playing on the ambitions which were suspect in Angevin times.

As I have said, there was, in those times, concern about the possibility of bribery, but the context of the times rendered such conduct more acceptable than it is today.  We still share that concern but deal with it by trying to provide judges with financial security in legitimate ways.  This, paradoxically, has led to the current implicit assertions of greed to which I have referred.

Judicial independence seems not to have been a matter of great concern in medieval times.  The judges were not independent in any modern sense, but they decided many cases in which their master, the king, had an interest.  Indeed, Turner identifies, as a possible reason for the emergence of the Court of King’s Bench, concerns that the professional judges and barons of the courts at Westminster were a little too independent in their judgments.  This led to the establishment of a court which travelled with, and was closer to the king, hearing suits in which he had an interest.  Thus we see that judicial independence has not always been seen as a desirable quality.  The phenomenon of independence had been identified, but its value in governance had not been recognised.

These judges of the 12th and 13th centuries may have been professionals, but they were far from being equivalent to the independent judges that we believe we have today. They were not permanently appointed, they were not independent of the executive government, and they were financially insecure.  When, then, did the judicial office take on its current form?

The next well-recognized landmark in the development of the judiciary was the Act of Settlement in 1701.  The circumstances which led to its enactment suggest that the Stuarts, particularly James II of England (James VII of Scotland) favoured a relationship with the judges similar to that enjoyed by his Angevin predecessors.  In particular James removed judges who opposed his attempts to avoid the Test Acts and stacked the bench with his supporters.  This led, more or less directly, to the last paragraph of s 3 of the Act of Settlement which provided that judges should be appointed during good behaviour, with salaries to be ascertained and established, and to be removed only by address of both Houses of Parliament.  McPherson points out that the Act of Settlement probably did not apply in the colonies but that, in effect, it was generally adopted, or at least observed, in one way or another.

McPherson also points out the significance of s 4 of the Act of Settlement which gave statutory effect to the previously established rhetoric that the Laws of England were the birthright of the English people, and that the monarch should rule accordingly.  He demonstrates that this provision recognized the existence of an amorphous body of fundamental law regulating the way in which monarchs governed and protecting the life, liberty and property of the subject.  This aspect of the Act of Settlement, too, found its way into the laws of the colonies.  However, as Stevens points out, this notion of fundamental law did not lead the English judges to identify and enforce limitations upon parliamentary power, an aspect of judicial life which was to acquire critical importance in America, Australia and some other countries which adopted the common law.  Britain’s entry into the European Union and its ratification of the European Convention on Human Rights have compelled the English courts also to address such issues.

Stevens points out that the Act of Settlement did not establish an independent English judiciary.  First, judicial salary arrangements were not regularized until legislation in 1825 and 1832.  The judges’ rights to fees were not abolished until that time.  Further, the Act of Settlement had not addressed the right of the Crown to decline to re-appoint a judge following a change of monarch.  This position obtained until 1761.  In addition to these formal deficiencies, the independence of the judges was informally compromised by the practice of appointing persons who had been in Parliament or in Crown service.  Stevens finds that between 1714 and 1760 two-thirds of all judges had served in the House of Commons, and nearly 90% had accepted Crown patronage.  Further, the most senior judges, including the Lord Chancellor, were in the House of Lords and were expected to support the government.  As Parliament’s control over the executive increased, the relative standing of the judges declined.  The king and his ministers would regularly communicate with judges, expressing views about cases.  The line between the judiciary and government continued to be blurred.  Lord Ellenborough, as Chief Justice, served in the cabinet during the Napoleonic Wars.  Unhealthy dealings were demonstrated by the fact that Lord Denman, in 1837, accepted appointment as Chief Justice of the Court of King’s Bench at a salary substantially below that established by statute.  In 1850 Lord Russell did the same thing.  

In the period of reform which commenced in the 1860s, both Liberal and Conservative Lord Chancellors sought to establish a fully professional judiciary, based on merit.  However attempts to deprive the House of Lords of its ultimate appellate authority failed.

One might readily assume that an examination of the history of the English courts, from that time until the recent reforms, would reveal an increasingly active and independent judiciary, demonstrating and celebrating its independence and competence.  One might also assume that such an examination of Australian history would do the same.  However Stevens has a different view of the English position.  My own perception of the operation of the courts in this country during that period, derived from the reports and histories, from folk lore which was current when I entered the profession, and my own experience is similar to his view of the English position.

Stevens’ theory is that during the first half of the 20th century, the English courts effectively withdrew, or were excluded from the exercise of judicial functions in areas of English life which were becoming very important, including industrial law and welfare legislation, the ostensible reason being the need to keep the judges free from political controversy.  However, at the same time, judges were frequently appointed to conduct public enquiries and played other potentially controversial roles, keeping at least some of the judges close to the executive government.  

Stevens also asserts that during this period, there was a gross politicization of appointments, including continuation of the well-established practice of appointing to the bench, lawyers with political backgrounds, and a view that the Attorney General of the day had a claim to a vacant Chief Justiceship.  He also attributes a negative effect to Dicey’s views as to the respective roles of parliament and the courts which, Stevens says, effectively undermined the concept of balance of powers which was as far as England had ever progressed towards a separation of powers.  The extension of the doctrine of stare decisis to the point where the House of Lords could not reverse its own earlier decisions also contributed to the “declining role” of the courts, as did manipulation by the Lord Chancellor of the composition of House of Lords panels.

Stevens argues that the way in which the judiciary dealt with social and industrial legislation and litigation, particularly after the First World War, showed such a lack of understanding of the social and economic changes which had occurred, and were continuing to occur, that government consciously sought to exclude the courts from involvement in those areas.  The result was that the courts ceased to have relevance other than in a limited range of areas such as crime, tort and contract.  He suggests that these factors led to the courts’ failure to develop any coherent system of limitation upon the doctrine of parliamentary sovereignty and the almost total abdication of responsibility for judicial supervision of administrative action.

Stevens identifies the reversal of this long decline as commencing in the late 1950s and accelerating with Lord Denning’s appointment as Master of the Rolls in 1962, with his unique flair and enthusiasm for reform.  In the 1960s Lord Gardiner, as Lord Chancellor initiated the changes which led to the House of Lords deciding that it could overrule its own decisions.  Stevens suggests that the emergence of a presidential style of government under Thatcher and Blair detracted from the authority of other ministers, parliamentarians and public servants, leaving a vacuum which the re-vitalized courts have filled.  He also recognizes that entry into Europe led to the death of the concept of parliamentary sovereignty as it effectively mandated judicial consideration of the validity of legislative action and judicial supervision of administrative action.

I suspect that the English judicial attitudes of the first half of the 20th century influenced attitudes in this country, perhaps until as late as the 1970s.  That is hardly surprising, given our general adherence to a doctrine of precedent which, until the 1960s, recognized English decisions as being, in authority equal to, or greater than our own decisions.  This influence may well have kept the Australian courts within the same sort of straightjacket, particularly in areas of public law.  McPherson, in his history of the Supreme Court of Queensland to 1960, entitled his last chapter, dealing with the period 1941-1960, “Court Quiescent”, but the chapters dealing with the earlier years of the century suggest that the malaise started much earlier.  These characteristics may have been peculiar to Queensland, but this seems unlikely.  Of course, the existence of the Commonwealth Constitution meant that from time to time, the judges had to consider the constitutional validity of federal and state legislation.  However, although this view is uninformed by hard evidence, there seems to have been much less awareness of the Constitution as a subject for litigation prior to the 1970s, or even the 1980s, than is now the case.  It is, perhaps, telling that the Mason Court should be so widely seen as having been activist.  Mason became Chief Justice in 1987.  I suspect that the perception of activism reflects the contrast between that Court and the quietude of its predecessors and of the Australian courts generally.  Certainly, administrative law was virtually dead throughout the country until the enactment by the Australian Parliament of the Administrative Appeals Tribunal Act in 1975 and the Administrative Decisions (Judicial Review) Act in 1977, and subsequent similar legislation in the states.

Constitutional and administrative matters are now major parts of the work of the courts, both in fact and in the public perception.  The existence of an arena in which judges are seen to arbitrate regularly between, on the one hand, parliament and administrators and, on the other, commercial undertakings and citizens, has caused, and will continue to cause substantial changes in judges’ self-perceptions and in public and governmental perceptions of them.  It is hardly surprising that in the last 30 to 40 years, public conflict between the judiciary and the other arms of government has become commonplace.  Stevens asserts that the English judiciary has not historically been seen as a separate arm of government, but he sees the changes in England since the 1960s as evidencing a move towards such recognition.  In this country, it is clear that such status has already been attained.  It was always inherent in the Constitution, but its recognition has come slowly. 

The present standing and involvement of the Australian judiciary is the product of many factors, not the least of which is the English history to which I have referred.  Australian parliaments have also contributed to that status by the wide range of matters which have, in more recent years, been entrusted to the courts, the most significant being judicial review of administrative action.  The High Court has, of course, played a major role.  Its insistence that exercise of Commonwealth judicial power is the province of the courts, and its refusal to permit Ch III courts to be used for non-judicial purposes, have inevitably led to a focus on both the ambit of the judicial power and the necessary characteristics of a court.  The extension of these principles, even if in attenuated form, to the state courts in decisions such as Kable has done much to unite the judicial officers of the Commonwealth and the various states and territories, as one integrated, professional group, concerned to maintain fundamental principles across the jurisdictions.  The High Court’s concern with public perceptions of the judiciary has led the courts to become more conscious of the need to maintain contact with the citizens whom they serve.  That such contact may, itself, prove to be a source of power is evidenced by relatively recent events in Pakistan.

Judges have, themselves, contributed substantially to the shaping of the current judiciary.  When I was appointed to the Supreme Court of Queensland in 1985, the primary national judicial body was the quite informal steering committee which ran the annual Supreme and Federal Courts Judges’ Conference, although there were also bodies running conferences for the other courts.  The steering committee and its annual conferences produced a rich harvest.  The Australian Institute of Judicial Administration, now the Australasian Institute of Judicial Administration, was conceived there.  The establishment of the Judicial Conference of Australia and the formalization of the Council of Chief Justices (and the extension of its role) were also first suggested in a paper delivered in that forum.  Establishment of the National Judicial College was the result of lengthy consideration within those bodies.  Their existence both reflects and reinforces the notion of a national judiciary.  They provide forums for the exchange of ideas and platforms for concerted action when that is needed.  The increased number of self-administered courts has also strengthened the judiciary.  It is easier for such courts to fund activities relating generally to the judiciary and administration of justice than it is for courts which are funded by government departments for specific purposes, usually closely related to the hearing and determination of cases.

My thesis, then, is that the judge, as we in Australia know him or her today, has emerged only in the lifetimes of most, perhaps all of us in this room.  The 12th and 13th centuries may have produced professional judges; the Act of Settlement may have produced permanently appointed Judges; but in Australia, it was the Constitution and the commitment to judicial review of administrative action which produced a judiciary which is, and is seen to be responsible for ensuring that parliaments and governments act within power and otherwise in accordance with law.  The modern Australian judge is also the product of the High Court’s steadfast application of Ch III of the Constitution and its relatively recent recognition of the underlying assumptions upon which the Constitution is based.  The judiciary has, itself, helped to shape its own form.  In my view, the judiciary in the English style has never been stronger than it is today in Australia, and it is increasingly recognized as such.

This position is, nonetheless, inevitably under threat.  Powerful groups will always find themselves in conflict with other powers in the land.  Further, it is almost axiomatic that power corrupts.  The most obvious examples of these tendencies in Australian judicial life emerge from the migration cases.  On the one hand, successive governments have demonstrated resentment of judicial intervention.  On the other, there have been examples of judicial excess, of judges seeking to turn procedural review into merits review.  The success of the judiciary as a separate and independent arm of government will be measured by the extent to which we avoid, or deal appropriately with conflict between us and the other arms of government, and the extent to which we avoid abuse of power.

Maintenance of our strong position within the Australian constitutional arrangements will not occur by accident.  The modern judge is not a venerable and ancient institution.  He or she is the product of a long history, but a product which has only recently achieved its current form.  Nor should we conclude that such form is final.  Evolution will continue.  We will best contribute to that evolution by seeking to identify the need for change as it emerges and to influence the ways in which such change is accommodated.  In other words, we must be pro-active.  This necessitates our identifying future threats to our position, the directions from which they will come and their likely forms.  I will finish this paper by seeking to identify some of them.

Even in self-administered courts, budgetary constraints can produce serious adverse effects.  We have recently seen evidence of this at the highest level.  I need say nothing more about that subject.  The quality of appointments will always be a matter of concern.  Whilst lip service is paid to appointment on the basis of merit, the absence of any clear definition of the term offers much room to move for a government which has a political agenda of any kind concerning the courts.  I doubt very much whether advertising for candidates will help to ensure the quality of appointments.  The use of advisory committees may help, but it is no substitute for an independent, conscientious and well-informed Attorney General.

For reasons which I have already given, the judges are capable of seriously undermining our own position.  A disciplined approach to our duties and a robust appellate structure are essential to public confidence.  Our system does not work on the basis that judicial bad faith will be detected and remedied.  It rather works on the basis that judges will not act in bad faith.  The validity of that assumption will depend upon many factors, including appointment policies, conditions of service and the extent to which the institutional values of courts re-inforce positive personal values amongst judges and staff.  Public respect and support will also be critical to the maintenance of high judicial standards.

The appointment of heads of jurisdiction is a process which should be re-considered.  Traditionally, a head of jurisdiction has been the first amongst equals, whose primary responsibility has been to speak on behalf of his or her colleagues.  However the tendency is towards creating a figure of authority who can “run” the court.  This is a dangerous development, at least to the extent that appointments remain in the hands of government.  If a head of jurisdiction is chosen upon the basis of his or her capacity to control the judges, then he or she may seek to do so in order to satisfy his or her political patron.  Thus the head of jurisdiction would become the government’s Trojan horse.  I am inclined to the view that a better model would be that which I understand to be in use in some United States jurisdictions.  The head of jurisdiction is appointed for a fixed term of, say, seven years.  He or she cannot be re-appointed.  Upon the expiry of a term, the next most senior judge, if he or she is willing to serve, assumes the office for the relevant term.

The other great threat to the judiciary is the risk that the institution, or some members of it, may get too close to government.  Individual ambition, recognized in medieval times, is still with us.  Most judges have some degree of ambition.  We all know that, over the years, there have been examples of judges seeking to realize their ambitions by snuggling up to government. We also know that some people in government, although only a few, value those close relationships.  They frequently result in judges being appointed to special tribunals or to run inquiries, sometimes functions which are quite inappropriate for a serving judge.  Attempts to prevent close associations between judges and politicians and inappropriate employment of judges have had mixed results.  It is obvious that we must avoid these situations.  It is also obvious that the culture of the judiciary as a whole must re-inforce awareness of this individual duty.

Writing in the mid-nineteenth century, Tennyson said in his poem Morte D’Arthur:
The old order changeth, yielding place to new, 
And God fulfils Himself in many ways,
Lest one good custom should corrupt the world.

With the possible exceptions of the Church and the Monarchy, no institution has as many good customs as the Law and the Courts.  Today, customs associated with the Church and the Monarchy are constantly under attack.  We should not assume that our own customs will fare any better.  The Law, the Courts, the Judges do not exist as forces of nature.  Those institutions have been created by human beings to serve the needs of communities of human beings and will survive only for so long as they do so.  We should remember that.