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Judicial independence ‘not a luxury or privilege to dispense with’, report finds
When it comes to the extent of judicial independence in Australia, a new report has found that “there is much to be proud of, but also much to do” – offering a stark reminder that the independence of our nation’s judges “is not ‘set and forget’”.
Jerome Doraisamy
A “first-of-its-kind” research paper commissioned by the Australian Judicial Officers Association (AJOA) underscores the need for vigilance about risks to judicial independence, with a dozen “pressure points” for judicial independence having been identified.
The paper – prepared by Dr Jessica Kerr of the University of Western Australia and titled Judicial Independence in Australia – offers a contemporary assessment of the state of judicial independence Down Under and applies an American Bar Association-developed methodology, called the Judicial Independence Monitor.
It affirms, AJOA submitted in a statement, the continuing importance of an independent, impartial, and competent judiciary to the health of the Australian system of government.
Kerr wrote, in the paper (footnotes omitted), that Australia “has a generally excellent record for stability and longevity in democratic institutions, ranking highly on international indices of perceptions of corruption and trust in government”.
This said, she continued, “while the importance of judicial independence in Australia may be ‘clear and uncontested’, levels of confidence in public institutions have diminished over time, and the Australian judiciary is not immune to this trend”.
Kerr pointed to the voluminous reforms and judicial institutional developments, increasing workloads and resourcing issues, and pandemic-inspired technological evolutions as contributing factors impacting both the existence and perception of judicial independence in the current climate.
Further, she wrote, “in a country where the government of the day not only funds the operations of the judiciary but appoints the next generation of judges, the politicisation of those choices is an ‘ever-present danger’”.
In total, Kerr identified and listed 12 main pressure points for judicial independence:
- Resourcing and workload pressures;
- Transparency and coordination in judicial regulation;
- Appointments (including diversity, temporary appointments, and inter-court promotions);
- Evolving expectations of judicial conduct and competencies;
- Role of heads of jurisdiction (including administrative transfers and safeguarding);
- Judicial stress and wellbeing;
- Responses to judicial misconduct and harassment;
- The scope of judicial immunity;
- New technologies, including artificial intelligence, within and beyond the courtroom;
- Legislative restrictions on open justice;
- Judicial independence in non-court environments; and
- Retirements ages and pensions schemes.
Speaking about the paper, Justice Steven Moore of the Supreme Court of Victoria – who serves as the president of AJOA – pointed specifically to resourcing, judicial stress and wellbeing, including threats to judges, judicial immunity, and regulation of the judiciary as threats facing those on the bench.
“It is essential to our democracy that judges decide matters solely on the basis of the legal and factual merits of the case – that is what judicial independence requires,” His Honour said.
“Judicial independence is not ‘set and forget’; it requires active monitoring and active championing by all sectors of society – the legal profession, state and federal governments, and the public themselves.”
“We hope this report is both a launching point for further investigation into the risks facing judicial independence and how to mitigate them, and a reminder that we should not take the stability we enjoy in Australia for granted.”
In the paper’s conclusion, Kerr said: “Judicial independence may operate as a shield for the judiciary, but it is not a luxury or privilege that we can afford to dispense with.”
“Appointing independent judges, and supporting them to make independent decisions, is a non-negotiable in any society committed to democratic governance and the rule of law.”
“Evaluating the current state of judicial independence in Australia by the standards reflected in the Judicial Independence Monitor reveals that there is much to be proud of, but also much to do.”
The paper, Kerr also noted, is one that “should be revisited at regular intervals” moving forward.
“While some of the challenges facing the Australian judiciary are familiar and enduring, others, particularly at the intersection of justice, technology and artificial intelligence, are only beginning to be articulated,” she said.
“We should be monitoring these existing and emerging challenges regularly, in the same way that the rule of law or the health of democracy are monitored.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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