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Barry Lane
1 April, 2005  
Corporatising our courts

John D. Phillips made a few extravagant claims about threats to judicial independence in his farewell from the Victorian Court of Appeal. While John D and other judges bang on about judicial independence, the fact is that the State courts are far from “co-equal” with Parliament


The Age on March 24 gave quite a chunk of space to the thoughts of retiring Justice of Appeal, John D. Phillips who was lamenting the steady and insidious erosion of the courts independence.

See Age report

Exhibit 1 for the prosecution was the present government’s refusal to abide by a recent verdict of the “independent” umpires decision to grant the States beaks a pay rise.

The published version of His Honour’s remarks did not mention that a rise was ultimately granted by the Parliament to be phased in over the next few years.

True it is that the beaks did not get the immediate benefit of the Remuneration Tribunals munificent determination but the reality is that it came at a time when the government was having a very public brawl with the nurses and the police over pay rises.

Timing is everything in love, war, politics and wage rises. On this occasion, unfortunately, the judges were poorly positioned with their claim on the public purse.

Nor was the previous government’s almost universal rejection of Remuneration Tribunal determinations mentioned in the judge’s parting words. Jeffrey Gibb Kennett, no friend of lawyers or judges (except of course while he was trying to recover damages for alleged defamation), was of the view that while people continued to accept judicial appointments there was no need to increase remuneration.

This was consistent with Jeffs preoccupation with market forces, economic rationalism, privatisation, tax reductions and the transfer of anything of value to the private sector. Perhaps this explains why the court system stayed within the public domain.

imageExhibit 2 for the prosecution was Phillips’ concern about the status of the courts chief executive officer. He seemed to be of the view that if the executive officer has been appointed by the Governor in Council (effectively by the relevant minister but with the Governor signing the instrument of appointment), somehow the appointment would be more in keeping with the courts independence.

Perhaps retiring Justice Phillips was unaware of amendments made to the public sector employment regime by Parliament immediately after Kennett came to power. These amendments removed any security of tenure from Governor in Council appointees and effectively rendered them all dismissible at will. Indeed, quite a number of them were then summarily terminated. But I digress.

After tendering exhibits 1 and 2, J.D. Phillips said:

“That [the appointment of an officer of the Department of Justice as the Courts CEO] appears now, if I may say so, to have been but part of a movement towards this courts becoming absorbed into that department, and it is that to which I want to draw attention in particular; for such a movement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a court of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control and limit those other arms and the citizen. Hence the emphasis on the courts independence, especially from the executive.”

The farewelling judge did not suggest that the executive would ever, other than by argument in open court, seek to directly influence a judges decision. But allowing the court to be considered as some sort of branch of the department effectively gives rise to the perception that the court is such a unit and this is inconsistent with the courts fundamental role and compromises its independence.

Such a view seems to me to be at odds with the way the Westminster system of government has evolved since the English Parliament enacted the Bill of Rights in 1688 and the Act of Settlement in 1700. By those pieces of legislation the English Parliament fundamentally changed the way governmental power was thereafter exercised in the UK and in countries that inherited the Westminster system. Thereafter Parliament was king and whereas beforehand the reigning monarch controlled the courts and the judiciary, thereafter it became the exclusive province of Parliament.

As any first year law student will tell you, it is Parliament by legislation that creates and closes courts, provides for their jurisdiction, appointment of judges and funding. The court is told even where it will conduct sittings – see s.6 of the Supreme Court Act 1986.

With all due respect, it is simply nave to contend that the State courts in the Westminster system today are “co-equal”, conceptually or otherwise, with Parliament and the executive.

Parliament giveth and Parliament taketh away. It is Parliament that has the plenary power, not the Supreme Court. To bang on about independence of the judiciary as so many judges do these days is to distract attention from the issues which judges might be really concerned about like Exhibits 1 and 2, although I have my doubts about the latter.

If judges are concerned about pay, then they should say so particularly if they want to enlist public opinion. But please dont carry on about independence of the judiciary because it can be safely assumed that most ordinary people wouldnt have any idea what the term means.

Better to come straight out with it and say one is after money. As things stand in relation to pay, judges are not much different from doctors, nurses, teachers or police. If they are after a pay rise they never really say so, no doubt because taxpayers have to foot the bill.

How it is usually expressed, in each respective situation, is that there is deep concern about quality patient care, class sizes, response times and clear-up rates for crime.

Its not too difficult though to separate altruism from self-interested spin.

As reported, John D. Phillips is also troubled by the notion that the court might be regarded as some part of the “public service”. However, it does seem that submission doesnt pass the duck test. You know the one: if it quacks, has webbed feet and flies then its probably a duck notwithstanding that a lawyer looking for a loophole or an acquittal is trying to convince you that what you are looking at is a giraffe.

Teachers, nurses and police are all employed pursuant to Acts of Parliament to perform services on behalf of the public. They are also paid from the public purse. How are judges any different? They might think that they are different (for which read more privileged and exclusive) but its unlikely that most members of the community, especially politicians, agree.

What we really have to fear is a return to the days of James II and his shenanigans although one would have to concede that with Charlie Windsor on the cusp of moving into Buck House thats probably unlikely.

Importing US practices of electing judges or requiring nominees for appointment to run the gauntlet of some sort of Parliamentary confirmation process are probably just as unlikely. In the end though, if thats the way the Parliament wants to go, then thats what will happen.