The Rt. Hon. Sir Ninian Stephen on Why Judicial Independence?

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1 1 The Centre for Democratic Institutions Asia-Pacific Judicial Educators Forum, January 2004 The Rt. Hon. Sir Ninian Stephen on Why Judicial Independence? ASKED TO PRESENT A KEYNOTE ADDRESS FOR THE WORKSHOP OF THIS FORUM, I FOUND MYSELF INITIALLY VERY MUCH AT A LOSS FOR A TOPIC. BUT, THINKING ABOUT MY OWN PAST JUDICIAL EXPERIENCE, I CONCLUDED THAT THE ESSENCE OF IT LAY IN JUDICIAL INDEPENDENCE AND THAT I MIGHT MOST USEFULLY SPEAK ON THAT TOPIC BECAUSE IT SEEMS TO ME TO LIE AT THE VERY HEART OF THE JUDICIAL FUNCTION. JUDICIAL INDEPENDENCE IS IN SOME WAYS A CURIOUS LEGAL TOPIC IF ONLY BECAUSE IT VERY SELDOM FEATURES IN LEGAL TEXTS AS ANY DISCRETE SUBJECT- MATTER YET AT THE SAME TIME IS REGARDED, I BELIEVE, CERTAINLY BY LAWYERS, AS THE VERY KEYSTONE OF ANY WORTHWHILE LEGAL STRUCTURE. WHAT IS MORE, I SUSPECT THAT IT IS LITTLE RECOGNISED BY MOST LAYMEN AS ANY ESSENTIAL ELEMENT OF GOOD GOVERNANCE, INDEED THOSE OF THE GENERAL PUBLIC WHO HAVE EVER THOUGHT ABOUT IT MAY TEND TO REGARD IT AS ESSENTIALLY UNDEMOCRATIC; AS AN ELITIST REFUSAL BY COURTS TO BE DEMOCRATICALLY ACCOUNTABLE, ITSELF A SIN IN AN ERA IN WHICH ACCOUNTABILITY HAS BECOME ONE OF THE SOVEREIGN VIRTUES. MOREOVER, BECAUSE IMPORTANT ASPECTS OF JUDICIAL INDEPENDENCE INVOLVE SECURITY OF TENURE OF JUDICIAL OFFICE AND AN ADEQUATE AND SECURE LEVEL OF REMUNERATION FOR JUDICIAL OFFICE-HOLDERS, THIS MAKES IT A TOPIC ALL TOO EASILY APPEARING AS CONCERNED WITH LITTLE MORE THAN SELF-INTEREST ON THE PART OF JUDGES. AND CYNICS HAVE THE EASIER TIME OF IT SINCE THEY ARE ATTACKING A SPECIES OF THE GENUS LAWYER, A PROFESSION NOT ALWAY SEEN AS DEDICATED TO LIVES OF MODEST SELF-DENIAL.

2 2 SO ALL IN ALL, LAWYERS AND POLITICAL SCIENTISTS APART, THE CAUSE OF JUDICIAL INDEPENDENCE IS NOT LIKELY TO INSPIRE SPONTANEOUS POPULAR SUPPORT IN MANY AUSTRALIAN HEARTS. YET THE OUTCOME OF ITS ABSENCE, NAMELY THAT A JUDGE MAY BE GROSSLY PARTIAL AS A CONSEQUENCE OF OUTSIDE INFLUENCE AND PRESSURE, REMAINS A GENERALLY ACKNOWLEDGED EVIL. IT IS NOT THAT THERE IS, IN AUSTRALIA, ANY PARTICULAR OPPOSITION TO THE CONCEPT OF JUDICIAL INDEPENDENCE BUT RATHER THAT THE SIGNIFICANCE OF THE CONCEPT ITSELF IS LITTLE UNDERSTOOD. BECAUSE OF THIS IT CAN ALL TOO READILY BE ACCEPTED AS A NATURAL ATTRIBUTE OF JUDICIAL OFFICE. HOWEVER, THE JUDICIAL INDEPENDENCE WHICH SUSTAINS IMPARTIALITY WILL BE IN DANGER OF EROSION IF IMPARTIALITY COMES TO BE REGARDED AS AXIOMATIC AND HENCE AS NEEDING LITTLE CARE FOR ITS MAINTENANCE. EROSION OF THE CONDITIONS THAT PROMOTE JUDICIAL INDEPENDENCE CAN READILY ENOUGH OCCUR THROUGH A VARIETY OF CAUSES COMING FROM AT LEAST THREE SOURCES; FROM THE EXECUTIVE, ATTRIBUTABLE EITHER TO PRESSURES OF BUDGETARY STRINGENCY OR TO A WISH TO ACHIEVE POLICY AIMS BY ASSUMING GREATER CONTROL OVER THE COURTS; FROM LAW REFORMERS WHO, IMPATIENT TO SWEEP AWAY WHAT SEEM TO THEM OUTMODED LEGAL PROCEDURES, MAY NOT ALWAYS STOP TO ENSURE THAT JUDICIAL INDEPENDENCE IS NOT WEAKENED IN THE PROCESS; OR, THIRDLY AND QUITE UNINTENTIONALLY, THOUGH THE JUDICIARY ITSELF BY EXTRA-JUDICIAL PARTICIPATION IN CONTENTIOUS ISSUES AND PARTY-POLITICAL ACTIVITIES, DUE PERHAPS TO IMPATIENCE WITH THE TRADITIONAL COLOURLESS NEUTRALITY OF THE JUDICIARY AND, OCCASIONALLY, TOO, DUE TO A DESIRE FOR THE LIMELIGHT. IN CONSIDERING THE ESSENCE OF JUDICIAL INDEPENDENCE I BEGIN, UN- ORIGINALLY, WITH THE STATEMENT THAT, PROPERLY UNDERSTOOD, JUDICIAL INDEPENDENCE IS NOT INDEPENDENCE FOR JUDGES, IT IS NOT FOR THEIR OWN BENEFIT. IT IS INDEPENDENCE OF JUDGES FROM EXTRANEOUS SOURCES OF POWER AND INFLUENCE, AND THIS FOR THE BENEFIT OF THE JUSTICE SYSTEM AND HENCE OF THE WHOLE COMMUNITY.

3 3 AS CHIEF BARON KELLY SAID AS LONG AGO AS 1865, IN A LANDMARK CASE THAT AFFIRMED A JUDGE S IMMUNITY FROM SUIT WHILE ACTING JUDICIALLY, INDEPENDENCE IS NOT FOR THE PROTECTION OR BENEFIT OF A MALICIOUS OR CORRUPT JUDGE, BUT FOR THE BENEFIT OF THE PUBLIC, WHOSE INTEREST IT IS THAT THE JUDGES SHOULD BE AT LIBERTY TO EXERCISE THEIR POWERS WITH INDEPENDENCE AND WITHOUT FEAR OF CONSEQUENCES. JUDICIAL INDEPENDENCE SHOULD NEVER LIGHTLY BE ASSUMED TO BE FREE FROM THREAT; AS WE KNOW IT IS EITHER ABSENT OR UNDER THREAT IN MANY COUNTRIES, DESPITE THE FACT THAT IT IS VERY PROPERLY REGARDED AS AN ESSENTIAL ELEMENT OF ANY DEMOCRATIC SYSTEM OF GOVERNMENT THAT RESPECTS THE RULE OF LAW. ITS MOST VISIBLE SAFEGUARDS CONSIST OF CONSTITUTIONALLY ENSURED SECURITY OF JUDICIAL TENURE AND REMUNERATION BUT IT WILL ALSO BE IMPORTANT THAT THERE SHOULD BE SOME GENERAL COMMUNITY RECOGNITION OF THE HIGH IMPORTANCE OF THE INDEPENDENCE OF JUDGES AND OF THEIR NEED, IN THE PUBLIC INTEREST, TO BE INSULATED FROM EXTRANEOUS PRESSURES AND TO HAVE THEIR INDEPENDENCE SAFEGUARDED IF THEY ARE, IN RETURN, TO BE TRULY IMPARTIAL. FOR THEIR PART JUDGES HAVE TO RESIST ANY TEMPTATION TO ENGAGE IN CONTROVERSIES OF THE DAY, WHETHER OR NOT POLITICAL IN NATURE. THE WRITER DE SMITH HAS HAPPILY DESCRIBED THE SOURCES OF JUDICIAL INDEPENDENCE AS INCLUDING "AN ADMIXTURE OF STATUTORY AND COMMON LAW RULES, CONSTITUTIONAL CONVENTIONS AND PARLIAMENTARY PRACTICE, FORTIFIED BY PROFESSIONAL TRADITION AND PUBLIC OPINION." JUDICIAL INDEPENDENCE, IMPORTANT AS IT IS, CAN OF COURSE ONLY BE AN ADJUNCT, ALBEIT AN ESSENTIAL ONE, TO A JUST LEGAL SYSTEM. IT CAN'T OF ITSELF PRODUCE ABSTRACT JUSTICE, FOR THAT DEPENDS UPON THE EXISTENCE OF JUST LAWS; THE PRIME ROLE OF JUDGES BEING TO ADMINISTER THE LAW, IT IS FOR THE LAW-MAKERS TO ENSURE THAT THE LAWS WHICH THE JUDGES HAVE TO ADMINISTER ARE INHERENTLY JUST ONES. AGAIN, MERE INDEPENDENCE OF THE JUDICIARY IS, ON ITS OWN, NO GUARANTEE OF EXCELLENCE OF A JUSTICE SYSTEM. THE QUALITY OF ITS JUDGES AND ALSO OF

4 4 ITS PRACTITIONERS AND THE RELATIVE ACCESSIBILITY OF ITS REMEDIES TO ALL WHO SEEK THEM ARE ALSO CRITICAL FACTORS. AN IMPARTIAL JUSTICE SYSTEM IS OF NO MORE THAN MERE DECORATIVE VALUE IF IT IS NOT READILY ACCESSIBLE TO ALL MEMBERS OF THE COMMUNITY THAT IT IS DESIGNED TO SERVE, REGARDLESS OF MEANS OR THE WANT OF THEM. PROMPTNESS OF OUTCOMES WILL ALSO BE AN IMPORTANT MEASURE OF ITS QUALITY. WHAT IS CERTAIN, HOWEVER, IS THAT JUDGES WHO ARE NOT INDEPENDENT AND HENCE UNHESITATINGLY IMPARTIAL CAN NEVER HOPE PROPERLY TO SERVE AS A JUST TRIBUNAL. INDEPENDENCE IS A FIRST PREREQUISITE FOR JUSTICE. THE HISTORY OF JUDICIAL INDEPENDENCE IS OF PARTICULAR SIGNIFICANCE TODAY. JUDICIAL TENURE "DURING GOOD BEHAVIOUR" RATHER THAN DURING THE PLEASURE OF GOVERNMENT WAS FIRST FORMALLY INSTITUTED IN BRITAIN, MUCH AGAINST THE SOVEREIGN'S WILL, BY THE LONG PARLIAMENT IN 1641 AND, AFTER BEING DISCARDED IN FAVOUR OF TENURE "DURING PLEASURE" BY THE LATER STUART MONARCHY AFTER THE RESTORATION, WAS REINTRODUCED DE FACTO WITH THE SO-CALLED GLORIOUS REVOLUTION OF 1688 AND BECAME DE JURE WITH THE ACCESSION OF GEORGE I IN JUDICIAL SECURITY OF TENURE DURING GOOD BEHAVIOUR HAS LONG BEEN STANDARD IN FEDERAL AND IN STATE SUPREME COURTS HERE IN AUSTRALIA. IN EARLIER TIMES, DURING THE 15TH AND 16TH CENTURY, THE JUDGES, ALTHOUGH NOT SPECIFICALLY ENJOYING SECURITY OF TENURE, WERE IN FACT RELATIVELY FREE FROM POLITICAL INTERFERENCE, NOT BECAUSE OF ANY PARTICULAR SCRUPLES ON THE PART OF THE SOVEREIGN OF THE DAY OR AN EARLY EMERGENCE OF A DOCTRINE OF JUDICIAL INDEPENDENCE BUT SIMPLY BECAUSE IN THOSE EARLIER CENTURIES THERE WERE FEW MAJOR CONSTITUTIONAL CRISES RAISING LEGAL AND POLITICAL ISSUES AND INVOLVING THE COURTS SUCH AS OCCURRED IN THE 17TH CENTURY, HENCE THE COURTS FOUND THEMSELVES LEFT RELATIVELY FREE FROM INTERFERENCE. WHAT IS SIGNIFICANT ABOUT THIS FOR US IN THE PRESENT DAY IS THAT THE MORE GREAT ISSUES OF THE DAY COME BEFORE THE COURTS THE GREATER WILL BE THE VERY NATURAL WISH OF GOVERNMENTS TO HAVE OUTCOMES WHICH ARE CONDUCIVE TO ATTAINMENT OF THEIR POLICY ENDS. WITH GOVERNMENTS AND THEIR AGENCIES TODAY FREQUENT LITIGANTS IN THE COURTS IN IMPORTANT LITIGATION, MAINTENANCE OF JUDICIAL INDEPENDENCE IS TODAY OF GREATER

5 5 IMPORTANCE THAN IT EVER HAS BEEN IN THE PAST. IF WE IN AUSTRALIA ULTIMATELY FOLLOW THE LEAD OF THE UNITED STATES AND, MUCH MORE RECENTLY, OF CANADA, NEW ZEALAND, BRITAIN AND OTHER MEMBERS OF THE EUROPEAN COMMUNITY AND INTRODUCE SOMETHING IN THE NATURE OF A BILL OF RIGHTS THE IMPORTANCE OF JUDICIAL INDEPENDENCE WILL BECOME STILL GREATER FOR US IN AUSTRALIA. WHAT THEN, IF ANYTHING, SHOULD BE DONE TO ENSURE JUDICIAL INDEPENDENCE? PRIMARILY THAT INDEPENDENCE IS CONCERNED WITH THE PROTECTION OF JUDGES ONCE APPOINTED. BUT LOGICALLY IT OUGHT, I SUPPOSE, TO REACH BACK IN THE PROCESS TO THE STAGE OF SELECTION OF APPOINTEES TO JUDICIAL OFFICE. JUDICIAL INDEPENDENCE ASSUMES A POTENTIALLY INDEPENDENT JUDICIARY THAT NEEDS ONLY TO BE ASSISTED IN RETAINING ITS INDEPENDENCE BY THE AID OF APPROPRIATE SAFEGUARDS. BUT THIS ASSUMPTION IS NO ABSOLUTE. ONE CAN CONCEIVE OF APPOINTMENTS BEING MADE ESSENTIALLY ON THE GROUNDS OF LIKELY COMPLAISANT ADHERENCE TO THE WISHES OF GOVERNMENT AND OF COURSE THIS IS MORE LIKELY TO OCCUR WHERE APPOINTMENT IS A MATTER LEFT EXCLUSIVELY IN THE HANDS OF GOVERNMENT. SO PERHAPS ONE SHOULD BEGIN WITH THE SELECTION PROCESS. THERE ARE, OF COURSE, MANY POSSIBLE SYSTEMS OF JUDICIAL APPOINTMENT; LET ME LIST SOME OF THEM VERY BRIEFLY: FIRST, THE SIMPLE AUSTRALIAN SYSTEM OF APPOINTMENT BY THE GOVERNMENT OF THE DAY, WHETHER FEDERAL OR STATE, WHICH DOES NOTHING IN ITSELF TO ENSURE INDEPENDENCE. WITH US, THE HIGH DEGREE OF INDEPENDENCE OUR JUDGES MAINTAIN IS DUE TO NO MORE INITIALLY THAN A STRONG TRADITION OF IMPARTIALITY; A KNOWLEDGE THAT THE PROFESSION AND THE COMMUNITY WILL EXPECT A JUDICIAL NOMINEE TO BE WHOLLY IMMUNE TO OUTSIDE INFLUENCES. THEN THERE IS THE SOMEWHAT SIMILAR ENGLISH SYSTEM IN WHICH, AT LEAST FOR APPOINTMENTS AT HIGH COURT LEVEL, THE LORD CHANCELLOR, ON BEHALF OF GOVERNMENT, APPOINTS ONLY AFTER CONFERRING3 AT LENGTH OVER EACH APPOINTMENT WITH THE ASSEMBLED JUDICIAL HEADS OF THE FOUR DIVISIONS OF THE COURT, THE LORD CHIEF JUSTICE, THE MASTER OF THE ROLLS, THE VICE CHANCELLOR AND THE PRESIDENT. THEN THERE IS THE WHOLE RANGE OF U.S. PRACTICE, FROM SIMPLE ELECTION OR INDIRECT ELECTION BY STATE LEGISLATURES, THROUGH APPOINTMENT BY THE

6 6 STATE GOVERNOR SUBJECT TO SUBSEQUENT CONFIRMATORY ELECTION; BY APPOINTMENT BY HIM FROM A LIST SUBMITTED BY A SELECTION COMMITTEE, OFTEN COMPOSED OF MEMBERS OF THE PROFESSION, AND SUBJECT TO MANY VARIATIONS BUT BASED ESSENTIALLY ON THE SO-CALLED MISSOURI PLAN, THE APPOINTMENT FREQUENTLY BEING FOLLOWED BY A BALLOT AFTER A PROBATIONARY YEAR; THEN THERE IS PRESIDENTIAL APPOINTMENT OF FEDERAL JUDGES SUBJECT TO SENATE CONFIRMATION, AND FINALLY, STRAIGHT OUT GUBERNATORIAL APPOINTMENT NOT UNLIKE OUR OWN SYSTEM. CANADA IS RATHER LESS RICH THAN THE UNITED STATES IN ITS VARIETY OF METHODS OF APPOINTMENT. JACKSONIAN DEMOCRACY AND ITS ENTHUSIASM FOR THE ELECTION OF JUDGES DID NOT PENETRATE NORTH OF THE BORDER. THE APPOINTMENT OF FEDERAL JUDGES, OTHER THAN CHIEF JUSTICES, ARE INITIALLY PROPOSED TO CABINET BY THE MINISTER FOR JUSTICE, THOSE OF CHIEF JUSTICES BOTH FEDERAL AND PROVINCIAL, BY THE PRIME MINISTER, AND THE ACTUAL APPOINTMENTS ARE THEN MADE BY CABINET DECISION. JUDGES OF LOWER COURTS IN THE PROVINCES ARE APPOINTED BY A PROVINCIAL MINISTER BUT IN SOME PROVINCES HE IS ADVISED BY PROVINCIAL JUDICIAL COUNCILS AND IN THE TERRITORIES SUCH COUNCILS ACTUALLY MAKE THE APPOINTMENT. JUDGES, PRACTITIONERS AND LAY PERSONS MAKE UP THOSE COUNCILS AND IN AT LEAST ONE PROVINCE THE MINISTER'S CHOICE OF APPOINTEES IS CONFINED TO THOSE FIRST NAMED BY THE COUNCIL. FROM NATION TO NATION SYSTEMS OF APPOINTMENT VARY; EVEN IN CIVIL LAW COUNTRIES IT IS BY NO MEANS A SIMPLE CASE OF STEADY PROMOTION OF CAREER JUDGES THROUGH THE RANKS. FOR EXAMPLE, IN THE GERMAN FEDERATION EACH OF THE TWO HOUSES ELECTS ONE HALF OF THE MEMBERS OF THE FEDERAL CONSTITUTIONAL COURT; IN SWITZERLAND THEY ARE ELECTED BY A JOINT SITTING OF THE TWO HOUSES. I DON'T PROPOSE TO EXPLORE FURTHER THE VARIOUS MODELS. IT IS ENOUGH TO APPRECIATE THE VERY VARIED AND SOMETIMES COMPLEX ARRAY OF METHODS THAT EXIST. IF INDEED IT IS PROPER TO THINK OF JUDICIAL INDEPENDENCE AS BEGINNING WITH THE APPOINTMENT OF JUDGES LIKELY TO BE INDEPENDENTLY MINDED THEN THERE IS OBVIOUSLY GREAT ROOM FOR CHOICE OF SYSTEMS.

7 7 PERHAPS THE MOST ATTRACTIVE, IF ANY CHANGE FROM THE PRESENT SYSTEM WERE TO BE ADVOCATED FOR AUSTRALIA IN THE CAUSE OF JUDICIAL INDEPENDENCE, MIGHT INVOLVE SOME ROLE FOR A BODY SUCH AS THE CANADIAN PROVINCIAL JUDICIAL COUNCILS. HAVING ATTAINED THE BENCH WHAT WILL THE NEW AUSTRALIAN JUDGE FIND IN TERMS OF JUDICIAL INDEPENDENCE? HE WILL FIND HIMSELF POSSESSED OF SECURITY BOTH OF TENURE AND OF SALARY AND WITH SECURE PENSION RIGHTS, ALTHOUGH HIS SALARY WILL ALWAYS BE AT THE MERCY OF INFLATION, TEMPERED FROM TIME TO TIME BY NO DOUBT GRUDGINGLY AWARDED SALARY INCREASES. SO FAR AS HIS SALARY IS CONCERNED, OUR NEWLY-APPOINTED JUDGE, ALERT TO ANY INVASION OF JUDICIAL INDEPENDENCE, MAY WITH SOME JUSTIFICATION FEEL THAT IT IS INAPPROPRIATE, PARTICULARLY IN TIMES OF HIGH INFLATION, THAT ULTIMATELY IT WILL BE THE GOVERNMENT OF THE DAY THAT HAS THE LAST SAY IN DETERMINING THE TIMING AND QUANTUM OF SALARY INCREASES, WHATEVER REMUNERATION TRIBUNALS OR OTHER INTERPOSED BODIES MAY RECOMMEND. HE MAY FEEL THAT AUTOMATIC INDEXATION, GEARED TO SOME COST OF LIVING INDEX, AS IS, I UNDERSTAND, THE CASE IN CANADA, WOULD BE PREFERABLE. THERE WILL BE OTHER AREAS IN WHICH IT MAY BE FELT THAT HIS PERSONAL INDEPENDENCE COULD CONCEIVABLY BE JEOPARDISED. HE MAY ASPIRE TO PROMOTION TO CHIEF JUSTICE OR TO A MORE SENIOR COURT WITHIN THE SYSTEM AND SO LONG AS THE QUESTION OF PROMOTION IS DEALT WITH POLITICALLY IN AUSTRALIA IN THE SAME WAY AS IS INITIAL APPOINTMENT THERE REMAINS THE POSSIBILITY THAT HIS INDEPENDENCE COULD BE THREATENED BY THE PROSPECT OF PROMOTION OR BY THE THREATENED DENIAL OF IT. HIS PARTIAL CONSOLATION SO FAR AS APPOINTMENT AS CHIEF JUSTICE IS CONCERNED MAY LIE IN THE UNDERSTANDING WHICH HE WILL SWIFTLY GAIN AFTER FIRST APPOINTMENT OF HOW VERY BURDENSOME IS THE LIFE OF A CHIEF JUSTICE, WHO HAS BOTH TO BEAR HIS OWN SHARE OF JUDGING AND AT THE SAME TIME COPE WITH PROBLEMS OF ADMINISTRATION AND WITH ALL THE VAGARIES OF A WHOLE COMPANY OF QUERULOUS PUISNE JUDGES.

8 8 IN ANY EVENT PROMOTION RAISES, IN SUBSTANCE, THE SAME QUESTIONS AS INITIAL APPOINTMENT: SHOULD IT BE LEFT SIMPLY TO POLITICAL DECISION-MAKING OR SHOULD ANY ONE OF THE MANY ALTERNATIVES BE RESORTED TO? OUR NEW JUDGE WOULD BE RIGHTLY ALARMED WERE HE TO DISCOVER ON APPOINTMENT THAT CONTROL OF COURT LISTS, THE ASSIGNING OF JUDGES TO HEAR PARTICULAR CASES AND THE LIKE WERE TO BE IN ANY WAY INFLUENCED BY THE EXECUTIVE INSTEAD OF BEING UNDER THE EXCLUSIVE CONTROL OF THE JUDICIARY. HOW IN FACT IN ANY PARTICULAR SYSTEM THESE MATTERS OF ADMINISTRATION ARE DEALT WITH, WHETHER BY THE CHIEF JUSTICE OR BY SOME SYSTEM OF COMMITTEES OF JUDGES OF THE COURT, REALLY RELATES TO JUDICIAL ADMINISTRATION RATHER THAN TO JUDICIAL INDEPENDENCE. THE IMPORTANT THING IS THAT IT SHOULD NOT BE IN THE HANDS OF GOVERNMENT OR OF A GOVERNMENT-CONTROLLED BUREAUCRACY. WHAT A NEW JUDGE MAY QUICKLY DISCOVER IS THAT MUCH OF THE BATTERY OF HIGH-TECH EQUIPMENT AVAILABLE TO HIM AS OF COURSE IN PRIVATE PRACTICE - FAXES, PHOTO-COPIERS, ANSWERING MACHINES, THE LATEST ARRAY OF WORD PROCESSORS AND HIGH SPEED PRINTERS, TOGETHER WITH EFFICIENT STAFF TO OPERATE THEM, MAY BE IN SHORT SUPPLY, AS MAY BE ADEQUATE RESEARCH ASSISTANCE AND A FIRST-CLASS LIBRARY. BUT THIS CAN SCARCELY BE SAID TO AFFECT HIS PERSONAL INDEPENDENCE SO LONG AS HE SUFFERS ALONG WITH ALL OTHER MEMBERS OF THE COURT, THOUGH A COURT'S LACK OF ADEQUATE EQUIPMENT AND ADEQUATE STAFF TO ASSIST THE JUDGES IN THEIR TASKS MIGHT WELL BE SEEN AS JEOPARDISING THE PROPER FUNCTIONING OF THE COURT AS ONE ARM OF GOVERNMENT AND AS PREJUDICING THE COLLECTIVE INDEPENDENCE OF THE JUDICIARY AS A WHOLE. THERE ARE, I BELIEVE, STATE COURTS IN THE U.S. THAT HAVE CLAIMED, AS A CONSEQUENCE OF A STRICT SEPARATION OF POWERS DOCTRINE, THE RIGHT TO LEVY TAXES SO AS TO FUND THEIR OPERATIONS QUITE INDEPENDENTLY OF THE EXECUTIVE OR LEGISLATURE ARMS. SUCH A CLAIM WOULD BE UNLIKELY TO BE RECEIVED WITH ENTHUSIASM BY THE AUSTRALIAN ELECTORATE. HAVING SATISFIED HIMSELF THAT HE HAS TENURE ON THE BENCH DURING GOOD BEHAVIOUR UNTIL RETIREMENT AGE, AS IN AUSTRALIA, OUR NEW JUDGE MAY

9 9 WONDER IN JUST WHAT CIRCUMSTANCES AND BY WHAT PROCESS HE MAY BE REMOVED FOR BAD BEHAVIOUR. IN AUSTRALIA, AT LEAST FEDERALLY, THIS CAN ONLY OCCUR THROUGH ADDRESS OF BOTH HOUSES OF PARLIAMENT ON THE GROUND OF PROVEN MISBEHAVIOUR OR INCAPACITY. AS I HAVE ALREADY SAID, AS RELEVANT AS ANYTHING TO THE EXCELLENCE OF A JUSTICE SYSTEM IS THAT IT BE TRULY ACCESSIBLE TO ALL LITIGANTS WHO HAVE SUBSTANTIAL CASES TO PURSUE, REGARDLESS OF THEIR MEANS. THIS IS AN AREA ESSENTIALLY BEYOND THE SCOPE OF THIS PAPER AND I SAY ONLY THAT TO ENSURE THIS IS NO EASY TASK FOR A LEGAL SYSTEM TO ACHIEVE, PRINCIPALLY BECAUSE IT INVOLVES THE POLITICALLY SENSITIVE MATTER OF SUBSTANTIAL FUNDING, AND WE IN AUSTRALIA STILL HAVE SOME DISTANCE TO GO TO ACHIEVE IT. JUDICIAL INDEPENDENCE IS OF PRIME IMPORTANCE BUT SO TOO IS ACCESSIBILITY OF THE CITIZEN TO THE INDEPENDENT JUDGE BY MEANS OF LEGAL AID SCHEMES TO ASSIST THOSE WHO CANNOT AFFORD EXPENSIVE PROFESSIONAL ASSISTANCE; MUCH STILL NEEDS TO BE DONE HERE IN AUSTRALIA TO BETTER ENSURE THIS FACTOR OF ACCESSIBILITY TO JUSTICE. THE VERY FACT THAT WE KNOW OF THE NEED FOR THIS IS ITSELF A HEALTHY THING IN OUR AUSTRALIAN COURTS.