Rule of Law – Of judicial independence

Address given by the Chief Justice of NSW, Jim Spigelman January 2007

The significance of the independence of the judiciary is not always fully appreciated. Indeed, some sections of government, and of our media, appear to resent judicial authority. Some appear to believe that there may be advantage to their own reputation by being seen to be “tough on the judges”. This is fraught with danger for our freedoms and social stability.

There is a tendency to treat judges as if they were public servants, subject to a bureaucratic criteria of performance. This approach fails to recognise the constitutional role of the judiciary as a distinct arm of government.

The white heat of an election campaign is not a propitious time to debate matters of principle.

Judicial independence is not a privilege of judges which we acquire as a perk of office. Judicial independence is a fundamental right of citizens. It is one of the rights that is enshrined as a constitutional principle.

Citizens are entitled to protection from the exercise of the power that others are able to exercise over their lives. Our society cannot be governed by the rule of the law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the Parliament intended, not what the executive wants.

We tinker with this institutional arrangement at our peril. Today, this tinkering is often expressed in terms of judges being “out of touch”. However, as the Chief Justice of the High Court, Murray Gleeson, has observed, the real complaint is not that judges are “out of touch” but that they are “out of reach”. Judges are meant to be hard to get at.

It is essential to understand that the most frequent litigant in the courts of this state is the executive branch of government.

People who are used to getting their way do not usually take kindly to their wishes being frustrated. In the past that has included the aristocracy, when it was the centre of social and economic power. These days such centres of power include major corporations and the mass media. Throughout history the executive branch of government has been such a centre of power.

It is vital that the independence of the judiciary does not depend solely on the personal integrity and resilience of individual judges. Independence has been institutionalised.

The exercise of judicial power must be insulated, indeed isolated, from pressure or interference by the executive branch of government.

There is no single model for achieving this objective. Nevertheless such independence and impartiality must not only exist. It must appear to exist – reflected in the aphorism that justice must not only be done but must manifestly be seen to be done.

On January 21 a news release was issued in the name of the Premier announcing that the Government intended to introduce legislation for the appointment of two community representatives, to what was described as “the conduct division of the NSW Judicial Commission”.

No reason was given as to why, so soon after a detailed and comprehensive review of these matters, it was nevertheless necessary to make further changes.

The membership of a conduct division of the Judicial Commission is a critical, indeed an essential, feature of the constitutional arrangements for judicial independence in this state. On Monday last week I wrote to the Premier, Morris Iemma, expressing my disappointment that a matter of such significance to the relationship between the executive and the judicial branches of government should be announced in this manner and without consultation with the judiciary.

It would be wrong and contrary to constitutional principle if an appointment to a conduct division were to be made by the executive branch of government.

In response to my letter to the Premier, the NSW Attorney-General, has informed me that, if re-elected, the Government will undertake consultations about the details of the proposal. The Attorney-General expressed his opinion that the judicial commission should be involved in the selection of the two “community representatives” and in determining which should sit on a particular matter.

I trust that in the course of such consultations the judiciary can rely on the support of the legal profession to maintain the principle of judicial independence.