John Phillips (jurist) - Support For Independence of The Judiciary

Support For Independence of The Judiciary

Phillips' retirement speech generated debate in Victoria on judicial independence. In the Australian experience, government is separated into three branches, the executive, legislative and judicial branches. Each branch is independent of the others, and is recognised in the Australian Constitution at the federal level. Phillips on his retirement was critical of the intrusion of the executive into the work of the courts, being the judicial branch. For example, the Supreme Court was referred to as "Business Unit 19" by the Victorian Government. Phillips did not suggest that the Victorian Government would attempt to influence directly a decision of the court. However, there appeared to be "What is evolving ...a perception of the court as some sort of unit of functionary within the Department of Justice”.

Phillips was also critical of the Victorian Government’s decision to appoint acting judges from the ranks of barristers, solicitors and legal academics despite sustained criticism from judges, magistrates and lawyers. Traditionally, judges are appointed permanently so that there no scope for a judge to be removed because a decision is made that a government may not like. This enables judges to act without fear or favour. Acting judges allow a government to appoint short term judges whose appointments do not need to be renewed. This may lead to a perception that acting judges will not make decisions that are not pleasing to government in fear of not being reappointed. As Phillips noted, "a court … will rarely, if ever, be popular with politicians”. Phillips also referred to the previous Victorian government’s decision not to allow that the court's chief administrator to be appointed by the governor. Instead, the administrator is appointed by the government and answerable to the Department of Justice.

Journalist Richard Ackland has criticized this general argument made by judges. Ackland argues that the courts' view of independence are inflated and unrealistic. He reasons that courts cannot be co-equal with elected governments, and that courts, like other government bodies, need to compete for funds to provide services to the public. He sums up this view by saying 'What on earth are they on about?'

Phillips is not alone in his criticism of government. He received support in 2006 when retiring judge William Ormiston agreed with Phillips’ comments. Chief Justice Marilyn Warren responded to the criticism by saying that "bureaucrats did not tell her what to do". Warren noted that whilst there were disagreements between her and the government from time to time, the judges run the courts, not public servants. Warren said "The court, as part of our structure of government, is independent. As part of Victoria's constitutional arrangements, the Supreme Court is the third arm of government."