Judicial Commission of New South Wales - Historical Monitoring of Judicial Conduct

Historical Monitoring of Judicial Conduct

The Crown has always appointed judges in New South Wales since the earliest days of the colony established in 1788 by the British when a deputy judge advocate was appointed. Judges were initially appointed subject to His Majesty's pleasure. Later, they were appointed for life. Now, judges are subject to a mandatory retirement age. A judge’s appointment in the colonies was always subject to the Sovereign’s pleasure. The judge could be recalled at any time. Jeffery Hart Bent, the first judge appointed in Australia, was removed from office and replaced with Barron Field in 1817 following Bent's unsatisfactory performance. Until the passing of the Australia Acts, a judge could also be suspended or “amoved” (a technical legal term for removal of a colonial judge from office) at any time by the governor of the colony or State. Prior to 1901, two judges, judges John Walpole Willis and Algernon Sidney Montagu, had been removed from office pursuant to the Colonial Leave of Absence Act 1782 (UK) (commonly known as Burke’s Act). This was unlike their English counterparts. The Act of Settlement 1701 (UK) provided that judges could only be removed by the Crown on an address by both houses of the British Parliament. This was to overcome the Stuart period in England where judges favourable to the crown were appointed and unfavourable judges were removed. In 1830, Sir Jonah Barrington was the first Common Law judge removed from office under that law, and probably the only English to be so.

In modern Australia, the permanence of judges is one of the major aspects of judicial independence. It is also a feature of most other common law countries. Chief Justice Anthony Mason explained the importance of this feature as follows:

"Judicial independence is a privilege of, and a protection for, the people. It is a fundamental element in our democracy, all the more so now that the citizen’s rights against the state are of greater value than his or her rights against another citizen."

In other words, the public expects that a judge should be free to decide a case in accordance with the law of land even if that is contrary to the government’s wishes of the day without fear of retribution to the judge. As a result, there is an expectation that judges should only be removed from office when they have misbehaved in some manner, and that a single judge should not be targeted without due cause. Prior to the establishment of the commission, when a judge misbehaved, there was no established procedures for determining his or her guilt in the matter.

Balanced against the right to permanence is the need for the judiciary to remain accountable. Canadian judge Mr Justice Ridell said that "judges are the servants, not the masters of the people". Shetreet argues that no institution can operate without being answerable to society. The judiciary must also be accountable, as judicial independence cannot be maintained without accountability. The commission provides an impartial means of accountable for the judiciary.

The commission is not involved when a government re-organises a court. This is where a court is abolished completely or replaced with a new court or tribunal. In Attorney-General (NSW) v Quin the High Court of Australia held that it was legitimate for all judicial officers of a court to be removed together provided that it was a "genuine reorganisation" of the court. That case involved a situation in New South Wales where all Stipendiary Magistrates in the Courts of Petty Sessions were removed from office. A new court, the Local Courts, were introduced in their place. Most stipendiary magistrates were reappointed magistrates in the new court. However, a number of them were not re-appointed to the replacement Local Court without a satisfactory explanation being given. The High Court overturned the decision by the Court of Appeal of New South Wales directing the New South Wales Government to consider their re-appointment. The views of the High Court on this matter have now been removed through amendments to the New South Wales Constitution. New South Wales now provides protection to all judicial officers against arbitrary removal except through a recommendation through the commission.