« March 2015 | Blog home | June 2015 »

May 2015

The following post is by CRU Intern, SARAH BRADBURY

On 3 February 2015, Geoffrey Nettle was sworn in as the 51st Justice of the High Court of Australia. His Honour is the oldest person to be appointed to the Court. Aged 64 and 2 months, Justice Nettle will be required to retire in December 2020 after serving for only 5 years and 10 months, one of the shortest tenures in the history of the Court. This is owing to section 72 of the Constitution, which provides for the mandatory retirement of High Court Justices at age 70.

This post will address whether this mandatory age is still appropriate almost 40 years after its insertion into the Constitution, and evaluate possible alternatives that would ensure the retention of good judicial minds.

Constitution Alteration (Retirement of Judges) 1977

Prior to 1977, judges elected to the High Court were granted life tenure. This was affirmed by the High Court in Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, in which the Court interpreted the original text of section 72 as requiring that every Justice of the High Court be appointed for life subject only to the power of removal for proved misbehaviour or incapacity. Even in those circumstances, removal of a High Court judge was only possible after an address from both Houses of Parliament in the same session “praying for such removal”.

This provision was altered by referendum in 1977. Approximately 80 per cent of electors approved an amendment to Chapter III of the Constitution providing for the mandatory retirement of federal judges at age 70. While High Court judges are guaranteed tenure until reaching this age, the Parliament may legislate to lower the age of retirement for other federal judges. This provision was used, for example, to require the retirement of Family Court judges at age 65 in section 4 of the Family Law Amendment Act 1977 (now repealed).

The Bills Digest prepared by the Parliamentary Library stated that the amendment was proposed because “[t]here has been a growing acceptance of the view that federal judges, like their counterparts in the States, should be subject to a maximum retiring age.” Supporters of the referendum argued that a mandatory age of retirement would help maintain vigorous and dynamic courts by bringing fresh ideas to the bench, and that it would prevent the embarrassing situation of removing a judge who is unable to continue performing his or her duties, but who is unwilling to resign. However, while mandatory retirement at age 70 may have been appealing in 1977, it can be seen as arbitrary in contemporary society.

The Need for Change

In the 38 years since the mandatory retirement age was implemented, the demographic makeup of the Australian workforce has changed significantly. According to the Australian Bureau of Statistics, the average life expectancy of males in 1977 (then the only gender appointed to the High Court) was 69.6. In 2013, that had increased to 80.1 for males and 84.3 for females. This longer life expectancy is reflected in how many years people remain in the workforce. While in the 1970s only 8.3 per cent of persons aged over 65 were working, in 2010 this had increased to 13.5 per cent and it is projected that in 2050 22.7 per cent of people will remain in the workforce past that age. Professor George Williams has argued that “as the population ages, and people continue to serve with distinction in a number of fields, there is less reason to force High Court justices into early retirement.”

It is widely recognised that judges are still able to perform legal duties to a high standard beyond age 70. For example, Dyson Heydon following his retirement in 2013 was appointed the sole Royal Commissioner to lead the Royal Commission into trade union governance and corruption. Further, there is a trend of judges serving in other jurisdictions following their retirement. Murray Gleeson and Michael McHugh took up appointments on the Court of Final Appeal in Hong Kong, Sir Gerard Brennan and John Toohey served on the Supreme Court of Fiji, and Ian Callinan was an ad hoc Judge of the International Court of Justice in the East Timor v Australia provisional measures hearing. Indeed, Sir Anthony Mason is still sitting on the Court of Final Appeal in Hong Kong at age 90. Against this background, it is evident that many High Court judges retain the necessary physical and intellectual strength after attaining age 70 to perform judicial duties to a high standard. Requiring retirement at this age, as argued by Professor Andrew Leigh, has the consequence of forcing some judges to retire when they are at their peak.

The strongest argument in favour of keeping the mandatory retirement age is that it ensures judges who are unable to adequately perform their judicial functions are precluded from sitting. Ensuring that judges retain a high mental capacity is important. For example, when Dr H V Evatt served as Chief Justice of the New South Wales Supreme Court this was of particular concern because, as stated by Michael Kirby, “his deteriorating mental powers… were all too evident.” Having judges hearing matters when they are no longer able to handle the complexities of legal work is problematic. Sir Anthony Mason has stated, “[w]hen the judge lacks professional skills of a high order, the costs of a lengthy trial may be wasted.” Accordingly, to maintain public confidence in the judiciary, it is necessary to ensure there are safeguards so that only those fit to hold office continue to do so.

But how is this balance best achieved? To explore this question, this post will now examine possible reforms to section 72.

Acting Judges in the High Court

The position of Reserve or Acting Judge is common in state judiciaries, and allows for persons to be appointed to act as a Judge to assist with the business of the Court as required. While retirement ages are still common in these jurisdictions, age 72 in New South Wales and 75 in Victoria, it allows for greater flexibility in the removal of judges after they have reached the retirement age. An Acting Judge is typically appointed for a short term which may be renewed, and aims to overcome temporary difficulties in the administration of the Court.

It is unlikely that such a position would be a valid appointment under Chapter III of the Constitution as it currently exists. In Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591, Windeyer J emphasised that it is a requirement of section 72 that judges be granted tenure terminable only for misbehaviour in office or incapacity.

Critically, tenure is entrenched in the Constitution to ensure the minimum requirements of judicial independence and impartiality are satisfied. This arguably could be compromised if a judge’s performance was subject to executive scrutiny. As Chief Justice Gleeson stated, “the duty of a judge is to administer justice according to the law, without fear or favour, and without regard to the wishes or policy of the executive government.” Michael Kirby has argued that the existence of acting judicial offices may give rise to concerns that “a judge has tailored his or her decision to avoid government displeasure.” Further, Sir Anthony Mason has stated that appointing acting judges for reasons other than overcoming temporary difficulties is “extremely difficult to support”.

However, when the validity of acting judicial offices came under challenge in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, a majority of the High Court considered these appointments insufficient to undermine judicial independence such as to deprive a court of its position as a State Supreme Court invested with federal jurisdiction. In particular, Chief Justice Gleeson emphasised that the standards of judicial independence “are not developed in a vacuum” – they must be considered in light of “history, and of the exigencies of government”. His Honour observed that the position of many permanent judges could raise questions of “at least as much significance”, specifically in circumstances concerning judicial promotion. Those members seeking to advance their judicial rank could similarly be seen as wanting to keep the Executive on-side, however no criticisms concerning lack of impartiality are directed at those members of the judiciary. In comparison, the attraction for a judge over the age of 70 to remain as an acting judge for another year is unlikely to be significant enough to be a real threat to judicial independence and impartiality.

Increasing or Removing the Mandatory Retirement Age

An alternative option would be to hold a referendum to increase the mandatory retirement age. A five year increase to 75 years would be an appropriate option, aligning the retirement age with changes to life expectancy and quality of life in Australian. A similar amendment to the Pennsylvania Constitution raising the retirement age of judges from 70 to 75 was approved by the Pennsylvania House of Representatives in February 2015, and is expected to be put to referendum later this year. However, a key disadvantage with this approach is that it will require reassessment and amendment in another 30 or 40 years to more adequately reflect working patterns in that time.

To avoid multiple referenda, it has been argued that Australia should abolish the retirement age altogether. This would bring Australia in line with the recommendations of the Organisation for Economic Co-operation Development, which encourages the abolition of compulsory retirement ages across all professions.

There is some support for the abolition of mandatory retirement of judges, as demonstrated in various submissions to the Australian Law Reform Commission’s “Grey Areas – Age Barriers to Work in Commonwealth Laws” Report. In particular, National Seniors Australia argue that the section 72 requirement is detrimental symbolically as it creates the perception that people only work competently until they are of a certain age.

However, because judicial decision making carries such important consequences it is necessary that judges be mentally competent and capable of performing those duties. The special nature of judicial work is even reflected in jurisdictions where mandatory retirement ages are illegal, such as New Zealand and Canada; specific exceptions are carved out for persons in the armed services, aviation, judicial and safety industries. It would be undesirable to remove the retirement age altogether, as this would increase the risk of having judges remain on the bench when their mental faculties are deteriorating. While the power to remove judges for “incapacity” may operate to protect against this risk, the extreme and embarrassing measure of requiring both Houses of Parliament to conclude that a judge is mentally incapable of performing his or her duties mean it is unlikely to be utilised.

Fixed Renewable Terms of Appointment

A prudent alternative would be to adopt a system of fixed-term appointments after reaching retirement age that are renewable by an impartial Judicial Commission. As these renewable terms would be inconsistent with the tenure requirement of section 72, this would require an amendment of the Constitution by referendum. This approach, advocated by Carl Ingram, is modelled on practices in Hawaii and Papua New Guinea. In those states, judicial officers are appointed for a 10 year term which can be renewed by a Judicial Commission comprising members of the Senate, the House, the Bar and the Judiciary. This seeks to ensure impartiality when determining whether to renew an appointment.

Ingram suggests this model can be adapted to address short-term appointments for older judicial officers appointed as expatriate judges, however it could similarly be adapted to address the question of judges remaining in office beyond attaining the age of retirement. Ingram proposes the implementation of “evergreen” contracts for 2 to 4 years that automatically renew unless a decision is made to the contrary by the relevant body. This approach gives a measure of security and independence to judicial officers while also addressing legitimate concerns about ageing judges.

The decision to retain or remove judges could be made by a body similar to the Judicial Commission of New South Wales, which, pursuant to the requirements of section 5 of the Judicial Officers Act 1986 (NSW), consists of members of the judiciary, including the Chief Justice, and laypersons with “high standing in the community”. A body so composed has an awareness of the capacity of the judge in question, and an understanding of the skills necessary to competently perform judicial functions. Further, it is well placed to assess the needs of the Court and therefore decide to retain judges with particular areas of expertise until a suitable replacement is available.

Conclusion

As the demographic makeup of the Australian workforce changes, the mandatory age for judicial retirement must change with it. This has been particularly highlighted by the recent appointment of Justice Geoffrey Nettle, who in his swearing-in speech admitted “any damage I may do now is limited”. There are substantive benefits to having a mandatory retirement age, and a complete removal of this provision would be undesirable. An amendment increasing the retirement age to 75 or alternatively the introduction of evergreen contracts are two possible solutions to the problem which deserve consideration.

SUGGESTED CITATION: Sarah Bradbury, 'An Ageing Amendment - Section 72 and the Mandatory Retirement Age of Judges' , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following post is by CRU Intern ELIZABETH JONES:

Since Federation, the method of voting in the Senate has been an area of debate and reform. This demonstrates a willingness of the Parliament to keep improving the Senate electoral system. The most recent reform occurred in 1984 when the current system of group ticket voting “above the line” and full preferential voting “below the line” was introduced to decrease a high informal vote and make the Senate ballot paper more user friendly. Is it time to consider Senate electoral reform again?

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court unanimously held that the principle of representative government could be implied from provisions of the Constitution, including section 7, which requires members of the Senate to be “directly chosen by the people”. Representative government requires electors to be given a free and informed choice. This post considers to what extent the current Senate voting system enables electors to adequately express a genuine choice and examines the constitutional implications of possible options for reform.

How well does the current Senate voting system reflect section 7 of the Constitution?

Under the current Senate voting system of proportional representation by single transferable vote, a candidate is elected after achieving a quota of votes. Preferences play an important part in the fulfillment of quotas. The Senate ballot paper presents electors with two options. Electors can vote above the line by marking “1” against a single party or group. Once a vote above the line is cast, the elector loses control over their preference flow as they automatically accept that party or group’s allocation of preferences. The preference flow is determined by group voting tickets lodged by parties. Alternatively, electors can vote below the line where they are required to express full preferences for all listed candidates.

The current voting system was upheld as constitutionally valid by Gibbs CJ when it came under challenge in McKenzie v Commonwealth (1984) 57 ALR 747. Gibbs CJ stated “while the Constitution requires electors at a Senate election to vote for individual candidates, it does not forbid the use of a system which enables electors to vote for individual candidates by reference to a group or ticket”. However, this case was a decision of a single judge and was decided before 1992, when the High Court first acknowledged the implied freedom of political communication and emphasised that electors in Commonwealth elections should be given a free and informed choice. Consequently, if the issue came before the High Court again it may be decided differently. Notwithstanding this, while the current Senate voting system has been upheld as constitutionally valid, the way this system plays out in practice raises concerns as to whether it is the best system to give effect to section 7 of the Constitution.

According to the Australian Electoral Commission, in the 2013 Federal Election, 96.5 per cent of electors voted above the line while only 3.5 per cent voted below the line, expressing full preferences for all of the candidates. This outcome is likely due to the onerous task electors face if they choose to vote below the line in the Senate, which in NSW required electors to rank 110 candidates. Consequently, the final composition of the Senate largely reflected the allocation of preferences determined by parties.

The automatic distribution of preferences by the party which the elector votes for above the line is not inherently problematic because it allows the elector to express that they approve of that party’s allocation of preferences. Electors generally expect that if the party or group for which they voted “1” above the line is unsuccessful their preferences will go to candidates of other parties which support similar issues.

However, recently there has been a trend of some micro parties “gaming” the system. Gaming occurs when micro parties allocate high preferences to each other, ahead of the larger parties, often when the parties have no similarities to each other. When exclusions of lower polling candidates create an aggregate transfer of preferences, there is a greater chance that a micro party candidate may be elected, based on transferred preferences. This has resulted in some unpredictable electoral outcomes, which greatly differ from the primary vote. The election of Ricky Muir from the Motor Enthusiasts Party to the Senate in the 2013 Federal Election is commonly cited as an unpredictable electoral outcome. The quota in Victoria was calculated at 483 076 of the votes. According to the Australian Electoral Commission, the Motor Enthusiasts Party only received 16 604 above the line ticket votes and Ricky Muir received 479 below the line first preference votes, which was only 0.51 per cent of formal first preference votes. Despite only receiving a small percentage of first preference votes, Muir was elected to the Senate for Victoria in the final vacancy. Muir received preference votes from a diverse group of parties and candidates including the Palmer United Party, the Democratic Labour Party, Family First, the Fishing and Lifestyle Party and the Shooters and Fishers Party. His successful election into the Senate was achieved due to a final transfer of 143 118 votes from the excluded Australian Sex Party. Ultimately, 94.3 per cent of the votes that led to Muir’s election were ticket votes for other parties on the ballot paper and allocated to Muir through preference harvesting.

The potential election of a candidate through an accumulation of votes from a collection of ideologically disparate parties is an unintended consequence of the group voting ticket system. While gaming of the system does not occur on a large scale, the way in which it can lead to electoral outcomes in the Senate, which may greatly differ from the intentions of many electors is significant. Further problems with the current system are evident in the burdensome task electors face if they choose to vote below the line. It is questionable whether electors are able to express an informed choice for the large number of candidates listed below the line.

Consequently, under the current Senate voting system electors may not be able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. Reform is required to bring Senate voting more in line with the notion of representative government inherent in section 7 of the Constitution. Section 9 of the Constitution provides Parliament with power to make laws prescribing the method of choosing Senators. In light of the problems with the current system, electoral reform should aim to improve how electors can better express their choice. This post will evaluate common proposals for Senate electoral reform.

Optional preferential voting above the line

The Joint Standing Committee on Electoral Matters in its report into Senate voting practices has recommended the adoption of optional preferential voting above the line. This would enable electors to mark “1” against a particular party with the option of numbering further boxes in sequential order if they wish. Under this system the order of candidates within the group would still be nominated by the group so that if an elector were to preference three boxes above the line in sequential order then their preferences would be distributed in the order of the candidates in those groups until the last numerical preference was allocated. If an elector only expresses one preference above the line, their preferences only extend to the candidates in that particular group.

This would take the power to control preference flows away from the parties and give it back to the electors, ensuring that electoral outcomes in the Senate better reflect the intentions of electors and reducing the likelihood of parties gaming the system. However, optional preferential voting above the line presents a risk of high rates of vote exhaustion. If an elector only preferences one group but that group has fewer candidates than there are Senate vacancies, the vote stays within that group and is exhausted.

Differing views about the extent to which vote exhaustion has an impact on an elector’s choice were expressed by members of the High Court in Langer v Commonwealth (1996) 134 ALR 400. The Langer case concerned the validity of section 329A of the Commonwealth Electoral Act 1918 (Cth) which provided that a person must not print, publish or distribute any matter or thing with the intention of encouraging persons voting in an election for the House of Representatives to fill in a ballot paper otherwise than in accordance with section 240, which provided full preferential voting for the House of Representatives. The enactment of section 329A was a response to a method of voting publicised by Albert Langer, which encouraged electors to vote 1,2,3,3,3… deliberately avoiding the allocation of preferences to unwanted candidates. The effect of section 270 of the Commonwealth Electoral Act 1918 (Cth) was that if this method of voting was adopted, only the first and second preferences would be counted.

The majority of the High Court upheld the validity of section 329A and rejected the plaintiff’s argument that section 329A was inconsistent with the constitutional requirement that members of the House of Representatives be “directly chosen by the people”. In upholding the validity of section 329A, the majority of the High Court expressed the view that the exclusion of votes inhibits an elector’s choice under section 24 of the Constitution. However, Dawson J in the minority held that section 329A was invalid. His Honour took the view that this method of voting reflected the electors’ choice even though their votes may potentially be excluded. Dawson J stated that:

[t]o prohibit communication of this fact (or at any rate communication in the form of encouragement) is to restrict the access of voters to information essential to the formation of the choice required by s 24 of the Constitution. Thus, s 329A has the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act.

These different views provide insight into whether optional preferential voting above the line, with a high risk of vote exhaustion would be susceptible to challenge by the High Court. If this voting method were adopted it would be prudent to also introduce measures to reduce the likelihood of vote exhaustion. For example, ballot paper instructions could encourage electors to express more than one preference above the line, while still counting a single first preference as a formal vote. Alternatively, the risk of exhaustion could be limited by requiring that a party or group must be able to field the number of candidates for which there are vacancies to be listed above the line.

If measures were introduced to minimise the risk of vote exhaustion, optional preferential voting above the line presents a sensible option for Senate electoral reform as it would remove the ability for parties to “game” the system through preference deals ensuring that electoral outcomes reflect the intentions of electors.

Partial optional preferential voting below the line

The Committee also recommended partial optional preferential voting below the line, either in addition to, or independent of optional preferential voting above the line. Under this system rather than having to rank all of the candidates which appear below the line, electors would only have to rank as many candidates as there are Senate vacancies but could express more if desired. This would require electors to rank six in a half Senate election, 12 for a double dissolution and two for territories. Combined with optional preferential voting above the line, this option is useful as it would retain the control electors have when voting below the line while removing the onerous requirement of having to rank all of the candidates in sequential order.

Thresholds

Another proposal for Senate electoral reform is to maintain the current Senate voting system but introduce a minimum threshold of first preference votes, which would need to be polled before a group is eligible for election. Rather than being completely excluded, it is likely that the votes would be distributed to non-excluded candidates.

Thresholds have been included in international proportional representation systems. For example, Sweden has adopted a 4 per cent nationwide threshold under its party list proportional representation system, New Zealand has a 10 per cent nationwide threshold under a closed list proportional representation system and Israel has a 2 per cent threshold under its nationwide proportional representation system. Discussion of a threshold for Senate voting has focused on 4 per cent as this is the current threshold for groups and candidates to receive public funding under section 297 of the Commonwealth Electoral Act 1918 (Cth).

A threshold would remove the possibility of parties obtaining a seat in the Senate while only having received a small percentage of the primary vote and reward parties that have gained support by campaigning for votes. However, a major criticism is that a threshold quota is arbitrary and therefore vulnerable to criticism, particularly because thresholds benefit particular parties at the expense of others.

If introduced, it is likely a threshold quota would apply to groups not individual candidates because of the possibility that even in a major party, the second, third, or fourth candidates may fail to reach the threshold. However, does a threshold, which applies to groups, mean that electors are voting for groups not candidates? If the answer were yes then the system could be susceptible to constitutional challenge due to the statement by Gibbs CJ in McKenzie v Commonwealth that section 7 requires electors to vote for individual candidates.

It is also unclear whether a threshold would prevent parties from entering into strategic preference deals to “game” the system. While a threshold would restrict many micro parties from being eligible for election, many of the submissions to the Joint Standing Committee outlined that a threshold may simply shift the beneficiaries of preference harvesting from micro parties to other parties. Furthermore, while threshold quotas are used overseas, there is little precedent for introducing a threshold quota within a proportional representation system, which relies on a single transferable vote method. Group ticket voting is used outside Australia but mostly in combination with optional preferential voting. These issues illustrate that a threshold is not the most suitable option to resolve the current problems inherent in Senate voting.

Strengthening party registration requirements

Another reform option is to tighten the requirements for party registration to reduce the number of micro parties and the size of the ballot paper. The Joint Standing Committee on Electoral Matters recommended that the party membership should be increased from 500 members to 1500 members and that the Australian Electoral Commission should be required to validate each of these members. It also recommended that a separate membership requirement be established to register a federal party that can only run in a nominated state or territory. This could be based on either a population or electorate basis and would enable a party focused on specific state or territory issues to be established and participate in the election.

This proposal would most likely be constitutionally valid due to previous High Court decisions such as Mulholland v Australian Electoral Commission (2004) 220 CLR 181. However, while this option may deter front parties from being set up prior to an election, it does not directly address the problem of micro parties gaming the system. It’s also important to ensure that electoral reform does not decrease the diversity of candidates and political parties, which is an important feature in a democracy. Tightening party requirements has the potential to decrease the choice of the electorate. Better options for Senate electoral reform focus on improving how electors express their choice.

Conclusion

Ultimately, under the current Senate voting system electors are not able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. To ensure that the Senate voting system better reflects section 7 of the Constitution, electoral reform should focus on how electors can be helped to better express their choice. The most significant way to reduce the complexity of the current Senate voting system and to return the control of preferences to electors is through a system of optional preferential voting above the line in combination with a system of partial optional preferential voting below the line. This would reduce the current gaming of the system by micro parties and importantly ensure that electoral outcomes in the Senate reflect the intentions of electors.

SUGGESTED CITATION: Elizabeth Jones, 'Go with the flow or room for improvement? To what extent does the Senate electoral system reflect s 7 of the Constitution?' , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).