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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to require the retirement of Family Court judges at age 65 in section 4 of the Family Law Amendment Act 1977 (now repealed).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/).