'Judicial Independence From The Executive: A First-Principles Review of the Australian Cases' by Rebecca Ananian-Welsh and George Williams in (2015) 40(3)
Monash University Law Review [
PDF]
develops a first principles conception of judicial independence. It does so by way of synthesising the large volume of domestic and international materials that describe the idea. It then analyses the extent to which Australian judges have realised the concept through constitutional and other legal development. The article establishes the very significant steps taken by Australian judges to assert their independence from the executive, but equally it also identifies some important gaps. Means of remedying these gaps are discussed, including through the further development of constitutional principles and other non-judicial means.
The authors comment
Judicial independence is a central pillar of Australia’s constitutional system. Courts themselves play a pivotal role in maintaining this, and recent years have seen a surge in cases and significant and rapid developments in the area. These developments have advanced and reinforced protections for judicial independence, particularly with respect to the independence of judges and courts from the executive branch. In this article we consider how the judiciary has asserted its independence from the executive through an examination of the case law of federal, state and territory courts, and assess whether these cases have fully realised the principle.
In order to measure the extent to which courts have succeeded in establishing their independence from the executive, we must first identify what judicial independence means and what it requires. Courts, judges, lawyers, international associations, commentators and experts have tackled these same questions in countless forums. The result is a diversity of terminology and approaches describing and giving content to the notion of judicial independence. In Part II we synthesise the leading international and Australian resources to arrive at a first principles conception of judicial independence. Through this review we identify four key indicators of judicial independence, namely: appointment, tenure and remuneration; operational independence; decisional independence; and personal independence.
These indicators frame our analysis of the Australian cases in Part III, and reveal that the jurisprudence has focused on some aspects of judicial independence at the expense of others. In addition to revealing gaps in the case law, our analysis highlights areas of unrealised potential and suggests ways in which the law might develop to more comprehensively protect judicial independence at the federal, state and territory levels. We discuss these gaps and areas for further development in Part IV. Ultimately, our analysis demonstrates the importance of judicial vigilance in respect of every facet of judicial independence.
