Judicial independence is a fundamental aspect of law and governance in Australia, commanding near universal endorsement. Despite its vital importance, the independence of the Australian judiciary is threatened on a variety of fronts. This volume brings together some of Australia’s leading constitutional scholars to discuss judicial independence and its contemporary challenges, including challenges posed by politics, judicial selection, extra-judicial activities, social media and the war on terror. Contributions include theoretical, empirical and comparative perspectives. The book includes an initial essay by former Chief Justice of the High Court of Australia, Sir Anthony Mason. The volume provides a valuable guide to future directions in law and governance, with an eye to strengthening judicial independence in Australia.
Judicial Independence in Australia
Contemporary Challenges, Future Directions
AUD $165.00 gst included
About the Contributors
Table of Cases
Table of Statutes
Jonathan Crowe and Rebecca Ananian-Welsh
1. Judicial Independence in Australia: Contemporary Challenges, Future Directions
The Hon Sir Anthony Mason
PART I: CONCEPTUALISING JUDICIAL INDEPENDENCE
2. The Two Theses of the Philosophy of Separating Powers: Who Exercises Power and How?
3. Human, All Too Human: Human Fallibility and the Separation of Powers
4. The Advancement of Judicial Independence as a Universal Value: A Comparative Perspective
PART II: JUDICIAL APPOINTMENTS AND TENURE
5. Is Talk of the Quality of Judging Sometimes Strained, Feigned or not Sustained?
6. Practice and Persuasion: Women, Feminism and Judicial Diversity
Heather Douglas and Francesca Bartlett
7. Judicial Exits: The Tenure of Judges in Three Apex Courts
PART III: INSTITUTIONAL INTEGRITY
8. Comparative Constitutional Law and the Kable Doctrine
Rosalind Dixon and Melissa Vogt
9. Constitutional Silences and Institutional Integrity
Constance Youngwon Lee
10. Institutional Costs of Judicial Independence
PART IV: JUDICIAL REASONING AND RHETORIC
11. Keep Your Distance: Independence, Individualism and Decision-Making on Multi-Member Courts
12. The Judicial Scholar and the Scholarly Judge: Extra-Curial Writing and Intellectual Independence on the High Court
David Tomkins and Katherine Lindsay
PART V: EXTRA-JUDICIAL ACTIVITIES
13. Extra-Judicial Activities and Judicial Independence
The Hon Justice Martin Daubney
14. State Judges as Lieutenant-Governors
Rebecca Ananian-Welsh and George Williams
PART VI: COURTS IN SOCIAL CONTEXT
15. Of ‘Fragile Bastions’, ‘Political Judges’ and ‘Robust Debates’: Judges and Their Critics
John M Williams
16. Social Media and the Judiciary: A Challenge to Judicial Independence?
Alysia Blackham and George Williams
17. Judicial Independence in an Age of Terror
Judicial Independence is a collection of 17 papers delivered at a conference hosted by the Centre for Public, International and Comparative Law in 2015. It constitutes a modern and Australia-specific analysis of a principle conventionally lauded as a necessary attribute of societies proclaiming adherence to the rule of law.
This collection addresses the philosophical and jurisprudential underpinnings of judicial independence and investigates protections concerning appointments and tenure of judges, including the fraught issue of gender diversity. A series of essays grapples with the ongoing significance of the Kable doctrine, including in respect of the interpretation of human rights statutes, indefinite detention and anti-bikie control orders. Judicial individualism and decision-making are examined in the context of the tension between judicial teamwork and personal analysis of issues. The book closes with a consideration of judicial independence in a wider social context in terms of public criticism of judges, the role of social media and the anxieties that are part and parcel of the war on terror.
This collection is provocative, interesting and likely to generate constructive debate.
Ian Freckelton QC, InPrint, Law Institute Journal Victoria, October 2017
This work is an anthology of short essays, progressing through discussions on the historical role of the judiciary within the separation of powers, to the many theoretical, perceived and starkly apparent challenges to independence that face the modern judicial system.
With notable contributions from respected legal minds such as The Hon Sir Anthony Mason and The Hon Justice Martin Daubney, each essay delves into various levels of theoretical analysis of concepts such as: the application and importance of the separation of powers, the idea of what makes a “good judge” and how to identify them, and the stresses and challenges faced individually by judges in their ability to engage with the wider community.
Perhaps the most intriguing chapters include specific discussion around the increased use of technology by Mason (Introduction) and Blackham and Williams (Part IV). While Mason acknowledges that for judges an increased ability to publish and be engaged with technology and the media has allowed the public, the academic community and the profession to be more actively engaged with the court system and judicial process, there are risks associated with overly engaging in social media. In this respect, Blackham and Williams outline and analyse the success of the Victorian Supreme Court to utilise Twitter, Youtube and Facebook to broadcast information such as court opening times, the outcome of different judgements and the live webstream of the sentence of underworld figure Tony Mokbel by Justice Whelan.
Ultimately, the conclusions many of the authors reach is varied about the role, use and application of independence of the judiciary in modern Australia, but all contribute to an important discussion of the changing nature and social expectations placed on the judiciary.
Georgina Vallance, Ethos, ACT Law Society, December 2016
It is frequently stated that justice must not only be done, but must also be seen to be done. Indeed, judicial independence has two dimensions: independence from the apparatus of the state, and impartiality towards the parties at issue. The former institutionally secures the latter, and both, as HP Lee notes in Chapter 4, are recognised across the globe as of paramount importance. This volume explores the ‘multi-faced and complex character of judicial independence’ (p 6), situating its theoretical underpinnings before examining a number of practical challenges, including both personal and institutional independence. …
Ultimately, this is a stimulating collection of papers exploring new and emerging challenges to judicial independence. It will be useful for students, academics and legal professionals interested in this most important of principles. Read full review…
Harry Hobbs, Alternative Law Journal, Vol 41:3 2016
In the introduction, the editors Rebecca Ananian-Welsh and Jonathan Crowe,
do a quick run-down on High Court cases dealing with judicial independence, from the not-so-recent Huddart, Parker & Co Pty Ltd v Moorehead, through to Brandy, Kable, and Re Wakim. These are some of the high profile cases of the last century. But there are other, less elucidated but equally important aspects of judicial independence that creep under the radar: court-funding, extra-judicial activities like vice-regal and academic posts, the use of social media by judges, lawyers and counsel, and diversity in the judiciary. This book tackles all of these subjects, and so it ranges from abstract, philosophical inquiry (see the chapters on ‘Conceptualising Judicial Independence’ in Part I and on Kable and ‘Institutional Integrity’ in Part III) to practical and empirical analysis of current social trends (see, for example, Part VI on ‘Courts in Social Context’).
The Centre for Public, International and Comparative Law at the T C Beirne School of Law at the University of Queensland hosted a conference in July 2015, and most of the essays spring from papers presented there. The content is fascinating; the breadth of subject matter all-encompassing. While none of the reading is light, some is more demanding, giving the book a flexible range, which allows the reader to pick and choose depending on mood or interest.
… The book is a nuanced and exciting treatise on the abundant issues relating to judicial independence in Australia: it would be well loved by practitioners. Read full review…
Charles Gregory, Bar News, NSW Bar Association, Spring 2016
This publication has previously provided a pre-publication review of this book. However, now that it is available for sale it is appropriate to mention it a second time. It is timely that this important work covering the broad topic of judicial independence in Australia is published. It is edited, in part, by the talented Dr Rebecca Ananian-Welsh, and it brings together a series of exceptional papers which pelucidly reveal that judicial independence is under threat on a variety of fronts and, in particular, threats posed by politics (including the modern phenomenon of “identity politics”), judicial selection, extra-judicial activities, social media and the war on terror. The book begins with an outstanding paper delivered last year by the Hon Sir Anthony Mason at a conference at the University of Queensland, the title of which has been given to the book. The remainder of the contributions to that conference are categorised into the following; Conceptualising Judicial Independence; Judicial Appointments and Tenure; Institutional Integrity; Judicial Reasoning and Rhetoric; Extra Judicial Activities and Courts in Social Context. The authors of the various articles include some of Australia’s foremost constitutional jurists including Professor Brian Opeskin, Professor George Williams and Dr Ananian-Welsh. Professor Opeskin’s paper is especially interesting, dealing as it does with Judicial Exits which discusses the various methods by which judicial office terminates (i.e life tenure, age tenure or term tenure). He clearly identifies that the South Africa model of having fixed terms for judicial office has much to commend it.
Queensland Law Reporter – 8 July 2016 –  26 QLR
This is another excellent publication from Australia’s premier legal publisher. As the former Deputy Chief Justice of the Constitutional Court of South Africa, Dikgang Moseneke, said in the Supreme Court Oration earlier this week, judicial independence is an essential part of most modern democracies. It is, as his Honour pointed out, inextricably bound to the Rule of Law. … So it is timely that the Federation Press is to publish this important work covering the broad topic of judicial independence in Australia. It is edited, in part, by the talented Dr Rebecca Ananian-Welsh, and it brings together a series of exceptional papers which pellucidly reveal that judicial independence is under threat on a variety of fronts and, in particular, threats posed by politics, judicial selection, extra-judicial activities, social media and the war on terror. The book begins with an outstanding paper delivered last year by the Hon Sir Anthony Mason at a conference at the University of Queensland, the title of which has been given to the book. The remainder of the contributions to that conference are categorised into the following; Conceptualising Judicial Independence; Judicial Appointments and Tenure; Institutional Integrity; Judicial Reasoning and Rhetoric; Extra Judicial Activities and Courts in Social Context. The authors of the various articles include some of Australia’s foremost constitutional jurists including Professor Brian Opeskin, Professor George Williams and Dr Ananian-Welsh.
Queensland Law Reporter – 17 June 2016 –  23 QLR