Judicial independence is regarded as one of the foundation values of the Australian legal system, (2002 Winter) Bar News: Journal of the NSW Bar Association 30. such that the High Court held in 2004 that a court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal. Former Chief Justice Gerard Brennan described judicial independence as existing "to serve and protect not the governors but the governed", albeit one that "rests on the calibre and the character of the judges themselves". Despite general agreement as to its importance and common acceptance of some elements, there is no agreement as to each of the elements of judicial independence. (2005) 2(1) University of New England Law Journal 75.

Aspects of judicial independence can be seen as complementary, such as appeals serving to ensure that decisions are made on the facts and law, but which also serves to enhance public confidence in the judiciary. This however is not always the case as there are other elements that require balance, for example public confidence in the judiciary necessarily impacts on security of tenure in that it requires the ability to remove judges who are unfit for office. Similarly there may be tension between tenure of existing judges and the appointment of the best available candidate to a judicial position. The principle of judicial independence was not always observed in colonial Australia. (1995) 12 Australian Bar Review 181. 12 Macquarie Law Journal 21.

Impartial The underlying principle is that a judge is an impartial decision maker, whether the parties are individuals, government or other corporate bodies, such that it is the "judge sitting on a case, who has heard the evidence and arguments, who makes the decision on the basis of an application of the law to the evidence and arguments presented". This carries with it the requirement that the judge is free from improper influences, whether from the parliament, executive or other powerful interest groups such as the media. The need for impartiality is reflected in the judicial oath “to do right to all manner of people, according to law, without fear or favour, affection or ill will”. The need for public confidence in the impartiality of the judiciary, that "justice must be done and be seen to be done", gives rise to the rule disqualifying a judge where "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide"..

Initial principles

The independence of the English judiciary is traditionally said to have been established by the Act of Settlement 1701 which made relevantly two provisions, that a judge's salary was required to be fixed on appointment and that the judge could only be removed by the crown on upon the address of both Houses of Parliament. These provisions did not apply to colonial judges, covered by the Colonial Leave of Absence Act 1782 (22 Geo. 3. c. 75 (Imp)), known as Burke's Act, which provided a judge could be removed by the governor and council of the colony, subject to the right of appeal to the Privy Council. (1953) 26 Australian Law Journal 462.

Immunity from suit

The common law of England has long held that a judge had immunity from being sued for any act within jurisdiction, even if the judge acted maliciously or corruptly. The courts have denied that rule exists for the protection of the malicious or corrupt judge,Scott v Stansfield (1868) 3 Law Reports (Exchequer) 220, Court of Exchequer (United Kingdom), per Kelly CB. and justified it on the grounds of the public interest in the independence of the judiciary as being necessary for the administration of justice.Anderson v Gorrie 1 QB 668, Court of Appeal (England and Wales) per Lord Esher MR at p 670.Sirros v Moore QB 118, Court of Appeal (England and Wales) per Ormrod LJ at p 145. The history of development of this immunity is complex, and the High Court held in 2006 that it is "ultimately, although not solely, founded in considerations of the finality of judgments".

Security of tenure

Security of tenure, leaving a judge free from influence resulting from the threat of removal, is generally said to be justified as an important feature of judicial independence. In the 1891 constitutional convention the protection required an address passed by the relevant houses of parliament. In Adelaide in 1897 the power to remove was limited to cases of "misbehaviour or incapacity", while in 1898 in Melbourne the convention added the requirement for proof, which Quick and Garran writing in 1901, said was to ensure that the judge should be heard in defence and that the charge had to be alleged in the address. In 1918 the High Court held that tenure must be for life to that particular court, not merely for a term of years..

Since the 20th century Australian judges accused of judicial misconduct can, generally, only be removed from office as a result of an address passed by the relevant houses of parliament, however the details vary. Some constitutions provide that a judge can only be removed on an address by parliament on specific grounds, being proved misbehaviour or incapacity. Judges' appointment, tenure, and remuneration. Removal from judicial office. Removal from office for misbehaviour or incapacity. Removal from judicial office. Similar provisions are found in legislation. Removal of judicial officer. Removal from office. Tenure of office. Legislation in the other states and territories, Removal from office of Judges . Tenure of judges and oaths of office. Judges removable only on address by Parliament. provide that a judge can only be removed on an address by parliament, but it is only by convention that the concept of good behaviour is limited to the grounds of incapacity or misbehaviour. (2003) 6(2) The Flinders Journal of Law Reform 169. Queensland Judicial Scholarship 20.

There have been occasions in which judges have been removed by the abolition of their court. In 1878 the Governor of Victoria dismissed all judges of County Courts, Mines and Insolvency and all Chairman of General Sessions, as well as a large number of public servants. and only some, not all were subsequently reappointed. The Supreme Court held that County Court judges held office at pleasure and the Governor in council could remove them without cause.. More recent examples of courts being abolished without protecting the tenure of the judges are the abolition of the Court of Petty Sessions (NSW) and its replacement by the Local Court in which all but six magistrates were appointed to the new court,. and the abolition of the Victorian Accident Compensation Tribunal in 1992 by the Victorian government which by-passed the legislative removal mechanism and removed all judges.

Twice sitting judges have been removed as a result of the introduction of a retirement age. In 1918 the NSW Parliament passed the Judges Retirement Act,. which introduced a compulsory retirement age of 70 which was applied to existing judges. The first judge to be affected was Richard Sly who had been appointed to the Supreme Court of NSW in 1908 and was forced to retire in 1920.McGarvie The Foundations of Judicial Independence in a Modern Democracy (1991) 1 Journal of Judicial Administration 3. More controversial was the similar action of the Queensland parliament in 1921 in passing the Judges Retirement Act.. There was animosity between the Labor government and the judges, playing out through a series of cases challenging government actions and legislation..In re McCawley 62, Supreme Court (Full Court) (Qld). overturned by .Taylor v Attorney-General (Qld) 194, Privy Council. (2006) 30(3) Melbourne University Law Review 605. The effect of the Judges Retirement Act was that immediately upon proclamation three out of six judges, Chief Justice Cooper and Justices Real and Chubb were compulsorily retired, which permitted the government to appoint new judges.

Remuneration The principle that judicial salaries should be known, fixed at the time of appointment and cannot be reduced during tenure is well established at all levels in Australia. In 1877 the Supreme Court of NSW held that a statutory requirement that a judge's salary could not be reduced required the payment of the full salary, even when the judge had failed to perform duties, in that case attending court in various towns in the northern district. It also prevented the executive from claiming repayment of the cost of appointing a temporary replacement. In 1907 the High Court held that the imposition of an income tax payable by all taxpayers was not a reduction in the judge's salary.. One identified risk is that in real terms the remuneration may be continually cut by inflation. In 1954 the Judges of the Supreme Court of Victoria protested against what they said was the inadequacy of the increases proposed to be made to their salaries, under which the post-war inflation reduced the real value of their salaries. The High Court recognised the risk in 2004 stating that "There is no more effective means of depleting the substance of remuneration to an officeholder than by inattention on the part of the legislative or executive branch of government"..

Subsequent developments

Separation of Powers

The theory that the legislative, executive and judicial powers should be separated is attributed to both French political philosopher Baron de Montesquieu and English judge Sir William Blackstone, although Blackstone only went so far as to state the necessity for some degree of separation of the administration of justice from both parliament and the executive. Despite the theory, historically there was no formal separation of the English judiciary: the Lord Chancellor was a member of cabinet, the presiding officer of the House of Lords and the head of the judiciary, the Law Lords in the House of Lords were the final court of appeal and some serving judges sat in the House of Commons.

The drafters of the Australian constitution adopted the separation of federal judicial power,. whilst maintaining the approach of the Australian colonies that Ministers of State are required to be members of parliament. Ministers of State.. The High Court has consistently maintained two requirements of the separation of federal judicial power, (1) only a judge can exercise federal judicial power,... and (2) a federal court or judge cannot exercise executive or legislative power... In this way the separation of powers prevents the courts from exercising legislative or executive power, by reference to issues that are non-justiciable., per Dixon CJ "it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise". per Barton J "the Governor could not be commanded to do an act which he can only do with the advice of the Executive Council". The High Court acknowledged in the 2014 decision of Commonwealth Bank of Australia v Barker, that the evolution of the common law involves a law making function, however the courts are constrained by deciding the particular case and complex policy considerations are matters more appropriate for parliament.

The separation of powers is not a part of the constitutions of the States. Despite this the High Court has held that under the federal constitution state courts are repositories of federal judicial power, this gives rise to a requirement to maintain the institutional independence of state courts and judges. . . . .