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Thursday, 13 December 2012

Reserve judgment

The Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012 will abolish the offices of acting judges and acting magistrates and create the offices of reserve judge and reserve magistrate. The bill was introduced to Parliament on Wednesday.

The Introductory Print is here and the Explanatory Memorandum here.

On my reading of it, these reforms are unlikely to attract Kable issues. The changes are more to terminology than substance and court users are unlikely to notice the difference. There is a further shift in policy toward retired judicial officers returning to the bench, rather than the temporary appointment of practitioners that has occurred in the past.

Only former judicial officers of equivalent Victorian or interstate courts will be eligible for appointment as reserve judges or magistrates. The terms of their appointment are subject to the Judicial Salaries Act 2004 and Constitution Act 1975. Terms of appointment run for 5 years, and reserve judges and magistrates can only be removed from office by the same procedure applying to other judicial officers.

The absence of any restriction on the number of judicial officers that can be appointed on these 5-year limited terms may cause some concern. But as the High Court said in Forge v ASIC, just looking at the number of appointments doesn't determine whether the appointment of temporary judicial officers threatens the impartiality and independence of a court.

Gummow Hayne and Crennan JJ [at 49]:

If it is accepted that some acting appointments may lawfully be made under [the impugned legislation], a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.

Most provisions will go into effect after its Assent, but that date is not yet known. There is no forced commencement date.

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