Sunday, 15 May 2016

Judges and Retirement Ages, Melbourne University Law Review, Footnoted.

The resignation en masse of Family Court judges in secret and their never publicised recommissioning in order to increase their retirement ages and circumvent the constitution which declares that judges must retire at the legal age when they were commissioned, which meant Family Court judges had to retire five years earlier than normal judges. This was a provision introduced by former Prime Minister John Howard in the belief that Family Court judges needed to keep them in touch with changing community expectations. It has since been rescinded.
However the Constitution clearly states that a judge should serve only the term legal at the time of his or her appointment.
This was a major scandal in a court disliked both by legal practitioners and the general public, but was largely ignored by the mainstream media.
A small number of judges took early retirement rather than involve themselves in what they considered illegal and unconstitutional conduct.
The details of the scandal are reported at length in Chaos at the Crossroads.
I was alerted to the story by a former Family Court Judge, who regarded the conduct as illegal.
The Attorney General of the day Daryl Williams sealed the records of the event for 30 years.

19 See Federal Circuit Court of Australia Act 1999 (Cth) sch 1 cl 1(4); Federal Court of Australia, Judges of the Court <>. For discussion of retirement ages in the Family Court, see John Stapleton, Chaos AtThe Crossroads: Family Law Reform in Australia (Dads on the Air, 2004).


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All Commonwealth, state and territory judges in Australia are subject to mandatory retirement ages. While the 1977 referendum, which introduced judicial retirement ages for the Australian federal judiciary, commanded broad public support, this article argues that theaims of judicial retirement ages are no longer valid in a modern society. Judicial retirement ages may be causing undue expense to thepublic purse and depriving the judiciary of skilled adjudicators. They are also contrary to contemporary notions of age equality. Therefore, demographic change warrants a reconsideration of s 72 of the Constitution and other statutes setting judicial retirement ages. This article sets out three alternatives to the current system of judicial retirement ages. It concludes that the best option is to remove age-based limitations on judicial tenure.
Copyright Melbourne University Law Review Association Inc. 2016
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