Increasing Judicial Retirement Age Bill 2021

Ms WEBB (Nelson) – I have some brief comments on this bill.  I also believe it is appropriate to extend the retirement age for our judges.  As has been pointed out in the second reading speech and by others here, we are all living longer and are able to contribute in all kinds of way as we do so.

We also have particular challenges in our court systems and it is important to have some availability to address those challenges.  We can acknowledge there is no reason to assume that with increasing age comes diminished capacity.  That is not the case in many ways, and in many different professions.  We can assume and acknowledge that with increasing age we have some very particular benefits that come from the benefit of experience and the wealth of knowledge that can be drawn on.  The judiciary is potentially a particular example, where the benefits of that experience and knowledge really come to the fore. 

I acknowledge that the argument has been made by some who participated in the consultation process and also in forums in other jurisdictions that perhaps there should be no retirement age for judges. That is an interesting question, which would present us with issues and questions about who would decide on the right time to retire. 

It can be hard for individuals to have appropriate objectivity to make that decision for themselves.  If we were not to rely on people to make that decision for themselves, we would be faced with the need to devise some mechanism as to who would make that decision and the framework that decision would be made within.  I understand why we have landed on a retirement age being identified and, in this case, extended. 

On the other hand, as I was reading some material related to this bill I was also acutely aware that we have a lack of diversity amongst our senior judges in Tasmania.  They are predominantly senior white males.  Retirement provides an opportunity for renewal and improving diversity.  If we extend the retirement age and apply it to sitting judges, the potential result is an extension of that lack of diversity.  I consider that issue should be contemplated and we should consider ways we can make improve. 

The Government has made some comments around improvements to diversity and efforts towards that end.  We can think more carefully about that also, and have that in mind as we go forward.  One issue I will raise in relation to this bill arose as I was looking into past discussions in other jurisdictions and at the Commonwealth level, when changes have been made to judicial retirement ages. 

I noted that a generally expressed view, in almost every instance where the question arises, is that any change being brought in should not apply to sitting judges but should be prospective – to apply to future judges.  I question what consideration was given in this instance about the appropriateness of applying the change to sitting judges. 

I will share some of the information that prompted my question.  When retirement ages for judges were first introduced at the Commonwealth level, the then federal Attorney-General, Bob Ellicott, said in his second reading speech that the legislation was, ‘an important safeguard’, to ensure:

There can be no suggestion that the amendment is directed against any existing judges or that those judges will be prejudiced in any way by the amendment. 

They were mindful of applying this only to prospective judges rather than sitting judges.  I encountered that same sentiment in the consideration of retirement age in the Northern Territory.  In a submission put forward by the Criminal Lawyers’ Association of the Northern Territory, I noted some points raised about this issue of bias.  In their submission from December 2018, the Association noted:

Changes to judicial tenure risks the appearance of interference with judicial independence if they apply to sitting judges. 

To avoid this perception of bias any increase in the retirement age should only apply to future appointments and not to any current sitting judge.

The same issue arose in Hansard from a Senate committee – the Legal and Constitutional Affairs References Committee – during a hearing held on 11 June 2009.  This is a brief comment but it speaks to this general view.  The comment was made by Professor George Williams.  During questioning, he discussed changes to the retirement age for judges.  He commented: ‘Of course, any changes to the retirement age should not affect any sitting judges.  It should only operate prospectively.’.

I will mention one more example, from an academic paper published by Alysia Blackham in 2016.  She is a senior lecturer in the Melbourne Law School at the University of Melbourne and an affiliated lecturer for the Faculty of Law at the University of Cambridge.  In her paper, ‘Judges and Retirement Ages’, the similar sentiment is expressed.  I quote, from page 743 ‘The changes to section 72’ – which was that Commonwealth legislation:

…and any subsequent changes to retirement ages operated prospectively to safeguard judicial independence.  Judicial independence requires the absence of certain connections between the judiciary and other arms of government to secure impartiality in the conduct of the judicial role. 

Former Chief Justice of Tasmania, Sir Guy Green, defines judicial independence as the capacity of courts to perform their constitutional functions free from actual or apparent interference and, to the extent possible, actual or apparent dependence on the Executive.

According to Lane, guaranteed judicial tenure is essential for securing judicial independence, thus changes to judicial tenure under section 72 risk impairing the appearance and reality of judicial independence if they apply it to sitting judges.  

To manage this risk, the changes to section 72 only affected new judicial appointments…

I encountered this concept from a range of sources as I did some reading on the issue.  It was brought to mind because at a local level, we have seen that the Chief Justice has been advocating for this change.  In an article on 3 February 2021, in the Mercury, Chief Justice Alan Blow is quoted as saying, it seemed:

…inevitable that recruitment and retention of talented judges will become more and more difficult if we did not increase the age.

…suggesting the state Government raise the retirement age to 75 in a bid to alleviate recruitment problems as well as to enable current judges to make better provisions for their retirement. 

I believe it is of concern, to have a Chief Justice advocating for an extended tenure to make better provision for his retirement.  It also highlights for us whether we have contemplated sufficiently and dealt with that matter of appropriateness of a prospective change looking ahead to future appointments compared to the application of this change to existing justices.

It is important the court can operate without that connection between judicial and executive either for better or for worse.  There is no benefit or dis-benefit that has occurred as a result of a decision on the executive side of things that then makes the judiciary inclined or disinclined to maintain their impartiality in their decisions.

Could the Government give me some detailed answer as to how that has been contemplated and assessed and then the decision made that this would not be prospective instead of applying to existing judges?

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