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Judicial Conference of Australia

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									Judicial Conference of Australia

The creation of the Judicial Conference of Australia

The Judicial Conference of Australia is an incorporated association. It was established in
19931. It seeks to serve the public interest in maintaining a strong and independent judiciary
within a democratic society that adheres to the rule of law.

It came into existence because there was grave concern amongst the judiciary at the time
about the community understanding of the importance of the principle of judicial
independence and the attitude to it of Governments and the media. The Victorian
Government, for example, had by legislation enacted in 1992, abolished the Victorian
Accident Compensation Tribunal. Under its legislation, the status of judges of the County
Court was accorded to its members. Despite this, the legislation abolished the office without
providing for the re-appointment to equivalent positions – or, indeed, any position at all - of
the members of the Tribunal. Nor did it provide for compensation. As a consequence, most
of the former judges were forced to search for alternative employment, or return to the Bar.
A few of them were appointed to the County Court.

In addition, at about this time, it had emerged that Attorneys-General were no longer
prepared to perform their traditional role of independent defenders of the reputation of the
judiciary and the judicial system. The judiciary was faced with the reality that there was no
person or body representing the judiciary that could speak on its behalf or address the policy
concerns of the judicial arm of government.

The membership of the JCA
The JCA consists of judges and magistrates drawn from all jurisdictions and levels of the
Australian court system. Membership is open to all serving and retired judges and
magistrates in Australia and other judicial officers. Its present membership is approximately
600, more than half of the judicial officers in Australia. It has a Governing Council and an
Executive Committee which are chaired by the Hon. Justice Ruth McColl, AO, of the
Supreme Court of New South Wales.

The judicial conference is funded almost entirely by membership subscriptions. For the year
2008-2009 that subscription is $200 (including GST). The subscription for retired judicial
officers is $50 (inclusive of GST).

Achieving its objectives
The conference seeks to achieve its objectives in a variety of ways
Informing the community about the role of the judiciary and the significance of an
independent judiciary;
Since 1996, the JCA has held an annual colloquium to which the media has access. The
importance of these occasions was described by the then Chief Justice of the High Court, Sir
Gerard Brennan, when he spoke of the importance of the first colloquium
“It confirms the ethos and commitment to independence of the Australian judiciary and it
reflects upon the means by which that independence can be protected and enhanced in the
interests of the public we serve.”

1
        Incorporated 16 December 1993; in the creation of the JCA, regard was had, in particular, to the
Canadian Judges Conference.
A keynote address by the Chief Justice of the High Court has become a tradition at the
Colloquia. All are accessible on the JCA website, www.jca.asn.au, together with the papers
delivered by other speakers.

Directly communicating with the community through the media presents a difficult challenge.
This was the subject of on-going consideration through the presentation and debate of papers
at the colloquia resulting, in 2004, in the publication of a handbook “Working with the
media: a handbook for Australian judicial officers”2.

The JCA has also published material to address misunderstanding of the judicial role. For
example, in 2007, the JCA published “Judge for yourself: a guide to sentencing in Australia”.
This was prepared as a resource for the public providing an accessible guide to the sentencing
of offenders in Australia.

Communicating with other arms of Government to promote mutual understanding and
address proposals that threaten the independence of the judiciary.

In performing the latter task, the JCA has met with mixed success.
The Western Australian Government put forward the Magistrates Court Bill 2003 which
contained provisions seriously threatening the independence of the magistrates in that State.
The President of the JCA wrote to the Attorney-General of Western Australia and achieved
changes to the legislation which addressed a number of the concerns.

In 2004, the Government of the State of Victoria proposed to amend the Constitution Act
1975 to replace the very limited acting judge provisions with provisions which had no
limitations. The proposed legislation authorised the creation of a pool of acting judges by the
Attorney-General from whom the Attorney-General could select people to act as judges. If
selected, they would be remunerated. There were no limits on numbers or time. The Judicial
Conference of Australia made public statements and representations to the Attorney-General
and met with him. In this instance, the JCA was unsuccessful.

Seeking improvements in the administration of justice and accessibility to the justice
system.

Relevant topics discussed in the colloquia have included judicial education, the appointment
of judges, the handling of judicial complaints and the removal of judges and Court
governance. Legal issues discussed have included developments in the law of negligence
(including whether the courts had extended the boundaries of negligence beyond that which
accorded with the appropriate limits of the duty of care); mandatory sentencing; native title
rights; the psychology of children’s evidence and disclosures; and refugee law.

Undertaking research and discussion that will benefit these aims

The JCA has promoted discussion within the judiciary and developed proposals to address
the above issues. A recent example of collaboration is the development of a national standard
for continuing professional development for judicial officers.3 Among the topics under active
2
         It provides basic information to assist judicial officers to understand better how the media works and to
appreciate the factors that tend to motivate journalists in dealing with the courts.
3
         The JCA contributed to this project which was an initiative of the National Judicial College of
Australia and conducted in conjunction with the Australian Institute of Judicial Administration.
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consideration by committees of the JCA are the processes by which judicial appointments
are (or, desirably, should be, made) and an appropriate structure for dealing with complaints
against judicial officers.

Policy on involvement in questions of remuneration
Since its inception, the JCA has avoided any involvement in the general question of the
remuneration of judicial officers. It will act, however, when Government unfairly
discriminates between judicial officers and between judicial officers and other citizens.
In 1997, the Federal Parliament passed legislation which imposed a notional surcharge
calculated actuarially on a notional contribution to non-contributing statutory pensions of
judicial officers. This legislation unfairly discriminated against judicial officers on such
pensions. It was intended to address what was seen to be “rorting” of the then extant
superannuation legislation which allowed taxpayers to contribute large sums to
superannuation schemes and thereby reduce their taxation. People contributing to such
schemes also had access to capital sums on retirement. Neither benefit applied to judicial
officers in receipt of statutory pensions. In addition, the surcharge was placed on the judicial
officers and not on the pension “fund”. As a consequence, such officers faced the prospect of
having to pay a “debt” of hundreds of thousands of dollars on retirement under this scheme.
If a judicial officer died the day after retirement, the estate would have to pay the full amount
of the debt, even though the judicial officer had not received any benefit under his or her
pension.

Representations were made to the Federal Government that were unsuccessful. Members of
the JCA funded litigation to challenge the constitutional validity of this legislation – Austin &
Anor v Commonwealth of Australia (2003) 215 CLR 185. That challenge was successful.
The decision, however, only applied to State judicial officers and not Federal judicial
officers. Subsequently, the Federal Government removed the surcharge. There nevertheless
remains a group of judicial officers, appointed during the period when the surcharge was
operating, still caught by this discriminatory scheme. The JCA is continuing to press the
Federal Government to remove this most unjust anomaly.

Conclusion

Once established, the JCA quickly found an important role for itself. Judicial independence
is an essential element of the rule of law, and hence of democratic governance. The judiciary
is as well placed as any other body to ensure that the community is aware of the importance
of its independence, and to distinguish that independence from the personal interests of
judicial officers. Thus, it has been found to be very valuable and productive to have, in the
JCA – which represents all holders of judicial office in Australia – a body able to speak
publicly and with authority about matters affecting the independence and operation of the
judicial system; both as a whole, and in particular jurisdictions.
It is undesirable for judicial officers in the jurisdictions affected to take up such matters on
their own. Even though the issues raised will involve matters of high principle, the danger is
that they will be accused of interference in politics, and their arguments and concerns will be
dismissed as self-interested.

The JCA has also taken the position that, in support of its objectives, it should respond in
appropriate cases to public attacks on judicial officers, particularly by politicians. Such


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attacks, if unanswered, will result in cumulative damage being done to the reputation of the
judicial system itself. Examples of such action include, in 2002, the JCA publicly
condemning a spurious personal attack on the Hon. Michael Kirby of the High court made
under cover of Parliamentary privilege. More recently, the JCA responded to attacks made
on the reputation of judges in Queensland and South Australia.

Such action provides much needed moral support for the individuals involved and serves the
important purpose of repairing the damage done to the reputation of those individuals, and to
the judicial institutions of which they are members.




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