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Judicial Independence in Australia

Judicial Independence in Australia

Contemporary Challenges, Future Directions

Edited by Rebecca Ananian-Welsh and Jonathan Crowe

CONTENTSREVIEWS

Judicial independence is a fundamental aspect of law and governance in Australia, commanding near universal endorsement. Despite its vital importance, the independence of the Australian judiciary is threatened on a variety of fronts. This volume brings together some of Australia’s leading constitutional scholars to discuss judicial independence and its contemporary challenges, including challenges posed by politics, judicial selection, extra-judicial activities, social media and the war on terror. Contributions include theoretical, empirical and comparative perspectives. The book includes an initial essay by former Chief Justice of the High Court of Australia, Sir Anthony Mason. The volume provides a valuable guide to future directions in law and governance, with an eye to strengthening judicial independence in Australia.


CONTENTS

Acknowledgments
About the Contributors
Table of Cases
Table of Statutes

Introduction
        Jonathan Crowe and Rebecca Ananian-Welsh

1. Judicial Independence in Australia: Contemporary Challenges, Future Directions
        The Hon Sir Anthony Mason

PART I: CONCEPTUALISING JUDICIAL INDEPENDENCE

2. The Two Theses of the Philosophy of Separating Powers: Who Exercises Power and How?
        Suri Ratnapala

3. Human, All Too Human: Human Fallibility and the Separation of Powers
        Jonathan Crowe

4. The Advancement of Judicial Independence as a Universal Value: A Comparative Perspective
        HP Lee

PART II: JUDICIAL APPOINTMENTS AND TENURE

5. Is Talk of the Quality of Judging Sometimes Strained, Feigned or not Sustained?
        James Allan

6. Practice and Persuasion: Women, Feminism and Judicial Diversity
        Heather Douglas and Francesca Bartlett

7. Judicial Exits: The Tenure of Judges in Three Apex Courts
        Brian Opeskin

PART III: INSTITUTIONAL INTEGRITY

8. Comparative Constitutional Law and the Kable Doctrine
        Rosalind Dixon and Melissa Vogt

9. Constitutional Silences and Institutional Integrity
        Constance Youngwon Lee

10. Institutional Costs of Judicial Independence
        Gabrielle Appleby

PART IV: JUDICIAL REASONING AND RHETORIC

11. Keep Your Distance: Independence, Individualism and Decision-Making on Multi-Member Courts
        Andrew Lynch

12. The Judicial Scholar and the Scholarly Judge: Extra-Curial Writing and Intellectual Independence on the High Court
        David Tomkins and Katherine Lindsay

PART V: EXTRA-JUDICIAL ACTIVITIES

13. Extra-Judicial Activities and Judicial Independence
        The Hon Justice Martin Daubney

14. State Judges as Lieutenant-Governors
        Rebecca Ananian-Welsh and George Williams

PART VI: COURTS IN SOCIAL CONTEXT

15. Of ‘Fragile Bastions’, ‘Political Judges’ and ‘Robust Debates’: Judges and Their Critics
        John M Williams

16. Social Media and the Judiciary: A Challenge to Judicial Independence?
        Alysia Blackham and George Williams

17. Judicial Independence in an Age of Terror
        Rebecca Ananian-Welsh

Index


REVIEWS

This work is an anthology of short essays, progressing through discussions on the historical role of the judiciary within the separation of powers, to the many theoretical, perceived and starkly apparent challenges to independence that face the modern judicial system.
         With notable contributions from respected legal minds such as The Hon Sir Anthony Mason and The Hon Justice Martin Daubney, each essay delves into various levels of theoretical analysis of concepts such as: the application and importance of the separation of powers, the idea of what makes a "good judge" and how to identify them, and the stresses and challenges faced individually by judges in their ability to engage with the wider community.
         Perhaps the most intriguing chapters include specific discussion around the increased use of technology by Mason (Introduction) and Blackham and Williams (Part IV). While Mason acknowledges that for judges an increased ability to publish and be engaged with technology and the media has allowed the public, the academic community and the profession to be more actively engaged with the court system and judicial process, there are risks associated with overly engaging in social media. In this respect, Blackham and Williams outline and analyse the success of the Victorian Supreme Court to utilise Twitter, Youtube and Facebook to broadcast information such as court opening times, the outcome of different judgements and the live webstream of the sentence of underworld figure Tony Mokbel by Justice Whelan.
         Ultimately, the conclusions many of the authors reach is varied about the role, use and application of independence of the judiciary in modern Australia, but all contribute to an important discussion of the changing nature and social expectations placed on the judiciary.

Georgina Vallance, Ethos, ACT Law Society, December 2016

It is frequently stated that justice must not only be done, but must also be seen to be done. Indeed, judicial independence has two dimensions: independence from the apparatus of the state, and impartiality towards the parties at issue. The former institutionally secures the latter, and both, as HP Lee notes in Chapter 4, are recognised across the globe as of paramount importance. This volume explores the ‘multi-faced and complex character of judicial independence’ (p 6), situating its theoretical underpinnings before examining a number of practical challenges, including both personal and institutional independence. …
         Ultimately, this is a stimulating collection of papers exploring new and emerging challenges to judicial independence. It will be useful for students, academics and legal professionals interested in this most important of principles. Read full review...

Harry Hobbs, Alternative Law Journal, Vol 41:3 2016

In the introduction, the editors Rebecca Ananian-Welsh and Jonathan Crowe,
 do a quick run-down on High Court cases dealing with judicial independence, from the not-so-recent Huddart, Parker & Co Pty Ltd v Moorehead, through to Brandy, Kable, and Re Wakim. These are some of the high profile cases of the last century. But there are other, less elucidated but equally important aspects of judicial independence that creep under the radar: court-funding, extra-judicial activities like vice-regal and academic posts, the use of social media by judges, lawyers and counsel, and diversity in the judiciary. This book tackles all of these subjects, and so it ranges from abstract, philosophical inquiry (see the chapters on ‘Conceptualising Judicial Independence’ in Part I and on Kable and ‘Institutional Integrity’ in Part III) to practical and empirical analysis of current social trends (see, for example, Part VI on ‘Courts in Social Context’).
         The Centre for Public, International
and Comparative Law at the T C Beirne School of Law at the University of Queensland hosted a conference in July 2015, and most of the essays spring from papers presented there. The content is fascinating; the breadth of subject matter all-encompassing. While none of the reading is light, some is more demanding, giving the book a flexible range, which allows the reader to pick and choose depending on mood or interest.
         … The book is a nuanced and exciting treatise on the abundant issues relating to judicial independence in Australia: it would be well loved by practitioners. Read full review...

Charles Gregory, Bar News, NSW Bar Association, Spring 2016

This publication has previously provided a pre-publication review of this book. However, now that it is available for sale it is appropriate to mention it a second time. It is timely that this important work covering the broad topic of judicial independence in Australia is published. It is edited, in part, by the talented Dr Rebecca Ananian-Welsh, and it brings together a series of exceptional papers which pelucidly reveal that judicial independence is under threat on a variety of fronts and, in particular, threats posed by politics (including the modern phenomenon of “identity politics”), judicial selection, extra-judicial activities, social media and the war on terror. The book begins with an outstanding paper delivered last year by the Hon Sir Anthony Mason at a conference at the University of Queensland, the title of which has been given to the book. The remainder of the contributions to that conference are categorised into the following; Conceptualising Judicial Independence; Judicial Appointments and Tenure; Institutional Integrity; Judicial Reasoning and Rhetoric; Extra Judicial Activities and Courts in Social Context. The authors of the various articles include some of Australia’s foremost constitutional jurists including Professor Brian Opeskin, Professor George Williams and Dr Ananian-Welsh. Professor Opeskin’s paper is especially interesting, dealing as it does with Judicial Exits which discusses the various methods by which judicial office terminates (i.e life tenure, age tenure or term tenure). He clearly identifies that the South Africa model of having fixed terms for judicial office has much to commend it.

Queensland Law Reporter 8 July 2016 [2016] 26 QLR

This is another excellent publication from Australia’s premier legal publisher. As the former Deputy Chief Justice of the Constitutional Court of South Africa, Dikgang Moseneke, said in the Supreme Court Oration earlier this week, judicial independence is an essential part of most modern democracies. It is, as his Honour pointed out, inextricably bound to the Rule of Law. ... So it is timely that the Federation Press is to publish this important work covering the broad topic of judicial independence in Australia. It is edited, in part, by the talented Dr Rebecca Ananian-Welsh, and it brings together a series of exceptional papers which pellucidly reveal that judicial independence is under threat on a variety of fronts and, in particular, threats posed by politics, judicial selection, extra-judicial activities, social media and the war on terror. The book begins with an outstanding paper delivered last year by the Hon Sir Anthony Mason at a conference at the University of Queensland, the title of which has been given to the book. The remainder of the contributions to that conference are categorised into the following; Conceptualising Judicial Independence; Judicial Appointments and Tenure; Institutional Integrity; Judicial Reasoning and Rhetoric; Extra Judicial Activities and Courts in Social Context. The authors of the various articles include some of Australia’s foremost constitutional jurists including Professor Brian Opeskin, Professor George Williams and Dr Ananian-Welsh.

Queensland Law Reporter 17 June 2016 [2016] 23 QLR

   

Published 28 June 2016
Publisher The Federation Press
Hardback/272pp
ISBN 9781760020651
Australian RRP $165.00
International Price $150.00
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Law - Constitutional
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Law - Judges & Courts
Law - Jurisprudence / Legal Theory
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