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  • The corporatising of our courts
  • The Age
  • 24/03/2005 Make a Comment
  • Contributed by: Admin ( 47 articles in 2005 )
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In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of the court's independence.

For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to bite my tongue.

I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and especially as I grew more senior, I have watched with some concern a change emerge in the perception of this court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have been unable to say much about it until now and when my resignation becomes effective, I fear that nobody will listen.

As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularly the independence of this court, which must, from time to time, tell the political arms what they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have been sitting here, I have seen what appears to me to be some erosion of this court's independence.

One of the most public examples recently was the refusal of the executive to accept the decision on remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and so ensuring the independence of which I am speaking.

Less well known was the refusal of earlier governments to allow that the court's own chief executive officer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately answerable to the Department of Justice, which is what happened.

That appears now, if I may say so, to have been but part of a movement towards this court's becoming absorbed into that department, and it is that to which I want to draw attention in particular; for such a movement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a court of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control and to limit those other arms according to law and to that end to stand between those other arms and the citizen. Hence the emphasis on the court's independence, especially from the executive.

Yet within the Department of Justice this court is now identified and dealt with - would you believe - as "Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately includes all three tiers of the court structure and VCAT.

This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed by departmental regulation, even if a part of those fees is redirected to the court by the department at its discretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in disregard, if not in defiance, of the convention that such matters are for rules of court.

And perhaps most troubling of all: the judges' computers, which were provided by and through the department, are but part of the departmental network. I do not say that departmental officers ordinarily avail themselves of the access that that affords; one hopes the department has some controls in place. But access is possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major litigant in this court, and sometimes on matters of critical import to the wider community.

Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise than by argument in open court, but what has been happening is more insidious. What is evolving is a perception of the court as some sort of unit or functionary within the Department of Justice, a perception which is inconsistent with this court's fundamental role and underlying independence.

Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it must be restored if the proper constitutional position is not to be subverted.

The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be, impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and ideally, without hope of additional gain or reward from anyone, including any other arm of government. Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly so called, exercises administrative functions but not judicial power, and many things flow from that. Such a tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is fixed independently of the executive.

You will see, now, how far the distinction between court and tribunal has become blurred. While the Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when, in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is altogether inconsistent with such a form of tenure.

There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial and so must eschew all other interests which might one day give rise to conflict or the appearance of bias.

In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded of the appointee.

John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to the court.


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