Aspects of Judicial Independence
COMPENSATION COURT CONFERENCE 2001
ANCHORAGE, PORT STEPHENS 30 MARCH 2001
ASPECTS OF JUDICIAL INDEPENDENCE
THE HONOURABLE JUSTICE CSC SHELLER
Introduction
1 Since May 2000 as Chairman of the Judicial Conference of Australia I have become conscious of an increasing tendency in Australia to erode judicial independence and particularly to erode the essential and related value that decision makers should not only be, but be perceived to be, impartial when called upon to resolve disputes. In re-assessing the importance of judicial independence the history of this Court and its predecessor illustrates both the trend away from and back towards independent judges as decision makers and how judicial independence can extend to financial independence. This afternoon I propose to talk about these matters.
Misconceptions
2 Judicial independence, like responsible government and the rule of law, expresses what is generally accepted to be a desirable and necessary quality of the Australian democratic system. What part it plays is little understood. Historically it emerged as a fortress against executive, particularly kingly, power, and as a protector of liberty. But as well it stands at the heart of acceptable and hence, effective, dispute resolution in a consensual society not ruled by police presence. Good government is inevitably linked to judicial independence. Yet the independence of the judiciary is always vulnerable and under constant siege from both government and citizen.
3 Sir Alfred Stephen, the third Chief Justice of New South Wales, retired on 6 November 1873 after serving thirty-four years as a judge of the Supreme Court, twenty-nine of those years as Chief Justice. His eminent personal and professional qualifications were said to have adorned the seat he occupied and to have had a lasting influence in strengthening the community’s confidence in the administration of Justice. His long and almost uninterrupted service to the law was such as to earn a well merited rest which he enjoyed for another twenty years before his death in 1894.
4 At his farewell ceremony, Chief Justice Stephen said;
“But I would beg those who may be disposed to think lightly of the judicial office, or its work, to be assured of this one thing - that nothing but evil to the country can result from depreciating either. No object is or ought to be of higher moment, of greater interest to any community, than the integrity, the independence and the learning of the judges of the land and therefore the preservation of their station from reproaches and their character from unthinking comment or undeserved obloquy.”
5 This statement by a great Australian judge, which has been echoed by many judges, remains true today. Yet the voices of reproach, unthinking comments and obloquy have become more strident. Often they are heard from members of the other arms of government, the legislature, and the executive. More worrying, as I will mention in due course, there seems to be in government a failure to understand the reasons and recognise the need for judicial independence. Amongst some, even some judges, the idea persists that judicial independence is a self serving tenet used by judges to preserve privileges. It is important that in this continuing and lively debate, judicial officers should understand what their independence means and its importance so that they can be, as they must now be, the protectors not only of their own independence and strength, but of the independence and strength of the Australian judiciary as a whole.
6 In Liversidge v Anderson [1942] AC 206 at 244, Lord Atkin, a Queenslander by birth, viewed with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject showed themselves more executive minded than the executive. He reminded us that it is the judges who “stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”. He described the arguments for the Crown, upholding executive power to detain a citizen for an unlimited period without access to the courts, as ones “which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I”. This may have been a reference to a case in 1627. In Darnel’s case Howell’s State Trials (1816) vol 3, p1 in that year the King’s Bench accepted the Crown’s argument that a court of law was an unsuitable forum in which to debate matters peculiarly within the discretion of the executive. Lord Atkin was in sole and courageous dissent in Liversidge. Nearly forty years after it was decided the House of Lords said that the majority was wrong and Lord Atkin right. R v IRC; Ex parte Rossminster Ltd [1980] AC 952
7 Judicial independence is not a privilege of judges. It is not for their personal benefit but rather for the protection of the people, whose rights only an independent judge can preserve. American Bar Association, 1997, An Independent Judiciary: Report of the Commission on Separation of Powers and Judicial Independence Sir Ninian Stephen has said that judicial independence:
“….. can never mean …..some privileged position for judges, some special advantage given them for their benefit. What its precise meaning must always include is a state of affairs in which judges are free to do justice in their communities, protected from the power and influence of the State and also made as immune as humanly possible from all other influences that may affect their impartiality.” 1989 Judicial Independence, Australian Institute of Judicial Administration, Melbourne.
8 According to Sir Gerard Brennan the reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law - “the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought.” (1996) Judicial Independence, Opening Address to the Annual Symposium of the Australian Judicial Conference, Canberra An American commentator, the first Watergate Special Prosecutor, agreed that “an independent judiciary is perhaps the most essential characteristic of a free society”. It makes a system of impartial justice possible by enabling judges to protect and enforce the rights of the people, and by allowing them without fear of reprisal to strike down actions of the legislative and executive branches of government which run foul of the Constitution.
9 The reasons which have led people to fight for the ideal through the centuries and which are equally important today, are threefold (1) protection against executive oppression; (2) protection against violations of fundamental human rights; and (3) the assurance that judges are upright and impartial. Cox (1996) The Independence of the Judiciary: History and Purposes, 21 Dayton Law Review 566 The threat to individual liberty increases as regulation by elected governments intrudes on the life of its citizens. The judiciary depends upon government for funding and for the effectiveness of its judgments. The independence of judges is ever more vulnerable and yet remains essential. Judicial officers must never be seen as mere servants of government.
The Guardians of Independence
10 In April 1998 the Commonwealth Attorney General said that the argument that an Attorney General has an obligation to defend the judiciary is an outmoded notion which derives from a different British tradition. This “outmoded notion” has been abandoned by most law officers in Australia.
11 Who then is to protect and maintain this essential characteristic of a free society? Sir Harry Gibbs wrote that except in so far as the
Constitution places Federal judges and particularly the High Court (and now, perhaps, the Supreme Court, see Kable Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51) in a special position, “the independence and authority of the judiciary, upon which the maintenance of a just and free society so largely depends, in the end has no more secure protection than the strength of the judges themselves and the support and confidence of the public.” Introduction to The Supreme Court of Queensland 1859-1960 by Justice B H McPherson
12 The principal object of the Judicial Conference of Australia, an association of judicial officers, judges, masters and magistrates, is “in the public interest to ensure the maintenance of a strong and independent judiciary as the third arm of government in Australia”. (emphasis added) The second object is to promote, foster and develop within the executive and legislative arms of government, and within the general community, an understanding and appreciation that a strong and independent judiciary is indispensable to the rule of law and to the continuation of a democratic society in Australia (emphasis added). In 1940 in a letter to Herbert Vere Evatt, Lord Atkin wrote:
“How little the public realise how dependent they are for their happiness on an impartial administration of justice. I have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn.” Lewis, Lord Atkin (1983) p 176
Origins
13 The Act of Settlement 1701, which vested the succession of the Crown after William III and Anne, was the product of the previous turbulent century in English history and particularly the product of the struggle for power between the King and the parliament. In 1178, when Henry II ruled, those appointed to hear the complaints of the realm and to do right carried out their work as part of the King’s Court. Their activities were supervised by the King and the wiser men of the realm. Consistently with this they held office at the King’s pleasure.
14 Nearly 500 years later in 1642, Charles I agreed to the appointment of judges during good behaviour but by 1668 the system of appointments during pleasure had been re-introduced. In the last years of his reign, Charles II sacked eleven judges. In the three following years James II sacked twelve. On 3 March 1701, just over 300 years ago, the House of Commons passed a resolution making provisions for the security of the rights and liberties of the people. Judge’s Commissions were to be made quamdiu se bene gesserint; and their salaries ascertained and established. But upon the address of both Houses of Parliament it would be lawful to remove them.
15 Provisions for adequate and irreducible salaries were subsequently developed in a context of tolerated corruption. Lord Macclesfield, who was Lord Chancellor between 1718-1725, increased the honorarium charged by his predecessors for the sale of the office of Chancery Master to such an extent that newly appointed masters felt obliged to recoup the premium, they had to pay the Lord Chancellor, from the litigants who appeared before them. Sometimes they would delay cases and then pocket a fee for expediting them again. Sometimes they would help themselves from the funds that were held in court under their tutelage. This went beyond the bounds of what could be tolerated. Lord Macclesfield was impeached, convicted and fined £30,000. But not for another hundred years were puisne judges’ salaries doubled in 1825, to compensate them for the removal of their income from litigants’ fees and other perks previously available. Thereafter they remained unchanged in England until 1931.
16 In 1992 the New South Wales Constitution (Amendment) Act added Pt 9 to the Constitution Act 1902 to provide that no holder of a judicial office, including a magistrate, could be removed from office except by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. Part 9 was entrenched by the amendment of s7B of the Act following a referendum held on 25 March 1995 which carried the Constitution (Entrenchment) Amendment Bill 1992. Compare s72 of the Federal Constitution which provides also for security of remuneration.
Effective dispute resolution
17 Today the significance of the independence of judges has moved beyond the prevention of actual executive control of decision making to the avoidance of the perception that judges may have reason to decide cases in a way that the government of the day would approve. Bound up with this is the maintenance of public acceptance and hence the effectiveness of the judgments of the court and accordingly the maintenance of the rule of law.
18 In a recent publication, the Australian Federal Judicial System edited by Opeskin and Wheeler, Professor Stephen Parker writes at 68:
` “Social groups need procedures and institutions to resolve conflicts and disputes if they are to maintain a reasonable degree of internal order and protect themselves from external threats. Dispute resolution is most effective when the loser in any dispute has no reason to suppose afterwards that the procedure amounted to two against one. This not only helps truly to resolve the particular dispute, it also channels other disputes in the direction of the procedure. Acceptance of the outcome by the loser is highly dependent upon a belief in the impartiality of the decision-maker.”
19 Professor Parker speaks of the impartiality of the decision maker. The core value is the perception of that impartiality. Not only must the judge be impartial. The judge must appear to be and be recognised by the reasonable bystander to be, impartial. The need for this perception of judicial impartiality underlies the need for judicial independence. Together they ensure public confidence in the judiciary. No more is this so than when the State is a party to the litigation which it frequently is in civil cases and always in criminal cases. Judicial independence is a concept which derives from and describes the conditions designed to preserve impartial adjudication. The fabric of Australian society depends upon the consent of its members and in that sense is consensual. Obedience to decisions of the Court is voluntary. In the words of Justice Felix Frankfurter, “the Court’s authority, consisting of neither the purse nor the sword, rests ultimately on substantial public confidence in its moral sanction.”
20 The question becomes not only whether the decision maker was partial, a question often difficult to resolve, but whether a normal litigant, with no reason to know much about the law or judges, might have a reasonable fear about the decision maker’s partiality.
21 A necessary bulwark of a perception of judicial impartiality is independence at least to the extent envisaged by the Act of Settlement, that is to say, security of tenure and security of remuneration not to be diminished during office. For like reason, independence is important to maintain the perception of impartiality of not only judges but all persons whose duty it is to decide disputes between citizen and citizen or citizen and government. In his foreword to Fragile Bastion, published by the Judicial Commission of New South Wales, Gleeson CJ remarked that a judicial officer who has the duty to resolve disputes between citizens and the government, who holds office at the will of the government, and who could be dismissed for making a decision of which the government disapproved, would be unlikely to command the confidence of the public.
Perceived impartiality at risk
22 If it is fundamental to our system of government that the rights and liabilities of members of the community are determined by the impartial application of the law, a litigant before a tribunal is as much entitled to have the dispute determined by an independent body as is a litigant before a court. Yet there is an idea in government that the need for perceived impartiality and its offshoot judicial independence can be sidestepped by setting up tribunals or other decision making bodies rather than courts to resolve disputes.
23 Recent Australian history suggests that government sees no impropriety in establishing “tribunals” and appointing members to divisions of a tribunal on the recommendation of the Minister, whose department’s decisions will be reviewed by that division, for fixed periods which may be extended or renewed and which may be terminated by the executive for breaches of codes of conduct and performance agreements which themselves equate performance with productivity and provide for performance related pay scales; see the proposed Administrative Review Tribunal Bill and the recently published minority report of the Senate Legal and Constitutional Legislation Committee’s Inquiry into the provisions of that Bill.
24 Sir Anthony Mason In his article on the appointment and removal of judges in Fragile Bastion at 32 has commented:
“Internationally, emphasis on the essentiality of judicial independence, particularly in developing and emerging countries, extends to tribunals as well as courts.”
He referred to Article 10 Affirms that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights, and obligations of any criminal charge against him.” of the Universal Declaration of Human Rights and Article 14.1 Provides that “[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” of the International Covenant of Civil and Political Rights, ratified by Australia. Accepting the impossibility of applying to all the tribunals standing outside the orthodox court system the regime which ought to govern the appointment and removal of judges, he said:
“Unless we put in place provisions which preserve the independence of magistrates and members of tribunals, we run the risk that interference with the independence of magistrates and tribunal members will eventually contribute to the erosion of the concept of judicial independence as it applies to judges. A central element of judicial independence is the freedom of the judge to hear and decide cases without interference and uninfluenced by an outsider - be it government, pressure group or anyone else. The purpose of that independence, it should be emphasised, is to serve as a protection and privilege of the people, not of the judges.” Fragile Bastion, Judicial Commission of New South Wales, 32-35.
25 Another aspect of this is the compulsory diversion without court input of cases to arbitration or other forms of alternative dispute resolution. This may be the politically expedient way to avoid proper funding of the courts. But by doing this the government abdicates its function to maintain courts and hence to uphold the rule of law.
Superannuation surcharge on judges’ salaries
26 As Professor Parker has pointed out, in general terms the superannuation surcharge legislation was designed to impose a 15 per cent surcharge on the contributions that employers of high income earners made to superannuation funds. (Deliberately it was not called a tax because of an election promise not to increase taxation). The legislation was apparently aimed to catch arrangements whereby employees agreed to “salary sacrifices” in return for superannuation contributions by their employers.
27 Judges, however, are not, as such, members of superannuation schemes and make no contributions as such. Their pensions are funded at the point of payment out of consolidated revenue. Separate legislation was therefore enacted by the Commonwealth government so that what it believed was an equivalent tax would be applied to the pensions of those judges appointed after the commencement date. It seems, however, that the legislation has a disproportionate effect on judges caught by the tax and, in any event, it unsettles an assumption on which judicial salaries are fixed by the remuneration tribunal.
28 The extension of the superannuation surcharge in a way which taxed serving judges significantly reduced their pension rights. Ultimately in 1997 the Commonwealth government conceded that judges’ remuneration included post-retirement pensions and exempted serving judges from the superannuation surcharge. The legislation now applies to newly appointed judges and serving masters in a way which effectively and significantly reduces their take home pay or pension. The surcharge operates as a direct tax on the after tax earnings of judicial officers and in that respect is almost unique. Such taxes imposed on the after-tax earnings of the community at large would have been political suicide.
29 This legislation and the extent to which its unfairness and its effect on judicial independence can be resisted, has to be looked at in the context of public attacks on the decisions of judges, their approach to adjudication and even upon them personally. An example was the reaction of political leaders to the Mabo decision (1992) 175 CLR 1 and Wik (1996) 187 CLR 1; see Justice Michael Kirby Attacks on Judges - A Universal Phenomenon 72 ALJ 599 at 600-601.. One is reminded of attacks on the Federal Court for its decisions in migration cases and for the law and order debates which suggest judges are soft on crime, a claim said to justify mandatory sentencing.
Funding and other aspects of independence
30 Of course in one sense the court is never independent of those arms of government which fund its operation. This points up the importance of the judicial officer’s security of remuneration. “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Hamilton A, Jay, J and Madison, J (1787) The Federalist, Reprint E M Earle (edition) Modern Library New York, 1937.
31 On 6 December 1993, Frank McGrath, the retiring Chief Judge of this Court, referred to the many platitudes mouthed about the importance of judicial independence and said: “At the same time there are forces which are completely inimical to a continuation of such independence.” (68 ALJ 323)
32 Judge McGrath spoke of the widespread ignorance of the basic principles of the separation of powers. In his view, while no one doubted their importance, there was more to judicial independence than security of tenure and of salary. The courts must have control of and responsibility for the administration of their own registries and their day to day budgets subject only to the overall supervision of the Auditor General. He regretted that the wishes of the Compensation Court had been overridden when the court was transferred from Macquarie Street to the Maddison Tower Building.
33 In particular Judge McGrath pointed out that until its abolition in 1984 the judges of the Workers Compensation Commission had direct control over the whole budget of the court. The judges had the responsibility to levy insurers and self-insured employers and by this means built up reserves which enabled the courts in both Wollongong and Newcastle to be located and internally designed to meet the specific requirements of the court, to be developed without the necessity to borrow money or to place unacceptable burdens upon the insurers and employers by precipitate increase of levies. In Judge McGrath’s opinion the 58 years of operation of the Commission proved clearly that judges were fully capable of administering the budgets of the courts over which they presided in a responsible manner. This 58 years of budgetary control was unusual if not unique in Australia.
The administration of Compensation Law
34 The administration of workers’ compensation law as it has developed in New South Wales illustrates the tension between on the one hand the resolution of disputes by a court comprising judges appointed to a retiring age and on the other by commissioners or tribunal members appointed for a term of years but eligible to have that term extended. As Judge McGrath pointed out, it exemplified how a court can fund and administer its own finances by levying those groups of people whose disputes come before it to meet the needs of the court or commission in the way its members regarded as appropriate.
35 When established in 1926 the New South Wales Workers Compensation Commission was the first such tribunal in Australia. Despite attempts to introduce legislation in New South Wales as early as 1899, New South Wales had not been the first State to establish a system, separate from the common law, for compensating injured employees. Wade’s Act (the Workmens Compensation Act 1910) followed similar legislation in other States and was based on the English Workmens Compensation Act 1897, not then the latest legislative provision in that country. In broad terms, the entitlements of those workers affected by the legislation (those employed in certain categories of work, railway, tramway, factory, workshop, mine, quarry, wharf, vessel, engineering or building work where four or more persons were employed, not being casual workers) became sui generis.
36 The rights of the worker to be compensated for work related injury were no longer searched for in contract or tort law but were now derived from the worker’s status as an employee, though initially the common law remained intact notably the doctrine of common employment. The doctrine has been given as an example of adventurous though conservative judicial law making designed to blunt the edge of reform and turn back progressive ideas,. At the close of the 19th century it had been said in the House of Commons that “Lord Abinger planted [the doctrine], Baron Alderson watered it, and the devil gave it increase.” A remark of the Secretary for Ireland in 1897 quoted in Friedman and Ladinsky “Social Change and the Law of Industrial Accidents” (1967) 67 Columbia Law Review 53N 13.
37 In September 1919 George Stephenson Beeby, then New South Wales Minister for Labour and Industry, after visiting Britain and the United States of America, published his report on industrial conditions in those countries. This report laid the ground for the 1926 Workers Compensation Act passed under the Lang government of 1925-27.
38 In particular, Beeby reported that the most important divergence between the American and the Australian systems was in administration. In the USA there was a strong sentiment against allowing claims for compensation to be subjects of ordinary litigation and in a number of American States the carrying out of the law was left entirely in the hands of industrial accident commissions. The commissions generally consisted of a special board of three or five members, with quasi judicial functions, appointed to enforce the law. The boards received all accident reports, investigated claims, settled disputes, heard cases, granted awards, issued decrees and in some States administered insurance funds. The boards acted as general advisers to all parties and, in Beeby’s opinion, had undoubtedly proved an immense value in facilitating quicker and more satisfactory administration. Formalities were dispensed with. Cases which generally depended on medical evidence and in the ordinary course would have occupied a court for a day or two and involved the parties in considerable expense settled in two or three hours to the satisfaction of the workman, the employer, and the insurance company.
39 Beeby recommended that the administration of the Workmen’s Compensation Act be vested in the Board of Trade or a special industrial commission and that all claims for compensation be settled by the board without right of appeal except on matters of pure law. The 1916 Act had attempted to remove workers compensation from the court system by introducing the position of the arbitrator. The 1926 Act did remove workers compensation from the court system by establishing the commission to hear all disputes and to regulate and license insurers. At the same time the Act abrogated the defence of common employment.
40 The parliamentary opposition did not share the government’s enthusiasm for non-legal proceedings and one of the few amendments which J M Baddeley, by now the Minister for Labour and Industry, accepted was Bavin’s request that the chairman of the commission have legal qualifications. Section 31 provided that the commission would be chaired by a barrister of at least five years standing with the rank and precedence of a District Court judge. The other two members of the commission were appointed for a fixed term of seven years but eligible for re-appointment. They were to be representative of “each side”.
41 Routley was the first employers’ representative, Halliday the first employees’ representative. In Waterside Workers of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 469 Isaacs and Rich JJ seemed unconcerned that there were courts “officered by Judges whose tenure is of little importance”. The Commission was constituted as a body corporate (s32). Section 36(1) provided that the commission had exclusive jurisdiction to determine all matters arising under the Act and the power to re-consider any matter and rescind or amend a decision. Section 41 constituted a fund to which insurers and self insured employers contributed, in accordance with estimates made by the Commission, and from which salaries and other moneys required for carrying out the provisions of the Act were to be paid.
42 The Act greatly increased the benefits and the range of workers entitled to benefit. However, by 1939 the tide had turned and the Act was amended to provide that disputed cases should be decided by persons of District Court status.
43 By contrast with the Commission’s first year of operation from 1 July 1926 when 688 applications were received, by 1982, thirteen judges were hearing 10,000 matters a year in Sydney and on circuit. Between filing and first hearing there was said to be a delay of 52 weeks. Sometimes a final decision was not made for 18 months. The legislation which was specially designed to give the workman a simple cheap and easy remedy for his injuries had become encumbered with an ornate seductive writhing mass of case law which was suffocating the whole scheme by loading it with expense, delay and difficulty. This result could not fairly be attributed to the judges of the Commission, chaired by Perdriau, from 1926-1950, Conybeare, from 1951-1972, Langsworth, from 1972-1982 and McGrath from 1982 to 1984.
44 It is interesting to note that Lord Atkin’s biographer Lewis, Lord Atkin at 123 states that during the period of Lord Atkin’s career on the bench the Workmen’s Compensation Acts represented the single largest field for statutory interpretation. Its complexity often defied logical analysis. In Richards v Goskar [1937] AC 304, faced with an Act which said in terms that industrial disease was to be treated as an injury caused by an accident, and the question was how disablement (caused by the disease) could be the accident which caused the injury Lord Atkin resorted, at 312 to Lewis Carroll’s Alice. “The only comparable sequence that occurs to me arose when Alice learned from the White Queen’s accident the art of living backwards; first the bandage then the bleeding, then the pinprick.”
45 Sir Leslie Herron in the Alfred Rainbow oration of 28 September 1964 mentioned doubts entertained by Judge Rainbow about the New South Wales Workers Compensation legislation. These doubts included the system of adjudication of claims by courts which was said to be expensive and inefficient. Administrative tribunals as used in the United States would be preferable. But even so Judge Rainbow thought that, if the determination of claims by courts had produced a system of case law conspicuous for its clearness, certainty and justice, all of the disadvantages which had accrued might be regarded as irrelevant in comparison.
46 The Compensation Court Act 1984 constituted this Court. Section 16 provided that a judge might before or at any stage of the proceedings refer any matter to a commissioner. Section 26 contemplated a two-tiered adjudicative structure, the court, consisting of judges, and appointed commissioners who might exercise functions of the court conferred under the Act. Section 27 indicated a legislative intention to reduce formality and technicality and do away with the rules of evidence. Commissioners were to hold office until the age of 60 with a provision for extension not beyond the age of 65 (Schedule 2). At that time a judge of the Compensation Court remained in office during ability and good behaviour and might only be removed in the same manner as a judge of the District Court. The Governor might remove a District Court judge for inability or misbehaviour with an opportunity to make representations and be heard before the Governor in Council. With the 1984 Act control of the fund and hence of the Court’s budget was lost. Such control was said to have produced a conflict of interest; see for example Registrar Compensation Commission v FAI. (1980) 1 NSWLR 276. This function was taken over by what was then known as the State Compensation Board.
47 The 1985 amendments to the Act provided that a commissioner need not be legally qualified. They were removed from the court and became empowered to hear applications when the matter to which the application related was not likely to exceed $40,000. The board allocated matters to judges and commissioners accordingly. Emphasis was placed on conciliatory pre-hearing conferences.
48 Under the Workers Compensation Act 1987 Pt 4 Div 4 the commissioners obtained exclusive jurisdiction to examine, hear and determine all matters arising under the 1987 Act; s107. Effectively the Compensation Court’s jurisdiction was confined to hearing appeals from commissioners. Commissioners were not subject to the control of the court.
49 Early in 1988 there was a change of government. The Workers Compensation (Compensation Court) Amendment Act 1989 omitted and replaced s107 thereby giving the Compensation Court exclusive jurisdiction to hear and determine all matters arising under the Act. For more than 10 years the Court operating this new legislative structure has dealt with about 19,000 new cases a year. There is something between 32 and 35 weeks between a matter coming into the pending list and the matter being heard. There has been established an automative computerised court and case management system (currently Phoenix III) described in the 1999 AIJA Technology for Justice Report as a good benchmark for other courts and by the Victorian Law Reform Committee, Technology and the Law, as a best practice example for a case management system for a court with a high volume of cases.
50 It might be said, looking back, that twice, once between 1926 and 1939, and, again, for a short period, between 1985 and 1988, the theory that compensation disputes were better resolved by an informal procedure before lay commissioners was tried. No doubt many here will have opinions about those systems and how they worked. However, this approach seems scarcely to have been justified by the way in which the Compensation Court currently administers a huge list with a relatively small number of judges.
51 What is to be learnt from this in terms of judicial independence? In the first place, arguably delays and technicality and expense are not the fault or consequence of a judge administered court structure for resolving disputes but follow rather from the nature of the substantive legislation. This in itself is not surprising. In the first half of the 20th century the development of the rights of employees to protection from the consequences of work-related injury was novel and developed against a fear that the cost would be such that neither employers nor the community at large could meet it without disastrous economic consequences.
Comment
52 In 1926 when the Commission was established it was accepted that two of its three members should represent a class of the litigants whose disputes would be resolved by it. Sir Anthony Mason has remarked Fragile Bastion at 4: “Independent and impartial adjudication denies the notion that the judge will bring to bear a view which represents that of a particular section of the community.” The very method of appointment raises a perception of bias.
53 Members of the public expect impartial and independent adjudication from any public official appointed to resolve a dispute between them or any of them and the government or its representative. The perception of impartiality is greatly increased if the decision maker is independent of any possible favour from government including the chance of re-appointment or extension of term or the chance of removal for any reason other than proved misbehaviour or incapacity. Yet in 1926 commissioners were appointed as representatives, whatever that might have involved. The members of the commission other than the chairman were appointed for a term of seven years and were eligible for re-appointment. The normal litigant might have thought that a member who failed fully and properly to represent either the employees or the employers, as the case might be, was not likely to be re-appointed. Under the 1984 Compensation Court Act judges appointed to the court were removable in the same manner only as a judge of the District Court. Under Schedule 2, a commissioner held office until attaining the age of 60 years. This term might have been extended up to the age of 65 years. The Governor might remove a commissioner from office for misbehaviour or incompetence.
54 From the beginnings of her independence, Venice had been theoretically a democracy. Not only was the Dogeship itself an electoral office, but the Doge was attended by two tribunes whose explicit purpose was to prevent him from abusing his office. Furthermore, there had always been provision for the Arengo, a meeting of all the citizens in general assembly to vote on major decisions affecting the security of the State. “But democracies are unstable institutions; they need constant maintenance if they are to work.” John Julius Norwich, The History of Venice, p34.
55 Judicial independence remains as ever a “fragile bastion”. We are its strength and its protectors, the defenders of an essential part of democracy’s bedrock.*****
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