Justice Susan Crennan (1 Viewer)

[hfis]

As much a pity it is, it is a good mechanism. I'd hate to be stuck with a senile, out-of-touch, 91 year old judge sitting on the highest court of the country.

 

[MoonlightSonata]

As much a pity it is, it is a good mechanism. I'd hate to be stuck with a senile, out-of-touch, 91 year old judge sitting on the highest court of the country.

Yes, I agree

It could be raised to say, 75 or something. But I wouldn't want to push it. They are already somewhat abstracted from society as it is.

 

[ManlyChief]

As much a pity it is, it is a good mechanism. I'd hate to be stuck with a senile, out-of-touch, 91 year old judge sitting on the highest court of the country.

I disagree. I dispute that a mandatory retirement age is best way of ensuring competence. What is to stop a 65 year-old becoming senile? Or a 60 year old, for that matter. Many of our greatest jurists reach their best after 70: look at Dixon - at 70 he had only been Chief Justice for about 4 years (out of his total 12 as CJ).

Can you imagine the state of our jurisprudence if Australia had been denied the guiding hand of Dixon at this time? I doubt that it would have been the "Golden Age" of the High Court as Lord Denning has described it.

The forced retirement at the age of 70 diverges so strongly from the image Australia paints of itself, that to maintain it seems to me at best to be poorly-based discrimination, at worse, constitutional lunacy. No one wants senile old fogeys on the bench, but telling all intelligent, articulate, passionate 70 year-old HC judges that they have lost their utility as reliable members of the judiciary simply makes no sense. Can you imagine what wonderful jurisprudence we would could now have had not Mason CJ, Gibbs CJ and Gaudron J been forced to retire?

Why should the weighty intellect of Gummow J, the reasoned morality of Kirby J, the tempered eloquence of Gleeson CJ be silenced simply because, as an accident of birth, these men become 70 at a particular date?

That so many former High Court judges go on to productive lives in the legal and academic community is a testament to their abilities. To force them out of office in this absurdly arbitrary way is nothing short of a national disgrace.

The people of Australia when they voted on the introduction of the retirement age in 1977 got it wrong.

 

[ManlyChief]

They are already somewhat abstracted from society as it is.

I do not think a person's age is indicative of their connection with society.

As far as I am concerned, a 40/50/60 year-old judge who has proceeded from the tried and tested path of Sydney Grammar - Sydney Uni - Wentworth Chambers - High Court, whose only experience of life is the affluent and literate suburbs of the Eastern capital cities is just as abstracted. The age of the man/woman involved is merely one factor in a much broader scheme of personal characteristics, and, I would venture, a minor factor at that.

By all means, let's have judges who are "connected to society" but let's recognise that this connection is defined by a number of factors, not age alone, or even age primarily.

 

[MoonlightSonata]

I disagree. I dispute that a mandatory retirement age is best way of ensuring competence.

It is more the subtle dotage that may creep into their thinking rather than a black and white "incompetance" that might give rise to something so significant and public as constitutional removal.

What is to stop a 65 year-old becoming senile? Or a 60 year old, for that matter. Many of our greatest jurists reach their best after 70: look at Dixon - at 70 he had only been Chief Justice for about 4 years (out of his total 12 as CJ).

Generally the older one gets, the more likely they are to become senile. Yes, Dixon is a shining example. But it is only one example, and there are counter-examples. Take Lord Denning, an equally brilliant judge - but time caught up with even him.

Can you imagine the state of our jurisprudence if Australia had been denied the guiding hand of Dixon at this time? I doubt that it would have been the "Golden Age" of the High Court as Lord Denning has described it.

The general application of a rule can of course can give rise to some occassional more unfortunate circumstances, but it doesn't mean we shouldn't have the rule. There are always exceptions.

The forced retirement at the age of 70 diverges so strongly from the image Australia paints of itself, that to maintain it seems to me at best to be poorly-based discrimination, at worse, constitutional lunacy. No one wants senile old fogeys on the bench, but telling all intelligent, articulate, passionate 70 year-old HC judges that they have lost their utility as reliable members of the judiciary simply makes no sense. Can you imagine what wonderful jurisprudence we would could now have had not Mason CJ, Gibbs CJ and Gaudron J been forced to retire?

I agree that 70 is too early, but it is not telling them that. The rule is there as catch-all net. Of course some will be caught that may not really need to be, but it is a safeguard, not an assessment. Besides, how do you know that their judgment would not have been affected by age?

By-the-by, Gaudron J was not forced to retire by the retirement cut-off. She resigned at 60.

Why should the weighty intellect of Gummow J, the reasoned morality of Kirby J, the tempered eloquence of Gleeson CJ be silenced simply because, as an accident of birth, these men become 70 at a particular date?

Well the public concern is that at a certain age range, mental abilities slip and attidudes may become entrenched which keep judges out of touch.

That so many former High Court judges go on to productive lives in the legal and academic community is a testament to their abilities. To force them out of office in this absurdly arbitrary way is nothing short of a national disgrace.

Well the retirement date may be a bit too early, but don't forget the intellectual rigours of being a High Court judge are absolutely extreme. Slipping of mental capability or competency (which is only natural after a certain age) is something we want to avoid.

 

[Rorix]

For the record, Ruddock opposes the retirement age.

 

[MoonlightSonata]

[Edit: ^ Yes I'm sure Ruddock does, he gets to have a large say in appointing them after all!]

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There are other positive aspects of having a cut-off date at an appropriate age as well. Don't forget that in the US, though they have no retirement date, their judges are elected. The executive determines who will be a HC judge in Australia. So it increases the power of PM/AG/Cabinet in putting in place a judge who they think will be in accord with certain lines of thought, because they will be there longer.

Of note, political persuassion does not seem to have any influence in deciding cases in Australia, however there is no doubt that there are differences between hardline/legalist judges vs activists, and conservatives vs progressives, that can be identified by those selecting them.

Heydon J, who is a great legal mind, don't get me wrong, wrote a piece called "Judicial Activism and the Death of the Rule of Law" shortly before he was appointed. Some remarked, rather cynically, that it was his "job application".

Recently Kirby said that the current Hight Court bench was (obviously) far more conservative than the Mason bench, and that if Mabo were to be decided today, the results would probably be very different. That is a clear example where the practical result of appointing certain judges is that there is an impact on outcome - on a particularly political issue of importance to the government as well. I'm sure Mr Howard was steaming when Mabo was handed down.

Even if you are a strict legalist, the same issue applies. If a (for the sake of argument) Labor government comes in and gets to elect judges that are known for judicial activism, they will be there much longer - to the legalists, causing havoc. So it is more power to the executive, no matter who it is that is in power.

 

[ManlyChief]

Well the public concern is that at a certain age range, mental abilities slip and attidudes may become entrenched which keep judges out of touch.

True, yes, but, as I said above, age is not the greatest factor in making a judge (or anyone else) "out of touch" - it is but one of a number of characteristics and I am yet to be persuaded that age is more significant than other factors.

Thanks for the correction about Gaudron.

As for the catch-all idea it has some merits but is it really better to silence ten Gleesons/Gummows/Kirbies in order to ensure one McTiernan does not remain on the bench longer than he/she ought to? I would rather a system which focussed more on the abilities of each judge individually, rather than comdemning him/her to retirement because some of his/her peers do find the strength of their faculties waning.

My greatest problem with the whole issue is this:
We as Australians should look to the Constitution to reflect our values and aspirations as a nation. We believe in the freedom of people to have meaningful employment free from disctimination, most especially when that employment is government employment. Yet the the Constitution entrenches instutionalised discrimination in the High Court. These two things are irreconcilable: either we must accept the legitimacy of discrimination in society (highly unpalatable) or seek to ammend the Constitution, which, to use the expression of the hour, surely is "out of touch" with community expectations on this point.

MoonlightSonata: I like your points on the strain the pressures of the job place on people of tender age, but they just remind me too much of the reasons given for discriminating against women in government employment for me to embrace them.

I feel I am in a decided minority on this point, so I guess I'll have to accept the status quo. Argh!

 

[ManlyChief]

There are other positive aspects of having a cut-off date at an appropriate age as well. Don't forget that in the US, though they have no retirement date, their judges are elected.

Elected inasmuch as Republican-controlled Senate confirming the appointee of the Republican president can be called electing But I get the gist of your point.

The executive determines who will be a HC judge in Australia.

So it increases the power of PM/AG/Cabinet in putting in place a judge who they think will be in accord with certain lines of thought, because they will be there longer.

The length of the judges tenure could still be limited, I am not against allowing a judge to serve a maximum of, say 15 or 20 years on the bench and then be compelled to retire, as this would not be contingent on age, and not discriminatory.

 

[MoonlightSonata]

As for the catch-all idea it has some merits but is it really better to silence ten Gleesons/Gummows/Kirbies in order to ensure one McTiernan does not remain on the bench longer than he/she ought to?

Well you might be right about the very high proportion of capable judges toward that age (and it would have to be a high ratio). But I guess the only way to truly evaluate the benefit of the safeguard is to measure the continuing competency vs age of the judges who are over 70. The problem is, aside from the fact that competency and mental life would be extremely hard to measure, there obviously aren't any HC judges over 70 =/

I would rather a system which focussed more on the abilities of each judge individually, rather than comdemning him/her to retirement because some of his/her peers do find the strength of their faculties waning.

Ideally that would be a good system. But I think practically, how you measure a judge's ongoing competency would be very difficult. Also, considering the independance and power we want our judges to have, they ought not to be removed without a good reason - which means a reasonably stringent test-mechanism to remove them. But then the problem is that subtle slipping dotage which has more profound effects over a long period may not hit the threshold on any one occassion, or indeed on any observable record, to ring the (constitutional or otherwise) removal bell. If you follow me...

My greatest problem with the whole issue is this:
We as Australians should look to the Constitution to reflect our values and aspirations as a nation. We believe in the freedom of people to have meaningful employment free from disctimination, most especially when that employment is government employment. Yet the the Constitution entrenches instutionalised discrimination in the High Court. These two things are irreconcilable: either we must accept the legitimacy of discrimination in society (highly unpalatable) or seek to ammend the Constitution, which, to use the expression of the hour, surely is "out of touch" with community expectations on this point.

Well logically I don't think it is really age discrimination at all. I mean, it applies to any High Court judge because of their age. To say it is discrimination is like saying laws which prevent people from voting until 18 discriminates against under 18s. But the reason is quite simple - they may not be mature enough to vote. Sure some, even most might be mature enough, but the community puts a limit on it.

We have a lot of age limit type laws and regulations. It's not discrimination to say that 14 year olds can't drive. Or if it is discrimination, it is justified. Incidentally, older people when they get to a certain age, have to take driving tests at regular intervals. Is this discrimination too? Or do we not want to have them hit us becaue of poor eyesight? Similarly, we wouldn't want HC judges hitting us with faulty legal work because of slipping mental faculties or senile idiosyncracies either!

I make it sound so common, really I don't mean it that way - I have the greatest respect for all HC judges

MoonlightSonata: I like your points on the strain the pressures of the job place on people of tender age, but they just remind me too much of the reasons given for discriminating against women in government employment for me to embrace them.

Man or women they are going to be feeling the heat in those lovely chambers of theirs!

I feel I am in a decided minority on this point, so I guess I'll have to accept the status quo. Argh!

Being the minority has merits. Someone might pick up your judgment someday... lol

I was the minority over the removal of reputation points... but at least alternative ideas and cocerns are raised

The length of the judges tenure could still be limited, I am not against allowing a judge to serve a maximum of, say 15 or 20 years on the bench and then be compelled to retire, as this would not be contingent on age, and not discriminatory.

I quite like that idea - such a limit would certainly quell my concerns on the length issue

 

[Frigid]

omg you guys. debating the merits of a compulsory judicial retirement age at 2o'clock in the morning - talk abt living life in the abstract!

 

[BillytheFIsh]

Sorry Manly... I'm inclined to support the age retirement provision also.

I'm not sure that 70 is exactly right, but I don't think it's so wrong that you'd be able to get a majority of people in a majority of states to agree to change it.

I understand your point re: age discrimination and yes, forced retirement at a certain age is against discrimination laws, but we’re hardly condemning a former HC judge to a life of pauperism are we?

Even further off-topic: what wage are HC judges on these days? (I guess I could make this on-topic by asking how much Crennan will be on when she starts)

Even further again off-topic: I read something not so long ago about a Judge in the UK going back to the bar and it said they were the only one ever to do that in a common law country. Is that true – or has my memory jumbled the details?

 

[MoonlightSonata]

Even further off-topic: what wage are HC judges on these days? (I guess I could make this on-topic by asking how much Crennan will be on when she starts)

Chief Justice of the High Court: $382,110

Chief Justice of the Family Court and Federal Court: $323,580

"This does not include the value of their pension scheme, travel entitlements or use of private-plated commonwealth cars, which is estimated at more than $20,000 a year." The article also says that "eligible" former HC judges get a pension of around $200,000 a year.

Even further again off-topic: I read something not so long ago about a Judge in the UK going back to the bar and it said they were the only one ever to do that in a common law country. Is that true – or has my memory jumbled the details?

Well Shaw went back to work in private practice... but I suppose that's not to the same

 

[ManlyChief]

I'm not sure that 70 is exactly right, but I don't think it's so wrong that you'd be able to get a majority of people in a majority of states to agree to change it.

That's one thing a can't understand - how could a majority of people in a majority of states in 1977 - the summer o' love, peace and good times - agree to the forced retirement age ammendment?! This seems so wierd because:

(a) the older part of the population (lets say, those born before the war) who comprised the majority surely still had those good old fashioned notions of deference to elders; and

(b) the younger portion of the voting population, even if they were inclined to disagree with the deference to the old and wise, surely they would have seen the measure as unfiar.

Grrr ... I think I better stop tinking about this whole issue and go for a surf - I am starting to obsess about it.

Talking about obsessing about stuff and living in the abstract ... Three nights ago I had the most bizzare dream - I was sitting on the bench of the High Court (not as a judge, just sitting alone in one of the big chairs in my normal clothes) and at the bar table before me were all the great and infamous personalities of Australian legal history - Dixon, Barwick, Murphy, Professor Zeims etc etc - and they were firing questions at me about whether I thought the Tasmanian Dams Case was wrongly decided. It was terrible, I tell you, terrible!

 

[hYperTrOphY]

Talking about obsessing about stuff and living in the abstract ... Three nights ago I had the most bizzare dream - I was sitting on the bench of the High Court (not as a judge, just sitting alone in one of the big chairs in my normal clothes) and at the bar table before me were all the great and infamous personalities of Australian legal history - Dixon, Barwick, Murphy, Professor Zeims etc etc - and they were firing questions at me about whether I thought the Tasmanian Dams Case was wrongly decided. It was terrible, I tell you, terrible!

HAHAHAHA - That's hilarious!!