Judicial Independence And Impartiality Analysis

Judicial independence and impartiality are foundational and crucial requirements in the maintenance of the rule of law in a parliamentary democracy. To an admirable extent the federal courts of the Australian judicial system remain free from external influence. Indeed, ‘basic structural and operational relationships between the judicial and Executive branches of government’ attempt to ensure that the federal judiciary is autonomous and free from prejudice. Hayne, Crennan, Kiefel and Bell JJ of the High Court of Australia believe ‘independence and impartiality are defining characteristics of all the courts of the Australian judicial system.’ Whilst this may be a definite possibility for the federal jurisdiction, the state courts have inadequate structural assurances to operate under complete autonomy or impartiality and thus the statement cannot be regarded as true.

There can be no doubt that judicial independence and impartiality are supposed to be defining characteristics of the courts in the Australian judicial system. The judicature in Australia should largely remain free from all external influences, particularly the Executive branch, as ‘judicial independence… exists to serve and protect not the governors but the governed.’ Indeed, in a parliamentary democracy based on the rule of law ‘as former Chief Justice Gleeson observed, “the independence of judicial officers is a right of the citizens over who they exercise control.”’ The democratic nature of Australian society and doctrine of the separation of powers theoretically pertains to an independent and impartial judiciary. As Sir Gerard Brennan states, ‘the reason why judicial independence is of such public importance is that a free society exists only so lon...

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...f judgement’ state courts which require resources could nonetheless ‘prove more likely to be subject to subtle pressures’ and act at the dictation of the Executive. While arbitrary dismissal of state justices is uncommon and external dictation is not often evident, the ‘subtle ways judicial independence may be eroded’ have yet to be rectified.

‘Judicial independence is the priceless possession of any country under the rule of law’ and the Australian judicial system is currently failing in the establishment and maintenance of independence and impartiality as a defining characteristic of all of the courts. While federal jurisdictions are protected under s 72 of the Australian Constitution, state jurisdictions require equal structural safeguards so that the implicit influence of the Executive branch does not impede on judicial application of the rule of law.