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Temporary Judicial Officers in Australia

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Temporary Judicial Officers in Australia Temporary Judicial Officers in Australia A Report Commissioned by the Judicial Conference of Australia May 2017 Associate Professor Gabrielle Appleby University of New South Wales Associate Professor Suzanne Le Mire University of Adelaide Professor Andrew Lynch University of New South Wales Professor Brian Opeskin University of Technology Sydney Corresponding author: Andrew Lynch <[email protected]> Temporary Judicial Officers in Australia TABLE OF CONTENTS Terms of Reference .............................................................................................. iv 1. Introduction .................................................................................................... 1 2. Legislative Overview of Temporary Judicial Officers .................................... 3 2.1 Introduction ............................................................................................... 3 2.2 Appointment............................................................................................... 4 2.3 Eligibility .................................................................................................... 5 2.4 Duration of term ......................................................................................... 8 2.5 Renewal ...................................................................................................... 9 2.6 Mandatory retirement age ........................................................................ 10 2.7 Outside work ............................................................................................ 11 2.8 Salary ....................................................................................................... 13 2.9 Pension arrangements .............................................................................. 14 2.10 Security of tenure .................................................................................. 15 3. Temporary Judicial Officers: Justifications and Concerns ........................ 18 3.1 Overview ................................................................................................... 18 3.2 Justifications for appointment of Temporary Judicial Officers .................. 19 3.2.1 Workload and cost-saving .................................................................. 19 3.2.2 Avoidance of conflicts of interest ........................................................ 20 3.2.3 Importing expertise ............................................................................ 21 3.2.4 Retention of talented retirees ............................................................. 22 3.2.5 Testing the suitability of potential appointees .................................... 23 3.2.6 Judicial exchange .............................................................................. 23 3.3 Concerns raised by appointment of Temporary Judicial Officers .............. 25 3.3.1 Separation of powers and judicial independence ................................ 25 3.3.2 Funding and efficiency ....................................................................... 30 3.3.3 Ethical concerns ................................................................................ 30 3.3.4 Competency ....................................................................................... 31 3.3.5 Capacity ............................................................................................. 32 3.3.6 Impeding turnover.............................................................................. 32 4. Empirical Analysis of Temporary Judicial Officers ..................................... 33 4.1 Desirability of data ................................................................................... 33 4.2 Data collection and analysis ..................................................................... 33 4.3 Number of Temporary Judicial Officers .................................................... 35 4.4 Ratio of Temporary Judicial Officers to Permanent Judicial Officers ......... 37 4.5 Days of service ......................................................................................... 40 4.6 Duration of temporary commissions ......................................................... 42 i Temporary Judicial Officers in Australia 4.7 Age of Temporary Judicial Officers ........................................................... 43 4.8 Prior permanent commissions .................................................................. 45 4.9 Prior temporary commissions ................................................................... 47 4.10 Case allocation of Temporary Judicial Officers ...................................... 48 5. Evaluating Temporary Judicial Officers ................................................... 50 5.1 Threshold Matters .................................................................................... 50 5.1.1 Quantitative restrictions .................................................................... 50 5.1.2 Transparency through ongoing reporting ........................................... 51 5.2 Appointment and judicial independence ................................................... 51 5.2.1 Restriction to former Permanent Judicial Officers .............................. 52 5.2.2 Prohibition on reappointment of Temporary Judicial Officers ............. 53 5.2.3 The justification for and term of Temporary Judicial Officers ............. 53 5.2.4 Transparency of appointments ........................................................... 55 5.2.5 Role of Head of Jurisdiction in appointments ..................................... 55 5.3 Performance and remuneration ................................................................ 56 5.3.1 Outside employment and activities ..................................................... 56 5.3.2 Disciplinary processes ........................................................................ 57 5.3.3 Provision of education, training and support ...................................... 58 5.3.4 Competency ....................................................................................... 59 5.3.5 Age and capacity ................................................................................ 59 5.3.6 Transparent allocation of cases .......................................................... 60 5.3.7 Remuneration .................................................................................... 61 5.4 Termination and pension .......................................................................... 62 5.4.1 Security of tenure during appointment ............................................... 62 5.4.2 Service contribution to pension scheme ............................................. 62 5.4.3 Interaction between salary and pension ............................................. 63 6. A Common Retirement Age .......................................................................... 65 6.1 Overview of Existing Arrangements .......................................................... 65 6.1.1 Mandatory judicial retirement ............................................................ 65 6.1.2 The age limit upon mandatory judicial retirement .............................. 67 6.2 A Case for Uniformity? ............................................................................. 69 6.2.1 Between courts within a jurisdiction .................................................. 70 6.2.2 Between jurisdictions ......................................................................... 73 6.3 Impact on use and availability of Temporary Judicial Officers .................. 76 Schedule 1: Temporary Judicial Officers: Table of Legislation ....................... 79 Schedule 2: Judicial Survey Data ..................................................................... 83 A Perspectives on Acting Judges ..................................................................... 83 B Perspectives on Capacity Testing ................................................................. 87 ii Temporary Judicial Officers in Australia C Perspectives on Mandatory Retirement Ages ................................................ 89 Schedule 3 Temporary Judicial Officers in Overseas Jurisdictions .............. 91 A New Zealand ................................................................................................ 91 B United Kingdom ........................................................................................... 93 C United States (federal judges) ...................................................................... 94 iii Temporary Judicial Officers in Australia Terms of Reference That you prepare a paper which provides background information and considers policy issues in regard to: 1. The issues involved in: • the appointment of retired judicial officers, as either acting, temporary, part- time or reserve judges • the renewal of such appointments • the allocation of these judges to cases. 2. Whether there should be a maximum age at which a judicial officer could act as an acting, temporary, part-time or reserve judge. 3. Whether the qualification for such an appointment should be restricted to former judicial officers and, if not, the qualification for such an appointment by a person who is not a retired judicial officer and the conditions upon which those appointments are made. 4. A full consideration of the policy implications of having a common retirement age for judicial officers across jurisdictions and levels of courts, in particular how a common retirement age would impact upon the use and availability
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