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Judicial Independence in Australia: Contemporary Challenges, Future Directions

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Judicial Independence in Australia: Contemporary Challenges, Future Directions BOOK REVIEWS Tom Hughes QC: A Cab on the Rank Sessions and District Court when he first approximately $5,000 per year). In 1973, Hughes’ personality which appears to started out and remembered having his when Hughes was president of the New be undisputed is that despite his abiding ears 'boxed' a few times when appearing South Wales Bar Association, there were success at the bar, he never got over the against senior juniors. He reflected that 562 practising barristers in New South (unfounded) fear that he would not have nowadays, junior barristers spend much Wales, almost three-quarters of whom enough work, a fact which may both less time on their feet whereas he had the had chambers on Phillip St, compared comfort and trouble members of the bar. benefit of learning by trial and error and with over 2000 today. Ian Hancock is to be commended for being forced to live with his mistakes. Hancock does not attempt to provide an entertaining, thorough and well- When Hughes returned to the bar after his own assessment of Hughes as a researched portrait of one of the bar’s retiring from politics in 1971, a single person, barrister or politician. He greats. room on 11th floor Selborne Chambers allows Hughes’ diary entries, letters, Reviewed by Victoria Brigden cost $8,500 (at a time when the average interviews and the opinions of others Australian male full-time earnings were to speak for themselves. One aspect of Judicial Independence in Australia: Contemporary Challenges, Future Directions By Rebecca Ananian-Welsh and Jonathan Crowe (eds) | Federation Press | 2016 last century. But there are other, less depending on mood or interest. elucidated but equally important aspects Sir Anthony Mason opens the book of judicial independence that creep under with a look at contemporary challenges the radar: court-funding, extra-judicial to judicial independence in Australia. activities like vice-regal and academic Amongst many topics, Sir Anthony posts, the use of social media by judges, considers the Hon Dyson Heydon’s lawyers and counsel, and diversity in the controversial article ‘Threats to Judicial judiciary. This book tackles all of these Independence’, in which Heydon subjects, and so it ranges from abstract, considered the negative impact an philosophical inquiry (see the chapters on overbearing judge could have on judicial ‘Conceptualising Judicial Independence’ independence in a multi-member court, in Part I and on Kable and ‘Institutional identifying Lord Diplock as one. Sir Integrity’ in Part III) to practical and Anthony suggests Heydon had in mind at empirical analysis of current social trends least one High Court colleague too. (see, for example, Part VI on ‘Courts in Social Context’). Six parts then follow, each with two or three chapters conceptualising divergent The Centre for Public, International aspects of judicial independence. Part I and Comparative Law at the T C Beirne tackles the philosophy of the separation School of Law at the University of In the introduction, the editors Rebecca of powers. Emeritus Professor of Public Queensland hosted a conference in July Ananian-Welsh and Jonathan Crowe, Law at the University of Queensland, Suri 2015, and most of the essays spring from do a quick run-down on High Court Ratnapala provides an overview of two papers presented there. The content is cases dealing with judicial independence, theses of the separation of powers – the fascinating; the breadth of subject matter from the not-so-recent Huddart, Parker diffusion and methodological theses – and 1 all-encompassing. While none of the & Co Pty Ltd v Moorehead, through to concludes the principle of the separation 2 3 4 reading is light, some is more demanding, Brandy, Kable, and Re Wakim. These of powers does not promote the rule giving the book a flexible range, which are some of the high profile cases of the of law and liberty of citizens without allows the reader to pick and choose [2016] (Spring) Bar News 74 Bar News : The Journal of the New South Wales Bar Association BOOK REVIEWS Judicial Independence in Australia: Contemporary Challenges, Future Directions further restraints concerning its manner illuminating chapter by David Tomkins independence of High Court Justices such of exercise. Professor Jonathan Crowe and and Katherine Lindsay titled ‘The as Heydon and Gageler strengthens the Emeritus Professor HP Lee follow with Judicial Scholar and the Scholarly judge: institutional independence of the High chapters on human fallibility and the Extra-Curial Writing and Intellectual Court. separation of powers, and international Independence on the High Court’, in Part V is dedicated to ‘Extra-judicial comparisons of judicial independence. which the authors use case studies of the Activities’, with chapters by the Hon Honourable Dyson Heydon - a ‘judicial Part II of the book is concerned with Justice Martin Daubney on ‘Extra-Judicial scholar’ - and Justice Stephen Gageler - ‘Judicial Appointments and Tenure’, Activities and Judicial Independence’ and the ‘scholarly judge’ – to consider how and includes a chapter by Professor by Rebecca Ananian-Welsh and Professor extra-curial writing can be a source for Heather Douglas and Francesca Bartlett George Williams on ‘State Judges as evaluating the intellectual landscape of titled ‘Practice and Persuasion: Women, Lieutenant Governors’. judges. Feminism and Judicial Diversity’, which Part VI relates to ‘Courts in Social explores the research findings of the The authors give a lengthy account of Contexts’, and includes a chapter by Pro Australian Feminist Judgments Project, the contrast in academic and professional Vice-Chancellor John M Williams and in which 41 women decision makers backgrounds reflecting the old and another by Rebecca Ananian-Welsh. It identified as feminist were interviewed new world, or the Oxford/Harvard also includes a chapter on ‘Social Media as to whether feminism influenced their divide: Heydon’s postgraduate study and and the Judiciary: A Challenge to Judicial decision making. academic post at Oxford, his Honour’s Independence’, by Alysia Blackham ‘Judicial Activism and Death of the Rule Part III of the book is dedicated to Kable and Professor George Williams, which of Law’ speech at the Quadrant Dinner and titled ‘Institutional Integrity’. In a considers the effect on perceptions in October 2002, his lone judgments fascinating chapter titled ‘Comparative of judges’ independence as a result of in his last term on the High Court, and Constitutional Law and the Kable the use by courts of applications like his praise for many characteristics of Doctrine’, Professor Rosalind Dixon Twitter and Facebook – applications Windeyer J, including, amongst others, and Melissa Vogt consider whether that, unlike television and other historic his ‘considerable distinction of style’ and comparative constitutional experience forms of media, are different essentially familiarity with the words of Thomas may help to develop objective guideposts because they facilitate participation and Cranmer, the Authorised Version of the for the application of the Kable doctrine. interaction. Bible and the classics of English literature. The authors suggest that decisions And with respect to Justice Gageler, his The book is a nuanced and exciting since Kable have left courts to make frequent forays into scholarly research treatise on the abundant issues relating considerable evaluative judgments on a and law journal publication, during his to judicial independence in Australia: it case-by-case basis. For the authors, judges time as Frank Knox Memorial Scholar at would be well loved by practitioners. would be well-off in first pointing to Harvard and while on the teaching staff some transnational comparative support – Reviewed by Charles Gregory at ANU, his first sole authored article ‘transnational anchoring’ - before making Endnotes in the Federal Law Review in 1987 on open-ended evaluative judgments. The 1. (1909) 8 CLR 330. the subject of Australian federalism and authors analyse how an application 2. Brandy v Human Rights and Equal judicial review, and his return following Opportunity Commission (1995) 183 CLR of transnational anchoring may have 245. 5 6 his appointment as senior counsel to played out in Momcilovic, Pollentine, 3. Kable v Director of Public Prosecutions (NSW) judicial review of administrative action Totani,7 and Wainohau.8 PhD candidate (1996) 189 CLR 51. in a presentation at a colloquium in 4. Constance Youngwan Lee and Associate Re Wakim; Ex parte McNally (1999) 198 CLR honour of Sir Anthony Mason, and his 511. Professor Gabrielle Appleby round out 5. Momcilovic v The Queen (2011) 245 CLR 1 recent co-authoring with Brendan Lim this part of the book with chapters titled 6. Pollentine v Attorney-General (Qld) (2014) of a paper on decision making procedure ‘Constitutional Silences and Institutional 253 CLR 629. in common law courts, the impetus for 7. South Australia v Totani (2010) 242 CLR 1 Integrity’ and ‘Institutional Costs of which was a 1947 publication by GW 8. Wainohau v New South Wales (2011) 243 Judicial Independence’ respectively. CLR 181. Paton and G Sawer on ‘Ratio Decidendi Part IV is concerned with judicial and Obiter Dictum in Appellate Courts’. reasoning and rhetoric. It includes an The authors conclude that the intellectual Bar News : The Journal of the New South Wales Bar Association [2016] (Spring) Bar News 75 .
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