This project concerns the constitutional and operational aspects of the Australian court system and its judges. The project currently has three areas of focus:
- the decision-making processes of appellate courts, particularly the High Court;
- judicial appointments, complaints-handling and removal; and
- the consequences of judicial independence protections.
The decision-making processes of appellate courts
The project explores the way in which appellate courts function through collective decision-making processes while also accommodating each individual Justice’s independence. Much of the research conducted by Andrew Lynch in the project looks at the contribution of judicial disagreement to the development of the law and its impact upon institutional reputation. Dissent is a focus because it makes apparent the contestable nature of law and the opportunities for judicial choice, particularly in constitutional adjudication.
As part of this larger focus, since 2003, Andrew Lynch and George Williams have produced annual statistics on the judgment delivery patterns of the High Court as an institution and its individual members, both generally and in constitutional matters. The empirical surveys in this series aim to supplement traditional scholarly and professional analysis of the substance of the Court’s legal decisions, while also improving public understanding of it as a multimember decision-making institution that is both the third arm of the national government and the final court of appeal from the State judicial systems.
Appointment, Complaints-Handling and Removal
The project has also undertaken research into systems for judicial appointment and complaints handling for both misconduct and incapacity. The project provides expert submissions to governments and Parliaments considering reform in these areas:
- Consultation on Establishment of Judicial Conduct Commissioner by the South Australian Attorney-General’s Department
- Inquiry into Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and Courts Legislation Amendment (Judicial Complaints) Bill 2012, Senate Legal and Constitutional Affairs Committee, 2012; and
- Inquiry into Australia’s Judicial System, the Role of Judges and Access to Justice, Senate Standing Committee on Legal and Constitutional Affairs, 2009
Much of this research considers the development of a more transparent and consultative process of appointing persons to the ranks of the judiciary. It has also explored issues around the most appropriate system for handling and resolving complaints against judicial officers for misconduct or incapacity that fosters judicial integrity without undermining judicial independence.
Examining the consequences of judicial independence protections
Since 2015, the Judiciary Project has co-hosted Law, Order and Federalism, a research project funded through ARC Discovery Grant (DP 140101218). This research project is led by Associate Professor James Stellios (ANU), Professor John Williams (University of Adelaide) and Associate Professor Gabrielle Appleby (UNSW). The research examines the development of the High Court’s Chapter III case law emphasising the constitutional imperatives of judicial independence and impartiality in State court systems. These developments provide minimum human rights protections to individuals confronting criminal justice in the States. This research considers the unexplored costs of these developments. Through an extensive qualitative study of State law-makers and their advisers, it investigates the uncertainty of the constitutional restrictions confronting State governments when responding to law and order priorities, and the extent to which these have led to the frustration of policy development and experimentation with court systems. Law, Order and Federalism is funded until 2016.
The Judiciary Project provides resources on judicial appointment, complaints handling and removal here.
National Archives of Australia: A8746, KN16/2/87/3