The structure of the New South Wales Judiciary The judiciary is made up of independent judges; appointed to a hierarchical system of courts 1, the highest in New South Wales being the Supreme Court 2. There are also a series of federal courts with jurisdiction in New South Wales. The High Court of Australia 3 has been established as the highest court for the whole of Australia. (Click here to view the ceremony of the appointment of Chief Justice of the Supreme Court of New South Wales.) The judiciary is one of the three branches of government. The other two are the executive and the legislature. Each of these branches of government therefore has separate functions and is, to some extent at least, separate from each other. But each one is also linked with the other two, having some powers over the others, just as the other branches have some power over it. No one branch controls all the power in a democratic system. We refer to this as 'The doctrine of the separation of powers'. The objective of separation of powers is to develop mechanisms to prevent power being overly concentrated in one arm of government.4The legislature 5 makes the laws; the executive 6 put the laws into operation; and the judiciary 7 interprets the laws. The powers and functions of each are separate and carried out by separate people. No single agency is able to exercise complete authority, each being interdependent on the other. Power divided like this should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights. However, since the ministry (executive) is drawn from and responsible to the parliament (legislature) there is a great deal of interconnection in both personnel and actions. The separation of the judiciary is more distinct. In New South Wales, the issue of judicial independence was recently raised in a rare Australian instance of a legislature exercising scrutiny over a judge. The power of removal of a judge in New South Wales lies with the Governor on parliamentary recommendation, the possible grounds being proved misbehaviour or incapacity. Under the Constitution the government has the right to appoint and remove judges. The Judicial Officers Act 1986 8 updated in 2001 relates to the tenure of judicial office, judicial education and the forming of a Judicial Commission of New South Wales which provides for the examination of complaints against Judges and other judicial officers; their suspension, removal and retirement in certain circumstances; and for other purposes. In 1998 the Judicial Commission recommended parliament consider removal of a Supreme Court Judge on the grounds of incapacity. In the Court of Appeal the Judge, Justice Bruce, argued that this contradicted the concept of the independence of the judiciary. The Court of Appeal 9 agreed that, despite the lack of any formal separation of powers in the New South Wales Constitution, the Commonwealth Constitution did significantly restrain parliamentary interference with the judiciary. Nevertheless, the court held that nothing had occurred that would impinge on the integrity of the judicial system and that parliament could consider the case. Justice Bruce appeared before the Legislative Council which ultimately did not recommend removal. |
____________________________________________ New
South Wales Parliament http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/PHPages/SystemofGovernmentCourtsTheJudiciary? Lawlink
NSW http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/index High
Court of Australia http://www.hcourt.gov.au/index.html New
South Wales Parliament http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/PHPages/SystemofGovernmentADemocraticSystem? New
South Wales Parliament Australasian
Legal Information Institute http://www.austlii.edu.au/au/legis/nsw/consol_act/joa1986155/ NSW
Attorney-General http://www.agd.nsw.gov.au/sc/sc.nsf/pages/whoweare_index http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/PHPages/SystemofGovernmentADemocraticSystem?OpenDocument Dated viewed 27 November 2002 Author: New South Wales Parliament ____________________________________________ |
