Judicial Accountability in Australia

It used to be said that a judge of the common law was accountable only to the law and to the judge’s conscience. This was an aphorism designed to emphasise the essential attributes of the judicial function. Nowadays, those attributes would commonly be expressed in terms of the basic principles contained in international expressions of fundamental human rights. Thus the International Covenant on Civil and Political Rights1 identifies the three indispensable attributes of judicial office: competence, independence and impartiality. The judge, as citizen, is subject to the ordinary laws of the land. It is law that governs the appointment of judges to their offices.2 The law will also define the circumstances in which a judge may be removed from office. Since the Act of Settlement of 1701, first in England and, after the colonial period in most countries of the Commonwealth of Nations, such removal can only occur following a parliamentary vote finding proved misconduct or incapacity against the judge.3 The law also governs conduct by a judge in the performance of the judicial office. From beginning to end, whether the end be by retirement, death in office or extraordinary removal, a judge is surrounded by law. Save for the judges of the highest courts sitting in appeals, from whose judgments there is no appeal, a judge is, by law, accountable through the appellate process4 and, in the case of judges of inferior courts (or officers of the Commonwealth under the Australian Constitution5) through judicial review. Legal Ethics, Volume 6, No.1