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The ACT Government leads the way in all matters progressive, right?
Renewable energy? A mile in front of all other jurisdictions.
Gender equality? Big tick.
Age discrimination? Fail.
The ACT’s magistrates are the victims of mandatory sentencing.
They must quit when they hit 65.
In NSW and Tasmania, magistrates run to 72; in Victoria, the Northern Territory, Queensland and South Australia it’s 70.
Only Western Australia shares a statutory age of senility of 65.
But both WA and the ACT allow “acting magistrates” (WA) or “special magistrates” (ACT) to sit until 70.
Special magistrates have included at least one long-serving, full-time magistrate who retired and pretty promptly was brought back on the bench by the Government.
So, what’s the problem in tidying up the statute book and having them all sit to 70 (or beyond) in the first place?
Judges, of course, can go the full three score and 10 everywhere in the nation, and to 72 in some jurisdictions.
What’s holding us back here?
It is said that the ACT Government, in a previous incarnation, did not rate a higher magisterial retiring age as “a priority” but a new Attorney might take a fresh look.
What would it take?
Section 7D of the Magistrates Court Act, provides, “A magistrate is appointed for the term ending when the magistrate turns 65 years old. A person who is at least 65 years old must not be appointed as a magistrate.”
How about a Bill in the Parliament that amends “65” to “70”? Or deletes the Section altogether?
Not too difficult.
The NSW Bar Association is urging that the judicial retirement age be lifted to 75, with president Arthur Moses SC telling Fairfax Media in August that it would stem the loss of judges “who would otherwise have had the capacity to continue to make significant contributions to the development of the law”.
The state’s Attorney-General Mark Speakman pledged to look with interest on the proposal and shadow attorney Paul Lynch declared himself “supportive in principle”.
The age limit on judges and magistrates is not ancient writ.
There was no stopping High Court judges on age grounds until a 1977 referendum brought in the 70-year cut-off.
What had prevailed to that time was the High Court’s own interpretation of Section 72 of the Constitution, as outlined in a 1918 judgment, Alexander’s case, in which Chief Justice Griffiths said the Section required that “the tenure of all Federal Judges be for life, subject to the power of removal”. Any contrary argument was “completely untenable”, according to Justices Barton and Higgins.
What prompted the change at referendum?
It was an occasion when parliamentarians and judges actually came face to face, when Justice Sir Edward McTiernan, as Acting Chief Justice, was called upon to swear in new Senators.
Sir Edward is said to have retired reluctantly at the age of 84 in 1976, after just under 46 years on the High Court.
Senior Lecturer Alysia Blackham, writing in Melbourne University Law Review’s 2015-16 volume, noted the history of Alexander’s case and how Justice McTiernan became the catalyst for change in the 1970s.
She quoted former High Court Justice Michael Kirby: “The Members of Parliament, who rarely saw the justices of the High Court in those itinerant days [before the Court got its permanent home by Lake Burley Griffin], were uniformly shocked at McTiernan’s great age and apparent feebleness. It was the sight of the octogenarian which encouraged the bipartisan support for the amendment of the Constitution providing for the compulsory retirement of federal judges.… Henceforth there would be no more life appointments.”
While the Constitution was changed to put on an age limit, the rest of the world has of course been going in the other direction.
We have a Future Fund and much government time and energy goes into working out ways to provide for the exploding numbers of senior Australians. The Rudd Government took the first tentative steps at actually suggesting we all needed to keep working just a little longer.
The life expectancy of Australian men in 1976 (when Justice McTiernan retired) was already around 70. It’s now closer to 80.
There are mechanisms to remove judges or magistrates for “proven incapacity”.
If we can’t do away with a judicial clock nationwide, given the difficulty of changing anything in the Constitution, it’s certainly time to reset the one operating for ACT magistrates.
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