1977 Australian referendum (Retirement of judges)

Last updated

Australian Judge Retirement Age referendum, 1977
Flag of Australia (converted).svg
21 May 1977 (1977-05-21)

It is proposed to alter the Constitution so as to provide for retiring ages for judges of federal courts.

Do you approve of the proposed law?
Results
Choice
Votes %
Check-71-128-204-brightblue.svgYes5,980,39480.10%
Light brown x.svgNo1,485,57419.90%
Valid votes7,465,96898.16%
Invalid or blank votes139,9141.84%
Total votes7,605,882100.00%
Registered voters/turnout8,242,38392.28%

The Constitution Alteration (Retirement of Judges) Bill 1977 was a successful proposal to alter the Australian Constitution to introduce a retirement age of 70 for federal judges. [1] It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977. [2]

Contents

As of 2023 it is the most recent referendum in Australia that has led to the successful modification of the Constitution.

Question

It is proposed to alter the Constitution so as to provide for retiring ages for judges of federal courts.

Do you approve the proposed law?

Changes to the text of the constitution

The proposal was to add the following paragraphs at the end of section 72.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.
Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.
A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.
Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. [3]

Results

Result [4]
StateElectoral rollBallots issuedForAgainstInformal
Vote %Vote %
New South Wales3,007,5112,774,3882,316,99984.84414,07015.1643,319
Victoria2,252,8312,083,1361,659,27381.43378,50518.5745,358
Queensland1,241,4261,138,842734,18365.24391,22734.7613,432
South Australia799,243745,990622,76085.57104,98714.4318,243
Western Australia682,291617,463472,22878.37130,30721.6314,928
Tasmania259,081246,063174,95172.4666,47827.544,634
Total for Commonwealth8,242,3837,605,8825,980,39480.101,485,57419.90139,914
ResultsObtained majority in all six States and an overall majority of 4,494,820 votes.Carried

Discussion

In October 1976 the Senate Standing Committee on Constitutional and Legal Affairs recommended a retiring age for all federal judges. This recommendation was based on

The committee's view was accepted by the Australian Constitutional Convention soon thereafter.

The amendment introduced in the following year sought to provide for a retiring age of 70 for all federal court judges, including those on the High Court. The issue was not controversial, despite Sir Robert Menzies' description of the change as 'superficial and ill-considered'. Over 80 per cent of voters supported the amendment.

The amendment applied prospectively, meaning the tenure of those High Court and Federal judges appointed prior to the referendum were unaffected. Of the serving High Court judges, only Sir Garfield Barwick made use of his original tenure, retiring in 1981 at the age of 77. The remaining judges either retired, resigned, or died, with the exception of Sir Harry Gibbs and Sir Anthony Mason, who were appointed Chief Justice and thus lost their right to the original life tenure. Several Federal judges made use of their original tenure, with judges of the Australian Industrial Court Sir Percy Joske retiring on 31 December 1977 aged 82, [5] and Edward Dunphy retiring on 31 December 1982 aged 75. Five Federal Court judges did not retire at age 70, Sir Nigel Bowen (1990), aged 79, Sir John Nimmo (1980) aged 71, Sir Reginald Smithers (1986) aged 83, Charles Sweeney (1995) aged 80 and Ray Northrop (1998) aged 73.

Related Research Articles

<span class="mw-page-title-main">High Court of Australia</span> Apex court of Australia

The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation.

<span class="mw-page-title-main">Chief Justice of India</span> Presiding judge of the Supreme Court of India

The chief justice of India is the highest-ranking officer of the Indian judiciary and the chief judge of the Supreme Court of India. The Constitution of India grants power to the President of India to appoint, as recommended by outgoing chief justice in consultation with other judges as envisaged in Article 124 (2) of the Constitution, the next chief justice, who will serve until they reach the age of 65 or are removed by the constitutional process of impeachment.

Sir Harry Talbot Gibbs was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist judges although he presided over the High Court when decisions such as Koowarta v Bjelke-Petersen in 1982 and Commonwealth v Tasmania expanded the powers of the Commonwealth at the expense of the states. Gibbs dissented from the majority verdict in both cases. On 3 August 2012, the Supreme Court of Queensland Library opened the Sir Harry Gibbs Legal Heritage Centre. It is the only legal heritage museum of its kind in Queensland and features a permanent exhibition dedicated to the life and legacy of Sir Harry Gibbs.

<span class="mw-page-title-main">1967 Australian referendum (Aboriginals)</span> 1967 constitutional referendum on the legal status of Indigenous Australians

The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt government, related to Indigenous Australians. Voters were asked whether to give the Commonwealth Parliament the power to make special laws for Indigenous Australians in states, and whether Indigenous Australians should be included in official population counts for constitutional purposes. The term "the Aboriginal Race" was used in the question.

The Constitution Alteration Bill 1977, was a successful proposal to alter the Australian Constitution concerning the filling of casual vacancies in the Senate. It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977.

<span class="mw-page-title-main">Edward McTiernan</span> Australian politician

Sir Edward Aloysius McTiernan, KBE, was an Australian lawyer, politician, and judge. He served on the High Court of Australia from 1930 to 1976, the longest-serving judge in the court's history.

The Inter-State Commission, or Interstate Commission, is a defunct constitutional body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade. The Commission was established in 1912, became dormant in 1920, was abolished in 1950, re-established in 1983, and absorbed into the Industry Commission in 1989.

In Australian constitutional law, chapter III courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in chapter III of the Australian Constitution.

The Fifth Amendment to the Constitution of Pakistan was adopted on September 5, 1976, by the elected Parliament of Pakistan under the democratic government of Zulfikar Ali Bhutto.

<span class="mw-page-title-main">Judicial officers of the Republic of Singapore</span>

The judicial officers of the Republic of Singapore work in the Supreme Court and the State Courts to hear and determine disputes between litigants in civil cases and, in criminal matters, to determine the liability of accused persons and their sentences if they are convicted.

<span class="mw-page-title-main">Constitution of Australia</span> Supreme law of Australia

The Constitution of Australia is the fundamental law that governs the political structure of Australia. It is a written constitution, that establishes the country as a federation under a constitutional monarchy governed with a parliamentary system. Its eight chapters sets down the structure and powers of the three constituent parts of the federal level of government: the Parliament, the executive government and the judicature.

The chief justice of the Democratic Socialist Republic of Sri Lanka is the head of the judiciary of Sri Lanka and the Supreme Court of Sri Lanka. Established in 1801, the chief justice is one of ten Supreme Court justices; the other nine are the puisne justices of the Supreme Court of Sri Lanka. The post was created in 1801. The chief justice is nominated by the Constitutional Council, and appointed by the president. The first chief justice was Codrington Edmund Carrington. The 47th and current chief justice is Jayantha Jayasuriya.

<span class="mw-page-title-main">Chief Justice of Australia</span> Presiding justice of the High Court of Australia

The chief justice of Australia is the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia. The incumbent is Stephen Gageler, since 6 November 2023.

<span class="mw-page-title-main">Constitution of South Australia</span> Australian state constitution

The principles of the current Constitution of South Australia, also known as the South Australian Constitution, which includes the rules and procedures for the government of the State of South Australia, are set out in the Constitution Act 1934. Its long title is "An Act to provide for the Constitution of the State; and for other purposes".

<span class="mw-page-title-main">Constitution of Barbados</span> Supreme law of Barbados

The Constitution of Barbados is the supreme law under which Barbados is governed. The Constitution provides a legal establishment of the Government of Barbados, as well as legal rights and responsibilities of the public and various other government officers. The Constitution which came into force in 1966 was amended in 1974, 1980, 1981, 1985, 1989, 1990, 1992, 1995, 2000, 2002, 2003, 2005, 2007, 2009, 2010, 2018, 2019, 2020 and 2021. The 1966 document succeeds several other documents concerning administration of Barbados. One of them, the Barbados Charter, is discussed in the present Constitution's Preamble. Prior statutes were created for the administration of Barbados as a colony. As a former English and later British colony, the Constitution is similar to those of other former Commonwealth realms, yet distinctly different in the spirit of the Statute of Westminster.

The Twelfth Amendment to the Constitution of Pakistan was passed by the Parliament on 28 July 1991. The bill established Special Courts for the trial of heinous offenses. It also raised the salaries of the judges of the Supreme Court and the High Courts.

<i>Waterside Workers Federation of Australia v J W Alexander Ltd</i> 1918 judgement in Australian law

Waterside Workers' Federation of Australia v J W Alexander Ltd is a landmark Australian judgment of the High Court made in 1918 regarding judicial power of the Commonwealth which established that Chapter III of the Constitution required judges to be appointed for life to a specific court, subject only to the removal provisions in the constitution. The majority of the High Court held that because the President of the Commonwealth Court of Conciliation and Arbitration was appointed for seven years and not life as required by s 72 of the Constitution, the Arbitration Court could not exercise judicial powers of the Commonwealth.

<span class="mw-page-title-main">Commonwealth Industrial Court</span> Former Court of Australia, replaced by the Federal Court of Australia

The Commonwealth Industrial Court, known as the Australian Industrial Court from 1973, was a specialist court to deal with industrial matters, principally the enforcement of awards and orders of the Commonwealth Conciliation and Arbitration Commission. Over time it took on more matters and its judges were allocated a wide range of judicial tasks until it was replaced in 1977 by the Federal Court of Australia which had a more general jurisdiction covering matters arising under Australian federal law.

<span class="mw-page-title-main">Section 99 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 99 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the tenure and retirement age of the provincial superior court judges in Canada.

References

  1. Australian Electoral Commission (2011). "Referendum dates and results 1906 - present". Australian Electoral Commission. Retrieved 25 September 2012.
  2. Commonwealth of Australia. "Commonwealth of Australia Constitution Act Amendment to Section 72, page 15" . Retrieved 25 September 2012.
  3. Constitution Alteration (Retirement of Judges) 1977 via Federal Register of Legislation
  4. Handbook of the 44th Parliament (2014) "Part 5 - Referendums and Plebiscites - Referendum results". Parliamentary Library of Australia.
  5. Horner, J (2007). "Joske, Sir Percy Ernest (1895–1981)". Australian Dictionary of Biography . Canberra: National Centre of Biography, Australian National University. ISBN   978-0-522-84459-7. ISSN   1833-7538. OCLC   70677943 . Retrieved 7 December 2018.

 

Amendments to the Constitution of Australia
5th amendment (1910) Senate Vacancies Amendment
Referendum amendment
Retirement of Judges amendment

1977
Most recent amendments