Judge Graham Bell of the Family Court of Australia retired on 20 February 2015, at the age of 78. Appointed in 1976, he took office before the 1977 constitutional referendum that introduced compulsory judicial retirement at age 70 for all members of the Australian federal judiciary.
Upon retiring, Judge Bell said: “These days 70 is equal to 60 or 55. Judges should be able to go on till 80 provided they pass a medical inspection. After all, the pension makes judges pretty expensive creatures in retirement. They are sent out to pasture too early.”
Are judges “sent out to pasture” too early? What is the alternative to using judicial retirement ages? And what would happen if we were to remove retirement ages for judges in Australia?
The current rules
All federal Australian judges are subject to a retirement age of 70, which is provided for in Section 72 of the Australian Constitution. Section 72 does not generally apply to state or territory courts.
There is therefore more scope to vary retirement ages in the states and territories. As it happens, all states and territories impose a retirement age for their judges, with retirement ages ranging between ages 65 and 72.
Why should we be worried about judicial retirement ages?
There are two key reasons why judicial retirement ages need to be reassessed. First, the arguments in favour of judicial retirement ages, which once held sway, no longer reflect contemporary conditions. In 1977, retirement ages were thought to be an effective way of ‘contemporising’ the courts, by injecting new ideas and new blood.
It was considered a way of preventing declining performance on the bench, as judicial capacity would decline with age, opening up opportunities for younger judges, and reflecting community attitudes and support for retirement ages.
A lot has changed since 1977: mandatory retirement is now generally prohibited, as is age discrimination in employment. Retaining mandatory retirement for judges is inconsistent with modern workplace practices, and runs contrary to other legal reforms designed to promote age equality.
Arguments in favour of retirement ages are now seen as outdated and out of touch with contemporary research on ageing.
There is no evidence that older judges will be “out of touch” with the community, or that younger judges will be more “in touch”.
Age is also a bad predictor of individual capacity, particularly in roles with low physical demands. Older judges can be just as good (or better) than younger judges – and age is a very bad way of determining who should be on the bench.
Judicial retirement ages may actually deprive the courts of judicial expertise and experience.
If a judge is performing poorly, we should have a better way of dealing with them than waiting until they retire – which could be many years in the future.
There is some merit to the argument that judicial retirement ages will help to open up opportunities for the next generation. If one judge retires, another will often (but not always) be appointed in their place. This may lead to more diverse judicial appointments, assuming our appointment processes encourage diverse candidates, which they sometimes fail to do.
However, this intergenerational fairness argument assumes we can and should achieve fairness for some (younger) judges by discriminating against older judges. This reflects the “fair innings” argument, or the idea that we can balance out poor treatment of the elderly by considering the advantages they have experienced earlier in life.
The fair innings argument is far from fair for many people, particularly those who have not actually experienced these idealised advantages earlier in life (often women, ethnic minorities and those from lower socio-economic groups).
If we want to open up opportunities for new judges, we need to recognise that retirement ages are largely unnecessary in practice: judges are entitled to generous pensions and often retire willingly without retirement ages being imposed.
In the Federal Court of Australia, the average age of retirement or resignation of former judges is 63.84 years, and the median 65.22 years. Only 19 judges have retired at the retirement age of 70.
In the Federal Circuit Court, of the 24 judges who have left the Court, two passed away in office and five resigned to take up other judicial appointments. The remaining 17 judges had an average age of retirement or resignation of 61, and only six (35 per cent) retired at or around the retirement age.
This means that most judges will retire willingly, without retirement ages being imposed. Opportunities will open up for other judges, even if retirement ages are removed.
So what is the alternative?
There are three key alternatives to the current use of judicial retirement ages. First, a later age of retirement for judges could be adopted. However, with increasing longevity and health, any higher age is likely to become outdated fairly quickly. It also fails to address the symbolic discriminatory impact of determining employment rights on the basis of age.
Second, a system of fixed-term appointments or term limits for judges, which are not related to age could be adopted. This raises complex questions about how long a judge should occupy their position, particularly given judges need an extended period in office to develop their skills and expertise. This would also not address capacity issues that might arise during the term of office.
Third, is the removal of age-based limitations on judicial tenure, bringing judicial retirement into line with other professions. At least in theory, this third option is to be preferred. This is similar to the system in place in federal courts in the United States, where judges are granted life tenure.
The use of life tenure has not been without criticism in other jurisdictions, particularly where there are cases of incapacity. We therefore need to think about what other changes are necessary if we remove judicial retirement ages.
How would we operate without judicial retirement ages?
If judicial retirement ages were to be abandoned, better ways of addressing cases where judges are performing poorly, including due to incapacity or declining ability, would need to be considered. The current means of addressing judicial performance at the federal level is notoriously hard to pursue, and has never been used successfully to remove a judge.
This is an area that needs to be reformed – even if retirement ages are not removed. Establishing more formalised processes for addressing judicial incapacity and misbehaviour will be a difficult task, but something we need to pursue.
Removing judicial retirement ages would require constitutional change for the federal judiciary. The process of federal constitutional change is extremely difficult and expensive, and unlikely to succeed without bipartisan support.
Rather than relying on federal change, then, we should look to the states and territories, where change is more feasible. Progress at the state or territory level may ease the path to federal change.
As societal views on age and ageing continue to shift, it is anachronistic to retain judicial retirement ages for Australian judges. The time has come to remove age-based limitations on judicial tenure.
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