Accountability of the Courts


Foundation: separation of powers, natural justice and rule of law

Competence, Independence, Impartiality

  • Through appeals and the common law
  • Through parliamentary scrutiny and legislation (parliamentary sovereignty)
  • Through transparent processes and public confidence
  • Through the censure and removal of judicial officials

“The duties of the judiciary are not owed to the electorate, they are owed to the law

Brennan CJ

“The standards we require of our judiciary are higher than might be reasonable to require of anyone else”

Gareth Evans (AG during Hawke/Keating)


  • Except for HC decisions, all court decisions can be appealed before a higher court
  • Ensures that judges are accountable for their decisions
  • This is the most direct check


  • A superior court re-examines the processes of the court that made the original decision.
  • If successful, decision can be changed or sent back for re-trial
  • Appeals can be made by right or with leave
  • By right error of law (evidence excluded, judge’s error)
  • With leave – claimed error of fact (sometimes law as well) or against sentence
  • Appeal with leave first needs approval from the higher court to prove that there is a case to answer.

 Interactions with Parliament

  • Parliament may hold the HC to account by legislating for or against the decision except in constitutional matters (Parliamentary sovereignty)
  • In constitutional matters, Parl can put it to referendum as Menzies did (Australian Communist Party v C’th 1951)
  • Public dissatisfaction may lead to legislative change
  • However, Parl cannot overturn decisions made by the Courts in the past, nor sack judges except in rare circumstances

Transparent processes

  • Unless in instances of national security or underage offenders, all court cases are open to be public and are hence able to be scrutinised by the media
  • Media coverage is quite extensive, but does tend to sensationalise things and focus only on serious murder cases or controversial decisions
  • E.g. M70 (M70 v. Minister for Immigration 2011), or Rayney (WA v. Rayney 2012)
  • In modern times, the Courts often issues simplified versions of their ratio decidendi to explain to the public, which is then reported in the media

Censure of judicial officials

  • S 72 states that HC justices can only be removed by the GG in council on the grounds of proved misbehaviour or incapacity by address to both Houses of Parliament (Murphy J 1985, almost, and Bruce NSW 1998)
  • Pursuant to the rule of law, even Justices are subject to the law (Farquhar NSW 1985 and Einfield NSW 2008)
  • However, censure based on unprofessional practices, such as excessive delay in judgements is very hard to carry out
  • It is very rare for Parl to remove a judge for the above. Only one has this happened (Vasta, QLD, 1989)
  • Judicial Commissions (NSW, 1986) and Codes of Conduct assess the ongoing performance of judges to hold them to account, but has not resulted in any dismissals.
  • So either system is working well (Justices are working well under public scrutiny) or not working (cannot uncover malpractice or force resignations)






You may also like...

Leave a Reply

%d bloggers like this: