Whereas the Universal Declaration of Human Rights enshrines in particular the principal of the right to a fair and public hearing by a competent, independent and impartial tribunal established by the law,

Whereas the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights both guarantee the exercise of that right,

Whereas the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region prescribes minimum standards for judicial independence making due allowance for national difference in the LAWASIA Region,

Whereas the Chief Justices of the States and Territories of Australia consider it desirable to state in more detail in terms applicable to the circumstances of the States and Territories of Australia certain of those principles relating to judicial appointments and to the exercise of judicial office.

Now they adopt the following principles relating to the appointment of judges of the Courts of the States and Territories:

1. Persons appointed as Judges of those Courts should be duly appointed to judicial office with security of tenure until the statutory age of retirement. However, there is no objection in principle to:

1. the allocation of judicial duties to a retired judge if made by the judicial head of the relevant court in exercise of a statutory power; or
2. the appointment of an acting judge, whether a retired judge or not, provided that the appointment of an acting judge is made with the approval of the judicial head of the court to which the judge is appointed and provided that the appointment is made only in special circumstances which render it necessary.

2. The appointment of an acting judge to avoid meeting a need for a permanent appointment is objectionable in principle.
3. The holder of a judicial office should not, during the term of that office, be dependent upon the Executive Government for the continuance of the right to exercise that judicial office or any particular jurisdiction or power associated with that office.
4. There is no objection in principle to the executive Government appointing a judge, who holds a judicial office on terms consistent with principle (1), to exercise a particular jurisdiction associated with the judge’s office, or to an additional judicial office, in either case for a limited term provided that:

1. the judge consents;
2. the appointment is made with the consent of the judicial had of the Court from which the judge is chosen;
3. the appointment is for a substantial term, and is not renewable;
4. the appointment is not terminable or revocable during its term by the Executive Government unless:

1. the judge is removed from the first mentioned judicial office; or
2. the particular jurisdiction or additional judicial office is abolished.

5. It should not be within the power of Executive Government to appoint a holder of judicial office to nay position of seniority or administrative responsibility or of increased status or emoluments within the judiciary for a limited renewable term or on the basis that the appointment is revocable by Executive Government, subject only to the need, if provided for by statute, to appoint acting judicial heads of Courts during the absence of a judicial head or during the inability of a judicial head for the time being to perform the duties of the office.
6. There is no objection in principle to the appointment of judges to positions of administrative responsibility within Courts for limited terms provided that such appointments are made by the Court concerned or by the judicial head of the court concerned.

Dated this 10^th day of April 1997.

1. The Judiciary is an institution of the highest value in every society.
2. The Universal Declaration of Human Rights (Art 10) and the International Covenant on Civil and Political Rights (Art 14(1) proclaim that everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent Judiciary is indispensable to the implementation of this right.
3. Independence of the Judiciary requires that:

1. the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and
2. the Judiciary has jurisdictions, directly or by way of review, over all issues of a justiciable nature.

4. The maintenance of the independence of the Judiciary is essential to the attainment of its objectives and the proper performance of its functions in a free society observing the Rule of Law. It is essential that such independence be guaranteed by the State and enshrined in the Constitution or the law.
5. It is the duty of the Judiciary to respect and observe the proper objectives and functions of the other institutions of government. It is the duty of those institutions to respect and observe the proper objectives and functions of the Judiciary.
6. In the decision-making process, any hierarchical organisation of the Judiciary and any difference in grade or rank shall in no way interfere with the duty of the judge exercising jurisdiction individually or judges acting collectively to pronounce judgment in accordance with Art 3(a). The Judiciary, on its part, individually and collectively, shall exercise its functions in accordance with the Constitution and the law.
7. Judges shall uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all their activities.
8. To the extent consistent with their duties as members of the Judiciary, judges, like other citizens, are entitled to freedom of expression, belief, association and assembly.
9. Judges shall be free subject to any applicable law to form and join an association of judges to represent their interests and promote their professional training and to take such other action to protect their independence as maybe appropriate.

Objectives of the Judiciary

10. The objectives and functions of the Judiciary include the following:

1. to ensure that all persons are able to live securely under the Rule of Law;
2. to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
3. to administer the law impartially among persons and between persons and the State.

11. To enable the Judiciary to achieve its objectives and perform its functions, it is essential that judges be chose on the basis of proven competence, integrity and independence.
12. The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.
13. In the selection of judges there must be no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, except that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory.
14. The structure of the legal profession, and the sources from which judges are drawn within the legal profession, differ in different societies. In some societies, the Judiciary is a career service; in others, judges are chosen from the practising profession. Therefore, it is accepted that in different societies, different procedures and safeguards may be adopted to ensure the proper appointment of judges.
15. In some societies, the appointment of judges, by, with the consent of, or after consultation with the Judicial Services Commission has been seen as a means of ensuring that those chosen as judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives of the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.
16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public.
17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.

 

Tenure

18. Judges must have security of tenure.
19. It is recognised that, in some countries, the tenure of judges is subject to confirmation from time to time by vote of the people or other formal procedure.
20. However, it is recommended that all judges exercising the same jurisdiction be appointed for a period to expire upon the attainment of a particular age.
21. A judge’s tenure must not be altered to the disadvantage of the judge during her of his term of office.
22. Judges should be removed from office only for proved incapacity, conviction of a crime, or conduct which makes the judge unfit to be a judge.
23. It is recognised that, by reasons of differences in history and culture, the procedures adopted for the removal of judges may differ in different societies. Removal by parliamentary procedures has traditionally been adopted in some societies. In other societies, that procedure is unsuitable: it is not appropriate for dealing with some grounds for removal; it is rarely if ever used; and its use other than for the most serious reasons is apt to lead to misuse.
24. Where parliamentary procedures or procedures for the removal of a judge by vote of the people do not apply, procedures for the removal of judges must be under the control of the judiciary.
25. Where parliamentary procedures or procedures for the removal of a judge by cote of the people do not apply and it is proposed to take steps to secure the removal of a judge, there should, in the first instance, be an examination of the reasons suggested for the removal, for the purpose of determining whether formal proceedings should be commenced. Formal proceedings should be commenced only if the preliminary examination indicates that there are adequate reasons for taking them.
26. In nay event, the judge who is sought to be removed must have the right to a fair hearing.
27. All disciplinary, suspension or removal proceedings must be determined in accordance with established standards of judicial conduct.
28. Judgments in disciplinary proceedings, whether held in camera or in public, should be published.
29. The abolition of the court of which a judge is a member must not be accepted as a reason or an occasion for the removal of a judge. Where a court is abolished or restructured, all existing members of the court must be reappointed to its replacement or appointed to another judicial office of equivalent status and tenure. Members of the court for whom no alternative position can be found must be fully compensated.
30. Judges must not be transferred by the Executive from one jurisdiction or function to another without their consent, but when a transfer is in pursuance of a uniform policy formulated by the Executive after due consultation with the Judiciary, such consent shall not be unreasonably withheld by an individual judge.

 

Judicial Conditions

31. Judges must receive adequate remuneration and be given appropriate terms and conditions of service. The remuneration and conditions of service of judges should not be altered to their disadvantage during their term of office, except as part of a uniform public economic measure to which the judges of a relevant court, or a majority of them have agreed.
32. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from, the State in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Jurisdiction

33. The Judiciary must have jurisdiction over all issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is with its competence as defined by law.

34. The jurisdiction of the highest court in a society should not be limited or restricted without the consent of the members of the court.

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