Varun Ghosh (WA, Australian Labor Party) Share this | Hansard source

The government opposes this motion and calls out what is clearly an attempt to have an inquiry into courts—cloaked, on the face of the language of the motion, in what appears to be neutral language. But the breadth and nature of the terms of the inquiry suggest that it is little more than an attempt to set up a parliamentary inquisition into judges and courts, and nothing that has been said by Senator Rennick has done anything to allay that alarm—in fact, it has increased that alarm, because what Senator Rennick has just done is to open up a whole range of issues that suggest that this inquiry is not only a bad idea but would strike at the heart of judicial independence and our separation-of-powers doctrine.

Taking a big step back: the Commonwealth Constitution establishes the parliament, executive and judiciary as three separate branches of government, but obviously the executive and the parliament overlap. The text and structure of the Commonwealth Constitution embody the separation-of-powers doctrine that is reflected in chapter III of that document, and that concerns the judicature. It has been articulated in a number of cases by the High Court, including the Boilermakers case back in 1956. But perhaps most importantly, the institutional and societal values that the separation-of-judicial-powers doctrine seeks to safeguard are judicial independence, the rule of law and the preservation of individual rights. It does it in a number of ways, but section 72 of the Commonwealth Constitution provides that judges of chapter III courts:

(i) shall be appointed by the Governor-General in Council;

(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session … on the ground of proved misbehaviour or incapacity …

It also provides that judges shall receive remuneration—