Should Old Judges be Forced to Retire?

The Australian Constitution says that High Court Justices (judges) must retire when they reach the age of 70 – but this was not always the case.

There was no such cut-off age before 1977 – up until that time, justices were granted life tenure, meaning that the job was their’s for life as long as they didn’t do anything serious enough to get fired, lose the mental capacity required to be a judge or choose retirement.

Most states follow the precedent set by our Constitution. In NSW, however, section 44 of the Judicial Officers Act 1986 prescribes a retirement age of 72 for both magistrates and judges.

The Law Before 1977

Back in 1976, the High Court included two elderly statesmen named Edward McTiernan and Sir Garfield Barwick.

Justice McTiernan holds the record for the longest-serving judge in Australia. He adamantly refused to retire despite reaching the age of 82, after serving as a judge for more than 45 years.

Not everyone approved of McTiernan’s continued presence in the High Court, and he was criticised for taking longer and longer to write his judgments.

McTiernan finally retired in 1976. But he might have stayed longer if it wasn’t for an unfortunate accident – the tough old nut broke his hip while chasing a cricket in his hotel room with a rolled-up newspaper.

The broken bone confined McTiernan to a wheelchair and the Chief Justice, Sir Garfield Barwick, refused to allow a ramp to be installed in court; giving McTiernan no choice but to retire.

The 1977 Referendum

Shortly after this, section 72 of the Australian Constitution was amended to require all newly appointed High Court justices to retire at 70 years of age.

Interestingly, this was one of just eight referenda out of 44 to actually succeed in Australia.

More than 80% of Australians voted in favour of the change– the highest support rate for any referendum in history.

The mandatory retirement age of 70 applies to all Commonwealth (Federal) judges, including those in the High Court, Federal Court and Family Court of Australia.

Should the Law Change?

Life expectancies have increased considerably since 1977, so it might be time to ask whether a higher retirement age should be set.

Judge Graham Bell of the Family Court says that 55 or 60 is the new 70 – and argues that judges of the highest court in the land shouldn’t be kicked out just because they reach 70.

According to Bell, the fact that many judges go on to lecture at universities, sit on tribunals and royal commissions, and even work in the private sector is proof that turning 70 doesn’t mean that you have one foot in the grave.

As a case in point, highly respected former High Court Justice Michael Kirby has certainly kept himself busy since his retirement in 2009. Kirby has been appointed to the Arbitration Panel of the International Centre for Settlement of Investment Disputes, the Commissioner of the UNAIDS Commission in 2013 and President of the Human Rights Council – to name just a few of his esteemed positions.

And former High Court Justice Ian Callinan has served as an ad hoc judge in the International Court of Justice. Many other retired judges have similarly taken-on formidable positions well beyond the age of 70.

This year, Geoffrey Nettle was appointed to the High Court at the age of 64, meaning that he has less than 6 years on the bench before he will have to retire. He has joked that this may be best for Australia, saying that “any damage I may do now is limited.”

While many judges retain their acute intellect well beyond the age of 70, it doesn’t look like the law will change anytime soon, as any such amendment would require yet another referendum.