Temporary Judicial Officers in Australia

The appointment of Temporary Judicial Officers can arouse strong opinions. In 2016, the appointment of such officers to the South Australian Supreme Court attracted negative commentary.1 In Forge v Australian Securities and Investments Commission, Kirby J, when considering whether New South Wales legislative provisions allowing the appointment of Temporary Judicial Officers were constitutional, asserted that the ‘time has come … to draw a line and forbid the practice’.2 At the same time such appointments can assist the courts, and hence serve the public interest, in significant ways. They allow for the appropriate management of conflicts of interest, strengthen a bench that is depleted due to temporary illness or unavailability, and may provide a cost effective way to manage short-term workload pressures. This Report, commissioned by the Judicial Conference of Australia (‘JCA’) in May 2016, on the use of Temporary Judicial Officers in Australian courts examines the challenges and the advantages of the use of temporary judicial officers. The Terms of Reference accompanying the commission are stated on page iv. The Terms of Reference identify the subject of this Report as ‘either acting, temporary, part-time or reserve judges’. The extent to which part-time judges are to be discussed in the Report is, however, qualified by the exclusion stated at the end of the Terms of Reference. As we point out at the commencement of Part 2, the four alternative names used in the Terms of Reference are not exhaustive. After identifying all relevant descriptors across Australian court systems, we adopt the expression ‘Temporary Judicial Officers’ throughout this Report as a generic reference for these positions. As no such appointments are able to be made in respect of the federal judiciary due to the strict constitutional separation of judicial power that exists under the Commonwealth Constitution, this Report is almost exclusively concerned with the state and territory judicial systems. However, some discussion of the federal judiciary is relevant to the topic of a common retirement age in point 4 of the Terms of Reference. The request that we provide ‘background information’ on the use of Temporary Judicial Officers was one that we interpreted to require more than the comprehensive audit of existing statutory regulation, which is presented thematically in Part 2 (with an overview of that information provided in tabular form in Schedule 1). Accordingly, we initiated a data-driven study of the phenomenon of Temporary Judicial Officers as a matter of practice. We are grateful to the JCA for its support for this empirical aspect of the project and its assistance in seeking relevant information from state and territory courts. We also thank the Heads of Jurisdiction and the court staff involved in responding to the requests for information. The material gathered, supplemented from court Annual Reports as necessary, is presented in Part 4 of this Report, which commences with a full description of the methodology involved in data collection and analysis. The data on the utilisation of Temporary Judicial Officers is the first of its kind in Australia, and adds significantly to any assessment of this practice