The Judicial System and Demographic Change: Preparing for Australia’s Population Futures

© 2019 Brian Robert OpeskinIn the late 1960s, an explosion in global population and the attendant threat of widespread famine spawned a new field of legal scholarship, known as ‘population law’. Its central concern was to use the law as an instrument of public policy in tempering population growth by reducing fertility. However, after a brief flowering—and as global rates of population growth began to slow under the impact of the ‘demographic transition’—academic interest in population law began to wither. This thesis seeks to reinvigorate this field of socio-legal inquiry by reinvestigating the relationship between law and demography. But, in contrast to the pioneering scholarship, this study turns in a novel direction by examining how population change can affect the legal system, rather than the converse. Specifically, the thesis analyses the impact of demographic change on the judicial system, with a geographic focus on Australian courts. Although governments increasingly recognise that demography is a potent force in shaping the political, social, and economic life of nations, legal policy has been slow to respond to the challenges posed by demographic change. Addressing this gap, the central questions of the thesis are: (a) how does demographic change impact on Australia’s judicial system; and (b) how should Australia’s judicial system adapt to embody a greater preparedness for the demographic changes that lie ahead? The first is a positive inquiry that seeks to ascertain verifiable truths about the real world; the second is a normative inquiry based on judgments about what ought to be. Analysis of the research questions proceeds by way of four case studies, which together form a collective case study. They examine the impact of: (i) declining mortality on models of judicial tenure; (ii) population ageing on judicial pensions; (iii) population redistribution on the work of lower courts; and (iv) population composition on judicial diversity. The case studies have been chosen for the way they reveal the impact of different demographic attributes (population growth, components of change, composition, and spatial distribution); and for their relevance to core values of the judicial system (judicial independence, access to justice, quality of justice, public trust, and cost effectiveness). Answering the normative inquiry, the thesis makes recommendations for reform in order to enhance the population preparedness of the judicial system. The reforms include: extending the mandatory retirement age for judicial officers, in conjunction with regular capacity assessment; recalibrating the parameters of the judicial pension schemes to make them more cost effective; allocating judges and magistrates to appropriate geographic locations to meet the changing demand that arises from spatial redistribution of the population; and closing the ‘diversity deficits’ between the composition of the judiciary and the composition of an increasingly heterogeneous population. In advancing the case for a renaissance of ‘population law’, the thesis reinforces the need for pluralism in the modalities of change, and the desirability of accommodating differences across the Australian judicial system. Yet reform is needed if the core values of the judicial system are to be maintained in the face of ineluctable forces of demographic change