The ''Constitution Alteration (Retirement of Judges) Bill'' 1977 was a successful proposal to alter the
Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
to introduce a retirement age of 70 for federal judges.
It was put to voters for approval in a
referendum held on 21 May 1977. After being approved in the referendum, it received the
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...
and became law on 29 July 1977.
Question
''It is proposed to alter the Constitution so as to provide for retiring ages for judges of federal courts.''
''Do you approve the proposed law?''
Changes to the text of the constitution
The proposal was to add the following paragraphs at the end of
section 72.
:The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
:The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.
:Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.
:The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.
:A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.
:Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
:A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.
Results
Discussion
In October 1976 the Senate Standing Committee on Constitutional and Legal Affairs recommended a retiring age for all federal judges. This recommendation was based on
* a perceived need 'to maintain vigorous and dynamic courts'
* a need to open up avenues for 'able legal practitioners' to achieve judicial positions
* a growing community belief in a compulsory retiring age for judges
* avoiding 'the unfortunate necessity' of removing a judge made unfit for office by declining health.
The committee's view was accepted by the Australian Constitutional Convention soon thereafter.
The amendment introduced in the following year sought to provide for a retiring age of 70 for all federal court judges, including those on the High Court. The issue was not controversial, despite Sir
Robert Menzies
The name Robert is an ancient Germanic given name, from Proto-Germanic "fame" and "bright" (''Hrōþiberhtaz''). Compare Old Dutch ''Robrecht'' and Old High German ''Hrodebert'' (a compound of ''Hrōþ, Hruod'' ( non, Hróðr) "fame, glory ...
' description of the change as 'superficial and ill-considered'. Over 80 per cent of voters supported the amendment.
The amendment applied prospectively, meaning the tenure of those High Court and Federal judges appointed prior to the referendum were unaffected. Of the serving High Court judges, only Sir
Garfield Barwick
Sir Garfield Edward John Barwick, (22 June 190313 July 1997) was an Australian judge who was the seventh and longest serving Chief Justice of Australia, in office from 1964 to 1981. He had earlier been a Liberal Party politician, serving as a ...
made use of his original tenure, retiring in 1981 at the age of 77. The remaining judges either retired, resigned, or died, with the exception of Sir
Harry Gibbs
Sir Harry Talbot Gibbs, (7 February 191725 June 2005) was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist ...
and Sir
Anthony Mason, who were appointed Chief Justice and thus lost their right to the original life tenure. Several Federal judges made use of their original tenure, with judges of the
Australian Industrial Court
The Commonwealth Industrial Court, known as the Australian Industrial Court from 1973, was a specialist court to deal with industrial matters, principally the enforcement of awards and orders of the Commonwealth Conciliation and Arbitration Com ...
Sir Percy Joske retiring on 31 December 1977 aged ,
and
Edward Dunphy retiring on 31 December 1982 aged . Five Federal Court judges did not retire at age 70,
Sir Nigel Bowen (1990), aged ,
Sir John Nimmo (1980) aged 71,
Sir Reginald Smithers (1986) aged 83,
Charles Sweeney
Charles William Sweeney (December 27, 1919 – July 16, 2004) was an officer in the United States Army Air Forces during World War II and the pilot who flew '' Bockscar'' carrying the Fat Man atomic bomb to the Japanese city of Nagasaki on Augu ...
(1995) aged 80 and
Ray Northrop
Ray may refer to:
Fish
* Ray (fish), any cartilaginous fish of the superorder Batoidea
* Ray (fish fin anatomy), a bony or horny spine on a fin
Science and mathematics
* Ray (geometry), half of a line proceeding from an initial point
* Ray (gra ...
(1998) aged 73.
References
! colspan="3" style="border-top: 5px solid #cccccc" , Amendments to the
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
, -
, style="width: 30%; text-align: center;" , 5th amendment
(1910)
, style="width: 30%; text-align: center;" , Most recent amendments
{{DEFAULTSORT:Australian Referendum, 1977 (Retirement Of Judges)
1977 in Australia
Amendments to the Constitution of Australia
1977 referendums
Constitutional referendums in Australia
Judiciary of Australia