What is independence of courts?

Independence of the courts means that judges decide cases according to the law and the facts before them, free from influence by the executive government, the Parliament, political parties, the media, business, or any other outside force. It is a foundational feature of the Australian legal system and is protected by the Constitution, by statute, and by long-standing convention.

Several formal protections support judicial independence. Federal judges are appointed by the Governor-General on the advice of the federal government, and state and territory judges by the relevant state Governor on advice of the state government. Once appointed, federal judges hold office under section 72 of the Constitution and can be removed only by an address of both Houses of Parliament for proven misbehaviour or incapacity. Judges' salaries cannot be reduced during their term. State and territory judges have similar protections under their state constitutions or legislation.

Independence operates across several dimensions. Substantive independence means that judges decide cases on legal merit and are not directed by anyone else. Institutional independence means that the judiciary as a whole is separate from the executive and legislative branches, with its own administration, budget through appropriations, and rule-making powers. Personal independence means judges cannot be punished, demoted, or removed for unpopular decisions. Together these support the separation of powers that is implicit in the Constitution.

Independence is reinforced by judicial ethics. The Australian Council of Chief Justices has adopted the Guide to Judicial Conduct, which sets out expectations about impartiality, integrity, propriety, diligence, and equality of treatment. Judges are expected to disqualify themselves from cases where there is any reasonable apprehension of bias. Comments about pending cases by Ministers, Members of Parliament, or media commentators are sometimes met with judicial silence or, in extreme cases, with prosecutions for contempt of court. The broad social acceptance of judicial independence is one reason Australian courts rank highly in international measures of legal system effectiveness.