Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I thank the member for Fisher for his comments on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. Certainly it is true that on this issue there is broad bipartisanship, but there are a number of significant issues which are material to this debate on which I wish to make comment. Before I do and before the member for Fisher leaves, I noted his comments about the compulsory retirement age of justices of the High Court, Federal Court and Federal Magistrates Court, a provision that flows from constitutional changes that were made in the early seventies, I think. That was a different time and Australia was a very different society. We have now introduced age discrimination legislation such that people, as long as they are fit, capable and able, can continue to work. We recognise and seek to encourage people to do so. Without making anything other than an oblique comment, I note that the leader of the parliamentary party to which the honourable member for Fisher belongs is proposing to contest the next election which, if he is successful, will take him well past the retiring age that is proposed or required for judges.

I do agree with the member for Fisher that there is a decent and proper case to be made for reviewing those provisions. It will not be easy to change, because they are constitutionally entrenched. But they were entrenched at a time when there was essentially a compulsory retirement age—65 for men and, I think, 60 for women. In those circumstances, it was understandable that people felt it odd that we did not have such a rule that applied to judges. But I say to the member for Fisher—and I commend his reflection on this—the corollary is that, if we do bring ourselves to a position where we support a change to that regime, we need to have a mechanism for dealing with people who do not understand that they have passed the point of competence. That can happen even with a retirement age of 70. I am aware of instances where members of the federal judiciary had to be confronted by their chief justices on the question of whether they were still fit to perform their duties, notwithstanding that they were well under the age of 70. The situation is that, if a judge or person appointed under the Constitution to a chapter III court were to decline an invitation to consider their future in those circumstances, there really is no effective mechanism for addressing it. The only way a judge can be removed is by an address to both houses of the parliament. We have no independent external mechanism to deal with what inevitably will become an issue in the future.

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