1977 Australian referendum (Retirement of Judges)

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?

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.[3]

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' 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 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 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 Sir Percy Joske retiring on 31 December 1977 aged 82,[5] and Edward Dunphy retiring on 31 December 1982 aged 75. Five Federal Court judges did not retire at age 70, Sir Nigel Bowen (1990), aged 79, Sir John Nimmo (1980) aged 71, Sir Reginald Smithers (1986) aged 83, Charles Sweeney (1995) aged 80 and Ray Northrop (1998) aged 73.