Former Apple Isle DPP denounces plan to increase the retirement age of judges … Slings and arrows aimed at the chief justice … A more youthful and reformist bench is required … Judges should be refreshed … Graphs and charts … Studies on age and mental deterioration … Tim Ellis puts the case for ageism
The Justice Miscellaneous (Increasing Judicial Retirement Age) Bill 2021 is before the Apple Isle parliament and had been the subject of submissions earlier in the year.
However, it is Ellis’ opposition to the plan for older judges that has injected a lot of fizz into what otherwise was a sleepy issue. The former DPP says the “immediate practical effect” of the legislation would be to give Chief Justice Alan Blow a further three years in the job after his 72nd birthday in December.
Ellis suggests that the government must have been persuaded by the last two Supreme Court annual reports where the chief justice has advocated an increase in the retirement age.
Other sources claim that Blow CJ is not the primary reason for the change. In fact, last December he told the judges this would be his last judicial Christmas party. Now, though, it is accepted that he will stay longer if the Bill is passed.
Ellis’ submission is detailed and considered – and pulls no punches.
“… it seems inherent in [the CJ’s] proposal that he believes there is no-one presently available better suited and that his performance merits extension.”
His concluding remark is a cry for the judiciary to embrace reform, inclusivity and contemporary values:
“The same tired conservatism which continues to think of no better way to mark the return to work of the court after a six week vacation than by trudging along fully robed and bewigged to one of four Hobart Christian Churches to sing hymns and be regaled by a reading and sermon from the pulpit ought not to be further entrenched by extending the retiring age. The State ought to aspire to present as modern and inclusive, and its law administered in a secular way. Extending the retiring age for judges is no way to achieve that.”
The former DPP went to excruciating detail in analysing the rate at which criminal cases were disposed in the pre-Blow and Blow epochs of the Tas Supremes.
He provided charts and graphs by means of which he concluded that since 2013 when Blow was elevated to CJ (excluding the last Covid infected year) the court was averaging 521 originating criminal matters and finalised an average of 445 – an average deficit of 76 matters per year.
He said this is “significant” when compared to the previous nine years when originating matters outstripped finalisations by an average of only 15 a year.
He did not accept the explanations for this state of affairs, e.g. between 30 and 60 minutes spent on each bail application, some unusually lengthy trials and more time dedicated to appeals.
He also poo-pooed the claim that judges were overworked, saying it “appears to be anecdotal and not empirically measured”. Ellis also observed that judges are well remunerated, have security of tenure and are provided with “a prestige, privately plated and fully maintained vehicle”.
The measures adopted to mitigate the pressure of work also were not satisfactory, according to the submission.
Nor did he think the benefits advanced for increasing the retirement age were much chop.
It had been argued that to shift the retirement age to 75 had the benefits of alleviating recruitment problems, prolonging the service of experienced judges, and enabling judges to make “better provision for their retirements”.
Ellis claimed other approaches could alleviate the problems, including revising the court calendar, “which might as well be written in stone for all the changes there have been to it in the last few decades”.
Slabs of the following pages must have contained juicy bits, as they were heavily redacted.
He quoted studies showing judicial officers’ rates of moderate to extreme depression, anxiety and stress were “dramatically lower” than those reported for lawyers and the general population – and in any event whatever downside judges felt would be offset by “fulfilment, accomplishment and purpose” associated with being a judge.
Extending the work span of judges would also increase the risk of dementia, cognitive incapacity, and lack of acuity. It would also encourage older practitioners to apply for judicial appointments.
When the NSW government in November 2018 increased the judicial retirement age to 75, the local Bar ‘n’ Grill was incandescent, because it would slow elevations from within the ranks of briefs.
It turned out that Chief Justice Tom Bathurst, appeal judge John Basten and head of the common law division Cliff Hoeben all hung onto to their jobs for longer, and in the process boosted their pensions.
Tim Ellis said extending the work span of judges might “prolong the service of judges who have been there already too long, and whose service is of lesser value than would be the refreshment of the bench by younger judges. It would prolong the service of those who do not know when to stop …”
As for any problem with Alan Blow’s retirement provisions, Ellis submits:
“With salary, travel allowances and superannuation contributions he would have been paid many millions of dollars while not having to purchase, fuel or maintain a car.”
[Wot’s with the thing about the car? Ed.]
As for civil work, Ellis claims that an ageing judiciary is even more undesirable as disputes increasingly concern and involve proof by technology – and some judges are not up to speed with these advances.
“The work of the court on the civil side and been characterised by staleness and unwillingness to wrestle with change.”
The Tasmanian Law Society says it supports increasing the retirement age. Chief Justice Blow told Justinian that he didn’t want to comment on Ellis’ submission.