Judicial independence in Australia

Judicial independence is regarded as one of the foundation values of the Australian legal system,^[1] such that the High Court held in 2004 that a court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal.^[2] Former Chief Justice Gerard Brennan described judicial independence as existing "to serve and protect not the governors but the governed", albeit one that "rests on the calibre and the character of the judges themselves".^[3] Despite general agreement as to its importance and common acceptance of some elements, there is no agreement as to each of the elements of judicial independence.^[4]

Aspects of judicial independence can be seen as complementary, such as appeals serving to ensure that decisions are made on the facts and law, but which also serves to enhance public confidence in the judiciary.^[5] This however is not always the case as there are other elements that require balance, for example public confidence in the judiciary necessarily impacts on security of tenure in that it requires the ability to remove judges who are unfit for office.^[6]: 170 Similarly there may be tension between tenure of existing judges and the appointment of the best available candidate to a judicial position.^[7] The principle of judicial independence was not always observed in colonial Australia.^[8][9]