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Reseña:So to begin with a sub-question: Is there a need to talk about judicial independence?Talking about judicial independence is akin to talking about the rule of law. Everyone knows we have it.As Sir Gerard Brennan observed, the subject of judicial independence is one that belongs primarily in the public domain. For the purposes of this evening’s discourse, I will try to address the topic so that it may be better understood by the community. Necessarily, my observations will not be addressed to the Judiciary or academia.So to begin with a sub-question: Is there a need to talk about judicial independence?Talking about judicial independence is akin to talking about the rule of law. Everyone knows we have it.As Sir Gerard Brennan observed, the subject of judicial independence is one that belongs primarily in the public domain. For the purposes of this evening’s discourse, I will try to address the topic so that it may be better understood by the community. Necessarily, my observations will not be addressed to the Judiciary or academia. Lord Bingham, when delivering a lecture at Cambridge University chose as his subject ‘The Rule of Law’ because it was an expression used constantly and yet,so his Lordship said, there was no certainty ‘that all those who used the expression knew what they meant……or meant the same thing’.Judicial independence is a concept referred to regularly in the context of political announcements, discussions about court decisions, and the relationship between the government of the day and the Judiciary. It is an important concept that lies at the heart of our democratic system of government. Because of that, it tends to be taken for granted. Everyone assumes in Australia that judges are not corrupt, determine cases on their merits, and impartially and fearlessly, in accordance with the law. Yet, I suspect there are different understandings applied by different individuals and sectors to the concept of judicial independence. Hence, akin to Lord Bingham’s conundrum as to the meaning of the concept, ‘he rule o law’, we need to understand what is the meaning of the concept of judicial independence. If that meaning can be identified, then a discourse can follow as to whether there is a need to talk about the subject leading, perhaps, to an answer to the primary question postulated: does judicial independence matter?I will commence by discussing the traditional approach to judicial independence and draw upon its connection with the rule of law. I will then discuss the role of judicial independence in the protection and enforcement of human rights. In that context, I will discuss occasions when judicial independence matters, mostly when the citizen versus the state.I will then explore the separation of powers and reflect upon the differences in Australia in the recognition of and respect for judicial independence. I will consider some examples in the Commonwealth context, the state sector and, in that context, reflect upon styles of government... |
