1977 Australian referendum (Retirement of Judges)

The Constitution Alteration (Retirement of Judges) 1977 was an Australian referendum held in the 1977 referendums in which electors approved an amendment to the Australian constitution to provide for a retirement age for federal judges.[1] After receiving a majority approval in each state, the proposal was carried,[1] and the Constitution Alteration (Retirement of Judges) 1977 amended Chapter III of the Constitution so that federal judges were required to retire at the age of 70.[2]

Question

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?

Results
Result [3]
StateOn

rolls

 Ballots

issued

 For Against Invalid
% %
New South Wales3,007,511 2,774,388 2,316,99984.84% 414,070 15.16%43,319
Victoria2,252,831 2,083,136 1,659,27381.43% 378,505 18.57%45,358
Queensland1,241,426 1,138,842 734,18365.24% 391,227 34.76%13,432
South Australia799,243 745,990 622,76085.57% 104,987 14.43%18,243
Western Australia682,291 617,463 472,22878.37% 130,307 21.63%14,928
Tasmania259,081246,063 174,95172.46% 66,478 27.54%4,634
Australian Total8,242,383 7,605,882 5,980,39480.10% 1,485,574 19.90%139,914
Obtained majority in all six States and an overall majority of 4,494,820 votes.
Carried

Discussion

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,[4] 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.

References
  1. Australian Electoral Commission (2011). "Referendum dates and results 1906 - present". Australian Electoral Commission. Retrieved 25 September 2012.
  2. Commonwealth of Australia. "Commonwealth of Australia Constitution Act Amendment to Section 72, page 15". Retrieved 25 September 2012.
  3. Handbook of the 44th Parliament (2014) "Part 5 - Referendums and Plebiscites - Referendum results". Parliamentary Library of Australia..
  4. Horner, J (2007). "Joske, Sir Percy Ernest (1895–1981)". Australian Dictionary of Biography. 17. Melbourne University Press. ISSN 1833-7538. Retrieved 7 December 2018 – via National Centre of Biography, Australian National University.
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