Australian referendum, 1977 (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
| State | On
rolls |
Ballots
issued |
For | Against | Invalid | ||
|---|---|---|---|---|---|---|---|
| % | % | ||||||
| New South Wales | 3,007,511 | 2,774,388 | 2,316,999 | 84.84% | 414,070 | 15.16% | 43,319 |
| Victoria | 2,252,831 | 2,083,136 | 1,659,273 | 81.43% | 378,505 | 18.57% | 45,358 |
| Queensland | 1,241,426 | 1,138,842 | 734,183 | 65.24% | 391,227 | 34.76% | 13,432 |
| South Australia | 799,243 | 745,990 | 622,760 | 85.57% | 104,987 | 14.43% | 18,243 |
| Western Australia | 682,291 | 617,463 | 472,228 | 78.37% | 130,307 | 21.63% | 14,928 |
| Tasmania | 259,081 | 246,063 | 174,951 | 72.46% | 66,478 | 27.54% | 4,634 |
| Australian Total | 8,242,383 | 7,605,882 | 5,980,394 | 80.10% | 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 after.
The amendment introduced in the following year sought to provide for a retiring age of seventy for all federal court judges, including those on the High Court — though not judges appointed before the approval of the referendum. 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 Court 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 Harry Gibbs and Anthony Mason, who were appointed Chief Justice and thus lost their right to the original life tenure. Several Federal Court judges made use of their original tenure.
