The battle scars of a Chief Justice: [1 All-round Country Edition]
Louise Milligan, John Stapleton. The Australian [Canberra, A.C.T] 26 Mar 2004: 2.
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Abstract
As Alistair Nicholson prepares to retire with a farewell ceremony today, The Australian can disclose his battle scars come not just from disagreements with the Howard Government and parent groups, but also his own bench.
In 1993, he faced the three renegade judges who believed a decision to extend the retirement age of 34 sitting Family Court judges from 65 to 70, to bring them into line with other judges, was unconstitutional.
A spokesman for Attorney-General Philip Ruddock said yesterday three legal opinions found the move constitutional. The country’s top constitutional silks, contacted by The Australian, agree, saying s.72 was designed to prevent governments from legislating to retire judges they did not like.
Full Text
THE outgoing Chief Justice of the Family Court has confirmed for the first time he clashed with three fellow judges over their objection to a plan to extend their tenures.
As Alistair Nicholson prepares to retire with a farewell ceremony today, The Australian can disclose his battle scars come not just from disagreements with the Howard Government and parent groups, but also his own bench.
In 1993, he faced the three renegade judges who believed a decision to extend the retirement age of 34 sitting Family Court judges from 65 to 70, to bring them into line with other judges, was unconstitutional.
That objection arose after enabling legislation required Family Court judges to step down and be reappointed in October 1993. Thethree judges declined to be reappointed.
The debate was reignited last year when disgruntled fathers groups realised Justice Nicholson was serving beyond his 65th birthday and thought his judgments could be voided.
He has said he’s retiring to spend time with his wife Lauris and grandchildren.
The chief dissenter among the three judges was former justice Peter Moss.
The Australian has obtained a submission by Justice Moss saying the move to raise the retirement age contravened Section 72 ofthe Constitution “and (was) in any event quite inappropriate”.
Section 72 says a judicial appointment “shall be for a term expiring upon his attaining the age that is, at the time of his appointment,the maximum age for justices of that court”. While parliament can repeal or amend such a law, it will not affect the term of existing judges.
“In my opinion the course proposed is expressly designed to obviate the intended effect of the constitutional provision … I cannot see the slightest justification for such a course,” Justice Moss said.
Justice Mary Jane Lawrie and another unidentified judge joined him.
A spokesman for Attorney-General Philip Ruddock said yesterday three legal opinions found the move constitutional. The country’s top constitutional silks, contacted by The Australian, agree, saying s.72 was designed to prevent governments from legislating to retire judges they did not like.
“Frankly, I have never taken what Moss said seriously,” Justice Nicholson said. “I thought it was right out of left field.”
He supported the age-change because the old retirement age of 65 might “retard the process of recruiting appropriate people”.
“It never arose again until some frenetic fathers groups got excited when I was nearing retirement and thought they could appeal judgments,” he said.
They were wrong — the “de facto officers doctrine” holds that defects in judicial appointment do not spoil the judges’ decisions.
Justice Nicholson is emotional about his retirement from the post he has held passionately for 16 years, but is philosophical about detractors. “You could put your head down and never say anything or be a bit more outspoken — I chose the latter,” he said.