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Judiciary

The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make statutory law which is the responsibility of the legislature or enforce law which is the responsibility of the executive, but rather interprets law and applies it to the facts of each case. However, in some countries the judiciary does make common law. In many jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the provisions of the constitution, treaties or international law. Judges constitute a critical force for interpretation and implementation of a constitution, thus in common law countries creating the body of constitutional law.

                                               

Judicial independence

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers. Many Countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-century England. In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.

                                               

Judicial independence in Australia

Judicial independence is regarded as one of the foundation values of the Australian legal system, 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. 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". 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. 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. 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. Similarly there may be tension between tenure of existing judges and the appointment of the best available candidate to a judicial position. The principle of judicial independence was not always observed in colonial Australia.

                                               

Judicial interpretation

Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with different viewpoints along the continuum.

                                               

Judicial reform

Judicial reform is the complete or partial political reform of a countrys judiciary. Judicial reform is often done as a part of wider reform of the countrys political system or a legal reform. Areas of the judicial reform often include; codification of law instead of common law, moving from an inquisitorial system to an adversarial system, establishing stronger judicial independence with judicial councils or changes to appointment procedure, establishing mandatory retirement age for judges or enhancing independence of prosecution.

                                               

List of Australian judges whose security of tenure was challenged

Security of tenure, leaving a judge free from improper influence resulting from an unjustified threat of removal, is generally said to be an important feature of judicial independence in Australia. The emergence of responsible government in the Australian colonies in the 19th century saw the emergence of judicial independence, such that by Federation in 1901, federal judges and supreme court judges accused of judicial misconduct could, generally, only be removed from office as a result of an address passed by the relevant houses of parliament.