Reconceiving Judicial Office Through a Labour Law Lens

Reluctance in Applying a Labour Law Lens

Judges — and the work of judging — are not typically seen through a labour law lens. This may be attributable to three key factors. First, the fundamental importance of judicial independence and impartiality ⁴³ has led to a reluctance to interfere in the work of judging. There is a fear that labour law will interfere with and affect judicial decision-making and potentially allow for executive interference in the judicial process. ⁴⁴ As argued by Justice Margaret McMurdo, former president of the Queensland Court of Appeal:

we must remain vigilant to ensure that the concepts of separation of powers and judicial independence are not undermined, however subtly, including by the notion of judges as employees.…judges, like cabinet ministers and members of parliament, collectively govern, not as employees of the executive, but as public officers of their distinct branches of government. ⁴⁵

Second, and relatedly, the importance of independence and impartiality to the legitimacy of courts and judges may have operated to obscure and deflect attention from the position of judges as individuals. Judges tend to be seen as representatives and servants of the state, exerting authority and aspiring to an ideal of objectivity. ⁴⁹ This has a physical manifestation in court dress and attire, with judges ‘covering their individuality with a black robe’. ⁵⁰ Judges are transformed into public existence through the use of symbols and court traditions: ⁵¹ in this process, judges are dehumanised and come to symbolise their role rather than their own identity. Thus, ideals of independence and impartiality and court traditions may create an illusion of sameness amongst judges, which prevents recognition that judges are a group of individuals who work and think differently. ⁵²

That said, the presence of a more diverse judiciary increasingly challenges the depersonalisation of judges: as Rackley has argued,

The woman judge continues to be seen as a threat to the aesthetic norm; her presence on the bench is an inescapable irritant, simultaneously confirming and disrupting its established masculinity.…Her perceived difference challenges traditional understandings of the judge and judging, disrupting the previous uniformity of the bench and revealing an unavoidable gender dimension to previous understandings of adjudication. ⁵³

Third, differences between judging and other forms of employment may be seen as undermining the use of a labour law lens in this context. In addition to the importance of impartiality and independence, and consequent limitations on the state’s power to direct judicial work, it is arguable that judges (unlike other workers) are not in a position of inequality or inferior bargaining power, ⁵⁸ making a labour law lens inappropriate. As the third arm of government, ⁵⁹ judges are arguably as powerful as the executive or parliament and have significant resources with which to protect their own interests. However, this confuses constitutional power with individual power: while judges may be able to hold the government to account in fulfilling their constitutional role, they are unlikely to have equal bargaining power in relation to their own terms and conditions of appointment and work. This is particularly the case for members of the lower judiciary, who may not wield substantial personal power. Thus, power disparities are relevant when considering the position of judges.

Of course, as noted above, judges cannot be unreflexively equated with employees of commercial organisations or public servants. ⁶⁰ Courts operate differently to business: as Marilyn Warren, former Chief Justice of the Victorian Supreme Court, has noted,

[A]s a fundamental democratic institution, the Judiciary has different objectives and processes to commercial enterprises, which are focused on increasing productivity and reducing the bottom line…The link between the inherently inefficient processes of open justice and the institutional legitimacy of the Judiciary means that notions of efficiency relevant to market activities are inappropriate when applied to judicial administration[.] ⁶¹

It is important, then, to recognise the potential institutional or structural constraints that may limit how far a labour law lens can be applied to the judiciary. Simultaneously, it is also important to recognise an emerging shift in how judges and the work of judging are viewed. Gee and others map a shift (which is reflected in the Constitutional Reform Act 2005 (UK) (‘CRA’) ⁶⁵ ) in UK courts from a culture of individualism — with resistance to performance management amongst judges, and solitary working lives, ⁶⁶ largely justified on the basis of judicial independence ⁶⁷ — towards a culture of corporatism, with a focus on minimum standards of legal knowledge, courtesy and the skills of judge-craft. ⁶⁸ This has also prompted the centralisation of power in senior judges to manage and enable this culture of corporatism. ⁶⁹ This cultural change has been driven by a range of factors, including the growth of the judiciary, the decline in judicial homogeneity with growing diversity and the development of judicial career paths, which put more emphasis on training and development. ⁷⁰ Equally, some courts have experienced a shift towards managerialism, with judges no longer being viewed just as independent decision-makers but also actors in a public organisation delivering services. ⁷¹ This may then justify a focus on court accountability for the use of resources ⁷² and the recasting of the judicial role to focus on the delivery of ‘services’. ⁷³ For Hunter, the ‘neo-liberal judge’ is one who works within a bureaucratic ‘KPI-driven regime’ with a focus on settlement. ⁷⁴ A labour law lens therefore both reflects emerging trends in court management and offers a means of critiquing such trends from individual and collective perspectives.

A Labour Law Lens in Australia

While a labour law lens may significantly enhance our understanding of the judicial role, there has been limited take-up of this approach in existing case law. In Australia, at the federal level, the Australian Constitution provides limited consideration of the position of judges as individual workers or employees. Provision for judges’ appointment, tenure and remuneration is made in s 72 of the Constitution, which provides for appointment by the Governor-General in Council; removal by the Governor-General in Council, on an address from both Houses of Parliament in the same session, on the ground of proved misbehaviour or incapacity; remuneration as fixed by Parliament, which cannot be diminished during a judge’s continuance in office; and judicial retirement ages (age 70 for members of the High Court; age 70 or less for other judges).

There has been limited consideration in the Australian case law of judges’ terms and conditions: ⁷⁵ where these issues have been considered in the courts, the cases have largely focused on judicial tenure and whether s 72 applies to State or Territory courts. ⁷⁶ Other cases have focused on the nature of judicial power. ⁷⁷ Thus, most disputes in Australia have arisen in the context of the judiciary as an institution; there has been minimal consideration of judges and judging using a labour law lens in the Australian case law.

A potential exception to this arose in the context of judicial pensions. In Austin v Commonwealth, ⁷⁸ the High Court was asked to consider the constitutional validity of a federal tax on state judges’ pensions. The tax would have exposed the judges in question to significant liability via a ‘superannuation surcharge debt’: the first plaintiff, a judge of the Supreme Court of New South Wales, would have been liable to a debt of AU$550,780 if he worked until the mandatory retirement age of 72.

For the High Court, it was irrelevant whether the tax operated in a ‘harsh and unreasonable manner’ on individual judges: ‘Unreasonableness is not a ground of invalidity of a tax.’ ⁷⁹ Instead, the tax was invalid as it treated State judges differently (and disadvantageously) to other high-income earners and federal judges. ⁸⁰ This constituted an interference with State arrangements for judicial remuneration, which could have affected the States’ ability to recruit and retain judges to ‘perform an essential constitutional function of the State’. ⁸¹ The provisions denied ‘the interest of the State in providing an adequate level of remuneration’ for judges, ⁸² which impaired State ‘liberty of action’ in relation to ‘the working of its governmental structure’ ⁸³ and interfered with the States’ relationships with their judges. ⁸⁴ The tax, then, was constitutionally impermissible.

Austin was clearly not a case about the status of judges, except as it related to the integrity of the Australian federal structure. As noted by Gleeson CJ, ‘[t]he issue is one of interference; of impairment of the constitutional integrity of a State government’. ⁸⁵ Thus, judges are notable for their constitutional function, not for their individual rights. Further, for Kirby J (in dissent), judicial remuneration is not relevant ‘because it is important to the comfort and lifestyle of the judge’; rather, its ‘governmental importance’ lies in attracting and retaining ‘worthy’ office holders to the bench. ⁸⁶

Similarly, in Baker v Commonwealth, ⁸⁷ federal magistrates argued that their exclusion from the non-contributory defined benefit pension scheme afforded to federal judges was invalid, as it undermined the appearance of judicial independence. The Federal Court held that it had not been shown that a reasonable, well-informed lay observer would apprehend that magistrates’ independence and impartiality would be jeopardised by the lack of a judicial pension, having regard to other safeguards of judicial independence and their judicial salary. ⁸⁸ However, the majority of the Court did recognise that it was possible that judicial remuneration could be reduced so low that courts ‘would not be recognisable as Ch III courts’, ⁸⁹ if they became ‘the exclusive preserve of the idle rich or the corruptible poor’. ⁹⁰

These cases reveal that a labour law lens has rarely — if ever — been applied to the position of judges in Australia. Indeed, the High Court of Australia has explicitly denied judges’ status as employees: in Re Australian Education Union, ⁹¹ it was held by the majority that ‘Ministers and judges are not employees of a State’. ⁹² However, the Court did not explain what, indeed, judges were, if not employees.

Judges as Workers: The UK Context

The Australian context may be compared with the situation in the UK, where there is a much clearer move towards regarding judges as ‘workers’. ⁹³ This goes beyond the idea that judges are ‘judicial officers’ with an overriding constitutional function and acknowledges that judges are individual workers with their own needs, careers and aspirations, who may be aided by labour law and individual and collective labour rights. ⁹⁴

These developments have been particularly prominent in the context of discrimination law, where judges have repeatedly been held to be ‘workers’ for the purposes of EU and UK equality legislation, despite occupying judicial office. In O’Brien v Ministry of Justice, ⁹⁵ the Court of Justice of the European Union (‘ECJ’) held that ‘the sole fact that judges are treated as judicial office holders is insufficient in itself to exclude the latter from enjoying the rights provided for by that framework agreement [on part-time work]’. ⁹⁶ Judges could only be excluded from the Framework Agreement if their relationship was held to be substantially different from the relationship between employers and those who fall within the category of ‘workers’ under national law. ⁹⁷ While it was for the national court to determine whether this was the case, the ECJ noted that the national court’s decision should be made having regard to the spirit and purpose of the Framework Agreement on part-time work, and in light of the distinction between workers and the self-employed; ⁹⁸ and having reference to how judges are appointed and removed, the way their work is organised and the rights attached to their position (such as sick pay, maternity or paternity pay and other benefits). ⁹⁹ Finding judges to be ‘workers’ would not undermine their independence: ¹⁰⁰ indeed, according to the Advocate General, employment rights would strengthen the economic and practical independence of the judiciary. ¹⁰¹

The UK Supreme Court, applying the ECJ’s test, held that judges were ‘workers’ for the purposes of the Framework Agreement, on the basis that ‘they are not free agents to work as and when they choose. They are not self-employed persons when working in that capacity [as judges]’. ¹⁰² The Court considered that (i) the character of judicial work differed from that of a self-employed person; (ii) the rules for judicial appointment and removal were such that ‘no self-employed person would subject himself’ to them; (iii) the way judicial work was organised for them, and that recorders and other part-time judges were expected to work during defined times and periods, meant judges had less discretion over when they worked; and (iv) part-time judges were generally entitled to the same employment-related benefits as full-time judges. ¹⁰³

The decision in O’Brien echoes the similar result in Perceval-Price v Department of Economic Development, ¹⁰⁴ where the Court of Appeal in Northern Ireland held that tribunal members were entitled to rely on equal pay legislation as ‘workers’. The Court said:

All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the President of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment, as servants of the State, even though as office holders they do not come within the definition of employment in domestic law. ¹⁰⁵

However, this does not mean that judges are ‘workers’ for all purposes or engaged under an employment contract. In Gilham v Ministry of Justice, ¹⁰⁷ it was held that District Court judges were office holders and not employed under a contract of employment or contract for services. The judges therefore did not meet the definition of ‘worker’ in s 230(3) of the Employment Rights Act 1996 (UK), which depended on the existence of a contract, and were not entitled to whistleblowing protection.

In the Employment Appeal Tribunal’s decision in Gilham, judges were categorised as ‘statutory office-holders’, who held an ‘office with duties defined by statute’. ¹⁰⁸ Mrs Justice Simler endorsed the definition of ‘office’ adopted by Lord Sumption in The President of the Methodist Conference v Preston ¹⁰⁹ as ‘a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution’. ¹¹⁰ Thus, as office holders, judicial posts are defined by their public nature and the source of their duties (here, statute and rules made under statutory authority ¹¹¹ ). In this context, judicial office could be distinguished from an employment or contract arrangement, as there was no negotiation of the judges’ terms of appointment and remuneration. Moreover, the relationship was not at the will of the parties, as it could only be terminated in specific and limited circumstances such as incapacity or misconduct. ¹¹²

The Employment Appeal Tribunal in Gilham explicitly distinguished O’Brien on the basis that the earlier case concerned rights under EU law, rather than domestic employment law. ¹¹³ While judges are in an ‘employment relationship’ for the purposes of EU derived rights, ¹¹⁴ this does not extend to non-EU derived domestic law.

The Court of Appeal approved the substance of the Employment Appeal Tribunal’s decision. ¹¹⁵ A judge’s obligations are derived from judicial office itself, not from an employment contract, and judicial functions are derived from statute. ¹¹⁶ The absence of a contractual relationship was also important for perceptions of judicial independence:

it is in principle desirable to have as much visible distance between the judiciary and the executive, and a status that depends purely on the holding of an office is better from that point of view than a contractual relationship of worker and employer, with its inevitable connotations of the former being subordinate to the latter. ¹¹⁷

Collective Labour Rights

Collective labour law offers a means of structuring and channelling collective action on the part of workers. Workers are granted rights to collectively organise, bargain and undertake industrial action to support their demands. For example, the International Covenant on Civil and Political Rights ¹²⁰ protects freedom of association in art 22, which states: ‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.’ This is also protected by International Labour Organization conventions, including the Right to Organise and Collective Bargaining Convention, 1949 (No 98) ¹²¹ and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), ¹²² both of which have been ratified by Australia and the UK.

Pay, pensions and working conditions are areas that, for employees, might be the subject of collective action and negotiation. While judges’ terms and conditions of employment likely exceed statutory minima, this does not mean they are subjectively or objectively adequate. While terms and conditions of work are a major factor in judicial retention, and may also affect judicial recruitment, ¹²³ it appears that many judges in England and Wales are discontented with their conditions of work. In the 2014 UK Judicial Attitude Survey results for England and Wales, 86 per cent of respondents who had been in the post for at least five years felt that working conditions were worse than they were five years ago, and 48 per cent said they were significantly worse. ¹²⁴ Only 2 per cent said conditions were better; and none said conditions were significantly better. ¹²⁵ In relation to pay, 78 per cent of respondents felt that pay and pension entitlements did not adequately reflect the work they did; and 63 per cent did not feel their salary was reasonable. ¹²⁶

These findings were even more marked in the results of the 2016 survey for England and Wales: 78 per cent of salaried judges said they had experienced a loss of net earnings in the last two years, ¹²⁷ and 74 per cent felt that their pay and pension entitlements did not adequately reflect they work they did. ¹²⁸ This was having a significant and deleterious effect on judicial morale: 63 per cent of respondents said judicial salaries were affecting their morale, and 82 per cent said it was affecting morale of judges they worked with. ¹²⁹ Similar results were found for salaried judges in Scotland and Northern Ireland in 2016. ¹³⁰ In relation to working conditions, the 2016 survey found that a substantial majority (76 per cent) of judges in England and Wales and UK tribunal members felt they had experienced a deterioration in their working conditions since 2014, and 33 per cent felt conditions were significantly worse. ¹³¹ Many judges were also concerned for their physical safety in court (51 per cent) or outside of court (37 per cent). ¹³²

By contrast, Australian judges appear more satisfied with their terms and conditions of work. In the 2007 National Survey of Australian Judges, 76.3 per cent of judges were satisfied with their benefits, and 69.4 per cent were satisfied with their salary. ¹³³ However, this level of satisfaction was much lower than that for overall work (at 92 per cent). ¹³⁴ It is also debatable whether these results would still hold more than a decade later. In Appleby and others’ 2016 survey of Australian judges, 49 per cent agreed or strongly agreed that judicial pensions and remuneration were a challenge for their jurisdiction. ¹³⁵

In Australia, remuneration for federal judges (and other public officers) is set by the Remuneration Tribunal. The Tribunal ‘takes a conservative approach to annual adjustments to remuneration’ ¹³⁶ and provided only one pay increase — of 2 per cent from 1 January 2016 — for judges from July 2013 to October 2016. ¹³⁷ In effect, this meant that judicial remuneration, on average, was falling behind other sectors and professions: over that same period, the Wage Price Index increased by over 7 per cent, public sector wages by over 8 per cent and wage increases for public sector bodies covered by federal agreements (on average) by over 10 per cent. ¹³⁸ A further increase to remuneration for federal judges — of 4.8 per cent from 1 January 2017 — was awarded in November 2016, recognising the ‘increased complexities faced by judges’ and aimed at ‘restoring relativities [with state and territory pay], in an environment of continued economic and wages restraint’. ¹³⁹ This ‘conservative’ approach to remuneration ignores judges’ financial needs as individuals and expressly acknowledges that judicial income is falling behind inflation and other sectors. Thus, in Appleby and others’ survey, respondents expressed concern with the process of setting judicial remuneration (whether by government or tribunal), that remuneration is not linked to the consumer price index and that entitlements are rarely reviewed. ¹⁴⁰

Reforms have also been introduced to make judicial pensions more ‘[s]ustainable and affordable’, ¹⁴¹ and therefore less generous for individual judges. In the UK, for example, the Judicial Pension Scheme 1993 (‘JUPRA’) has been replaced with the New Judicial Pension Scheme 2015. This imposes higher individual contributions on judges and reverts to a career-average defined benefit pension, rather than a final salary pension under JUPRA. ¹⁴² The transitional provisions in the pension changes were successfully challenged in the Employment Tribunal and, on appeal, in the Employment Appeal Tribunal and Court of Appeal, as a form of age discrimination which was not justified as a proportionate means of achieving a legitimate aim. ¹⁴³ This challenge related to the transitional provisions only; it did not consider the broader constitutional validity of the pension changes in reducing judges’ pay and conditions. ¹⁴⁴

In the face of ongoing restrictions to judges’ pay and pensions, and deteriorating working conditions, collective action by judges might be particularly beneficial in securing better terms and conditions of work. It is not contentious that judges may be represented by some sort of professional association. Art 12 of the Universal Charter of the Judge, which represents minimum norms for judges and was unanimously approved by delegates at the meeting of the Central Council of the International Association of Judges in Taipei in 1999, says:

The right of a judge to belong to a professional association must be recognized in order to permit the judges to be consulted, especially concerning the application of their statutes, ethical and otherwise, and the means of justice, and in order to permit them to defend their legitimate interests. ¹⁴⁵

Collective action on the part of judges may be particularly concerning given the need to ensure internal and individual independence from judicial colleagues. ¹⁴⁸ However, it is certainly arguable that collective action to secure terms and conditions of work is unrelated to judicial decision-making: judicial independence can be maintained — and, indeed, enhanced — by improved conditions of work, which are better secured through collective negotiation. Thus, collective action does not innately jeopardise judicial independence and integrity, so long as it is limited to terms and conditions of work.

More challenging, though, is the potential for collective action on the part of judges to lead to judicial proceedings: either to adjudicate on the legality of collective action or to rule on the application or interpretation of a collective agreement. Judges being asked to rule on the legality of their own actions and terms and conditions of work puts obvious pressure on the independence and impartiality of the judiciary. However, it is not unknown for judges to be asked to rule in this way: indeed, the UK cases on the status of judges and Australian cases on judicial pensions raise similar issues. In these cases, though, the issue in question generally related to a different jurisdiction or court, or did not directly affect the judges making the ruling. Thus, challenges to the independence and impartiality of the judiciary are put at arm’s length. It is possible that similar separation could be achieved in relation to collective action; and, if judges were involved in negotiations that were under challenge, there is always the option of recusal. ¹⁴⁹

Reflecting the importance of freedom of association to the judiciary, judges are already represented by a range of bodies. In the UK, for example, the UK Association of Fee Paid Judges was established in 2014 to represent the interests of part-time UK judges. Its aims include

to promote greater understanding and better resolution of issues facing fee paid judges, and in particular:…[c]ontribute to the understanding and resolution of legal issues and working practices facing fee paid judges; [and] promote and protect the rights of fee paid judges. ¹⁵⁰

In Australia, the Judicial Conference of Australia (‘JCA’) is an incorporated association which includes judges and magistrates from all jurisdictions in Australia. It has over 700 members, representing over half the judicial officers in Australia. ¹⁵¹ The JCA provides a collective and representative voice for the judiciary, and has issued position papers on issues such as judicial pensions ¹⁵² and submissions to Senate Standing Committee inquiries on topics like complaints regarding judicial behaviour. ¹⁵³

Associations have a number of similarities to trade unions: they are groups of individuals with a common interest or purpose and may consist of a group of individuals working in particular area (such as judges). However, associations lack the workplace rights of trade unions; they have no right to engage in collective bargaining or industrial action, and employers are not legally bound to negotiate with them.

That said, it is not unheard of for judges to act collectively, including through associations. The Association of Judges of Ireland (‘AJI’), for example, was established in 2011 as a ‘representative body’ for the interests of its members, which include the ‘vast majority’ of judges in Ireland. ¹⁵⁴ While it ‘does not represent the judiciary as such’, and is not a trade union, the breadth and coverage of the AJI’s membership (with coverage of over 90 per cent of serving judges) ¹⁵⁵ means it can play a significant role in advancing the judiciary’s collective interests and has higher coverage than unions in most other industries. The Constitution of the AJI includes amongst its aims ‘[t]o promote the interests of its members in their professional capacity’ and ‘[t]o promote the general interests of its members, including those interests arising upon retirement from the Bench’. ¹⁵⁶ The AJI has advocated for judicial interests in relation to pay ¹⁵⁷ and pensions, ¹⁵⁸ though this has taken the form of letters and meetings with members of the executive, rather than industrial action. Thus, it is a more ad hoc form of collective action than would typically be undertaken by trade unions.

In other common law jurisdictions, judges are represented by formalised unions. In the USA, the Association of Administrative Law Judges (‘AALJ’) is a federal employees’ union, which represents the interests of federal administrative law judges and collectively bargains with the Social Security Administration. It has lobbied in Congress for increases to judicial wages, improvements to pensions and increases to annual leave, and has undertaken collective bargaining in relation to workplace safety and working conditions. ¹⁵⁹ Collective bargaining is now undertaken when any change is made to the security or safety conditions that affect federal administrative law judges. ¹⁶⁰ Like representative bodies in other jurisdictions, the AALJ was originally established as a professional association: however, increasing incursions on judicial independence in the 1990s, and a move to a corporatist management structure, meant

The AALJ leadership realized the judges needed the legal protection which could only be achieved by forming a collective bargaining unit, a union. There was of course a good deal of resistance to the notion of judges, skilled professionals, forming a union. There was much debate, an election was held and the majority of judges voted for the protection of a union. ¹⁶¹

Even industrial action by judges is not unheard of — though not in the UK or Australia, and it is generally in response to sustained or calamitous attacks on the rule of law. Judicial strikes have occurred in countries such as Egypt, Spain, Italy, Greece, Tunisia and Uganda. ¹⁶⁵

Thus, there are examples of collective action and trade union representation for the judiciary in other countries. Applying this to Australia, formalised collective structures would give judges a voice and opportunity to negotiate with the executive on issues such as pay, pensions, safety and working conditions. It is questionable, though, whether this would be any more effective in practice than existing collective structures, such as the ‘associations’ currently in place in the UK and Australia. A labour law lens does, however, draw attention to the need for formalised and clear processes for consultation and negotiation with judges, which are currently lacking in both jurisdictions. Ad hoc processes for expressing concern to the executive lack the predictability and certainty of labour law mechanisms.

Discrimination Law

As discussed above, judges in the UK are increasingly using discrimination law to advance their individual and collective interests. However, discrimination law is not often thought of in relation to the judiciary. While The Bangalore Principles of Judicial Conduct 2002 include a section on ‘Equality’, this is confined to the treatment of parties before the court, not judges themselves. ¹⁶⁶

For the general workforce, however, there is a growing body of individual anti-discrimination rights, which cover areas such as direct and indirect discrimination, harassment and victimisation. While the specific provisions of these laws vary from jurisdiction to jurisdiction, there is a clear prohibition of discrimination in employment on the basis of protected grounds, such as gender, race and ethnicity, caring responsibilities, sexuality, age and disability.

Discrimination law has a growing relevance for the judiciary. First, as demonstrated by the emerging UK case law, discrimination law may assist in ensuring equality of judicial terms and conditions of work, including in areas like pensions ¹⁶⁷ and pay. ¹⁶⁸ This is particularly relevant for those who work part-time in the judiciary ¹⁶⁹ and who are ‘non-traditional’ judges. ¹⁷⁰

The consequences of applying discrimination law to the judiciary could be wide-ranging. For example, Hunter has mapped the ongoing exclusion of women from senior judicial positions in the UK, perhaps due to greater emphasis being placed on ‘old’ (masculine) judicial qualities in promotion processes, a narrowing eligibility pool and the process of statutory consultation for senior appointments. ¹⁷¹ Similar trends are evident in Australia. ¹⁷² As illustrated by the UK Supreme Court case of Essop v Home Office (UK Border Agency), ¹⁷³ promotion processes can be indirectly discriminatory, even if it is unclear how or why they disadvantage certain applicants. The ongoing exclusion of women and non-white judges from senior judicial positions is an area that would benefit from scrutiny through a discrimination law lens. Further, the exclusion of less senior judges from certain employment benefits, as was explored in Baker v Commonwealth, ¹⁷⁴ would also benefit from review, particularly if women and non-white judges are largely confined to these positions.

Thus, discrimination law may be one tool for supporting female and non-white judges. This is particularly important given the challenge of retaining non-traditional judicial officers: in the 2016 UK Judicial Attitude Survey, the results for England and Wales and UK tribunals indicated that 144 of 472 female judicial respondents (31 per cent) were currently considering leaving the judiciary early (ie, in the next five years, when they were not scheduled to retire). ¹⁷⁵ Similarly, 30 of the 77 Black and Minority Ethnic (‘BAME’) judicial respondents (39 per cent) were considering leaving in the next five years. ¹⁷⁶ This runs directly counter to efforts to increase female and BAME participation in judicial institutions. While discrimination law is not the only tool that might assist judicial retention, it has particular importance for non-majoritarian groups.

Second, for judges generally, discrimination law may offer a new lens to review existing terms of judicial appointment. This is particularly pertinent in relation to judicial retirement ages: unlike other workers, all Australian judges and magistrates are subject to mandatory retirement ages, ranging from ages 65 to 72, ¹⁷⁷ and judges in the UK are subject to a mandatory retirement age of 70. ¹⁷⁸ In my previous work, I have criticised Australian judicial retirement ages on two grounds: first, that they no longer reflect contemporary conditions; and, second, that they are unnecessary in practice. ¹⁷⁹ A discrimination law lens further bolsters these criticisms of judicial retirement ages. ¹⁸⁰ Fixed retirement ages are not generally acceptable in the modern Australian or UK employment context: for other occupations, the legislature has decided that mandatory retirement is no longer suitable, ¹⁸¹ and compulsory retirement is now generally prohibited. ¹⁸² Judges are one of the few groups that may still be subjected to compulsory retirement. ¹⁸³ Judicial retirement ages, then, are better seen as ‘a prime example of arbitrary age discrimination’. ¹⁸⁴ A labour law lens would likely support calls for the abolition of judicial retirement ages.

That said, judicial retirement ages may fulfil a specific constitutional role, over and above their usefulness in relation to the general workforce, limiting the applicability of a labour law lens to the judicial context. Judges themselves support the retention of mandatory retirement: in Appleby and others’ 2016 survey of Australian judges, only 9 per cent of respondents thought that there should not be a mandatory retirement age for judicial officers. ¹⁸⁵ Judicial retirement ages arguably help to contemporise the courts and open up opportunities for younger appointees by increasing judicial turnover, and prevent capacity issues from impeding the judicial function. ¹⁸⁶ Instead of removing retirement ages, Opeskin therefore argues for a hybrid model of judicial tenure, that adopts both age limits and term limits, to both ‘[control] for the risk of decrepitude among elderly judges’ and ‘[ensure] there are “regular and seemly exits” that generate change and renewal on the court’. ¹⁸⁷ For Opeskin, this is the most reliable means of securing judicial independence and the integrity of the court. However, Opeskin also advocates for increasing judicial retirement ages to address the cost of judicial pensions and judicial attrition, ¹⁸⁸ revealing some of the practical challenges occasioned by retirement ages.

I have previously criticised these arguments in favour of judicial retirement ages for embodying and perpetuating age stereotypes and ignoring the need for some process of capability assessment for all judges. ¹⁸⁹ Instead, ‘[r]ather than relying on mandatory retirement to address capacity issues, these concerns should prompt deeper consideration of how we respond to judicial incapacity, and how we support chief justices in fulfilling their internal management role’. ¹⁹⁰ This is also consistent with the findings from Appleby and others’ survey, where 77 per cent of respondents agreed that ‘it would be appropriate for judicial officers to be asked to undergo capacity checks at the request of a Head of Jurisdiction or a relevant body constituted by judges’, and only 12 per cent expressed any disagreement. ¹⁹¹ Capacity issues are a problem for the judiciary, even with retirement ages in place. While effectively addressing these issues raises complex tensions between judicial independence and accountability, ¹⁹² relying on judicial retirement ages to address the problem is not a workable solution. While a labour and discrimination law lens may not resolve these tensions and issues, it offers a new way of describing and conceiving of judicial retirement ages, which may challenge the prevailing orthodoxy and acceptance of mandatory retirement.

Of course, as for the general workforce, there are fundamental limitations in using discrimination law as a tool for protecting individual rights. ¹⁹³ Even where judges are entitled to protection under discrimination law, they may struggle to prove their claim. In McGrath v Ministry of Justice, ¹⁹⁴ for example, the Employment Appeal Tribunal upheld the Employment Tribunal’s rejection of a comparator for an Employment Tribunal lay member of a full-time salaried Employment Judge. This meant the claim was doomed to fail. Despite these practical limitations, a discrimination law lens still offers new perspectives and insights that might assist non-traditional judges in particular.

Workplace Flexibility and Working Time

Workplace flexibility is important for recruiting and retaining a diverse pool of candidates for judicial office, and can help judges to manage health issues ¹⁹⁵ and caring responsibilities, ¹⁹⁶ particularly into older age. ¹⁹⁷ In the 2014 UK Judicial Attitude Survey, results from England and Wales and UK tribunals found the inability to work flexible hours was a factor that would prompt early retirement for 17 per cent of respondents; ¹⁹⁸ conversely, the opportunity to work part-time would make 34 per cent of respondents more likely to remain in the judiciary until the retirement age, ¹⁹⁹ and increased flexibility in working hours would influence 25 per cent to remain. ²⁰⁰

In the 2016 survey, respondents were asked how important opportunities for flexible working were to them: in the results for England and Wales judges and UK tribunals, 44 per cent of respondents thought flexible work was important. ²⁰¹ Despite this, only 13 per cent rated opportunities for flexible working as good or excellent; 54 per cent said they were non-existent. ²⁰² That said, flexible working was found to be most important to tribunal judges, and tribunal judges also had the best access to flexible working. ²⁰³ An absence of flexible working in the higher judiciary might impede judicial progression and advancement, particularly for those with caring responsibilities (often women). In the National Survey of Australian Judges, 48.4 per cent of respondents identified compatibility with family responsibilities as an important or very important factor in their decision to become a judge. ²⁰⁴ Thus, a focus on workplace flexibility may enhance the judiciary as an institution, by promoting judicial recruitment, satisfaction and retention. ²⁰⁵

Promoting workplace flexibility is consistent with a labour law lens and trends for the general workforce, with the introduction of a statutory right to request flexible working in both the UK ²⁰⁶ and Australia. ²⁰⁷ However, unlike for the general workforce, flexible working is fairly uncommon for the judiciary. In England and Wales, part-time work has been available for some salaried (permanent) judicial roles up to and including at the High Court level since 2001. Part-time work was extended to all salaried posts in 2005, so long as it had ‘no material adverse impact on the business needs of the court or tribunal or the services to users’. ²⁰⁸ Thus, judges have ‘[no] absolute right to sit part-time nor is the opportunity to sit part-time reserved for discrete sections of the judiciary, such as those with caring responsibilities’. ²⁰⁹ Part-time sitting is seen as a ‘flexible concept’, and sitting patterns can take a ‘number of forms’ across days, weeks and months. ²¹⁰ However, the minimum sitting requirement is normally at least 50 per cent of the full-time equivalent. ²¹¹ The Crime and Courts Act 2013 (UK) also amended s 23 of the CRA to provide that the Supreme Court must be composed of a maximum number of 12 full-time equivalent judges, rather than a maximum number of 12 individual judges. This has the potential to facilitate part-time judicial appointments to the Supreme Court, possibly allowing for more diverse appointments.

While it is desirable to facilitate part-time and flexible working for judges, it remains to be seen how many judges actually make use of these provisions and, indeed, whether part-time working becomes an acceptable option for the judiciary in practice. As noted above, few respondents in the 2016 UK Judicial Attitude Survey felt they had good access to flexible work: only 13 per cent rated opportunities as ‘good’ or ‘excellent’. ²¹² Thus, it appears that take-up of flexible work is limited in practice, possibly due to institutional constraints.

Flexible work arrangements for judicial officers have also been implemented in some Australian states and territories. Victorian magistrates and judges, for example, may work part-time under a part-time service agreement, so long as they perform a minimum proportion of 0.4 full-time duties. ²¹³ In considering whether to enter into a part-time service arrangement, the Chief Justice or Chief Magistrate may have regard to the operational needs of the court; the personal and professional circumstances of the judge or magistrate; parity and equity with other judges or magistrates; and any other relevant considerations. ²¹⁴ Under these provisions, part-time judges and magistrates must not engage in legal practice; must not undertake paid employment or conduct a business, trade or profession of any kind except with the approval of the Chief Justice or Chief Magistrate; and must not hold a remunerative office in any company, trustee company, incorporated association or other entity, except with the approval of the Chief Justice or Chief Magistrate. ²¹⁵

In the National Survey of Australian Judges, most judges were satisfied with the compatibility of their role with family responsibilities (74.6 per cent), compatibility with lifestyle (75.4 per cent) and hours (70.8 per cent). ²¹⁶ At the same time, 73.8 per cent of judges regarded the volume of work as unrelenting. ²¹⁷ Forty-seven per cent of women respondents always felt rushed, compared with only 17 per cent of male respondents. ²¹⁸ This difference was statistically significant. ²¹⁹ Further, women judges are more likely to feel that work intrudes on family time and home life, with almost half of women judges saying that this happens always or often. ²²⁰ In Appleby and others’ 2016 survey of Australian judges, 77 per cent of respondents agreed or strongly agreed that workload was a challenge in their jurisdiction. ²²¹

This may indicate that, while part-time work is at least notionally available in some courts, a broader cultural shift in favour of part-time and flexible working is required in Australia: as Opeskin notes, few Australian judges take up part-time roles, ²²² let alone other forms of flexibility, meaning the potential of part-time work is ‘under-realised’. ²²³ Indeed, in Appleby and others’ survey, many of those same judges who saw workload as an issue also saw part-time judicial roles as a challenge for their jurisdiction: 32 per cent saw it as a challenge for the judiciary, and female judges were slightly more likely to perceive the use of part-time judges to be a challenge than their male counterparts. ²²⁴ Most of the concerns expressed by judges related to the administrative burden of facilitating part-time appointments. ²²⁵ The authors concluded that the high number of neutral responses to this question might

reflect the underdeveloped use of part-time judges even in those jurisdictions that permit them, and the prohibition on part-time appointments at the higher levels, so that judicial officers have not had sufficient experience of these appointments to have formed a view [on the issue.] ²²⁶