The struggle for judicial independence: The amotion and suspension of supreme court judges in 19th century Australia

While judicial independence was sought by the Australian public in the 19th century, and formally written into colonial constitutions after 1850, the colonies remained subject to Imperial law. That law removed from the local parliaments the power to dismiss judges and placed the power to suspend or amove judges in the hands of the local executive and the Privy Council. The conflict between Imperial law and local law on judicial tenure came to a head in two major incidents in South Australia and Western Australia, in which Imperial law and policy prevailed over local sentiment. The paper shows how popular opinion favoured judicial independence as part of the shift towards responsible government as a means of both loosening Imperial control and asserting more local control over the judiciary. The other finding of the paper is that the de-coupling of the judiciary from legislative and executive functions after 1860, as the result of the institutional changes following the introduction of responsible government, did as much as formal legal changes to enhance the independence of the judiciary and to reduce conflicts between the courts and the executive.