Despite having reached the age limit for NSW judges, Justice Ken Handley has expressed that he would like to carry on. Though he has been welcomed to the NSW Supreme Court as an acting judge, his retirement ceremony last week stirred members of the profession to state their case on the matter.

NSW Chief Justice Jim Spigelman referred in a speech to the “statutory compulsion” under which Justice Handley was retiring. He said it would be “wasteful, bordering on the ridiculous, if you could not serve as an acting judge for more than three years because of the existing statutory prohibition”.

Judges are currently given a career deadline, which varies in each state. In all states and territories except NSW and Tasmania, the compulsory retiring age is 70, while it is 72 in the other two states. For magistrates, it is 65 in most jurisdictions, except in Victoria where it is 70, and NSW and Tasmania, where it is 72.

Chief Justice Spigelman took the opportunity last week to call for a review of the compulsory retiring ages.

“Some such age is, of course, appropriate for judges in view of the inability to remove a judge whose decline in powers does not quite reach the required depths. However, as your own energy and mental acuity attests, an increase in the age to 75 for judges and 78 for acting judges is now appropriate,” he said, referring to Justice Handley himself.

While the NSW Bar Association does not have an official policy on the matter, president Michael Slattery told Lawyers Weekly that he will be putting it to the Bar Council this week.

“But, commonsense suggests that increasing the retirement age, giving greater flexibility is good for the career satisfaction for the judges concerned who want to stay, and it’s good for the state because they get more service from the judges — it’s good all round, but provided they are not past it,” Slattery said.

Slattery noted, however, that the compulsory limits have worked well until now, noting that “you retire at 72 and the chief justice gives you a yearly approval to 75 — he works out whether you’re okay or not. And that actually works quite well”.

The Law Council of Australia also has no objection to a review of the retirement age of judges, said president Tim Bugg.

“There have been instances of highly active, highly skilled members of the judiciary who had to retire because of the retirement age and they could have quite capably continued in their role for a number of years.

“If that’s what’s motivated Justice Spigelman’s comments, then it may be appropriate to have a review. But these things have to be monitored. If change is appropriate then you ought to consider it carefully. We certainly wouldn’t speak against it but I am not sure it’s a pressing issue,” Bugg said.

The Law Council president also noted that there may be an issue if a member of the judiciary is keen to carry on, while he is clearly not up to the job. He suggested the current rules would protect the profession against this problematic issue.

“If you have a barrier where people have to go then that is what happens, rather than someone saying to you ‘you’ve lost the plot, you have to go’.”

Additional reporting by Alex Boxsell.