Judges in Vice-Regal Roles

Abstract

The Australian federation is built upon an enduring respect for the independence of the judicial arm of government. This is reflected in the principle that the judiciary should be kept separate from the legislature and executive. A practice seemingly at odds with these values is the appointment of senior judges to vice-regal offices. Despite this, the practice has attracted scant academic attention, and has never been challenged in the courts. In this article we examine the conferral of vice-regal roles on serving federal, state and territory judges. We ask, first, whether such appointments ought to continue to be made and, secondly, whether they are constitutionally permissible.

The judge, by the way, was the King; and, as he was wearing his crown over the wig … he did not look at all comfortable, and it was certainly not becoming.

– Lewis Carroll, ‘Alice's Adventures in Wonderland’.¹