A recent article on our Rule of Law Institute website by our Founder Robin Speed and our General Manager Sally Layson, is reproduced below and sheds further light on the status of the Rule of Law in Poland, to read our previous analysis of the status of judicial independence in Poland see our blog posts from 2016 and earlier this year.

Rule of Law Update: Poland

The highest court in the European Union has ruled that Poland has acted contrary to the rule of law by enacting legislation which lowered the retirement age of judges to 65 years.  The legislation in question was seen as part of a sustained attack on judicial independence by the Polish Parliament.

Judicial independence is one of a number of principles of the rule of law and has been described by Ursula von der Leyen (European Commission president-designate) as the “jewel in the crown” of the European Union.

It is necessary to say a little about the Polish decision before commenting on whether Australia’s High Court would reach a similar conclusion if there was an attack on judicial independence through an attempt to “stack” the Court.

The highest court in the European Union, the Court of Justice of the European Union, handed down its decision on 24 June 2019.  The Polish authorities had been criticised for harassing and disciplining judges who they considered to be unfavourable to their cause.  The particular legislation provided that all judges of their Supreme Court, the Sąd Najwyższy, the equivalent of our High Court, were obliged to retire on reaching the age of 65 years, and not, as previously, 70.  On reaching 65 a judge could have his term extended up to a further 5 years by the President of Poland.

Both provisions, the lowering of the retirement age and the provision enabling the President to extend the term of a judge, were challenged by the Polish Supreme Court judges on the basis that they breached the rule of law and in particular the principle of judicial independence and the immovability of judges.

The judges pointed to Article 2 of the Treaty on European Union which expressly provided that the Union is founded on values, including the rule of law, that Article 19(1) of the Treaty on European Union required member states to provide remedies sufficient to ensure effective legal protection in the fields covered by Union Law and finally, Article 47 of the Charter of Fundamental Rights of the European Union which provided that every individual is entitled to a fair and public hearing within a reasonable time by an impartial and independent tribunal.

The Court of Justice of the European Union reached a conclusion that Article 19(1), read in the light of Article 47, required the preservation of the independence of the Supreme Court of Poland which had been infringed by the legislation.

It was not the lowering of the retirement age by itself which resulted in the infringement but that the judges who were appointed as judges before the law entered into force were subject to the new retirement provision.  This was seen as an attack on the principle of irremovability which is essential to the independence of the judiciary.  It followed that Article 19(1) had been breached.

In conferring on the President of Poland the discretion to extend the term of a judge past 65 years, the Court reasoned that the Supreme Court was no longer providing the guarantee that it acted impartially and independently.  A reasonable doubt would arise as to the imperviousness of the judges concerned to external factors and as to the neutrality with respect to any interests before them. Accordingly, Article 19(1) was breached by the second provision.

Articles 2 and 47 do not apply to Australia as are not part of the European Union.  Nor is it subject to the provisions of an overriding Bill of Rights.  Any and all protection has to be found in the express or implied terms of the Australian Constitution.

Chapter III of the Australian Constitution expressly deals with the Judicature and, in particular, for the term of a High Court justice to expire on reaching 70 years and, except for misbehavior or incapacity, not earlier. It also includes a provision to ensure changes to the retirement age of Justices does not affect the term of offices of Justices under an appointment made before the changes to the retirement age.  An Australian Parliament which is minded to “stack” the High Court is prevented by these provisions from getting rid of justices by lowering the retirement age, but what if it attempted to increase the numbers of justices from 7 to 15 and appointed judges more to its liking?

In 1937, President Franklin Delano Roosevelt sought to do just this and attempted to “stack” the US supreme Court to overcome the concern that a majority of the judges were opposed to New Deal legislation.  He announced that the extra judges … “will act as Justices “ and “save our national Constitution from hardening of the judicial arteries.”  His plan was subject to a great deal of protests and never tested by reason of the retirement of one of the justices in the majority.

“Stacking” of the High Court is not expressly dealt with in the Constitution.  But the independence of the Judicature is assumed and is critical.  In such circumstances, where there is an attack on the independence, would the Court rule that the attempt is implicitly prohibited by Chapter III of the Constitution?