Time to Reconsider the Retirement Age of Judges

Thursday, 24 February 2022

The President of the Law Society of Western Australia, Rebecca Lee, agrees it is time to reconsider the age at which judges are required to retire.  In 1937, the arbitrary age of 70 was chosen.  In the intervening decades – indeed almost a century – societal norms, medical knowledge and life expectancy have evolved significantly. His Honour Justice Le Miere is only the latest prime example of a judge who could continue to provide years of valuable service to the State and people of Western Australia, if not forced to retire by reason of attaining an arbitrary age.

It is mandated by Section 3 of the Judges Retirement Act 1937, that Judges, Masters and Commissioners of the Supreme Court of Western Australia shall retire from office on the day on which they attain 70 years of age.  By reason of sections 16 of the District Court of Western Australia Act 1969 and 18(1) of the Family Court Act 1997, the same applies to judges of the District Court and the Family Court of Western Australia respectively.  Magistrates cease to be a magistrate at 70, pursuant to s.11 of the Magistrates Court Act 2004.

At the occasion of the farewell of Hon Justice EM Heenan from the Supreme Court bench on 23 June 2015, the former Chief Justice of Western Australia, the Hon Justice Wayne Martin said:

A lot has changed in the 78 years since [the Judges Retirement Act 1937] was enacted, including changes in life expectancy. According to tables published by the Australian Bureau of Statistics, a male born in Western Australia between 1881 and 1890, and who might therefore have been of an age to be a judge of the Court in 1937, had a life expectancy of 46 years. Although it must be accepted that this average life expectancy may well have been influenced by the First World War, those born between 1901 and 1910 in Western Australia, and who were in the main unlikely to have been affected by World War I, only had a life expectancy five years longer at 51 years. By contrast, a male born in Western Australia in 1971, who might now be a judge of the Court, has a life expectancy of 68 years or 22 years greater than a person likely to have been a judge in 1937 when the retirement age was set.

Life expectancies continue to improve.  In 2018-2020, the life expectancy in this State at birth for a male was 81.3 years and 85.7 for females, which is slightly higher than the national figures.  There is no reason simply because a Judge grows older than 70 years of age, that they cannot perform the essential duties of judicial office.  A compulsory retirement age set at 70 in this day and age is oftentimes denying the people of Western Australia the continued benefit of a Judge’s acquired knowledge on the bench and a willingness to commit themselves to the hard work of delivering justice in the State.  As such, raising the compulsory retirement age to 75, as has been suggested, is worthy of consideration.