The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. The independence of the judiciary has been ensured by the judges' security of tenure as well as the judiciary's own distinguished traditions of learning, integrity and technique and the law of contempt. Independence of the judiciary was inextricably linked to the system of formal courts.
The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason: administration. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive, as may be seen in numerous uncivilised countries of the world.
In order to have a proper judiciary, properly exercising its jurisdiction, several things are necessary. They fall into three broad groups: technical competence, commitment to sound ideals and finally, institutional (and therefore, personal) independence. Naturally, these groups overlap to a certain extent.
Although formal courts in Australia are yet largely independent, there has been a proliferation of a vast array of tribunals which are neither independent nor competent. These are the administrative tribunals which determine countless privileges and deprivations which are incidents of the modern welfare state. These tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. These control and/or reward systems are progressively replacing the system of independent adjudication based on formal rights. It is time for a new Coke to wage war upon those usurpers of judicial jurisdiction.
The ethos of the judiciary and the formal courts is being challenged by intellectual influences, particularly by a novel ethos of a "democratic" judiciary and by suspicions that Labor governments' policy of judicial appointment is sometimes based upon the criteria of philosophy and party loyalty before merit and judicial excellence.
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