Judicial Independence in Australia and South Africa: Comparative Lessons

Abstract

This article criticises the approach of the South African and Australian courts to the exercise of non-judicial functions by judges. These courts take the view that conferral of non-judicial functions on judges is permissible provided that the functions are not 'incompatible' with judicial office. It might seem that only those who elevate form above substance would think otherwise. I, however, argue against this approach, suggesting that the flexible concept of incompatibility is ill-suited to protect the rule of law interests served by the separation of judicial power. I argue that if we attend to the fact that there may be good reasons for rigidly following rules, we will be led to a blanket ban on judges exercising non-judicial functions as a more effective way to protect the constitutional role of the courts as independent and impartial arbiters of disputes.