Chapter 3 - Judicial appointments

Part-time appointments

Section 4C(1) of the Judicature Act 1908 provides that a judge of the High Court acts “on a full time basis” unless that judge is authorised by the Attorney-General to act on a part-time basis for any specified period. A judge authorised to act on a part-time basis must resume acting on a full-time basis at the end of the specified period. For the avoidance of doubt, it is made plain that such an appointment can be made from the inception of appointment as a judge, and may be made more than once in respect of the same judge. The authorisation may occur only on the request of the judge and with the concurrence of the Chief High Court Judge, who must have regard to the ability of the court to discharge its obligations in an “orderly and expeditious way”.

There is an equivalent provision in the District Courts Act 1947,71 but section 4C(8) of the Judicature Act 1908 provides that an authorisation may not apply to a judge of the Court of Appeal or Supreme Court. As a matter of principle, we cannot see why the Court of Appeal should be treated differently from the High Court.

In practice, part-time appointments are generally sought in two situations. First, part-time appointments may be particularly important to persons with family responsibilities, who cannot work full time. In that sense, part-time appointments are supportive of gender diversity.

At the other end of a career, an able judge may have served many years but wish to “scale down” his or her involvement prior to retirement. A judge might for instance serve 15 years full-time, but wish to serve the remaining five years of a 20 year judicial career part-time. There may be sound social and professional reasons for enabling this to occur, but arguably it is not possible under the current legislation because a part-time appointee must resume full-time work at the end of the specified period. In our view, the legislation should provide more flexibility in this regard, to enable an older judge to work reduced hours for a period of up to five years before retirement.

Q5

Should it be possible to appoint part-time judges in the Court of Appeal?

Section 5AA.