Brian Opeskin is a Professor of Law and was Associate Dean (Research) from 2016-2019.
Prior to joining UTS, he held positions as: Professor of Legal Governance at Macquarie University; Head of the Law School at the University of the South Pacific in Vanuatu; Deputy President of the Australian Law Reform Commission; Associate Professor at Sydney University; and Associate to Justice Mason at the High Court of Australia.
He undertook his undergraduate study in economics and law at the University of New South Wales; postgraduate study in law at Oxford University; and holds a Masters degree in social research (demography) and a PhD from the University of Melbourne.
He researches in the broad field of public law and has written widely on constitutional law; courts, judges and jurisdiction; and international migration law.
- Australian Academy of Law, Fellow
- Nauru Joint Advisory Committee, member of Legal Sub-Committee (2015-2017)
- Australian Association of Constitutional Law, Member
- Public Law Review, Advisory Board
- Centre for Comparative Constitutional Studies (CCCS), University of Melbourne, Advisory Council
- Australian Research Council, College of Experts, member of the Humanities and Creative Arts (HCA) panel for the assessment of grants (2013–2015)
Can supervise: YES
- international migration law
- refugee law
- nationality and citizenship
- courts and judicial systems
- judicial tenure
- judicial remuneration and pensions
- population studies (demography)
- demographic projections of court demand
© Cambridge University Press 2012. International migration law is an important field of international law, which has attracted exceptional interest in recent years. This book has been written from a wide variety of perspectives for those wanting to understand the legal framework that regulates migration. It is intended for students new to this field of study who seek an overview of its many components. It will also appeal to those who have focussed on a particular branch of international migration law but require an understanding of how their specialisation fits with other branches of the discipline. Written by migration law specialists and led by respected international experts, this volume draws upon the combined knowledge of international migration law and policy from academia; international, intergovernmental, regional and non-governmental organisations; and national governments. Additional features include case studies, maps, break-out boxes and references to resources which allow for a full understanding of the law in context.
© Cambridge University Press 2012. International migration has been a topic on the lips of policy makers for a very long time. The policy interests of States vary widely. Some seek to promote immigration to meet local labour shortages, or facilitate emigration to generate a stream of remittances and foster local development. Others take a more cautious approach because of concerns about irregular migration or national security, or because their societies historically have not welcomed foreigners. These different policy stances are reflected in a vast and complex array of national migration laws that span issues of nationality, entry, exit, deportation, detention, visa classes, status determination, migration-related crime and access to social services. These laws are generally well known within States because they are applied on a daily basis by immigration officials, consular officers, border patrols and crime investigators. By contrast, the framework of international law governing migration is fragmented and unfamiliar. While some pockets are well recognised - refugee law being the principal example - many dimensions of the international legal framework remain unknown to all but a small coterie of specialists. Many individuals who formulate national migration laws, policies and practices, or are required to implement them, are thus unaware of the rich lode of international agreements, customary law, resolutions, recommendations and guidelines informing developments at the national level.
The structures that regulate and support the Australian judiciary reflect and serve the traditional judicial values of independence, impartiality and the rule of law. Yet modern society places emphasis on an additional range of values that are expected of government and public institutions. These contemporary values include diversity, transparency, accountability and efficiency. Reforms to introduce regulatory and support structures that prioritise and facilitate these values in the judicial arm has proved challenging, sometimes contentious. This article reports on a survey of Australian judicial officers (n=142) from across different jurisdictions. Participants were asked what they considered to be the most pressing challenges that face the various levels of the Australian judiciary, and whether the current regulatory and support environment achieves international best practice. The responses provide a nuanced picture of the state of the modern Australian judiciary as it appears to those within it. The study facilitates an understanding of the degree to which judicial officers are satisfied with the current legal and regulatory framework, and, where they are dissatisfied, the nature of their disquiet. While not seeking to offer complete resolutions to the many issues canvassed, the data and analysis presented in this article serve as an interruption to regulatory and academic studies of the Australia judiciary, with the potential to illuminate and re-orientate the reform conversation in light of the judicial perspective on these various issues.
Ghezelbash, D, Moreno-La, V, Klein, N & Opeskin, B 2018, 'Securitization Of Search And Rescue At Sea: The Response To Boat Migration In The Mediterranean And Offshore Australia', International and Comparative Law Quarterly, pp. 1-37.View/Download from: Publisher's site
This article compares the law and practice of the European
Union and Australia in respect to the search and rescue (SAR) of boat
migrants, concluding that the response to individuals in peril at sea in
both jurisdictions is becoming increasingly securitized. This has led to
the humanitarian purpose of SAR being compromised in the name of
border security. Part I contrasts the unique challenge posed by SAR
operations involving migrants and asylum seekers, as opposed to other
people in distress at sea. Part II analyses the relevant international legal
regime governing SAR activities and its operation among European
States and in offshore Australia. Part III introduces the securitization
framework as the explanatory paradigm for shifting State practice and its
impact in Europe and Australia. It then examines the consequences of
increasing securitization of SAR in both jurisdictions and identifies
common trends, including an increase in militarization and
criminalization, a lack of transparency and accountability, developments
relating to disembarkation and non-refoulement, and challenges relating
to cooperation and commodification.
Taylor, M, Forbes, M, Opeskin, B, Parr, N & Lanphear, B 2018, 'Further analysis of the relationship between atmospheric lead emissions and aggressive crime: an ecological study', Environmental Health, vol. 17, pp. 1-3.
After completing our study of lead and aggressive crime , it came to our attention that we might have erroneously combined lead in air data from two neighbouring air quality monitoring stations for the Boolaroo, New South Wales (NSW) suburb. We re-examined the data we initially compiled in 2011/2012, and it does appear that data from two neighbouring sites with overlapping names have been combined, as described below. Importantly, this error does not affect the results or conclusions of our original study.
Opeskin, B 2017, 'The Supply of Judicial Labour: Optimising a Scarce Resource in Australia', Oñati Socio-Legal Series, vol. 7, no. 4, pp. 847-878.
Developed societies generate a multitude of controversies between their members, which need to be resolved fairly if society is to function well. Judicial officers play a central role in that process by hearing and determining disputes according to law, but they are costly and their long tenure entrenches labour market rigidities. This is an inconvenience for modern governments, as they attempt to keep the wheels of justice turning, while facing budgetary constraints that drive them to seek ever greater cost-efficiencies. This article surveys the ways in which governments in Australia have sought to optimise the judicial labour force by creating a more flexible and cost-effective supply. The system of justice that has evolved in response to these developments is a complex one, with many complementary parts. There is no unique solution to the question of how many judicial officers society needs to quell disputes because this goal can be achieved in different ways. But great care needs to be taken to ensure that government action to find flexible sources of labour to meet the demand for judicial dispute resolution does not come at too high a price in terms of respect for the rule of law.
Opeskin, B 2016, 'Book Review of R Howard-Hassman and M Walton-Roberts(eds), The Human Right to Citizenship: A Slippery Concept (University of Pennsylvania Press, 2015)', International Journal of Refugee Law, vol. 28, pp. 355-359.
Opeskin, B & Ghezelbash, D 2016, 'Australian Refugee Policy and its Impacts on Pacific Island Countries', Journal of Pacific Studies, vol. 36.
Opeskin, B & Oakley, J 2016, 'Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions', Australian Bar Review, vol. 42, pp. 1-25.
Taylor, MP, Forbes, MK, Opeskin, B, Parr, N & Lanphear, BP 2016, 'The Relationship between Atmospheric Lead Emissions and Aggressive Crime: An Ecological Study', Environmental Health, vol. 15, no. 23, pp. 1-10.View/Download from: Publisher's site
Many populations have been exposed to environmental lead from paint, petrol, and mining and smelting operations. Lead is toxic to humans and there is emerging evidence linking childhood exposure with later life antisocial behaviors, including delinquency and crime. This study tested the hypothesis that childhood lead exposure in select Australian populations is related to subsequent aggressive criminal behaviors.
We conducted regression analyses at suburb, state and national levels using multiple analytic methods and data sources. At the suburb-level, we examined assault rates as a function of air lead concentrations 15–24 years earlier, reflecting the ubiquitous age-related peak in criminal activity. Mixed model analyses were conducted with and without socio-demographic covariates. The incidence of fraud was compared for discriminant validity. State and national analyses were conducted for convergent validity, utilizing deaths by assault as a function of petrol lead emissions.
Suburb-level mixed model analyses showed air lead concentrations accounted for 29.8 % of the variance in assault rates 21 years later, after adjusting for socio-demographic covariates. State level analyses produced comparable results. Lead petrol emissions in the two most populous states accounted for 34.6 and 32.6 % of the variance in death by assault rates 18 years later.
The strong positive relationship between childhood lead exposure and subsequent rates of aggressive crime has important implications for public health globally. Measures need to be taken to ameliorate exposure to lead and other environmental contaminants with known neurodevelopmental consequences
Opeskin, B 2015, 'Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges', Oxford Journal of Legal Studies, vol. 35, pp. 627-663.View/Download from: Publisher's site
Opeskin, B & Jayasuria, R 2015, 'The Migration of Women Domestic Workers from Sri Lanka: Protecting the Rights of Children Left Behind', Cornell International Law Journal, vol. 48, pp. 581-638.
Remittances that flow from low-skilled labor migration are critical to
many developing countries, yet these economic benefits can come at a high
price. Roughly half of all migrant workers are women, many of whom are
mothers who migrate without their families to perform domestic work
abroad. This Article examines the impact of the large-scale migration of
women from the Global South on the rights and well-being of the “children
left behind.” Sri Lanka is used as a case study because it is numerically
significant in its own right (one million Sri Lankan children are directly
affected by this migration phenomenon) and provides insights into the
challenges posed by these labor migration streams. The possible harms
experienced by children left behind include disruption to family relations,
diversion from education as children are pressured into domestic roles formerly
discharged by the absent parent, psychosocial effects of loneliness
and abandonment, and heightened risk of child labor or abuse from alternative
carers. This Article analyzes how legal and regulatory frameworks
can be leveraged to support the children left behind and minimize their
exposure to potential harms. International law provides a dense network
of norms that speak to the protection of children left behind, but the system
often fails to achieve this goal because of the unwillingness of States to
ratify relevant treaties or to implement them when they have been ratified.
On the other hand, several domestic laws, policies, and practices offer
examples of best practices that address key concerns. Some of these practices
are directed to sending States, and others to receiving States, but most
aim to improve the prospects of communication, visitation, or permanent
reunion that allow children to maintain familial ties that are so essential to
their healthy development, despite the migration of their family members
Opeskin, B & Parr, N 2014, 'Population, Crime and Courts: Demographic Projections of the Future Workload of the New South Wales Magistracy', Journal of Judicial Administration, vol. 23, pp. 233-252.
The New South Wales Local Court is the largest court in Australia. This study seeks to
facilitate future planning for the Court by making demographic projections of the
criminal workload of the Court over the next 25 years (criminal matters account for
95 per cent of its new lodgements). The study applies criminal conviction rates by age,
sex and locality to population projections for the state to produce projections of the
number of criminal convictions for the state and its geospatial subdivisions. These
statistics are used to derive the demand for magistrates and a comparison is then made
of the supply of magistrates under different scenarios. The principal finding is that, due
to demographic change alone, the number of criminal convictions is projected to
increase by 16 per cent by 2036, with nearly all the increase occurring in Sydney,
especially in the city’s west and south west.
Opeskin, B 2013, 'The State of the Judicature: A Statistical Profile of Australian Courts and Judges', Sydney Law Review, vol. 35, no. 489, pp. 489-517.
In 1977 Chief Justice Barwick gave one of the first statistical snapshots of the
Australian courts as a ‘judicial system’ in his inaugural ‘State of the Australian
Judicature’ address. Since then, there has been no detailed statistical
examination of the characteristics of the Australian judicature, due in part to the
paucity of reliable data. After the passage of 36 years, this article provides a
second examination of Australian courts and judges using data from the
Productivity Commission and other sources. The article describes and analyses
key attributes and observable trends in the judicature from the perspectives of
both the supply side (judicial labour) and the demand side (court lodgements).
This is done across six domains: size and growth; tiers of the court hierarchy;
state versus federal systems; civil versus criminal subject matter; regional
dynamics; and gender composition. What emerges is a complex picture of a
dynamic judicial system that does not always comport with common
assumptions about its structure and organisation. There is a critical need for the
collection of additional data on the judicature, and for research that provides a
better understanding of the forces that will shape the evolution of the Australian
judicial system over the coming decades.
Juriansz, J & Opeskin, B 2012, 'Electoral Redistribution in Australia: Accommodating 150 Years of Demographic Change', Australian Journal of Politics and History, vol. 58, no. 4, pp. 557-579.View/Download from: Publisher's site
Electoral redistribution (redistricting) is a process that has the potential to advance the principle of “one vote, one value” in the face of dynamic human populations. Using the Australian federal electoral system as a case study, this article examines the impact of changes in the size, composition and spatial distribution of the population on electoral boundary delimitation over the past 110 years, and analyses the likely impact of future population change over the next forty years. The article concludes that the Australian electoral system has moved progressively towards greater equality of voting power encapsulated by the “one vote, one value” principle. However, the capacity to achieve even greater equality through electoral redistribution is constrained by constitutional and pragmatic considerations.
Opeskin, B 2012, 'Judicial pensions: time for reform?', Bar News, no. Summer, pp. 7-11.
In July 2012 the Australian Government Actuary released its latest triennial report on the long term cost of the pension scheme for federal judges. At 30 June 2011, the unfunded liability of the scheme amounted to $782 million - an increase of 38 per cent in nominal terms (27 per cent in real terms) in just three years. This was the fourth substantial rise since the cost of the scheme was first pegged at $267 million in 1999, despite the fact that the number of serving judges included in the estimates has declined steadily from 131 to 102 over that 12 year period. For the first time the Actuary also provided long term cost projections, estimating an accrued liability of $3,342 million by 2054 - 55. This is a very large number, and yet a very conservative one because it rests on the implausible assumption that the courts covered by the scheme - the High Court, the Federal Court and the Family Court - will not increase in size over the next 40-odd years.
Opeskin, B 2012, 'Managing International Migration in Australia: Human Rights and the “Last Major Redoubt" of Unfettered National Sovereignty', International Migration Review, vol. 46, pp. 551-585.
Opeskin, B & Kippen, R 2012, 'The Balance of the Sexes: the Feminisation of Australia's Population, 1901–2008', Population, Space and Place, vol. 18, no. 5, pp. 517-533.View/Download from: Publisher's site
The numerical balance between males and females in a population has been of long-standing interest to social scientists because of its effects on marriage, fertility, and the societal roles of men and women. Yet, little attention has been paid to mapping changes in sex ratios or identifying their demographic determinants. This study addresses this gap by examining secular changes in the balance between males and females in Australia from 1901 to 2008. A method of decomposing these changes into components due to sex differentials in fertility, mortality, and migration is described and applied.
The study describes the gradual feminisation of the Australian population over a century and gives an account of how the ratio of the sexes differs by age and how long it takes to exhaust the numerical superiority of men at birth. The study explains these changes by examining long-term trends in the sex ratio of births, deaths, and net migration for successive cohorts. The relatively high mortality of males and the emerging pattern of feminine net migration since the 1970s explain the transformation of the Australian population from its highly masculine past to its contemporary state of greater balance between the sexes
Opeskin, B 2011, 'The High Cost of Judges: Reconsidering Judicial Pensions and Retirement in an Ageing Population', Federal Law Review, vol. 39, pp. 33-70.
Tabucanon, T & Opeskin, B 2011, 'The Resettlement of Nauruans in Australia: An Early Case of Failed Environmental Migration', The Journal of Pacific History, vol. 46, pp. 337-356.View/Download from: Publisher's site
Opeskin, B 2010, 'Constitutions and Populations: How Well has Constitution Accommodated a Century of Demographic Change?', Public Law Review, vol. 21, pp. 109-140.
Most Pacific Island countries are located in the tropics, where there is an abundance of mosquitoes with the potential to carry debilitating or life-threatening vector-borne diseases. This article examines three Melanesian countries in which malaria is endemic - Papua New Guinea, Solomon Islands and Vanuatu - but the threat posed by the spread of malaria gives the issues a broader significance to the Pacific region. After discussing the spatial distribution and prevalence of malaria in the Pacific, the article examines a number of health interventions through which people have sought to control malaria. Although the disease was nearly eradicated in the Pacific in the 1970s, it is no longer in retreat. The article concludes by examining why there are still grounds for cautious optimism, and the challenges that Pacific Island countries face in reducing the impact of malaria on their populations. There is a need for prompt and concerted action on malaria at the national, regional and international levels if the public health concerns arising from the disease are to be adequately addressed. © Springer Science & Business Media BV 2009.
Opeskin, B 2009, 'The Influence of International Law on the International Movement of Persons'.
Opeskin, B & MacDermott, T 2009, 'Resources, population and migration in the Pacific: Connecting islands and rim', ASIA PACIFIC VIEWPOINT, vol. 50, no. 3, pp. 353-373.View/Download from: Publisher's site
Weisbrot, D & Opeskin, B 2006, 'Insurance and Genetics: Regulating A Private Market in the Public Interest'.
Opeskin, BR 2001, 'Constitutional modelling: The domestic effect of international law in commonwealth countries', Commonwealth Law Bulletin, vol. 27, no. 2, pp. 1242-1278.View/Download from: Publisher's site
Opeskin, BR 2001, 'Mechanisms for intergovernmental relations in federations', International Social Science Journal, vol. 53, no. 167, pp. 129-138.
Federations employ a large variety of mechanisms for conducting relations between central, regional, and local levels of government. These mechanisms span the executive, legislative, and judicial branches of government within each level. Executive involvement ranges widely in degree of formality, from the making of formal intergovernmental agreements to informal liaison between governmental officers. Executive mechanisms have also evolved for correcting vertical and horizontal fiscal imbalances in federal systems. Legislatures play an important role in giving the force of law to cooperative policies initiated by the executive. These legislative mechanisms include reciprocal schemes, complementary schemes, mirror legislation, and the reference or delegation of powers from one level of government to another. The judiciary, though often undervalued, is significant for its role in establishing the legal framework within which other branches of government conduct their intergovernmental relations, through articulation of powers and competencies. The article concludes that policy makers should exercise care in selecting mechanisms that are appropriate to their task. In particular, regard should be had to the efficiency of each mechanism, and its conformity with federal values and the rule of law.
Opeskin, BR 2001, 'Mechanisms for intergovernmental relations in federations', International Social Science Journal, vol. 53, no. 167.
Federations employ a large variety of mechanisms for conducting relations between central, regional, and local levels of government. These mechanisms span the executive, legislative, and judicial branches of government within each level. Executive involvement ranges widely in degree of formality, from the making of formal intergovernmental agreements to informal liaison between governmental officers. Executive mechanisms have also evolved for correcting vertical and horizontal fiscal imbalances in federal systems. Legislatures play an important role in giving the force of law to cooperative policies initiated by the executive. These legislative mechanisms include reciprocal schemes, complementary schemes, mirror legislation, and the reference or delegation of powers from one level of government to another. The judiciary, though often undervalued, is significant for its role in establishing the legal framework within which other branches of government conduct their intergovernmental relations, through articulation of powers and competencies. The article concludes that policy makers should exercise care in selecting mechanisms that are appropriate to their task. In particular, regard should be had to the efficiency of each mechanism, and its conformity with federal values and the rule of law., © UNESCO 2001. Published by Blackwell Publishers.
Opeskin, B 1998, 'The Architecture of Public Health Law Reform: Harmonisation of Law in a Federal System'.
Opeskin, B, Halstead, I & Parr, N 2017, 'Demographic Projections of Demand for Criminal Court Services across New South Wales' in Swanson, D (ed), The Frontiers of Applied Demography, Springer.
Opeskin, B 2016, 'Judicial Exits: The Tenure of Judges in Three Apex Courts' in Ananian-Welsh, R & Crowe, J (eds), Judicial Independence in Australia: Contemporary Challenges, Future Directions, Federation Press, Australia, pp. 89-105.
Opeskin, B, Perruchoud, R & Redpath-Cross, J 2014, 'Conceptualización del Derecho Internacional sobre Migración' in Las Bases del Derecho Internacional sobre Migración, Macquarie University, pp. 1-18.
Opeskin, B, Perruchoud, R & Redpath-Cross, J 2014, 'Étude théorique du droit international de la migration' in Opeskin, B, Perruchoud, R & Redpath-Cross, J (eds), Le droit international de la migration, Schulthess, pp. 1-19.
Opeskin, B & Nwauche, E 2013, 'Constitutions, Populations and Demographic Change' in Tushnet, M, Fleiner, T & Saunders, C (eds), Routledge Handbook of Constitutional Law, Routledge, USA, pp. 455-468.
In late 2011 the world marked the arrival of its seven- billionth human inhabitant. It had taken
just 12 years for the last billion people to be added to world population; the next billion is
expected to be added within 14 years, by 2025. The United Nations projects that 2.4 billion
people will be added to the world’s 2010 population by 2050. Some 97 percent of this growth
will be in less developed regions—mostly in Africa and Asia—and nearly all in urban centres.
Europe, by contrast, is projected to decline in absolute population, despite signifi cant
Changes of this scale generate signifi cant long- term social transformations within countries,
as populations change in size, composition and spatial distribution. It might be expected
that constitutions would anticipate or refl ect such changes because constitutions are intended
to establish an enduring legal architecture for the governance of social and political communities.
While many constitutions reveal an awareness of population dynamics, for others the
impact can be subtle or fragmented.
The link between constitutions and populations attracted attention in the 1970s and 1980s,
after Paul Erlich’s book, The Population Bomb , generated widespread international concern
about the Malthusian calamity that might arise from unchecked population growth in a world
of fi nite resources (Ehrlich). In that context, several scholars examined how the US
Constitution might regulate demographic processes, but the issue has now largely slipped
This Chapter seeks to address this gap.
Opeskin, B & Shearer, I 2012, 'Nationality and Statelessness' in Opeskin, B, Perruchoud, R & Redpath-Cross, J (eds), Foundations of International Migration Law, Cambridge University Press, Cambridge, pp. 93-122.View/Download from: Publisher's site
Nationality is essentially an institution of domestic law, but it has consequences in international law. Under domestic law, a national owes a duty of allegiance to the State, and may be obliged to pay taxes and render military service to that State. A national has the right of permanent residence and the right to participate in public life and, in most States, enjoys social benefits available only to nationals. Under the laws of some States, criminal jurisdiction may be exercised over a national even in respect of crimes committed abroad. Nationality is a key concept in international migration law. The ability of individuals to change their residence to another State, or even to travel abroad temporarily for business or pleasure, is constrained by questions of nationality. Nationality is also important in international law generally. Until the emergence of human rights law in the era of the United Nations, how a State treated its own nationals was regarded as a matter of exclusive domestic jurisdiction and not subject to international law. However, States did have international obligations towards foreign nationals in their territory, and a foreign State could defend the interests of its nationals if they were breached by the host State. Thus, the rights of individuals were mediated through the bond of nationality. The foreign State could act on behalf of its nationals by exercising the right of ‘diplomatic protection’, since an injury to a national was regarded as an injury also to the State of which he or she is a national.
© Cambridge University Press 2012. Nationality is essentially an institution of domestic law, but it has consequences in international law. Under domestic law, a national owes a duty of allegiance to the State, and may be obliged to pay taxes and render military service to that State. A national has the right of permanent residence and the right to participate in public life and, in most States, enjoys social benefits available only to nationals. Under the laws of some States, criminal jurisdiction may be exercised over a national even in respect of crimes committed abroad. Nationality is a key concept in international migration law. The ability of individuals to change their residence to another State, or even to travel abroad temporarily for business or pleasure, is constrained by questions of nationality. Nationality is also important in international law generally. Until the emergence of human rights law in the era of the United Nations, how a State treated its own nationals was regarded as a matter of exclusive domestic jurisdiction and not subject to international law. However, States did have international obligations towards foreign nationals in their territory, and a foreign State could defend the interests of its nationals if they were breached by the host State. Thus, the rights of individuals were mediated through the bond of nationality. The foreign State could act on behalf of its nationals by exercising the right of ‘diplomatic protection’, since an injury to a national was regarded as an injury also to the State of which he or she is a national.
The appointment of Temporary Judicial Officers can arouse strong opinions. In 2016, the appointment of such officers to the South Australian Supreme Court attracted negative commentary.1 In Forge v Australian Securities and Investments Commission, Kirby J, when considering whether New South Wales legislative provisions allowing the appointment of Temporary Judicial Officers were constitutional, asserted that the ‘time has come … to draw a line and forbid the practice’.2 At the same time such appointments can assist the courts, and hence serve the public interest, in significant ways. They allow for the appropriate management of conflicts of interest, strengthen a bench that is depleted due to temporary illness or unavailability, and may provide a cost effective way to manage short-term workload pressures. This Report, commissioned by the Judicial Conference of Australia (‘JCA’) in May 2016, on the use of Temporary Judicial Officers in Australian courts examines the challenges and the advantages of the use of temporary judicial officers. The Terms of Reference accompanying the commission are stated on page iv.
The Terms of Reference identify the subject of this Report as ‘either acting, temporary, part-time or reserve judges’. The extent to which part-time judges are to be discussed in the Report is, however, qualified by the exclusion stated at the end of the Terms of Reference. As we point out at the commencement of Part 2, the four alternative names used in the Terms of Reference are not exhaustive. After identifying all relevant descriptors across Australian court systems, we adopt the expression ‘Temporary Judicial Officers’ throughout this Report as a generic reference for these positions. As no such appointments are able to be made in respect of the federal judiciary due to the strict constitutional separation of judicial power that exists under the Commonwealth Constitution, this Report is almost exclusively concerned with the state and territory judicial ...