Australian Judge Retirement Age referendum, 1977

21 May 1977 (1977-05-21)
It is proposed to alter the Constitution so as to provide for retiring ages for judges of federal courts. Do you approve of the proposed law?
Results
Choice Votes % Yes 5,980,394 80.10% No 1,485,574 19.90% Valid votes 7,465,968 98.16% Invalid or blank votes 139,914 1.84% Total votes 7,605,882 100.00% Registered voters/turnout 8,242,383 92.28%

TheConstitution Alteration (Retirement of Judges) Bill 1977 was a successful proposal to alter theAustralian Constitution to introduce a retirement age of 70 for federal judges.^[1] It was put to voters for approval in areferendum held on 21 May 1977. After being approved in the referendum, it received theroyal assent and became law on 29 July 1977.^[2]

As of 2025 it is the most recent referendum in Australia that has led to the successful modification of the Constitution.

It is proposed to alter the Constitution so as to provide for retiring ages for judges of federal courts.

Do you approve the proposed law?

The proposal was to add the following paragraphs at the end ofsection 72.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.

The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.

A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.

Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.

A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.^[3]

In October 1976 the Senate Standing Committee on Constitutional and Legal Affairs recommended a retiring age for all federal judges. This recommendation was based on

• a perceived need 'to maintain vigorous and dynamic courts'
• a need to open up avenues for 'able legal practitioners' to achieve judicial positions
• a growing community belief in a compulsory retiring age for judges
• avoiding 'the unfortunate necessity' of removing a judge made unfit for office by declining health.

The committee's view was accepted by the Australian Constitutional Convention soon thereafter.

The amendment introduced in the following year sought to provide for a retiring age of 70 for all federal court judges, including those on the High Court. The issue was not controversial, despite SirRobert Menzies' description of the change as 'superficial and ill-considered'. Over 80 per cent of voters supported the amendment.

The amendment applied prospectively, meaning the tenure of those High Court and Federal judges appointed prior to the referendum were unaffected. Of the serving High Court judges, only SirGarfield Barwick made use of his original tenure, retiring in 1981 at the age of 77. The remaining judges either retired, resigned, or died, with the exception of SirHarry Gibbs and SirAnthony Mason, who were appointed Chief Justice and thus lost their right to the original life tenure. Several Federal judges made use of their original tenure, with judges of theAustralian Industrial CourtSir Percy Joske retiring on 31 December 1977 aged 82,^[5] andEdward Dunphy retiring on 31 December 1982 aged 75. Five Federal Court judges did not retire at age 70,Sir Nigel Bowen (1990), aged 79,Sir John Nimmo (1980) aged 71,Sir Reginald Smithers (1986) aged 83,Charles Sweeney (1995) aged 80 andRay Northrop (1998) aged 73.

• 1977 in Australian law
• 1977 elections in Australia
• Amendments to the Constitution of Australia
• 1977 referendums
• Constitutional referendums in Australia
• Judiciary of Australia

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