In 1976 the Standing Committee on Constitutional and Legal Affairs began an inquiry into whether a compulsory retirement age for High Court judges should be set. Its October report recommended constitutional amendment to prescribe a retirement age of 70, reasoning that it ‘will bring to the bench new ideas and fresh social attitudes’ by creating opportunities for younger judges.

The committee’s recommendations were adopted by the Australian Constitutional Convention and received widespread community support, with a national referendum in May 1977 passing the proposal.

But increasing life expectancy and the abolition of compulsory retirement in most workplaces has led to growing concern. Many people believe that judges with significant legal expertise are now being forced to retire prematurely, while still ‘at their peak’, and advocate either increasing or scrapping the retirement age. In either case, the committee may well find itself revisiting this important issue in future.

Justice Sir Edward McTiernan in 1954, National Archives of Australia, A1200, L16865

Sir Edward McTiernan holds the record for the longest serving judge in Australia, having served on the High Court for more than 45 years. Despite his increasing slowness in writing judgments, McTiernan refused to retire until September 1976 when, at the age of 84, he broke his hip and the Chief Justice, Sir Garfield Barwick, refused to allow a wheelchair ramp to be installed for him. It is widely understood that the committee had McTiernan in mind when reasoning that compulsory retirement would ‘avoid the unfortunate necessity of removing a judge who, by reasons of declining health, ought not to continue in office, but who is unwilling to resign’.

Justice Sir Edward McTiernan in 1954, National Archives of Australia, A1200, L16865