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Judgments for Votes?

We have written previously in this column about the cyclical “law-n-order” auctions that come around election time, when each side promises increasingly draconian penalties amid shrill cries that the criminals are taking over.

We’ve also written about politicians sticking their nose into the business of the Courts.  You may recall some fairly senior members of the Federal Government being hauled before the Victorian Supreme Court “to make any submissions as to why they should not be referred for prosecution for contempt”.

Well the Honourable (use of sarcasm unintentional) Peter Dutton has weighed into this area in a typically heavy handed fashion.  Mr Dutton is the minister of the newly created Home Affairs ministry (which has the responsibility for the almost comically titled “Australian Border Force”) and is politically somewhere marginally to the left of Genghis Khan.  Seriously, George Orwell could have written a novel about some of his ideas (oh wait hang on….).

Mr Dutton is quoted as having said “the state governments should be putting out publicly the names of people that they’re believing they should appoint to the magistrates court and let there be public reflection on that”.

Granted it’s not a fully fleshed out proposal, but it would appear that at the least Mr Dutton is suggesting that there should be popular input into judicial appointments, and taking it to its logical conclusion maybe that they should be elected positions.

Whether or not this is a good idea can be dealt with very quickly.  NO.  It’s a terrible idea.

Judges and Magistrates in New South Wales are selected in a number of different ways and the requirements are published.  They include professional requirements (such as experience, communication of reasons, ability to deal with workload, etc) and also character requirements (integrity, independence and impartiality, etc).

For the Local and District Courts expressions of interest are called for, which are then assessed by a panel.  The panel comprises the head of the jurisdiction (ie for the District Court, the Chief Judge and for the Local Courts, the Chief Magistrate), a senior officer from the Department of Justice and at least one leading member of the legal profession.  The applications are graded, appropriate candidates interviewed and the panel then makes a recommendation to the Attorney General who has the final say.

In contrast appointments to the Supreme Court and the High Court are not advertised with those in contention often not knowing that they are being considered until very late on when they are asked if they would be interested.

The process is not entirely apolitical as ultimately the Attorney General has the final say, but it’s a rigorous process which at least ensures that the candidates are appropriately qualified and should weed out any particularly partisan contenders.

Even more importantly the complaints process about judicial officers is handled by an independent statutory body called the Judicial Commission of New South Wales.  The Commission investigates complaints about judicial officers with the officers only being able to removed after the Commission gives the report to the Attorney General who places the report before parliament for a vote.

The last thing we want in our judicial officers is for their decisions to be influenced by whether or not the judgment they hand down could lose them their job.  An elected judge is far more vulnerable to such considerations because judgments that are legally correct can quite often be unpopular.

There would also arise difficulties in consistency.  It doesn’t take a huge stretch to see that a very different Magistrate might be elected in say Orange (or even further west like Bourke) than would be elected in Woollahra.  The law then may be similarly applied in an uneven manner.

Our Court’s aren’t perfect, but they are generally of an excellent standard and the quality of the justice dispensed in them is very high.  It’s hard to see that making Judges subject to some type of popular scrutiny or review would give us any improvement on that.

Politicians would be making a far more useful contribution by properly funding the judicial system (and while they’re at it Legalaid) rather than using the proper administration of justice to score cheap political points in the endless “law-n-order” auction.