THAT’S the Law has 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 and is politically somewhere marginally to the left of Genghis Khan.
Mr Dutton is quoted as saying “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 there should be popular input into judicial appointments, and taking it to its logical conclusion maybe they should be elected positions.
Whether or not this is a good idea can be dealt with quickly. No, it's a terrible idea.
Judges and magistrates in NSW 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) and also character requirements (integrity, independence and impartiality).
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 (for local courts that’s the chief magistrate), a senior officer from the Department of Justice, and at least one leading member of the legal profession.
The applications and 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.
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 than would be elected in Woollahra. The law then may be similarly applied in an uneven manner.
Our courts aren't perfect, but they are generally of an excellent standard, and the quality of the justice dispensed in them is high. It's hard to see that making judges subject to some type of popular scrutiny would give us any improvement on that.