Sunday, November 21, 2010

Abbott Wants Elected Judges

At a community forum in Brisbane on 10-November, Opposition Leader Tony Abbott said that if courts continue to give “lenient sentences” then Australia will probably move to a system of elected judges. Judges are elected in the US, for example. He indicated that too many judges are handing down sentences that do not reflect community anger at the crime.

I don’t know about you, but I had alarm bells ringing in my head, as follows:

  • elected officials are, by necessity, political animals. That means that actions will be directed to suit a re-election strategy. As political animals, they will have political friends, and there will always be the possibility of governments exerting undue influence on the judiciary.
  • is Tony Abbott suggesting this, at a community forum, because it sounds politically popular, or does he, & the Liberal Party, want that political influence on the judiciary? The risk with an elected judiciary is that that type of corruption becomes more likely than with appointed judges. It tears at the Separation of Powers, which is fundamental to an independent judiciary. (Joh Bjelke-Peterson, former Queensland Premier, undermined that tenet for his own personal and political advantage, by influencing and using corrupt senior Police.)
  • who is Tony Abbott to advise judges on what sentences they should impose? What qualifications does he hold to do that? Should ANY politician be advising judges on sentencing matters? Who should? I certainly believe the best people to judge, are the judges. They have the legal experience, the legal knowledge, the legal resources in case histories,and know the case they are hearing.

Mr Ian Gray, Chief Magistrate of Victoria, in a presentation to the Sentencing Conference (February 2008) addressed the issue of “Sentencing in Magistrates’ and Local Courts in Australia” to the National Judicial College of Australia.

In it, he presents arguments:

  • against elected judges (by Chief Justice Gleeson)
  • for greater independence for prosecutors, especially Police prosecutors in Magistrates’ Courts, and more resources to achieve that
  • that question those who would publicly give sentencing advice to judges
  • that focussing on the result of a particular sentence, without understanding the intricacies, similarities and differences with other cases would be departure from principles of justice. (a statement by the majority of the High Court of Australia)

It is these last two points that really are the telling points against Tony Abbott’s suggestion. It would be best if politicians, and governments of all persuasions argued against a suggestion that might well have been driven by political opportunism and populism.

You can read the full text of Chief Magistrate Ian Gray’s presentation at: