Episode 4 – Judges

Transcript

EPISODE 4 – JUDGES

Stephen Parker

In Episode 1 of Law in Context, your gowned crusaders said that the rule of law requires governments to govern under law.  But who decides whether they do?  The judges and courts, of course, which means that the judiciary – the collective noun for judges – must be kept separate from government for this to work.

Stephen Bottomley

If confidence in judges were to be undermined, the whole edifice of respect for law could come tumbling down.

Stephen Parker

There is a lot at stake in this.

Courts have been called a civilised society’s substitute for vengeance.  If a court system breaks down, or is discredited, people will take the law into their own hands, with reprisals, vigilantism and so on. 

It all comes back to confidence in the impartiality of the adjudicator.

Stephen Bottomley

This is reflected in the oath that judges take when they are sworn in.  They swear “to do right to all manner of people, according to law, without fear or favour, affection or ill will”.

Stephen Parker

All modern liberal democracies have methods to shore up the reality and perception that judges are impartial as between the parties, as well as keeping their own personal views or interests out of their decision.

Two of these might be so obvious as to be overlooked.

First, justice should take place in public, so that any bias of a judge can in theory be picked up by those present and the media.

The second is the ability to appeal against a decision.

Stephen Bottomley

But there are other protections directly targeted at maintaining judicial independence. Most important is that judges can’t ordinarily be removed before a set retirement age (often 70) – and their remuneration must not be reduced.  If either of these were possible, some judges might not want to offend a government or parliament.

In section 72 of the Australian Constitution a federal judge cannot be removed unless both houses of parliament in the same session so resolve and only on the ground of proved misbehaviour or incapacity.

This is a very rare event, and any attempt to remove a judge comes with intense public scrutiny.

All states and territories have similar legislative protections, although not necessarily in their constitutions.

Stephen Parker

Another important protection is that a judge is immune from being sued because of their decisions.  Occasionally this is still litigated, including recently, but by and large loopholes are tightened up as they appear and the protection is secure.

Stephen Bottomley

Outside of the law itself, there used to be “conventions” amongst judges and politicians which were also about bolstering impartiality and independence.  Judges were not supposed to speak in public outside of their judgments – so-called “judicial reticence”.  And they were restrained in what they could do in their private life.

Within the political sphere, the convention was that politicians should not attack judges personally, and the attorney-general in the government was supposed to come to judges’ defence.

Stephen Parker

Much of this has broken down in recent years – and there are arguments either way about them – but it’s possible that confidence in the judiciary is being shaken as a result. 

Stephen Bottomley

So much for the theory.  In practice, there are many weak spots.

Stephen Parker

A major weak spot, in all societies, is how judges are appointed. In Australia and the UK judges are appointed by government, usually by an attorney-general taking a proposal to cabinet.

This of itself opens the system up to charges that governments will appoint sympathisers.  In Australia, such charges are actually quite rare, and there are many examples of a judge being appointed by a particular government who promptly decides against that government in a major case.

Stephen Bottomley

Anyway, look at the alternatives.

In the US, most states hold elections of some kind for their judges.   This is despite a strong belief that elections make judges too prone to decide cases in line with public opinion of the day, as stirred up by mainstream and social media, rather than apply the law without fear or favour.

In the US federal system, as we hear often, judges are nominated by the president but have to be confirmed by the senate.  There is a very strong perception that this has become a politicised process.  There is so much to talk about here, and 2024 is going to be such huge year in the us, that we will focus on it all in a future episode.  Essentially, the big question is whether Trump appointees will favour Donald Trump if his legal battles make it to the Supreme Court.

Stephen Parker

Back to Australia, there are a variety of procedures surrounding the appointment of judges, in different jurisdictions and courts.  Under section 6 of the High Court of Australia Act 1979, for example, the federal attorney-general must consult with state attorneys-general before the appointment of high court judges.

Irrespective of the appointment procedure, there is a related weak spot in the lack of diversity amongst those who are appointed to the bench.  If, as has been the case, the same kinds of people, coming from the same narrow background (normally successful barristers) are appointed, how can they understand the pressures ordinary people face, or the dynamic and cut-throat nature of business?

Stephen Bottomley

Another weak spot is the ability of governments to go round courts, and appoint tribunals.  Tribunals can be abolished much more easily, and their members appointed for short, fixed terms which are allowed to expire, or even on the basis that they can be dismissed.  

At this moment, the federal Administrative Appeals Tribunal is being replaced, on the ground that it had allegedly been stacked with sympathisers or cronies of the previous government.

Stephen Parker

This is really tricky territory because tribunals do improve people’s access to justice.  Taking a case to a tribunal is much less expensive than going to court, and usually the dispute is disposed of much more quickly. 

Stephen Bottomley

On the other hand, tribunals don’t face the level of scrutiny which is so vital in courts. 

Stephen Parker

Take the recent Robodebt scandal in Australia. The government used an automated debt recovery program to reclaim social security payments, unlawfully in the case of over half a million people. This number could have been much smaller.  In 220 private hearings the administrative appeals tribunal found that the scheme was unlawful but the government did not appeal against these decisions, nor did it inform other AAT members, knowingly allowing the situation to continue. 

Stephen Bottomley

One loose end in this discussion is the royal commission.  People hear a lot about these, and often they are chaired by judges or former judges, so it is understandable if they are thought to be courts of some kind. 

They aren’t.  They are set up by executive government to look into a particular issue or social problem.  Their recommendations are just that, recommendations, but they can be very influential in the public domain. 

The Royal Commission into the Robodebt scandal is a case in point.  We’ll come to another one in a future episode, the Royal Commission into police informers in victoria, following the so-called Lawyer X scandal, where a barrister secretly colluded with the police to betray her own clients.

Stephen Parker

But let’s round this episode up on a positive note.

Australians do tend to trust courts and judges generally.  One survey of public trust found they were second only to university research centres, and another that they were second only to general practitioner doctors. 

Stephen Bottomley

There is some evidence that trust in the criminal justice system may be slipping. 

Stephen Parker

And it may well be that trust in all institutions is slipping in liberal democracies, but few people would put courts on their priority list for reform.

FURTHER READING

Stephen Parker, The Independence of the Judiciary, in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System, Melbourne University Press, 2000, chapter 3

The Honourable TF Bathurst AC, Trust in the judiciary (nsw.gov.au)