Something certainly must be done about the quality of judges in Australia. We are badly served, particularly with some of the weak sentences handed down by bewigged twits who have just told a defendant how serious his or her crime was. And, there seems to be no consistency. In SA, male teacher was recently sentenced to 6 years jail for a sexual relationship with a female student. In the same state, a female teacher having a sexual relationship with a male student received a suspended 12-month sentence. The judge rabbited on about how she was ruined, had lost respect and her job. How about the male teacher? He suffered that and 6 years jail as well!

There is nothing sure about justice in Australia while we have the current system of putting judges on the bench.

Your very positive comments on Kirby highlight some of the problems in making appointments and monitoring judges. To me, Kirby is a left-wing politician sheltering under a judge's wig; he should have done the decent thing, resigned and stood for Parliament, years ago. A good, transparent process would have to focus first on the professional capacity of the candidates, as regards their ability to conduct complex cases and apply the law in a consistent and defensible manner. Yes, judges are human and their impartiality can never be absolute; but that doesn't rule out a high level of probity and consistency.

The US hearings appear to focus excessively on matters which may not affect the professional merits of the candidate. This is perhaps because, Judge Kirby notwithstanding, judges have a much greater role in making, rather than merely applying and interpreting, law in the US system than in Australia. There must be an intermediate selection process more suitable here.

There also needs to be better refined processes for monitoring judges and disciplining them if required. The independence of judges is a safeguard for society, but there needs to be a balance where demonstrably incompetent judges can be dealt with.

The problem with confirmation hearings is simple: they turn appointments into political processes.

High Court judges are already subject to scrutiny by politicians before appointment. With no lack of character assasination attempts to boot.

If performance is the real concern, that can be addressed through a more public reporting process. The performances of judges and courts are measured. The concern is that if made public, the *numbers* would take precedence over all other factors - as they have done in every other sphere of performance 'management'.

Public Scrutiny of Appointments always sounds like such a good idea, but they're never objective. Too much is at stake for those who seek to advance their own perceived power through 'having their say' in the matter.

It is curious that the people who most loudly clamour for changes to sentencing nad judicial appointments are often the furthest from the day-to-day machinery of the courts. Our judges are not appointed to hand out tough sentences, as many are in the USA. They are expected to weight up a very large number of factors and arrive at a reasonable sentence, in light of everything before them.

If the people want harsher sentences, they ought to annoy the politicians to have the sentencing regimes changed accordingly.

Judicial appointments are not simple 'here you go' matters. Candidates are approached based upon their reputation amongst their peers, thier professional histories, and a close examination of their character and conduct. No everyone who is approached accepts, for a variety of reasons. Judges work hard over long hours. Most of the work of higher court judges happens outside of the courtroom.

Like teachers, the people who face them everyday have their own opinions as to their merits and quality. Unlike teachers, most people come away dissatisfied for various reasons. At least half because the outcome was not to their liking. It is the judges job to adjudicate, according to law.

It is not a popularity contest. Public confirmation hearings are.

Perhaps the populace would be more content if they saw justice was being done rather than injustice as many can swear to.
Sentences are often too light and maybe it is time for a referendum on the death sentence.
Judges are removed from everyday living by their education,their training and their very lifestyle.
Keeping prisons empty appears to be their main ambition rather that fair sentencing.
There should be a list of crimes with an appropriate sentence attached and the more terrible the crime, the higher the sentence with no parole.All sentences to be served in full.

Judges are way too far from ordinary Australia so give incredibly stupid, at times, findings.
They rort the system with their overseas juants err sorry -conferences.
They and especially many magistrates appear to be anti-police and give completely innapropriate bails to criminals.
Many seem to think that they and only they have any common sense.
The courts are full yet these 'strutters' dress up in their 'poofy' finery and have a day at church with a small parade before and after so the plebs can gaze at their august selves apparently.
Then when there is a change of government the dominant political party selects judges who are sympathetic to that party's views. And we are told that these pompous er sorry, learned people are not biassed. Ah yes and john howard is honest and truthful.
I do not think much of judges yet there must be one or two decent members one would think - then again? numbat

A judge is a human being, not perfect, and open to error.

The system based on preceedents is flawed, and open to interpretation.

Give them a break, they have worked hard to be as learned as they are and like everyone, you cant be perfect.

looking at the past history of a person to assess thier character/credibility/ability to perform the role is flawed.

I've been pondering aspects of this issue over the weekend. I noticed in the paper on the weekend that the magistrate who handled a family law matter I was involved in is having her judgements reviewed following the discovery of incidents of plagerism in a couple of her judgements. I was quite unhappy with her handling of the matter so I was fairly pleased to see that the review was ocuring except when I started on a letter regarding my concerns I was reminded that my overriding impression at the time was that she appeared to be seriously overworked in a job that must be terribly draining regardless of how big the pay packet is.

The court appeared to have a larger focus on wood panelling than on managing the workload of the magistrates. In my view errors, misjudgements and shortcuts on the magistrates part have contributed to significant harm to myself and my son but I have to ask myself is that her fault or the fault of a system that is so overloaded that she was reportedly required to use some of her accumulated leave to write up overdue judgements.

When overworked emergency room doctors make mistakes because they are required to work extremly long shifts we rightly look at the systems which lead to a shortage of doctors as well as the professional choices the doctors make to continue working past the point of competence. So to with the judicary, we should consider the context of the systems they work in and the opportunity they have to manage the requirements of their work before we lay the blame entirely at the feet of individual judges and magistrates.

R0bert

Mirko

Thank you for your article. Very interesting.

RObert

Hi there. On this occasion I have to disagree with you. Plagiarism is intellectual theft. It is cheating. It is dishonest. There is never any excuse for plagiarism. University students can get expelled from courses and programs for plagiarism.

What is even worse is that the magistrate simply "lifted" the findings of another magistrate for another case. She was not individually judging the person being charged. That is disgraceful.

She is a dishonest magistrate. She has stolen and she has cheated. She should be sacked.

Surely we should be able to expect optimal conduct from magistrates and judges. No excuses in my book.

If a doctor was run off his/her feet and lifted clinical notes from one patient's notes to another patient's notes, people would be horrified.

All professions have a Code of Conduct which has only one interpretation: follow the Code, follow the rules.

Cheers
Kay

No doubt the abstrusity of some rulings has catalysed a call for judges to be subjected to very public hearings. Not before time. The very thought of an examination of judges does exercise the mind. I see an image of men (and women) in wigs and brightly coloured gowns being dragged into the 21st century. What a cruel society we have become.

Public examination of judges is long overdue even if it means offending the legal club's omerta. Had the process been in place we may have avoided appointments like justice Lionel Murphy. Murphy was so honest, wholesome and pure that his good mate, Bob Hawke, judged us unworthy to gaze upon Murphy's file so it was sealed for 30 years or so. Page after page of that file would cause us to blush knowing that we occupy such a low station in life when compared with the deeds of his honour (cough! cough!) Mr Justice Lionel Murphy.

The bench does provide a bit of theatre to amuse the peasants. How amusing it was to see the politicians and members of the legal club acting in gob-smacked unison when judge Yeldham's and judge Shaw's exemplary behaviour made the papers. Why didn't someone tell them of Yeldham's weakness and Shaw's habit?

Kay, feel free to disagree - disagreement is a part of these threads and I have mixed views on the matter anyway.

I do get very concerned when judgment is passed in isolation from circumstances. I don't know the particular details of the plagerism, I do know in my own case she made some assumptions which seemed to contribute to a decision which hurt me dearly. A decision which kept our case open for an extended period which was used by my ex to provoke our son into some unfortunate actions, he wanted the case over and knew how to get that.

It was suggested to me at the time by a barister that the decision she made may not have been legal however I lacked the financial and emotional resources to fight it. Part of me would love to see her sacked but I have the impression that the core of the problem lies with those who overload too few judicary with what appears to be an enormous case load.

No excuse for wrong doing by a professional but we are all human.

Cheers
R0bert

R0bert, mate.

It is not my manner to engage person to person on opinion sites such as this (usually). I believe each has a right to expression and each should not be taken to task for any expression they might make - respect should be given to any person's opinion even if they're totally wrong. But mate...

Sometimes you really exasperate me!

How come you're so damned nice all the time?

Most often you are usually very correct and have a balance of views, which are highly commendable. But sometimes a man needs to be outraged. Sometimes a man needs to take a strong stand. Sometimes a man needs to speak his mind with no airs or graces or political correctness. Sometimes a man needs to grunt and make a lot of loud noises - for that is the nature of being a man. To fight for and defend important principles.

Here in this case you are the (possible) victim of wrongdoing. Here your very family and kin have been seriously affected, yet you find apology and rationalisation for the (possible) perpetrator of ill against you. Damn it. I find that infuriating.

As some might know, I am a totally opinionated pig and your reticence to castigate the (possibly) guilty here is enough to give me ulcers. Crikey, mate, stand up and fight. Fight for your right to party. Your grace and humility is greatly honourable, but your acceptance of injustice sets a standard of mediocrity that hurts us all.

God bless you R0bert, I wish I had your patience and forgiveness. Perhaps you're a better man than I. Yet, perhaps not.

Please take these comments as an observation, not as an accusation. If I was in your shoes mate, I'd be as mad as hell. But I do respect your right to do as you wish - I just don't understand it.

I wish you all the very best in life.

"Judges are given the nod by the Attorney General who are in turn rubber stamped by Parliament" Who appoints the Attorney General? Now in NSW we have had Labor Govt in power for over 10 yrs.So much for the independance of the Judiciary.

In NSW we have crime waves and violence never experienced before in our recent history.With the exception of Michael Finene there is no truth in sentencing.The primary reason for this is that there are now so many criminals that our state will go broke if they are gaoled.It can cost up to $80,000.oo pa just to keep one crim in gaol,so the left wing appointees have suited this Iemma Govt right down to the ground.

The drive by shootings and gang violence we are experiencing in Sydney is only the tip of the iceburg.Just an extra 2000 crims in gaol can cost up to $1.6 billion,so it makes sense to to have a revolving door of short sentences and good behaviour bonds.

The anti-iscrimination laws,regulation and red tape that apply to our police force also suit the Iemma Govt very nicely,since they can
effectively limit the police in arresting too many crims.When crims of ethnic origin get arrested,they can appeal to the anti-discrimination board and can not only tie the police up in red tape,but also end a policeman's career.All the crim has to say ,"Drop the charges and I'll drop my discrimination appeal."

Most crime goes unreported because of few police numbers,laws and regulation that make our force virtually impotent and a judiciary that won't give real sentences because the Govt can't afford justice.

Crime in NSW will accelerate especially when the Middle Eastern crims in the south west of Sydney realise that they have our Iemma
Govt snookered.

Good on her for cutting down her time, yet giving the same conclusion.

Preceedent means they adopt a similar outcome, therefore if the 'end' is the same, she should adpot the most efficient means of doing so.

Why should she waste hours of her valuable time putting it into her own words when the precedent is there, great.

You are all too hard, she did not cheat she used the verdict of another judge as it had the same outcome.

It is the 21st century folks, her demands have never been higher, get her a PA to write it out for her to keep you happy.

If i gave someone (for example) 5 years jail, who cares what it said it is the outcome that is important.

Get off your high horses and realise, you all do it every day, she did not do the wrong thing she just did not have the time to rewrite it. Judges pinch off eachother everyday, this is life in the Legal System.

As one, without any formal legal training, who has appeared before Magistrates and other Judges in various courts and Tribunals I have developed the utmost respect for those, chosen to undertake a most difficult task.

Not all decisions went my way but I was made well aware of why that was the case.

Now while here most seem to argue from a general perception and take in all sorts of outside factors, at the end of the day it is what occurs in the processes within the courtroom that determines the effectiveness of the Judge, Magistrate etc and their decisions. I have in my seven trips to court yet to encounter stupid or unreasonable behaviour or result.

My opinion formed from my relatively limited and inexperienced position is the present imperfect system of appointment works well enough.

realist, I saw some more regarding the particular allegations over lunch and part of the concern is that adequate thought may not have been put into the decision. Clearly the truth or otherwise is not going to be decided in the "Courier Mail" or on this thread.

In my own case I had a barrister in court for a couple of days and he gave informal advice that the decision she made may not have been valid - I won't try and explain the details here. I'm not to concerned about the plagerism issue, I am concerned about the level of overwork which suggested that shortcuts may have been taken in area's other than just making up her own wording.

Her decision got us out of the courts without actually making a judgement and eventually lead to the issue being resolved by "consent", the kind of consent where one party has no viable options left. I'm left wondering how much the size of the magistrates workload played in the decision, maybe if she was a bit less tired and a bit less overloaded she might have asked a few more questions and dealt with it differently. I'm not confident that it is just an issue of efficiency.

Maximus, whilst I am clearly unhappy with the way the magistrate handled the matter I suspect that a significant proportion of that was a result of an excessive workload. In regard to Family Law being a female created system I'm fairly certain that Alistair Nicholson is male and he was the central figure in that system for a long time and fought very hard to make it what it is. I'd prefer to save considered anger for those who deliberately manipulate the system. Nicholson, my ex, her solicitor and others who have a clear choice between right and wrong and choose wrong. I suspect that the magistrate in question has been trying to get a very difficult job done under trying conditions.

R0bert

RObert,

As I said before, you are probably a better man than I. Respect. But it is my nature to be the warrior.

Mirko has it right about looking to America to solve the problem of judicial appointments being political. But he hasn’t looked far enough. It is rare for popular columnists or current affairs TV programs in the United States to make much mileage out of bizarre or out of touch judicial rulings (for state courts at least). The reason for this is that the judicial officers truly reflect the beliefs and values of the people because of the simple fact that in most states it is the actual people who directly put, by elections, those officers on the bench.
The most fundamental aspect of democracy is that those who have power over us are those, who we the people, appoint. Any judge who does to go off on an ideological tangent to mainstream values will find him or herself removed from office at the next election.

A practice that I’m sure would be eagerly welcomed by the public, albeit not the politicians or judiciary, here in Australia. Admittedly a more practical method would be, rather than have the judges themselves running for office, to elect individuals to judicial boards which would then have the power to arbitrarily appoint and remove judges and magistrates. Any board members who are part of the majority who appoint, or refuse to remove, shonky defenders of our judicial system will find themselves facing an angry electorate at the next election.

Maximus, my nature is not very warrior focussed. Some by orientation and some by choice. The views I've expressed on this matter are ones which I can hold away from the heat of the moment. They have not always been as generous.

Mostly in hindsight I would have liked some way to have an informal "post implementation review" (as project managers put it) with the magistrate to let her know how her decision played out in practice, something that seems to be lacking from this process.

There seems to be no way for her (and other magistrates/judges etc) to know how what they have done has worked out unless we happen to end up back before the same magistrate again and manage to convey that stuff through the haze of legal process. The feedback cycle which should help improve performance seems to be very weak.

I'd like some way of showing her some of the deceptions that were used by my ex so that she could consider those tactics in future cases, I'd like some way of telling her the impact of having to attend RA programs in the middle of a working day on the outskirts of Brisbane when you have been using up good will at work fairly intensly already and want to keep annual leave to care for your child. I'd like to make sure she understands the impacts of repeated court appearances with legal representation where she did not have time to address the issue on that day had on my finances.

As I pointed out on another thread I'm hoping to get away on holidays tomorrow so I may not be contributing more to this thread.

Thanks to all for an interesting discussion.

R0bert

There is an accountability mechanism in place in this country and it's the three pronged operation of the Common Law, legislation and the Constitution. Team this with the other two heads of power and you supposedly have the perfect democratic system. We should stop blaming judges for perceived inadequacies in the law - they can only rely on what is there before them, either in the legislation or in the law reports and what it says about the the matter before them. That is the accountability mechanism. There are times when the law is wholy inadequate, not the reasoning of a judge. In this respect their individual preclivities don't come into play - they can't.

As to the plagirism issue, there have been instances in past High Court benches where intellectually strong judges wrote the majority judgment for their brother judges on the bench as well as the dissent! By all accounts this happened a lot in the Dixon court, Sir Owen being all powerful, McTiernan and Rich being weak judges. I don't see the issue in principle. What's worse...?, copying a mates work or getting him to do the whole thing for you?