To the above poster what has that got to do with this piece.

AS for my comment on this piece, a US-Style is the last thing we want.
"It has been criticised for deterring the finest legal minds putting themselves forward for nomination, to avoid having their personal lives exposed."

you need not go any futher then that. Kirby has been a excellent high court judge there is no way he would have got into the position if we had a US-style hearings. Then again is that what the author is getting at.

All senior public servants, including judges, should be subjected to open, public scrutiny. Many of them, particularly judges, have more unbridled power over our lives and activities than do the people we elect to represent us. The latter are subject to grilling regularly, even daily; the former are like members of an exclusive club, behind whose doors the rest of us are not allowed.

I agree with James' proposition. There needs to be much more done to improve transparency of government - this is not a left/right thing but has to do with the secrecy of any incumbent government machinations and decision making.

By making significant appointments such as high judges a totally transparent process the general electorate will more easily see those elected officials that are doing what is best for Australia vs the jobs for the boys mentality that would seem to creep into secret proceedings. Furthermore, as James points out, the side benefit of having the population more educated as to judicial process would be significant. I think there is more of an understanding in Aus of the US judicial system than there is of the Aus system thanks to Judge Judy and Law and Order

Yes EnerGee has been doing the rounds today its seems.

I can only agree about the remarkable work done Justice Kirby who at times seems the sole voice of reason of the High Court. We certainly need more such appointments that provide a judicial voice for the disenfranchised. The author - with whatever agenda he has - should himself be wary of throwing stones - maybe while we're at it we could also have an independent review committee for comfy tenured academics? If only...

Leigh,

In a coincidental twist, the High Court appeared at Senate Estimates this very morning, perhaps even as you were posting. The High Court, the Federal Court, the Family Court, and the Magistrates Service all appear before the Senate in Estimates to give an account of the way they are operating and administering their responsibilities. There was for instance a very interesting discussion this morning between Senator Joe Ludwig (Qld) and the Registrar of the High Court about the way in which unrepresented litigants are treated in the Court. You can read all about it in Hansard tomorrow, at www.aph.gov.au

I think we can probably all agree that these sorts of parliamentary discussions about the High Court as an *institution* are perfectly in order, whereas a parliamentary grilling of why a judge made a particular judgement would be out of order and improper.

My only concern about a process of parliamentary assessment of judges is that it would end up being character assassination. What if, as a compromise, the hearing itself were held in camera, but the final report to the Senate was made public?

Cheers

Anth

stormont - sole voice of reason?

Justice Kirby has been reported as being opposed to a financial penalty against someone who conducted deliberate fraud becuase to do so might cause indirect harm to her children.

http://www.theaustralian.news.com.au/story/0,20867,18928924-32522,00.html
Janet Albrechtsen

"Kirby suggests that the "best interests of the child" test applies for the simple reason that this case involves the depletion of family income: were Liam Magill to win, Meredith Magill would be forced to pay. It's a novel argument. Taken to its logical conclusion, it would prevent any legal action against any person who also happens to be a parent. After all, any legal payout drains the family income to the detriment of a child."

A very twisted kind of reason if what is reported bears any resemblence to his actual views.

I've not followed his other work closely but if that kind of logic is representative of his work I certainly like to have seen some substantial public grilling of his attitudes and approach prior to his appointment to such an important position.

R0bert

The article mentions the appointment of Susan Crennan to the high court. We are left to wonder if her appointment was a result of the power of the vaginaocracy lobby or whether she has a terrific legal mind. Therein lies the danger. Ex-cathedra pronouncements by the A-G on judicial appointments should and must be scrutinised no matter which party holds office.

Sadly I think that efforts to peel away the layers of secrecy covering our legal system will be met with the usual hubris and cant from members of the legal club. I can imagine the susurrant conversations in the ‘Club’ with affronted members saying……’judges being judged, good lord’ and similar themes.

The legal landscape in Australia seems to be going through a self-parody phase. In some parts of Australia we have Mafia style law where the guilty are speared or bashed. One chief justice, a prisoner of PC, has entertained us with his public mea culpa for delivering the wrong punishment. There is the issue of one high court judge who was so honest we’re not allowed to read his file for about another 15 years. We have a sitting high court judge who broke the law for 13 years. In NSW our chief justice was unaware that one of his judges cruised the crappers at Wynyard station looking for young boys. Who can forget the recent piece of legal theatre when a well-lubricated judge crashed his car. Was his crapulous life known to his political colleagues prior to his appointment to the bench? Certainly not. His liking for alcohol manifested only on the day of his appointment. The punters were supposed to believe the blague of his political mates. The punters were invited to affect a gob-smacked bewilderment to match the feigned shock of those who appointed him.

My advice to Glenn Martin SC who advocates and independent body to scrutinize judicial appointments or acts of misbehaviour is to buy a very thick overcoat because he’ll remain out in the cold for many years.

Public grilling of nominations for judges is not a good idea. While we can learn much from the U.S.A. this idea is not one of them. It would become a slanging match which would discourage good people coming forward.

I guess EnerGee (top post) has been doing the rounds because he/she is energetic??

We will only get the law, & the sentencing we want, & deserve, when we get the system correct.
That requires all judges to be elected, by the public, for a term, not exceeding 5 years.
Most people I know are dismayed at the redicules sentences.
I have always found it hard to understand how we chose judges. We get people who have spent all their working lives, touting for the business of criminals, & then make them judges, of these criminals.
It appears to me that these judges will have more affinity with their previous customers, than they will have with the general public.
The convoluted form of the law is designed to keep all others out, & has has often done so, to the detriment of the general public.

What bothers me, is the people never get a say. Its rare for true justice to come about when 95% of the population have no access to the courts other than as a defendant. The learned ones who preside, are more interested in the tort of the law, rather than the justice of the law.

Why should our judiciary system be in the control of one group, the legal profession. Judges should represent the people. Because you have a semantic tort education, ( which no one else understands) doesn't mean you have understanding of 95% of the people who come before you. Quite the contrary, when you consider that lots of our politicians are lawyers, see the result we get.

Scrutiny of those holding the power over peoples future, should be there to be seen. Until we remove the legal profession as the sole controlling authority over our judical system, nothing will change and justice will only become further from the reach of the vast majority of the people.

After all isn't it these learned ones, giving those assaulting and robbing people, community service. Then charge the victims because they protected their property and themselves. Isn't it the lawyers who charge so much, those trying to get justice, have to lose all they own and still not get justice. Why don't these judges jail those killing with cars, why don't they jail those beating people up on the street, for years instead of months.

We don't need a US style system, we need a new Australian system the people will vote for and gives justice to the economically and freedom oppressed, the people of this country. I reckon you'd get better justice with an ex crim as judge, than a member of the bar.

If you've got something to hide, you shouldn't be a judge.

Come off the grass, Hasbeen.

Electing judges is just about the worst thing we could do. Elections are political. No matter how hard you work to remove the politics from elections, they will always be political - because the process of doing and saying things in order to securing votes is inherently political.

So what you end up with is political - and worse, potentially populist - judges. The very concept leaves me shuddering.

And what ridiculous sentences exactly are you referring to? Sure, it is possible to point to a few stand-out cases where prisoners seem to have received light sentences, but you don't change your whole system to account for a couple of outrider cases. In my view most judges get it mostly right during sentencing. If you have ever read sentencing remarks, you can see how much of a balancing act the judges are trying to perform - between retribution, rehabilitation, deterrence, and so on. The banshee wailing of an ill-informed public ("lock em up and throw away the key!") is ignored, and so it should be. Mobs are notoriously poor at exercising justice.

I would recommend Geraldine Mackenzie's book "How Judges Sentence" to anyone who thinks judges flagrantly get it wrong. Mackenzie has interviewed a bunch of Queensland judges and it amazes me just how well our judges perform the task of trying to reach a just, balanced outcome. It's not as easy as talkback hosts - or NSW Premiers! - seem to think. And if a particular judge gets it flagrantly wrong, well, that's what we have an appeals process for.

Remember the Balinese judge who proudly told the cameras he'd never registered a not guilty verdict in a drugs case? That's what we would end up with if our Bench became driven by populism. In fact it'd make a good slogan: "Anth for Judge: I'll never acquit a drug suspect!"

It might be retributive, but it ain't justice.

Anth

Anth, I see your point, but it would be nice for the subjects to have some say in the rulings our masters hand down.
That, or some say in who is handing them down. I know we elect the pollys, but its a bit of a long bow to say that gives us a say in who, or what, the judges are.

I disagree with the use of US Election styles and methods to appoint Juges In Australia.

As has already been mentioned Justice Kirby has played a significant role and I dont belive he would be appointed in a climate where 'private lives' are the basis of questioning.

I dont think its right to question prospective judges about their views on euthenasia and abortion ( things which have happened in the USA) this would result in political appointments.

An interesting comparison comes from Germany where judges are recruited from university and their is a spit profession of lawyers and judges.

In comparison I think our system is superior to both those of Germany and the USA.

What I would like to see is improved legal aid services by allowing people who undertake a law degree to pay of the HELP(HECS) Debt by working credits on legal aid work.

Guy

guy faulk, doesn't our current system result in political appointments anyway? It seems from what I know of the system that whoever is in power at the time that a vacancy comes up puts people in who are likely to hold views which are in line with the leader of the days views (to greater or lesser degree's). Thankfully many of those appointees will rise above that and try to do a good job anyway, others will not be able to see past their own agenda's and biases.

A public review process might help weed out some of the more extreme cases by exposing their views to scrutiny.

R0bert

Thanks RObert

while the current appointment process does involve a political element i would venture to say it does not extend to anywhere near that of the USA. We have far greater separation of state and judiciary.
(even if there are no South Australian High Court Judges)
Another point that I think needs to be considered is the popularity aproach with American appointments. (it is this sense that i also consider a form of politics too)
The most positive point about the USA system is their Bill of RIghts.

guy faulk, didn't George W have a prefered candidate knocked back/withdraw recently? I've not followed the workings of either system closely but as an outsider the US system seems to provide a mechanism for external scrutiny where ours seems to be pretty much in the hands of whoever holds power at the time (unless the media runs a smear campaign).

R0bert

RObert,

You're right that we have political appointments, and from time to time they have been overtly political (remember Tim Fischer announcing that he wanted to appoint a "Capital C Conservative"? Then they appointed the rather alliterative Capital C Conservative Callinan!).

In reality, however, it can't ever just be a straightforward "jobs for the boys" situation in the way that an ambassadorship can. HC judges are almost inevitably judges from the superior court benches around the country. It's been thirty years now since a politician Attorney General was appointed to the bench (Murphy). So the pool of available candidates is relatively small and relatively well qualified.

If you wanted to make the appointment process *less* political then, of course, the last thing you'd want to do is hold public hearings where judges were grilled by politicians.

It does however open up the wider question of how judges should be selected for appointment. My own view is that a college should be put together: perhaps the Chief Justices of all Superior Courts, all state and federal Attorneys General, all Law Reform Commissioners and the Presidents of each bar association. Then they could make the choice behind closed doors.

You're right in that Bush had a judge knocked back recently but it was pretty blatant: the president can't appoint their personal lawyer to the Supreme Court and expect to get away with it. Bush is such a doofus.

One final question: why are we worrying about this? Have we had any notable incidents of High Court judges behaving badly? Even at the Supreme Court level, would hearings or different selection processes have picked up somebody with a sleeping disorder or mild alcoholism? Are the decisions which are being handed down so shockingly poor that we need major reform?

Anth, the views attributed to Kirby in the paternity fraud case certainly leave me very concerned about his ability to do the job. Regrdless of my views on the rights and wrongs of paternity fraud the logic he reportedly uses to oppose a penalty against the person committing the fraud opens a massive issue if applied beyond that very specific circumstance.

R0bert