Judiciary does a difficult job and does it well

This article appeared in the Herald Sun opinion pages on 5/12/17

Golden Lady Justice, Bruges, Belgium
Photograph: Emmanuel Huybrechts, Flickr

A curious thing happened on the pages of the Herald Sun newspaper recently (Friday, 25 November). Tom Elliott argued that ordinary Victorians should not be compelled to vote if they had no interest in the process… yet simultaneously insisted that our judiciary should be elected, because democratic processes were essential!

Though impressive, these rhetorical gymnastics fail to understand how our system was designed to work. We are incredibly fortunate to have a robust and stable democracy in Victoria. Fundamental to that stability is the separation of powers, which ensures that the judiciary cannot be influenced by the whim of political opinion, or sensationalist reporting.

In other words, our system was set up to ensure that each case which comes before a court is considered purely on its own individual facts; and that the outcome is not influenced by whether the judge is worried he or she might get an angry phone call from a member of the government afterwards.

This system is designed to ensure that each and every citizen is dealt with on the basis of the law, not of speculation – that somebody will not have their liberty deprived simply because of who they are, rather than what the evidence says they did.

Under this system, as Elliott described, judicial officers are appointed by the Governor upon the advice of the Attorney-General and Cabinet. This advice is provided, however, after widespread consultation and research, as well as, in the case of Magistrates, interviews by an impartial selection panel. While I was in office, it was also supported by advertised invitations for expressions of interest.

By contrast, in systems such as the US where judicial officers are elected, judges are under constant pressure to side with political or policy agendas and, arguably, may be open to influence about particular cases. This does nothing to put them in touch with the community, but only makes them more fearful and potentially less impartial about the decisions they make.

Despite this reality, a common accusation, and one Elliott threw casually into the mix, is that Victoria’s judiciary is ‘out of touch’. On the contrary, it is commentators like Elliott who are out of touch – out of touch with the reality of the challenges which come before the courts every single day; and out of touch with the evidence about what works in order to address them.

In truth, there are very few people who are more in touch with the reality of contemporary Victoria than the judiciary. Magistrates, in particular, confront a daily parade of dysfunction and disadvantage – family violence; childhood trauma; mental illness; Acquired Brain Injury; drug and alcohol addiction; homelessness; low educational attainment; intergenerational unemployment – these are the factors which usually propel people into offending and bring people before a court.

The Victorian Ombudsman agrees, her report of 2015 painting a very stark picture of how the demographics in our prisons reflect the way in which we have failed certain sectors of the population. Similarly, the Ombudsman makes clear that increasing the number of people in our prisons is not effective – that ‘tough on crime’ approaches are only producing more hardened offenders and actually making the community less safe.

Judicial officers weigh up the individual facts of each case and the arguments which are put before them, ensuring that due process and natural justice are observed. They do this countless times a week and it’s a job I’m confident that commentators like Elliott – who sit in the comfort of their studio and bay for the blood of people they know little about – could never do.

I am incredibly proud of the appointments I had the privilege of recommending while Attorney-General. Victoria has an expert, diverse, experienced and dedicated judiciary that is the envy of other jurisdictions – one which works incredibly hard under often difficult circumstances, and one which is rightly independent of political or media whim.

Elected officials – including politicians – are constantly worried about their own skin, influenced by the electoral cycle, always with an eye to the latest headline. We deserve a judiciary which has an eye only to the job at hand, administering the law with impartiality, but also with an understanding of the evidence about what works to stop the cycle of offending, and therefore what makes us safe.

Commentators like Elliott need to climb down from their ivory tower, take the time to understand the individual facts of each case they critique and engage with this evidence. If they can do this – if they can start to understand and advocate for what actually makes us safer, rather than just what makes us scared – they might just stop being so out of touch.

Rob Hulls, Director, Centre for Innovative Justice