The Law Is there value in a more transparent judicial selection process?

[AM]

I see Mr Plod has hinted at publicly elected judicial officers. Seems he's more interested in that occurring in state jurisdictions than federal. Odd that!

Apart from the constitutional hurdles, who would actually want a Judge Judy system that applies in most state jurisdictions in yankyland where judicial officers are elected by popular vote? Where trial judges are elected with thin credentials because they have the financial resources to spend mega millions on campaigns. And where judicial independence and decisions are, to say the least, questionable.

That said, a more transparent system is worth consideration and not only in state jurisdictions.

A suggestion put to a Judicial Commission of Australia conference that would increase transparency by adding some kind of judicial appointments commission to the process - as an advisory panel - to make recommendations on the basis of pre-set criteria is worth a look. The JCA says:

The JCA would suggest that, if a decision of the Executive government is made to use an advisory panel system, the panel should be independent of the Executive government and, if despite its recommendations, someone else is appointed that fact should be made transparent at the time. Otherwise, the panel will not attract persons who are prepared to give independent, disinterested advice.

Ultimately, I'm for Executive governments who are answerable to the parliament and ultimately the electorate making the final call. However, an advisory panel has merit.

Popularly elected judicial officers - never.

Certainly not unless there's an I.Q test that must be passed before folk are permitted to vote. Joking!

http://bit.ly/2BHjvo2

 

[Gough]

Awesome, lets vote on the Coroner or an Administrative Appeals Tribunal appointee.

 

[Number37]

Joe Public has done a bang up job choosing parliamentarians, imagine a High Court of Dutton, Abbott, Abetz, Andrews, Ruddock and Mirabella.

 

[A Cut Above]

Let's start with a more transparent political process, then we can expand the scheme as necessary.

 

[AM]

Awesome, lets vote on the Coroner or an Administrative Appeals Tribunal appointee.

And!

 

[AM]

Let's start with a more transparent political process, then we can expand the scheme as necessary.

Think an advisory judicial appointments commission/body with a set of criteria is worth a look though.

 

[Snake_Baker]

I wonder how much more they can milk the crime/vengeance angle for votes?

 

[Number37]

Think an advisory judicial appointments commission/body with a set of criteria is worth a look though.

I have read somewhere that one of the law societies proposed a system where a group of random people (selected like jury duty) sit as a jury and get to vote yay or nay on whether or not a specific candidate for a judicial appointment is worthy.

 

[donkeypunchd]

Perhaps there’s an argument for the abolition of the jury system full stop. I’m not sure it’s possible in the age of the 24/7 news cycle to comprehensively sequester a jury and prevent external noise trumping evidence in delivery of the verdict.

 

[Gough]

I wonder how much more they can milk the crime/vengeance angle for votes?

It's exactly what Dutton wants and you can guarantee it will only be voting for positions that hand out retributive justice. He didn't say out of touch judicial elites but that's the angle he's working from, just another example of conservatives attacking the institutions and traditions they purport to defend.

 

[Herne Hill Hammer]

Think an advisory judicial appointments commission/body with a set of criteria is worth a look though.

The commission / body, for me, couldn't be made up entirely of members of the legal fraternity, I'd need some balance from other areas of life (I'm not advocating picking Joe Blow from off the street). What those other areas people were from, I would have to think about. I would also want a pool of people so that each time their services are needed, you don't have the same ones making the appointments over and over again.

 

[pugsville]

Dutton and other liberal ministers are trashing the judicial system publicly so they can get electoral gain.

It's despicable.

 

[Gough]

Dutton and other liberal ministers are trashing the judicial system publicly so they can get electoral gain.

It's despicable.

Create an imagined disaster, blame their opposition for it and then try to convince people they're the only ones who can fix it, all while lining their own and their mate's pockets. It's standard conservative mo the world over.

 

[Snake_Baker]

The commission / body, for me, couldn't be made up entirely of members of the legal fraternity, I'd need some balance from other areas of life (I'm not advocating picking Joe Blow from off the street). What those other areas people were from, I would have to think about. I would also want a pool of people so that each time their services are needed, you don't have the same ones making the appointments over and over again.

It has some merit if a panel was balanced.

Can you imagine what would arise from a bunch of Noel McNamara's and Rosie Batty's?

 

[AM]

I have read somewhere that one of the law societies proposed a system where a group of random people (selected like jury duty) sit as a jury and get to vote yay or nay on whether or not a specific candidate for a judicial appointment is worthy.

Haven't heard that. That would be a worry.

The suggestion for an advisory judicial appointments board, commission et al would be a properly constituted body. One such body existing overseas has a lay member as chairperson, with judicial members, professional members, a tribunal judge and a non legally qualified person. All having to meet strict pre-set criteria.

The issue with the current appointment process is they have considerable political weight attached to them. In the end the government of the day makes the call but should it not follow the advisory boards recommendation it would have to explain their reasoning for taking that course of action.

What we absolutely don't need is the yankification of the process. Heaven knows this government is besotted by the yanks as can be seen by their slow dismantling of Medicare.

 

[Number37]

Haven't heard that. That would be a worry.

The suggestion for an advisory judicial appointments board, commission et al would be a properly constituted body. One such body existing overseas has a lay member as chairperson, with judicial members, professional members, a tribunal judge and a non legally qualified person. All having to meet strict pre-set criteria.

The issue with the current appointment process is they have considerable political weight attached to them. In the end the government of the day makes the call but should it not follow the advisory boards recommendation it would have to explain their reasoning for taking that course of action.

What we absolutely don't need is the yankification of the process. Heaven knows this government is besotted by the yanks as can be seen by their slow dismantling of Medicare.

As part of a review in the mid 2000's ideas like the one I mentioned were considered and duly dismissed.



How would the process (advisory panel) be different to the current setup, apart from the make-up of the advisory panel. There is nothing in the current process (adopted in 2008) that would exclude seeking advice from the non-legal fraternity.

 

[Number37]

Current processes...

 

[Procrastinator35]

Dutton has high ambitions for being head of the C.I.A.....Bloke wouldn't be out of place in 1970's South Africa.

Cement head in search of an intellect.

 

[Number37]

http://www.smh.com.au/federal-polit...etter-way-to-choose-judges-20090907-fe33.html


"The best option for Australia is a judicial appointments commission like that adopted in 2006 in Britain. Fairer and more open, it has produced judges of high quality. A similar Australian body should be established to consult widely in preparing a shortlist of names against clearly defined criteria. The government would select the appointee. The commission must include people other than lawyers, who should not have a monopoly on who runs our courts. The method of selection must reflect the fact judges serve the community at large."

 

[Procrastinator35]

http://www.smh.com.au/federal-polit...etter-way-to-choose-judges-20090907-fe33.html


"The best option for Australia is a judicial appointments commission like that adopted in 2006 in Britain. Fairer and more open, it has produced judges of high quality. A similar Australian body should be established to consult widely in preparing a shortlist of names against clearly defined criteria. The government would select the appointee. The commission must include people other than lawyers, who should not have a monopoly on who runs our courts. The method of selection must reflect the fact judges serve the community at large."

Translation:...."Me & my mates would head up such a body & select the appointee".

Dutton having a crack at yet another one of our fundamental democratic checks & balances.....This bloke is pure poison.

Queensland has so much to answer for in spitting out such a NAZI power-tripping piece of shit like this bloke.

 

[Number37]

Translation:...."Me & my mates would head up such a body & select the appointee".

Dutton having a crack at yet another one of our fundamental democratic checks & balances.....This bloke is pure poison.

Queensland has so much to answer for in spitting out such a NAZI power-tripping piece of shit like this bloke.

That wasn't Dutton, that article was an opinion piece written by George Williams (probably the most renowned constitutional lawyer in the country & was (maybe still is?) Dean of the law school at UNSW.

I posted the article because the perception of the process (at that time) was that it was too political. Essentially, jobs for the boys. I believe the catalyst for a review of the process at the time was the appointment of Dyson Heydon to the High Court.

 

[Procrastinator35]

I posted the article because the perception of the process (at that time) was that it was too political. Essentially, jobs for the boys. I believe the catalyst for a review of the process at the time was the appointment of Dyson Heydon to the High Court.

Precisely....And yet more tax burden on the public purse also.....What we need less of is superficial govt bodies being created, where they are not needed or justified.

 

[Demosthenes]

Encouraging judges to pander towards the average punter's incredibly poor understanding of the legal system is a recipe for disaster.

You may as well delegate violent crimes sentencing to the Herald Sun's opinion columnist.

 

[AM]

As part of a review in the mid 2000's ideas like the one I mentioned were considered and duly dismissed.

How would the process (advisory panel) be different to the current setup, apart from the make-up of the advisory panel. There is nothing in the current process (adopted in 2008) that would exclude seeking advice from the non-legal fraternity.

I hope you didn't think I was in any way decrying your comment. It was that I hadn't heard it and (I think you'd agree) it was at the extreme end and unlikely to ever come into play. Enjoy reading your posting.

The JCA was looking at the selection processes country wide and I think questioning the consistency, transparency, accountability and openness of the current system.

From a consistency perspective, the Commonwealth and States have vastly different appointment processes and they differ from court to court as you have shown in your subsequent post. Some state and federal courts have no stated criteria, advertising or expressions of interest, consultation, use of assessment panel, formal interviews by the AG etc. Others do follow all or some of those things and in others it isn't clear.

Federally, the JCA commented that while there is a "......prescribed process for the High Court; otherwise there is apparently no formal process for consultation in regard to appointments to other federal courts." In other words, there are no statutory requirements for appointments other than for the HC. Apparently the AGs website confirms there are "no current judicial appointment processes" for each of the 4 federal courts.

In relation to transparency and openness, there is very little. Those with existing practicing certificates wouldn't know who was considered, why one person was chosen over another etc let alone interested bystanders, I'd suggest. It seems to be done largely by press release.

The accountability runs to the AG being answerable to the parliament over which the Executive government has the upper hand if not the majority. And he/she is in the position of providing little more than is in press releases if he/she so decides. I can't remember the last time an AG lost his/her job due to a dud appointment as occurred not so long ago in Queensland.

I guess the final accountability is to the people, but I wonder how high that matter is in their minds when it comes to ticking a box on the ballot paper.

I think what is being canvassed is uniformity throughout the Commonwealth - it was achieved with the law of defamation - and some uniform type of judicial appointments commission/s whereby those bodies recommend candidates to the Executive government from which the relevant minister - after Cabinet consideration - chooses one or if someone else is appointed that fact should be made transparent at the time. It would diminish the political component and focus the mind of the AGs and has worked overseas. Of course that commission needs to be independent of the Executive government. Worth at least a look as I've said.

Getting back to what Mr Plod was hinting at. Well that's just plain dumb.

 

[Number37]

I hope you didn't think I was in any way decrying your comment. It was that I hadn't heard it and (I think you'd agree) it was at the extreme end and unlikely to ever come into play. Enjoy reading your posting.

The JCA was looking at the selection processes country wide and I think questioning the consistency, transparency, accountability and openness of the current system.

From a consistency perspective, the Commonwealth and States have vastly different appointment processes and they differ from court to court as you have shown in your subsequent post. Some state and federal courts have no stated criteria, advertising or expressions of interest, consultation, use of assessment panel, formal interviews by the AG etc. Others do follow all or some of those things and in others it isn't clear.

Federally, the JCA commented that while there is a "......prescribed process for the High Court; otherwise there is apparently no formal process for consultation in regard to appointments to other federal courts." In other words, there are no statutory requirements for appointments other than for the HC. Apparently the AGs website confirms there are "no current judicial appointment processes" for each of the 4 federal courts.

In relation to transparency and openness, there is very little. Those with existing practicing certificates wouldn't know who was considered, why one person was chosen over another etc let alone interested bystanders, I'd suggest. It seems to be done largely by press release.

The accountability runs to the AG being answerable to the parliament over which the Executive government has the upper hand if not the majority. And he/she is in the position of providing little more than is in press releases if he/she so decides. I can't remember the last time an AG lost his/her job due to a dud appointment as occurred not so long ago in Queensland.

I guess the final accountability is to the people, but I wonder how high that matter is in their minds when it comes to ticking a box on the ballot paper.

I think what is being canvassed is uniformity throughout the Commonwealth - it was achieved with the law of defamation - and some uniform type of judicial appointments commission/s whereby those bodies recommend candidates to the Executive government from which the relevant minister - after Cabinet consideration - chooses one or if someone else is appointed that fact should be made transparent at the time. It would diminish the political component and focus the mind of the AGs and has worked overseas. Of course that commission needs to be independent of the Executive government. Worth at least a look as I've said.

Getting back to what Mr Plod was hinting at. Well that's just plain dumb.

I was just trying to clarify, I didn't take any offense at your post.

In relation to potato head...
The biggest problem with the idea of electing judges IMO is the potential for a shift in their reasoning.
As it stands, they decide based on the facts of the case and the law and somewhere inside that they have to fit community expectations.
If they're elected it has the potential to make community expectations the primary consideration with the facts of the case and the law having to fit somewhere inside that.

In relation to advisory panels...
There is tonnes of research that says consultation is pointless if it doesn't affect the outcome. If there is to be an advisory panel then their recommendation has to be the default decision, it is then up to the govt to substantiate a departure from the recommendation.
It would otherwise be far too easy for govts to find an excuse to ignore an advisory panel recommendation, especially if they drag it through the media, as potato head is currently doing.

What do you think of the idea of academics being eligible to become judges?