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

[AM]

In relation to potato head...

The biggest problem with the idea of electing judges IMO is the potential for a shift in their reasoning.

I think the biggest problem is getting judges who do not have the qualifications or the aptitude to undertake the task at hand being elected by people, not on that professional basis, but because they have access to millions to campaign. The U.S is pretty much the only country who uses that method. With appalling consequences so often

In relation to advisory panels...

There is tonnes of research that says consultation is pointless if it doesn't affect the outcome.

Which is why the suggested approach calls for the Executive government having to give reasons should they choose not to appoint one of the recommended candidates. Part of the openness and transparency referred to. Anything that diminishes the politicisation of the process I'd welcome. Regrettably, neither major party would take kindly to it as they like having the power to appoint judges with similar philosophies on key matters.

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

It's essential to have had recent practical experience at the coalface in my view. Many so-called academics prefer part-time appointments in order to maintain a pragmatic connection to their professions. Happens in other schools too - medicine and engineering are two that spring to mind.

In the case of appointments to higher courts, preferably experience in lower jurisdictions.

 

[Number37]

Which is why the suggested approach calls for the Executive government having to give reasons should they choose not to appoint one of the recommended candidates. Part of the openness and transparency referred to. Anything that diminishes the politicisation of the process I'd welcome. Regrettably, neither major party would take kindly to it as they like having the power to appoint judges with similar philosophies on key matters.

Having to give reasons I am not convinced will de-politicise the process in any way. There would be very little difference in the candidates, even if there was a discernible difference most lay people wouldn't understand what those differences mean in practical terms. For example: whether the candidate is activist or not.
The lay person not having the understanding would make it easy for govts to sell why a particular judge wasn't appointed.

It's essential to have had recent practical experience at the coalface in my view. Many so-called academics prefer part-time appointments in order to maintain a pragmatic connection to their professions. Happens in other schools too - medicine and engineering are two that spring to mind.
In the case of appointments to higher courts, preferably experience in lower jurisdictions.

It is a prerequisite of the legal profession to maintain a pragmatic connection. The higher the court the less connection you need IMO.

The biggest issue (for me), regardless of their practical experience, is their understanding of community expectations, especially in the higher courts.

 

[Demosthenes]

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 s**t like this bloke.

Did you even read the article?

 

[AM]

Having to give reasons I am not convinced will de-politicise the process in any way. There would be very little difference in the candidates, even if there was a discernible difference most lay people wouldn't understand what those differences mean in practical terms. For example: whether the candidate is activist or not.
The lay person not having the understanding would make it easy for govts to sell why a particular judge wasn't appointed.

De-politicise - I agree. Diminish was the word I used.

I'm not sure you could say with confidence "there would be very little difference in the candidates" I'd suggest there would be quite discernible strengths and weaknesses as is the case with most candidates whether to positions of significance or lesser roles.

And I think you underestimate how politically savvy folk are.

The consternation in the US about the prospect of Donald Dumb overturning Roe v Wade is a classic example.

A key reason for this: President Trump, who nominated Gorsuch to the court, had vowed during the campaign to nominate a judge who would help overturn Roe v. Wade, the landmark 1973 abortion-rights decision. During the final presidential debate, Trump was asked if he wanted to see the Supreme Court overturn that decision.

“Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen,” Trump said during that October debate. “And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.”

And if an Executive government here were to continually reject recommendations I'm of the view there would be a political price to pay presuming the opposition and legal fraternity aren't asleep at the wheel.

The model proposed by the JCA - or similar- seems to work well in some other countries without the issue you fear so I don't see it as an impediment in practical terms. As I've suggested , both parties here think the present set-up has served them well which is why we will continue with the current heavily politicised system.

It is a prerequisite of the legal profession to maintain a pragmatic connection. The higher the court the less connection you need IMO.

The connection can be continuing with a practising certificate in order to be kept apprised of changes. There are tenured people who haven't been face-to-face with a client in quite some time.

The biggest issue (for me), regardless of their practical experience, is their understanding of community expectations, especially in the higher courts.

That seems to be the conventional attitude in Victoria because of the African issues and the opposition and right wing media beating it up. Just how much difference there would be if the Libs were in power no-one has been able to explain satisfactorily. Particularly as legislation passed by them during their last stint proved unworkable. I digress.

Among other matters I would want an appointee to have is the requisite applied experience obtained from practice before the courts and with direct relevance to the role he/she is about to undertake.

In any event, neither Mr Plods hairbrained thought bubble or a significant change to the present set-up is likely in the foreseeable future - maybe ever.

 

[Number37]

De-politicise - I agree. Diminish was the word I used.

I'm not sure you could say with confidence "there would be very little difference in the candidates" I'd suggest there would be quite discernible strengths and weaknesses as is the case with most candidates whether to positions of significance or lesser roles.

And I think you underestimate how politically savvy folk are.

The consternation in the US about the prospect of Donald Dumb overturning Roe v Wade is a classic example.

I am not underestimating how savvy folk are, it was more a comment on the deviousness of politicians to muddy the waters so that the real issue gets lost.
A good example of that is our SSM vote, which in a lot of ways is similar to the Roe v Wade debate in the US. i.e. a no-brainer that somehow gets intertwined with a whole lot of unrelated issues (almost always for political expediency).

And if an Executive government here were to continually reject recommendations I'm of the view there would be a political price to pay presuming the opposition and legal fraternity aren't asleep at the wheel.

The model proposed by the JCA - or similar- seems to work well in some other countries without the issue you fear so I don't see it as an impediment in practical terms. As I've suggested , both parties here think the present set-up has served them well which is why we will continue with the current heavily politicised system.

This is the type of scenario where I think joe public will get railroaded. As long as they can get their side to cheer on whatever they do, they can blindly ignore what those that don't agree with them say.

The connection can be continuing with a practising certificate in order to be kept apprised of changes. There are tenured people who haven't been face-to-face with a client in quite some time.

I would argue that academics have far more incentive to keep apprised of changes, you can't teach law students outdated law.
I also think that too many law professionals are experts at deductive reasoning (due to their training & the nature of the profession) at the same time as being next to useless applying inductive reasoning. Having the ability to do both makes for the better lawyer IMO.Of some of the more recent HC judges: It was always more difficult to find fault with Gaudron and French reasoning (because they were both brilliant at deductive and inductive reasoning), Heydon is twerp but clever enough that he could always find weasel words to justify whatever decision he made, Kirby used a little too much inductive reasoning.
The benefit of inductive reasoning IMO is that it largely takes care of shoe-horning in community expectations and leaves judges less open to outside criticism.
Like the really good judges, the really good academics are brilliant at both inductive and deductive reasoning so I see no reason why they should not be allowed to become judges straight out of academia.

 

[Power Raid]

Uninformed popular opinion has no place in our judicial system

 

[AM]

Uninformed popular opinion has no place in our judicial system

Irony, PR?

 

[ShanDog]

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.

Very good question. Not sure how many trials with juries would actually be affected by this but the changing nature of information availablity these days is definitely something to consider.

I understand the rationale behind juries, but to be honest, they are manipulated by lawyers during the selection and open to manipulation in trials too - gotta wonder how effective lay-people are at legal matters and whether multiple judges would produce better outcomes.

 

[DivideandMultiply]

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!

It's a terrible idea, see the US and it's issues re judicial corruption, and judicial populism, for why.

 

[Number37]

Very good question. Not sure how many trials with juries would actually be affected by this but the changing nature of information availablity these days is definitely something to consider.

I understand the rationale behind juries, but to be honest, they are manipulated by lawyers during the selection and open to manipulation in trials too - gotta wonder how effective lay-people are at legal matters and whether multiple judges would produce better outcomes.

Manipulation? Really?

It is the job of the lawyer to convince the jury of their case.

It is one of the cornerstones of our legal system that you are entitled to be judged by a jury of your peers.

 

[ShanDog]

Manipulation? Really?

It is the job of the lawyer to convince the jury of their case.

It is one of the cornerstones of our legal system that you are entitled to be judged by a jury of your peers.

Obviously that's true. What's also obviously true is that lawyers will pick the jury to best suit their case, and whenever possible will frame their arguments within legal requirements in the same way.

Being a cornerstone doesn't exempt it from criticism or inherent problems.

 

[Number37]

Obviously that's true. What's also obviously true is that lawyers will pick the jury to best suit their case, and whenever possible will frame their arguments within legal requirements in the same way.

Being a cornerstone doesn't exempt it from criticism or inherent problems.

If you were criticising you would have said why or how lawyers manipulate, but you didn't. You simply stated that lawyers manipulate.

Lawyers can only pick the best jury from the jurors rostered on.

 

[ShanDog]

If you were criticising you would have said why or how lawyers manipulate, but you didn't. You simply stated that lawyers manipulate.

I stated long held criticisms of the system. I didn't just make one up. Here's one of the first hits on Google that addresses the issue:
https://www.wired.com/2014/12/prosecutors-powerpoint-presentations

Lawyers can only pick the best jury from the jurors rostered on.

And?

 

[Number37]

I stated long held criticisms of the system. I didn't just make one up. Here's one of the first hits on Google that addresses the issue:
https://www.wired.com/2014/12/prosecutors-powerpoint-presentations

Who said you made one up?

What is your criticism?

Is your criticism that lawyers manipulating is leading to verdicts being overturned on appeal?

 

[ShanDog]

Who said you made one up?

What is your criticism?

Is your criticism that lawyers manipulating is leading to verdicts being overturned on appeal?

It's just.... The vibe.

 

[HairyO]

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?

Remember half of the members would need to be criminal advocates.

Their rights are more important than ours.

 

[Snake_Baker]

Remember half of the members would need to be criminal advocates.

Would they?

Their rights are more important than ours.

Yeah right. Just go and check out the court/incarceration stats.

 

[HairyO]

Would they?



Yeah right. Just go and check out the court/incarceration stats.

http://www.abs.gov.au/ausstats/abs@...in Features~Sentence length and fine amount~8

6 years the median for killing someone. 1 year for Break and Enters. We sure show them criminals !!

And this is the sentence length given. Not the actual sentence served.

 

[Snake_Baker]

http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by Subject/4513.0~2013-14~Main Features~Sentence length and fine amount~8

http://www.abs.gov.au/ausstats/abs@...in Features~Sentence length and fine amount~8

2013-2014.

6 years the median for killing someone. 1 year for Break and Enters. We sure show them criminals !!

Where does it state that?

And this is the sentence length given. Not the actual sentence served.

Many sentences have more than doubled since then.

 

[ShanDog]

It matters, but I'm more interested in who comes out at the other side of their prison sentence than how long they spent in there.

 

[Number37]

It's just.... The vibe.

On a par with...

Their rights are more important than ours.

The justice system is far from perfect, but the dumbing down of criticism with stupid statements because it's the vibe is better left to shock jocks who have a vested interest in deliberately misleading the general public.

 

[ShanDog]

On a par with...




The justice system is far from perfect, but the dumbing down of criticism with stupid statements because it's the vibe is better left to shock jocks who have a vested interest in deliberately misleading the general public.

Do you see every single communication exchange as a contest to be right and wrong, or adversarial where there must be a "winner"?

 

[Number37]

Do you see every single communication exchange as a contest to be right and wrong, or adversarial where there must be a "winner"?

LOL.

You are way too precious.
Are you scared of having a discussion?
Are you scared of discussion where participants disagree?

It isn't about being right or wrong or adversarial or the "winner".
It is amazing what happens when you challenge people to think for themselves.
It is even more amazing what you can learn when you challenge people to explain their reasoning.

A discussion that is akin to "you suck", "no, you suck" seems to be your preferred communication.

 

[ShanDog]

LOL.

You are way too precious.
Are you scared of having a discussion?
Are you scared of discussion where participants disagree?

It isn't about being right or wrong or adversarial or the "winner".
It is amazing what happens when you challenge people to think for themselves.
It is even more amazing what you can learn when you challenge people to explain their reasoning.

A discussion that is akin to "you suck", "no, you suck" seems to be your preferred communication.

Its becoming clear that you don't have discussions. Go back and read my post in this thread that you took exception to, and decided I needed to be challenged. It's a question. Rather than provide insight, you attack the question and now the questioner. If you don't want to be engaged in discussion in the future, you're going about it the right way. I'd suggest a bit of introspection on how you conduct yourself.

 

[Number37]

Its becoming clear that you don't have discussions. Go back and read my post in this thread that you took exception to, and decided I needed to be challenged. It's a question. Rather than provide insight, you attack the question and now the questioner. If you don't want to be engaged in discussion in the future, you're going about it the right way. I'd suggest a bit of introspection on how you conduct yourself.

Your previous post is nothing more than a personal attack. No big deal to me, because it says more about you, than me.

I never took any exception to anything you wrote, you are just being precious and worse than that you are COMPLETELY misrepresenting what I wrote.
You made a statement, which to me (1) didn't make any sense and (2) is typical of the ill informed rubbish that often underlies any discussion about the judicial process.
I merely asked you to substantiate your claim. (You still haven't done so!)
You quoted a US article to attempt to back up your claim.
The article you quoted specifically mentioned numerous cases where verdicts were overturned specifically because of prosecutor conduct.
Leaves me wondering why the heck lawyers would manipulate if it results in them losing their case?

Instead of reading things I never said into my posts perhaps you could instead use your energy to consider the implications of your claim & the evidence you supplied to back it up.

To be condescending to you...the implication is that there is little scope within the judicial system for funny business by lawyers. Before you rant that I am saying lawyers don't do funny business, of course it happens. Perhaps you can research how the judicial system, & its rules & processes, regulates against funny business by lawyers. When you do that you might develop an appreciation for why somebody might think that your claim is a little off.

I don't have the stats at hand but BY FAR the most common complaint against lawyers (by their clients) is funny business in relation to trust accounts.