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  • Editorial: Judges should not be their own juries
  • The Australian
  • 31/01/2007 Make a Comment
  • Contributed by: admin ( 59 articles in 2007 )
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The judiciary alone cannot properly discipline itself

THE ACTU could learn a thing or two from NSW Chief Justice Jim Spigelman. Last week, Justice Spigelman firmly suggested the state Government should have talked to judges before announcing a plan to put ordinary people on the discipline panel of the Judicial Commission.

Justice Spigelman made it plain he thought including community representatives would mean the discipline process would not work as well, and that in any case politicians had no role in determining who should serve on such reviews. It seems the Government listened, because Justice Spigelman mentioned on Monday that if re-elected at the March poll, Labor would involve the Judicial Commission in selecting community representatives and deciding what they would do.

It was an elegant exercise of industrial authority. Without bluster or bullying, the Chief Justice told the people elected to run the state to butt out - that the guild of judges was capable of administering its own affairs.

And so they are. The question is whether it is in anybody's interest, other than their own, for judges to work in a closed shop, where they only need to to answer to each other. To The Australian, the answer is obvious.

Over the years this paper has reported on the behaviour of lazy judges, drunken judges, jet-setting judges. We have pointed to members of the judiciary whose performance has delayed justice to those who appear before them, but who have been left alone by the only people easily able to order them to lift their game - their fellow judges. The case of NSW magistrate Pat O'Shane is instructive.

Ms O'Shane has recently dismissed two cases against individuals who attacked or abuse law-enforcement officers. On occasion she has let others off because she finds their case, or cause, sympathetic. As she did in 1993, when she refused to record a conviction against women who defaced a bra billboard.

According to Ms O'Shane, the advertisement was the real crime. And there is a famous case where she included her own opinions in a judgment, dismissing a charge against an individual who had abused police, saying she was "not sure there is such a thing as community standards". But what may not exist in the community exists in her court. In 2004, Ms O'Shane locked up a man for what she considered contempt. But although the Court of Appeal overturned her decision, the judicial commission declined to discipline her, without, as is its right, explaining why.

There is no reason to doubt this decision is correct in law. But some might see it as a case of the guild looking after its own.

This is not good enough. There is no doubting the intellectual acuity of the vast majority of judges and magistrates, or their commitment to justice for all who come before them. But there are duds among them now, and there will probably be more in the future. In recent years, Labor governments in the states have appointed pals to the bench - sometimes on the outrageous grounds of improving the gender balance in the courts, sometimes to include people with social engineering experience acquired in equal opportunity agencies and the like.

And when the political cycle swings, the conservatives will do the same, appointing people sympathetic to their ideas. There is a risk that clipping the coin of judicial talent will bring the law into disrepute. We know the judicial guild abhors acting against its own - which means the best way of dealing with this problem is to end the closed, secret shop for disciplining poor performers.

This means including people in the review process who are not club members, and making the reasons for discipline decisions public.

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