THE STATE OF THE JUDICATURE
14 OCTOBER 2001
Murray Gleeson*
In a society committed to the rule of law, and
organised as a federation, the role of the judiciary is
to uphold and enforce the Constitution, resolve disputes
between citizens, or between governments, or between citizens
and governments, as to their legal rights and obligations
and to administer criminal justice.
There are 976 judicial officers (including acting
judges and acting magistrates) in Australia, of whom about
one-third are appointed by the New South Wales Government.
The next largest jurisdictions are Victoria, then
Queensland, and then the Commonwealth.
The magistracy
The judicial officers with whom members of the
public are most likely to come into contact are magistrates,
sitting in Local Courts.
In Australia, most magistrates have always been
full-time, salaried, professional officers, although,
in the past, they were not necessarily qualified to practise
as lawyers. The
social conditions sustaining the lay magistracy in England,
which to this day plays an extensive role in the administration
of justice in that country, never existed here.
Historically, Australian magistrates formed part
of the public service of the States and Territories.
They performed many administrative, as well as
judicial, functions; and they were closely associated,
in terms of recruitment, conditions of service, and promotion,
with the executive government.
The criminal and civil jurisdictions exercised
by magistrates covered matters regarded as appropriate
for summary disposition.
Summary disposition has always been the method
by which the legal system has dealt with the great majority
of criminal offences, which are not regarded as sufficiently
serious to require trial by jury. In New South Wales, for example, 98 per cent of sentences are imposed
in Local Courts [1] . That figure is typical. There is an increasing tendency for parliaments
to provide for summary trial of offences, sometimes at
the election of the accused, and prosecuting authorities
have established policies of encouraging summary disposition
of cases, in the interests of savings in cost and time,
provided the range of available charges and penalties
is adequate to reflect the criminality involved [2] . Similarly, many forms of civil dispute are
more conveniently and appropriately resolved in a summary
fashion.
Cost and delay are problems endemic to all legal
systems. There is no single or simple answer, but there are available responses.
One is to increase the capacity of the court system
to deal with matters summarily, where that can be done
fairly. The availability
of a level of courts specifically designed to deal with
criminal cases, and to resolve civil disputes, summarily,
has always been, and will continue to be, the justice
system's primary response to the besetting evils of cost
and delay. It
is upon the magistrates' courts that we depend principally
for our ability to make justice accessible to ordinary
people. The legal
profession, and the community generally, have a large
stake in the capacity of Local Courts to deal promptly,
fairly, and inexpensively, with the bulk of litigation. That stake is not sufficiently recognised.
The profession ought to take a strong and active
interest in the magistracy. In the past, most magistrates have had a background in the public
service, and that may account for a degree of distance
from the profession. But that is changing rapidly.
More and more magistrates are being recruited from
the profession, and magistrates, especially through their
leaders, are participating more closely in professional
and judicial organisations.
These are welcome developments.
In New South Wales, with the proclamation of the
Local Courts Act 1982, and the enactment of the Judicial Officers Act 1986, the magistracy
achieved structural independence of the executive government,
and became part of the judicial branch of government. That approach has now been followed in all States. A leading role in this movement was taken by
the former New South Wales Chief Magistrate, Mr Clarrie
Briese. He understood that, while the historic links
between the magistracy and the public service could not
be ignored, it was important to the health and strength
of the justice system that the judicial officers who deal
with the great majority of civil and criminal cases should
see themselves, and be seen by the public, as independent
of the executive government.
Above all, criminal justice should be administered,
not by so-called "police courts", but by judicial
officers who are conspicuously separate from investigators
and prosecutors, who have professional qualifications
equal to those of the lawyers who appear before them,
and who see themselves as part of the judicial branch
of government.
The expansion of the criminal and civil jurisdictions
of Local Courts has occurred across Australia.
Particular mention should be made of two relatively
new jurisdictions. In every State, Local Courts have power to make apprehended violence
orders. In New
South Wales, in the year 2000, there were 40,000 applications
for such orders, and 27,000 orders were made.
A basic purpose of law is to keep the peace.
This is grassroots law; but its administration
imposes an enormous demand upon the resources of the courts.
There has also been a growth of what are sometimes
called "problem oriented courts", which deal
with such matters as diversion programmes for drug dependent
offenders, domestic violence, mental health issues, and
the specialised needs of indigenous offenders.
Problem oriented courts involve consultation, diversion,
reappraisal and constant supervision of offenders.
Activities of this kind are also demanding of resources [3] .
One of the most significant recent developments
has been the establishment of the Federal Magistrates
Court, which first sat in July 2000. Before then, there was no federal magistracy.
Summary matters in federal jurisdiction were dealt
with by State magistrates invested with federal jurisdiction.
And, to a substantial extent, that continues to
be the case in relation to criminal matters.
The Federal magistracy was set up to provide a
simple and accessible service to litigants, and to ease
the workload of the Family Court and the Federal Court.
Eighteen magistrates have been appointed.
The Chief Magistrate is Diana Bryant QC.
Federal magistrates are appointed pursuant to Ch
III of the Constitution, and they have the same tenure
as federal Justices.
Like other federal courts, the Federal Magistrates
Service is responsible for administering its own affairs,
and is separate from the Commonwealth Public Service. The court's workload has expanded rapidly.
In places where it sits regularly (capital cities
and major regional centres) it receives between a quarter
and a third of all family law applications, and most of
the work of federal courts in bankruptcy and unlawful
discrimination. Rules of court were introduced on 30 July 2001.
Their objective is to establish simple procedures,
and to avoid the need for multiple court attendances. It may be expected that the jurisdiction of
the court will continue to expand.
Courts and information
technology
Australian courts have embraced information technology
with enthusiasm.
One of the most notable achievements in relating
technology to the work of courts has been that of the
Australasian Legal Information Institute (AustLII). It was established in 1995 by Professor Greenleaf
and Associate Professor Mowbray, as a joint facility of
the Law Schools of the University of New South Wales and
the University of Technology Sydney, on a non-profit basis.
It operates on the principle of full access to public
legal information. AustLII has set up databases of case
law, legislation and other legal materials.
It hosts the High Court internet home page.
High Court judgments and transcripts are converted
to hypertext mark-up language and programmed to load automatically.
That is done at no cost to the Court, and saves
the Court having to acquire the technical assistance that
would otherwise be necessary to produce the same result.
High Court transcripts and judgments are available
to practitioners, and the public, usually within a couple
of hours. AustLII
has achieved international recognition.
The search engine developed by it has been used
both by the British and Irish Legal Information Institute
(BaiLII) and the Canadian Legal Information Institute
(CanLII).
The financial basis of AustLII's operations is
a matter that requires the consideration of governments
and the profession. AustLII plays a major role in the dissemination of case law. During a single month in 2000, the full texts
of over one million cases were accessed on AustLII; an
average of 34,000 per day.
Access rates for the High Court during 2000 were
about 300,000 per month. Initial funding for AustLII came from the Law Foundation of New
South Wales, together with a grant from the Australian
Research Council. The Law Foundation funding has ceased. It would be a matter of serious concern if
this important service, which is widely used by courts,
governments, and the profession, were to diminish because
of lack of sufficient funding. It is in the interests of the profession and
the public that the service be continued, and enhanced.
One aspect of the availability on the internet
of judgments of most Australian superior courts, which
should not go unremarked, is the extent of value adding
which is required of modern judges.
In the past, reserved decisions were either read,
or handed down, in open court, and it was then up to interested
parties, and legal publishers, to decide what to do with
them. They simply
consisted of the reasons for judgment, produced in a form
convenient to the individual judge.
Now, judges are required to produce their judgments
in accordance with protocols adapted to information technology.
A standard media-neutral format is adopted, involving
separate numbering of paragraphs, common methods of citation
of authority, catchwords, and, in some cases, headnotes. The amount of time and effort that goes into
the technical aspects of judgment production is considerable. Much is now expected of courts in addition
to deciding cases and producing reasons for decision. Some courts endeavour to make some decisions more accessible by
producing judgment summaries.
In Tasmania, the Australian Capital Territory and
the Northern Territory, reasons for sentences are promptly
published on the internet, in the hope that they will
be more readily available to the public and the media,
and more widely understood.
Most Australian jurisdictions now make extensive
use of information technology for the purposes of case
management and other internal systems controls. Courtroom technology is developing rapidly,
and Australian courts, within the limits of the available
resources, are exploiting these advances.
Video-conferencing is widely used, and saves much
time and cost. The
High Court, for several years, has routinely used video-conferencing
for special leave applications; and it is now regularly
used for meetings of Justices in order to minimise the
need for interstate travel. There are many ways in which video-conferencing
can produce cost savings going beyond the courts and the
parties to litigation.
For example, in motor accident cases the evidence
of a police officer who attended the scene is often required.
The officer in question may have been posted to
a different locality between accident and court case,
and attendance at court may be inconvenient and costly. A facility to take the witness's evidence by
video-link may be very convenient.
In a number of jurisdictions, bail applications
have been dealt with in that way for years.
The evidence of vulnerable witnesses is often taken
with the assistance of video-links to the main courtroom
as, of course, is the evidence of overseas witnesses.
Electronic filing of court process is being increasingly
adopted. Most law firms are equipped to take advantage
of such facilities. The Electronic Appeals Project is
being advanced by a working group under the auspices of
the Council of Chief Justices, and electronic appeal books
have already been used in a number of major cases.
Judicial management
There are two forms of management that are relevant:
the management of courts as institutions; and what
is now known throughout the common law world as case management.
In Australia, the federal courts are self-administered. They control their own budgets, employ their own staff, and, within
the resources allocated to them, set their own priorities. With the exception of South Australia, which
has a different system again, State courts are still to
a considerable extent administered as cost centres in
a Department of the executive government. But in all Australian courts, judges and magistrates
now take a substantial part of the responsibility for
court administration.
Although judges generally are willing recipients
of this additional responsibility, it imposes demands
upon them which did not exist in an earlier age. The amount of judicial time devoted to matters
of court administration is substantial.
Case management is another aspect of the system's
attempts to respond to the twin problems of cost and delay.
In the past, judges in most jurisdictions, commercial
lists being the most notable exception, left it to the
parties to prepare cases for trial and, except when their
intervention was sought by one party because the other
was in default, dealt with cases as and when they reached
the head of the queue. When a case finally came on for hearing, judicial
intervention in its progress was minimal. That has changed. Judges
now take charge of cases from their inception, and actively
participate in the progress of the queue.
And when a hearing commences, most judges push
it along, according to personal style, actively.
This, again, is a worldwide phenomenon.
Principles of active case management were originally
introduced into Australia following American examples,
and have since been taken up in the United Kingdom. Everywhere, this new responsibility is accepted.
But a common concern is emerging, both among judges,
and among members of the legal profession. Lawyers charge for their services on a time
basis. The imposition
upon them, by judges, of pre-trial activity, involves
lawyers' time, for which clients have to pay. There
is a balance to be maintained, between appropriate judicial
intervention, and the imposition of costly demands upon
litigants. Sometimes,
judicial activity which is intended to save time and expense
can produce the opposite effect.
One of the problems facing courts in all common
law jurisdictions is the need to avoid inefficient allocation
of scarce judicial resources. In the common law world, the judiciary is small
compared to that of civil law countries.
Judges are expensive;
not because they are highly paid, (compared to
practitioners of equivalent experience they are modestly
paid), but because of the support staff and facilities
they require. The
efficient allocation of resources suggests that, so far
as possible, judges should do work that only judges can
do; and work that does not have to be done by judges,
and can be done just as effectively by court officers
and administrators, should be left to such suitably qualified
people. Court administration is now a recognised field of study and expertise.
Courts are constantly seeking ways of devolving to court
officers decision-making which does not warrant the attention
of a judge. In the area of corporations law, for example,
work that once was done by judges is now routinely attended
to by Masters and Registrars.
Finding better methods of husbanding scarce resources
of judge-time is an important aspect of court management.
One example of innovative and purposeful judicial
management is the Supreme Court of Victoria's Pegasus
Two Programme. This
is a co-operative initiative of the Court and the legal
profession. It
aims to reduce the length of criminal trials, and to ensure,
as far as possible, that, once a jury is empanelled, its
members will not be required to undertake lengthy absences
from the courtroom during legal argument.
Pre-trial hearings are held outside normal court
hours, so that trial counsel are able to attend.
Jury time spent out of the courtroom in criminal
trials has been reduced to an average per trial of a little
over an hour.
National Judicial
College of Australia
On 25 July 2001, the Standing Committee of State,
Territory and Commonwealth Attorneys-General, announced
their agreement in principle to establish the National
Judicial College of Australia.
The original proposal for such a College came from
the Australian Institute of Judicial Administration and
the Council of Chief Justices of Australia and New Zealand.
Since 1986, the Judicial Commission of New South
Wales has conducted programmes of orientation, training
and continuing legal education for judicial officers in
that State, and has achieved international recognition
for its work. The courts in all other Australian jurisdictions have conducted
their own in-house education programmes and, in recent
years, the Judicial Commission of New South Wales and
the AIJA have co-operated in a regular orientation course
for newly appointed judges.
That course has been attended by judges from most
Australian jurisdictions and from overseas.
The time has come for a national institution.
The working group which made recommendations to
the Standing Committee of Attorneys-General was co-chaired
by Chief Justice Doyle of South Australia, and the Secretary
of the Commonwealth Attorney-General's Department, Mr
Cornall. The cost of administering the College will be
funded by Commonwealth, State and Territory Governments. The cost of attendance at courses by judicial
officers will be met by the relevant courts. In announcing the decision, the Commonwealth Attorney-General said:
"The main role
of the College will be to provide professional development
for judges, masters and magistrates. The College will provide courses in the development
of practical skills and education in legal and social
issues. There will also be orientation activities following
appointment to judicial office and ongoing professional
development."
Experience, both within Australia and overseas,
(as, for example, with the Judicial Studies Board in the
United Kingdom, and American Judicial Colleges), has shown
that the success of formal programmes of judicial education
depends heavily upon the support given by courts and,
in particular, by Chief Justices, and upon the input of
experienced judges, and former judges. What is involved is, to a large extent, peer group education.
Having spent almost ten years as President of the
Judicial Commission of New South Wales, I am conscious
of the extent to which it is necessary to rely upon the
experience, effort and goodwill of serving and retired
judges in order to make an endeavour of this kind successful.
I am confident that the Australian judiciary, and
the legal profession, will support this new College.
It is expected to be operating next year.
Its establishment will represent an important milestone
in the history of the Australian judiciary.
International mutual
judicial assistance
The expansion of international trade, commerce
and intercourse has resulted in increased awareness of
the importance of multinational and bilateral arrangements
concerning such matters as service of process, taking
of evidence, and enforcement of judgments between nations.
At the 8th Conference of Chief Justices of Asia
and the Pacific, held in Seoul in September 1999, it was
resolved to encourage the development of bilateral arrangements
on mutual judicial assistance of this kind in relation
to civil and commercial cases between countries in the
region. At the 9th Conference, held in Christchurch last week, Chief Justices
reported on the considerable progress that has been made
in this important area.
Since September 1999, Australia has entered into
bilateral treaties with the Republic of Korea and with
Thailand, and is about to commence negotiations for a
bilateral treaty with the People's Republic of China.
Guidelines for Judicial
Conduct
The Council of Chief Justices has decided that
it is timely and appropriate to provide judicial officers,
on a national basis, with practical guidance as to what
is expected of them concerning problems, and issues, likely
to confront them in relation to their behaviour as holders
of judicial office. In conjunction with the Australian Institute
of Judicial Administration, the task of producing appropriate
written guidelines was taken up.
The assistance of former senior judges was obtained,
and an extensive process of consultation was undertaken,
in order to identify issues upon which there was a need
for guidance, and to obtain the general opinion of the
judiciary upon questions that might have been regarded
as doubtful.
What is involved is not, in any sense, a legislative
function. Many aspects of judicial conduct are, of course,
already regulated by rules of law.
Those rules, governing such matters as disqualification
for bias, are enforced by the courts.
We are here concerned with behaviour that is not
already covered, or not clearly covered by existing legal
rules. The Council
of Chief Justices has no authority to impose prescriptive
standards upon judges, who are independent, not only of
government, but also of one another. The ethics of any profession represent the
consensus of opinion among right-thinking members of the
profession. Standards of professional behaviour are best
developed by experience, not imposed by edict.
Furthermore, prescriptive standards, or "codes
of conduct", are often expressed at a level of generality
which states the obvious, but fails to address
doubtful practical questions which may perplex
or embarrass even experienced judicial officers.
The members of the Council of Chief Justices possess
a unique fund of experience in dealing with issues of
the kind that concern Australian judicial officers, and
complaints about judicial behaviour made by members of
the public. One way or another, such complaints usually
end up on the desk of a Chief Justice.
The local legal and social culture is often significant
in determining the kinds of problem that need to be addressed. Some matters, that may be of concern in other places, are not issues
in Australia. Other
matters, such as relations between the judiciary and the
profession, are strongly influenced by local conditions
and customs.
The Council of Chief Justice decided that what
is needed is not a collection of prescriptive rules, promulgated
by a body with no authority to legislate, and no desire
to do so.. What
is needed is a statement of principles and a set of practical
guidelines, directing the attention of judicial officers
to issues which experience has shown to be of practical
concern in this country, and indicating appropriate responses
to those issues.
An example which illustrates both the difference
between a code of conduct and a statement of general principles
accompanied by explanatory guidelines, and also the significance
of local circumstances, is the subject of judges engaging
in public debate about controversial issues.
The Code of Conduct adopted for the judiciary of
Pakistan contains the following provision:
"Article V
Functioning as he does
in full view of the public, a Judge gets thereby all the
publicity that is good for him. He should not seek more. In particular, he should not engage in any
public controversy, least of all on a political question,
notwithstanding that it involves a question of law".
That rule would be regarded by many members of
the Australian judiciary as unduly restrictive, although
the problem to which it is directed, and the need for
an appropriate answer to that problem, would be accepted.
The publication "Ethical Principles for Judges",
produced by the Canadian Judicial Council, takes a somewhat
different, and less absolute, approach. It states:
"1. Judges should refrain from conduct such
as membership of groups or organisations or participation
in public discussion which, in the mind of a reasonable,
fair minded and informed person, would undermine confidence
in a judge's impartiality with respect to issues that
could come before the courts.
2. All partisan political activity must cease
upon appointment. Judges
should refrain from conduct that, in the mind of a reasonable,
fair minded and informed person, could give rise to the
appearance that the judge is engaged in political activity
3. Judges should refrain from :
…
(d)
taking part publicly in controversial political
discussions except in respect of matters directly affecting
the operations of the courts, the independence of the
judiciary or fundamental aspects of the administration
of justice".
The Canadian approach is in line with the preponderance
of Australian judicial opinion.
The proposed guidelines will combine statements
of general principle, and discussion of the practical
applications of those principles, in a manner that is
related to Australian circumstances.
They will address issues about which, in the opinion
of the Chief Justices, guidance can most usefully be given.
Before leaving this topic, I should sound one note
of caution. When people are appointed to judicial office,
they are not required to renounce the rights and freedoms
enjoyed generally by citizens.
There are some who, in their zeal to maintain high
standards of judicial conduct, or to protect the reputation
of the judiciary, occasionally put forward proposals that
overlook the fact that judges themselves have human rights. A rule of conduct which impinges upon the rights
and freedoms of judges can only be justified upon the
ground that it is necessary in order to maintain the independence,
impartiality, integrity or reputation of the judiciary.
If the suggested rule is not necessary for that
purpose, it should not exist. And if it is wider than is necessary for that
purpose, it should be narrowed. Guidelines for judicial
conduct need to respect the rights and freedoms of judicial
officers.
Draft guidelines are in the course of being completed,
and such completion will follow consultation with Chief
Judges of the District Courts and Chief Magistrates in
order to ensure that the concerns of all levels of the
judiciary are met.
Judicial review
There is no form of judicial responsibility which
is more likely to bring courts, and individual judges,
into the area of political conflict than what is sometimes
called judicial review of legislative and executive action. This is not because the courts seek a political
role. It is because,
in litigation of this kind, the issues at stake often
have political significance, and excite partisan sympathies.
In a system of government that is organised under
a federal Constitution, legislative, executive and judicial
power is divided between the component parts of the federation
by the agreement which formed the basis of the federal
union. The terms
of that agreement are set out in the Constitution.
From time to time, citizens, or governments, claim
that some exercise of power is contrary to the Constitution,
and therefore invalid or unlawful. What is involved may be an exercise of legislative
power in the form of a statute, or it may take the form
of executive action.
It is an aspect of the rule of law that, if a claim
of that kind is made good, then the unconstitutional or
unlawful act has no binding force, and citizens are entitled
to an authoritative declaration to that effect. It is also an aspect of the rule of law that
it is the responsibility of the judicial arm of government
to resolve disputes about the constitutional validity,
or lawfulness, of legislative or executive action in cases
where the exercise of judicial power has been regularly
invoked. This
is a matter of duty, not choice.
The right to invoke such an exercise of judicial
power, in accordance with established principles about
standing to commence proceedings, is matched by a corresponding
duty to exercise such power.
If a properly constituted challenge to an exercise
of legislative or executive power is brought before a
court of competent jurisdiction, the judge or judges appointed
to deal with the case cannot decline to deal with the
matter on the ground of expediency or personal preference. And even if, as sometimes happens, the outcome
of the case is likely to have social or economic consequences
of a kind that excite political controversy, the case
must be decided according to law.
Applying and enforcing the law, including the basic
law, the Constitution, may sometimes mean that the will
of a democratically elected Parliament is defeated, or
that executive action which enjoys the support of Parliament,
and of the majority of citizens, is frustrated or impeded.
That is the necessary consequence of the rule of
law in a democracy. The
majority of people, through their elected representatives,
acting within the Constitution, may alter the law, but
they may not disregard it.
The authority of the courts, in upholding the law
and the constitution, to decide the legality of government
action, even in cases of great political concern or sensitivity,
is consistent with representative democracy in a society
that lives under the rule of law.
But that proposition has an important corollary.
The system is based upon an assumption that the
exercise of judicial power will be free of politically
partisan influence.
When, in the early part of the 19th century, the
Supreme Court of the United States established the authority
of the judiciary to determine the constitutional validity
of legislation, and thereby to resolve issues of great
political importance, it was well understood that the
existence of such a power could only be reconciled with
democratic theory, and would only be tolerated by governments
and citizens, if the Court, for its part, acknowledged
a responsibility to stand aside from political partisanship. The court, under Chief Justice Marshall, took
pains to cultivate an institutional attitude of disinterestedness.
Modern judges accept an obligation to avoid both
the reality and the appearance of political partisanship.
This does not mean that judges have no political
opinions. And it does not mean that previous political engagement is a disqualification
from judicial appointment.
Of the first three members of the High Court, one
had been a former Prime Minister of Australia, and another
had been a former Premier of Queensland. Some of our most respected judges were prominent
in political life before appointment. But it means that, once they accept judicial office, judges must
disengage from political activity and must avoid conduct
that could lead a fair-minded person to distrust their
ability to decide politically sensitive cases in a non-partisan
fashion. This
is reflected in the Canadian Principles quoted earlier,
and will also be reflected in the Australia Guidelines.
Discretionary Sentencing
In our system of criminal justice, part of the
function of judges is the sentencing of offenders who,
following a trial on a plea of guilty, have been convicted
of breaches of the law.
In each jurisdiction, it is for Parliament to establish
the limits of the available sentences, and, to the extent
to which it chooses, the principles according to which
sentencing judges must act.
Subject to any legislation as to those principles,
the common law determines the manner in which judges and
magistrates exercise their power.
In relation to most offences, in most Australian
jurisdictions, Parliament sets a maximum penalty, and
the penalty to be imposed in an individual case is fixed
by a judge or magistrate exercising a judicial discretion
in accordance with the principles established by the common
law and by any relevant legislation.
This exercise of discretion is routinely subject
to appeal, either by a convicted offender who complains
that a sentence is too severe, or by a prosecuting authority
complaining that the sentence is unduly lenient. In the case of some appeals, typically from magistrates, the appeal
court will exercise the sentencing discretion afresh. In the case of appeals from judges to a Court
of Criminal Appeal, the appeal court acts as a court of
error. It will not reverse the original decision simply
on the ground that it would have imposed a different sentence. It will only intervene, and re-sentence an
offender, if it finds error of fact or law in the decision
of the sentencing judge.
Such error may be found by inference in the case
of a sentence which is manifestly excessive or manifestly
inadequate.
Sentencing judges, like other judges, are obliged
to give reasons for their decisions.
Those reasons must incorporate the facts upon which
the decision is based. In the case of an offender who has been convicted
following a trial, those facts, to the extent to which
they are in dispute, are found by the trial judge, provided
that such findings must be consistent with the jury's
verdict. In the
case of offenders who plead guilty, disputed facts will
be resolved by the sentencing judge.
However, it is common for the prosecution and the
defence to agree upon some or all of the facts.
The obligation to conduct sentencing proceedings
in public, and to give reasons for decisions, and the
routine availability of a right of appeal, are the means
by which the judicial process is made transparent and
accountable.
There is a high level of public interest in sentencing. Victims, and relatives of victims, often take a natural and proper
interest in the process, as do the media. From time to time there are complaints about, and sometimes strong
criticism of, sentencing decisions.
In order to keep these complaints in proper perspective,
however, it is necessary to bear in mind that the number
of cases that give rise to public complaints and criticism,
compared to the total number of sentences imposed, day
by day, is small.
It is appropriate, and healthy, that there is public
interest in sentencing, and it is inevitable that some
decisions will be criticised. Such criticism, however, should take account
of the existence of the appeal process.
And it should be based upon an adequate understanding,
and a fair report, of the facts of the individual case.
As was mentioned earlier, in the case of an offender
who has entered a plea of guilty, those facts are often
put to the sentencing judge or magistrate in the form
of an agreement between the prosecution and the defence.
It is unrealistic to expect that everybody who
comments on a sentencing decision will take the trouble
to read the reasons for the decision and, in particular,
the facts upon which the decision was based.
Freedom to criticise is not limited to criticism
which is fair, or soundly based, or to critics whose motives
are impeccable. Judicial officers are not free to engage in
public argument about their decisions, or to answer criticism
which they regard as misguided or unfair.
When a decision is subject to a pending appeal,
it may be difficult for anybody to comment upon the merits
of a decision. A
Chief Justice cannot engage in debate about a decision
which is likely to come on appeal to a court in which
the Chief Justice presides. This is part of the price we pay for a transparent
system of discretionary sentencing. The price is worth paying.
The Judicial Conference
of Australia
In conclusion, I should make reference to an important
judicial organization. The Judicial Conference of Australia is a voluntary
association of judges and magistrates from all parts of
Australia. At
the end of June 2001 there were over 445 members.
The JCA was set up to serve the public interest
in two particular respects. One is the maintenance of a strong and independent
judiciary in Australia.
The other is to help the general community better
appreciate what judicial independence means and why its
continuation is essential to the rule of law and the survival
of our democratic society.
The JCA is self-funding.
The Governing Council is dedicated to encouraging
as many Australian judges and magistrates as possible
to join.
In April 2001 the JCA held a Colloquium at Uluru.
The topics included mandatory sentencing and whether
and when members of the judiciary are at liberty to, or
even obliged to, speak publicly about matters affecting
the judiciary as an institution, about its judicial work,
and about matters of public interest which might or might
not relate to the judiciary or the work of the Courts.
The next Colloquium will be held in the weekend
of 26 April 2002.
The JCA has played an active role in the planning
and promotion of an Australian Judicial College.
Since May 2000 the Chairman of the JCA has been
Mr Justice Simon Sheller of the New South Wales Court
of Appeal. Late
in 2000, Professor Stephen Parker who had been the secretary
of the JCA since its beginning, retired, and was replaced
by Professor Anne Finlay, the Dean of Law at Newcastle
University.
I commend the Judicial Conference on the work it
is doing.
