Editor’s note: Tom Ballantyne is a principal at Maurice Blackburn Lawyers and the Victorian President of the Australian Lawyers Alliance.
The newly minted Minister for Home Affairs, Peter Dutton, argues that judges in Victoria are too soft. Kids convicted of crimes should be punished more harshly.
According to Dutton, it’s the appointment of “civil libertarians to the Magistrates Court” which is causing this problematic sentencing. And with that, judicial independence is in the headlines again.
The last time we saw federal politicians criticising Victorian judges for their soft sentencing, they were hauled before the Supreme Court of Victoria to explain themselves.
According to the Age the Judicial Registrar had expressed concern at their apparent intention to bring the Court into disrepute, and to “to assert the judges have and will apply an ideologically based predisposition in deciding the case or cases and that the judges will not apply the law“.
After initially persisting with their criticisms, the politicians retracted their statements and apologised to the Court.
They might have been charged with contempt of court if they hadn’t.
Dutton’s latest comments do not relate to specific cases, but they do undermine the independence of the judiciary. They appear to suggest that it is judges’ ideology, rather than their legal expertise, that underpins their work.
This is a dangerous path to tread: it undermines the public’s confidence in the people who uphold our laws, and in turn its confidence in the laws themselves.
Our system of government is underpinned by the separation of powers. The Parliament makes the laws, the government (the Ministers and police force, for example) implements the laws, and the courts interpret the laws.
This separation has worked well for over a thousand years. It is essential to ensure that no one person can wield absolute power. It allows for continuity in the system of government regardless of the individuals who fill key roles, and allows the people to maintain confidence that government and law enforcement will be conducted fairly.
Of course, tension between the judiciary and the government is inevitable. Part of the role of the judiciary is to ensure that the government is acting in accordance with the laws made by the Parliament.
When either Parliament or the government oversteps the mark, the courts can bring them back into line. The judiciary also acts as a constraint on Parliament and the government, which take into account how the judiciary might interpret the laws they pass or the way they are implemented: thus, legislation and government action are more likely to comply with the law as the courts interpret it.
For this arrangement to work most effectively, it is essential that the courts and the other arms of government refrain from commenting on each other’s work. Just as it would be inappropriate for a judge to say they thought a law was ill-founded, it is inappropriate for a politician or Minister to say a sentence was ideological. Arguing that the judiciary, the non-political arm of the government, is acting politically, is particularly undermining.
Each arm of government must respect the role of each of the others, to maintain the integrity of the system as a whole.
Understood in this way, it is clear that judicial independence is a central pillar of our democracy. All members of the community, whatever their background or political persuasion, can expect that the courts will independently and consistently apply the law, free from political interference or bias, based only on their expertise and the evidence presented before them.
The evidence they consider is key to the decisions that they make.
This is another reason why Dutton’s criticism is so inappropriate: he does not have access to all of the evidence considered by the judges, and thus is not in a position to evaluate whether the sentences are fair.
There is of course an appropriate avenue to review sentences: lodging an appeal.
With this foundation, Australia’s democracy functions remarkably well. It truly is one of the most successful democracies in the world. We have largely avoided governments and leaders who have attempted to abuse their power or undermine our democratic system, and the few infringements have been brought into line by the other arms of government.
In New South Wales a number of politicians who exploited their power for personal gain have recently been convicted by the courts and gaoled: this is a sign that the system is working well, even where individuals within it are not.
In countries without a clear separation between the courts and other arms of government, the judiciary has been complicit in entrenching corruption and allowing the worst of government excesses to flourish. Australian journalist Peter Greste experienced this firsthand in Egypt not too long ago.
This success to date does not mean that we can become complacent. Our democracy will only stay strong if we defend it from attack.
While the government might want us to focus on the attacks from outside, like terrorism, we believe that the most pernicious attacks can come from within.
When the person tasked with maintaining the safety of our country and our community, the Home Affairs Minister, seeks to undermine the judiciary for cheap political gain, all of us are at risk.
Political parties are invariably driven by ideology. This is the irony in the Minister’s ideological attack on judges: it is itself ideologically driven.
Criticising soft sentencing of young offenders in the context of a discussion about African youth is a transparent attempt to use criminal justice issues for political gain: the exact behaviour that judicial independence helps counter. It is no coincidence that Victoria is in an election year.
Of course, this applies equally to all political parties. Governments change regularly. If we tolerate interference from one side of politics, there will come a time when we must tolerate it from the other. For those who might agree with Minister Dutton, consider how you might feel if a more progressive government attacked the courts for being too tough on crime, and started advocating for shorter sentences.
Victorians, and indeed all Australians, should have confidence in our courts. For this confidence to be possible, politicians must respect judges’ independence. Making comments on the way that judges work, or indeed are appointed, undermines that confidence, and therefore the very foundations of our democratic system of government.
Anna Talbot, ALA legal and policy advisor, also contributed to this article.
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