Abbott's thoughts on bench reform are ill-judged

The Canberra Times

By David Weisbrot.

Federal Opposition Leader Tony Abbott set the cat among the pigeons earlier this month when, at a community forum in Brisbane, he responded to concerns about supposed soft sentencing by raising the possibility of moving to an American-style system of elected judges. ''I never want lightly to change our existing systems, but I've got to say if we don't get a better sense of the punishment fitting the crime, this is almost inevitable. If judges don't treat this kind of thing appropriately, sooner or later we will do something that we've never done in this country. We will elect judges. And we will elect judges that will better reflect what we think is our sense of anger at this kind of thing.'' Other Coalition leaders, including shadow attorney-general Senator George Brandis, swiftly backed away from this, arguing that Mr Abbott was only expressing the frustration of voters rather than identifying a new policy direction.

Abbott's call was certainly at odds with party policy on related matters. The Coalition's opposition to a statutory Bill of Rights, for example, is based strongly on the premise that this would politicise the High Court yet an elected judiciary would, by definition, politicise the entire judiciary. Electing judges is commonplace in the United States, an artefact of Jacksonian participatory democracy, along with elected police chiefs, prosecutors, school boards and ballot initiatives. While the precise details vary, 39 states elect at least some part of their judiciary, accounting for nearly 90per cent of all state court judges. Federal judges, however, are all appointed by the Executive, subject to confirmation by the Senate.

The only real argument for electing judges is that it provides democratic accountability. The downside, however, is enormous, with the focus shifting from merit to electability. Choosing judges through electoral politics means that they inevitably become politicians, with the need for significant campaign finance, and thus the support of powerful friends whether these are political parties or special interest groups. The best and brightest who currently put up their hands for judicial appointment would be far less likely to do so if this necessitated both the corrupting influence of fund-raising and the exposure of families to the glare of the media. Not surprisingly, leaving aside a few Swiss cantons, no other countries have chosen to follow the American example.

In my view, the quality of the average Australian judge is significantly higher than his or her American counterpart, and the allegations of corruption and influence here are vastly fewer. However, it would be equally difficult to argue that the current Australian judicial selection method represents world's best practice. It is well known that many European countries have created a separate career path for judges, with specialised legal and managerial training, searching examinations and a constant emphasis on merit, performance and continuing education. This system is in use in France, Germany, Italy, Portugal and Turkey, as well as in a number of former French colonies. In seeking to choose the best Western system available for its judiciary, a modernising Japan also selected this approach. While this may be a bridge too far for Australia, with its common law traditions, it is also the case that most Commonwealth countries have reformed their judicial selection methods in recent decades, introducing mechanisms to provide greater transparency and accountability and to ensure that considerations of merit trump all others. At least 40 countries, including Britain, now provide for an independent Judicial Services Commission, which gives advice to the government about the qualifications and suitability of candidates for appointment to the bench.

While in most cases these recommendations are not formally binding, it would be political risky, if not foolhardy, for a government to appoint someone against the advice of the commission. Interestingly, most of the newly democratic countries of Eastern Europe, with all options open to them, have also chosen to go down this path to protect the quality and independence of their judicial systems. In Australia, the current Federal Government has made some small, tentative steps towards increasing openness and consultation. Many judicial positions are now advertised, and the Attorney-General writes to legal professional associations, law school deans and others soliciting the names of potential appointees.

The constitution requires some consultation with the states about High Court appointments, but that requires nothing more than the formalities. All of which leaves us falling far short of what is now the normal expectation elsewhere. Tony Abbott may have provided an important public service if his remarks spawn the genuine national discussion we should have about the best methods for judicial appointment, to ensure that we select individuals with the highest possible legal and dispute- management skills, impeccable integrity, independence of mind, and diversity of professional and personal backgrounds.

Moving to a system of electing judges won't get us there. Ironically, it is also highly unlikely to meet the demands of people who believe our courts are too soft on convicted criminals. If anything, the public outcry in the US over supposedly leniently sentencing practices dwarfs the level of concern in Australia. The US Congress and the state legislatures have been working overtime, steadily narrowing the scope for judicial discretion by specifying more minimum and mandatory sentences, and providing ''sentencing grids'' that exhaustively detail the specific factors aggravating or mitigating personal responsibility. Maybe they just need better judges, selected entirely on merit?

David Weisbrot AM is Professor of Legal Policy at the United States Studies Centre, University of Sydney, and Professor of Law and Governance at Macquarie University.