• Andrew Lynch

16 November 2010Electing judges would totally undermine our legal system, writes Andrew Lynch in The Punch

EARLIER this year Tony Abbott warned us that we should be wary of taking seriously those comments he makes about policy when speaking off the cuff. Presumably, his suggestion in a community forum this week that Australia might consider moving to elect its judges falls into this category. We can only hope that is the case.

Anxiety over perceived leniency in criminal sentencing is never too far from the surface of public discussion and as a result we might expect that politicians have given the issue some thought before they express an opinion.

Certainly it is hard to credit that a political figure as senior as Mr Abbott would be caught off guard when quizzed about judges, sentencing and community values, as he was at the Brisbane forum.

What exactly did the leader of the opposition say? “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 want we think is our sense of anger at this kind of thing.”

This is an extraordinary pronouncement under any circumstances and strikes at a core constitutional commitment.

The independence of the judiciary from government and politics is a centuries-old tenet of our Westminster constitutional inheritance. The independence of Australian judges is secured in part through their appointment rather than election. This has been a feature of our constitutional arrangements unchallenged to date by any serious political party.

The Commonwealth Constitution provides that members of the federal judiciary enjoy security of tenure from appointment until the mandatory retirement age of 70 – thus protecting them from the vicissitudes of the political hurly burly. Making the switch to the election of these judges would require constitutional amendment via a referendum – a highly unlikely prospect given what is at stake.

Even the possibility of electing state judges, which hear the kind of cases we might presume members of the public have in mind when they complain about criminal sentencing, is fraught with constitutional difficulty.

As the High Court has confirmed, in a decision coincidentally handed down just last week, the Commonwealth Constitution requires States courts, as well as the Federal ones that it creates, to be suitably independent and impartial bodies. Holding elections for the justices of state Supreme Courts would, to put it mildly, be quite incongruous with that requirement.

As an indication of just how far from left-field Mr Abbott’s comments are, you only need to look at the report produced last year by the Senate Legal and Constitutional Affairs Committee’s inquiry into the Australian Judiciary.

A substantial portion of the report considered the way in which judges are appointed but there is no mention at all of election as a viable option amongst those that were examined.

Additionally, an elected judiciary was very far from the focus of the submissions received by that Committee as part of its public consultation. Instead, the central debate was over the desirability of creating an advisory body, similar to that existing in the United Kingdom, which might act as a filter through which qualified candidates are brought to the attention of the government of the day.

Throughout its report, the Senate Committee stressed the overarching priority of maintaining an independent and apolitical judiciary.

A prominent member of that Committee was Senator George Brandis SC, the Shadow Attorney-General. Yesterday, Senator Brandis scrambled to defuse the import of Mr Abbott’s musings on elected judges, assuring us that his leader is indeed a ‘constitutional conservative… very strongly committed to existing constitutional arrangements. That includes an independent judiciary, not an elected judiciary’. While this is welcome news, it is clearly a correction not a mere clarification.

Although Mr Abbott certainly did not go so far as to unreservedly advocate electing judges absent, he did suggest that doing so might be an ‘inevitable’ endpoint unless community satisfaction improved. Those are not, no matter how one looks at them, the views of a ‘constitutional conservative’.

Although Mr Abbott’s credentials as a ‘constitutional conservative’ were cemented in the public mind due to his role in defeating the republic referendum, we have to wonder just how deep his convictions lie.

Just last year, in his Battlelines book, he outlined a vision of Australian federalism that was so radical it would amount to the effective destruction of the states in all but name.

His comments this week, even allowing for their impromptu nature, reveal only the flimsiest commitment to a bedrock principle of the Australian constitutional system. •

Andrew Lynch is the Director of the Gilbert + Tobin Centre of Public Law and an Associate Professor in the UNSW Faculty of Law.