Mandatory jail opens bidding in law-and-order auction

Premier Denis Napthine has proposed new legislation to crack down on “coward punches” (formerly known as “king hits”) by introducing a 10-year mandatory minimum jail term for the offence. According to the Premier, “Our expectation is that this legislation sends such a strong message that we don’t have people doing these cowards punches in the first place.” However, in a 2008 research report, the Victorian Sentencing Advisory Council warned against mandatory sentencing, noting: “Deterrence presupposes that would-be offenders are rational actors who are capable of weighing up, and actually do weigh up, the costs and benefits of a particular course of conduct. Crime, however, is often impulsive and lacking such judicious forethought.” Chris Berg of the Institute of Public Affairs argues that judges need flexibility to deliver justice: “Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice. … This principle is too important to abandon just because an election is coming up.” The Victorian proposal is harsher than the 8-year mandatory sentence introduced in NSW earlier this year, which suggests the start of a “law-and-order auction” before November’s election.



Judicial appointment process under scrutiny

The Queensland Bar Association is calling for a new process for appointing judges, after a scandal erupted over the appointment of Tim Carmody QC as the next Chief Justice. Senior lawyers and former judges have criticised Carmody as politically biased and unqualified—in 2006, as a Family Court judge, he was caught cutting and pasting sections of a judgment—and the president of the Bar Association quit in protest over Attorney-General’s consultation process. Carmody told the media, “It’s regrettable that not one of the Supreme Court judges has congratulated me yet.” The Bar Association is calling for a “different and more structured way of identifying and selecting possible appointees to judicial office to ensure all appointments are made impartially and on the basis of suitability for the particular office”. In Victoria, controversial MP Geoff Shaw denied the Premier’s accusation that he tried to influence judicial appointments. An election promise to establish an Independent Judicial Appointments Advisory Panel has not yet been implemented by the Government. Update: It has now been revealed that “no-one—other than the premier—strongly pushed Justice Carmody’s candidacy”, and he was promoted at the last minute after being publicly criticised by former Solicitor-General Walter Sofronoff QC. A sitting Court of Appeal judge, Justice Muir, gave a speech last night saying “because of the unfortunate way in which this saga has unfolded, the obvious lack of support for the Chief Magistrate’s elevation to the office of Chief Justice of Queensland and [other] matters discussed earlier, the Chief Magistrate will see that the only appropriate course is for him to withdraw.

Qld repeals laws before High Court “implied right” challenge

Laws restricting political campaigns by Queensland trade unions were quietly repealed on Wednesday night, in the face of a High Court challenge. In 2013, new rules requiring industrial organisations to conduct a ballot of members before spending more than $10,000 on political campaigns were introduced. Affected unions launched a High Court challenge, saying that the cost and delay caused by the processes were a burden on their freedom of political communication. The explanatory notes for the repeal bill say the decision was prompted by the “recent decision of the High Court in Unions NSW v New South Wales“, which “indicates that the High Court will read widely the implied right of freedom of communication on government and political matters”. (In that case, the NSW government’s attempt to cap political spending by unions was unanimously held to be an illegitimate burden on the implied freedom.) The Queensland Attorney-General, Jarrod Bleijie, has been forced to defend his performance as a minister; the Court of Appeal struck down a law allowing him to jail people despite court orders to release them because it breached the separation of powers, and his anti-bikie laws are currently before the High Court.

Pink Batts Royal Commission “crumbling” democracy?

The Royal Commission into the Home Insulation Program remained controversial this week, as former prime minister Kevin Rudd was called to give evidence. Although criminal prosecutions held the installation companies responsible for workers’ deaths, and the risk of fire fell under the program, the Abbott Government nevertheless established a royal commission to investigate whether the processes of government contributed to the problems. Controversially, cabinet documents were handed to the Commission, despite a convention that they be kept confidential for thirty years. The Government then tried to use cabinet confidentiality to censor Kevin Rudd’s evidence. The Australian’s legal affairs editor, Chris Merritt, suggests this marks a “turning point when some of the fundamental planks of the Australian system of government started to crumble.” He argues that the people delivered their verdict by electing a new government, and that is how Westminster accountability ought to work: “The existence of this royal commission implies that the Westminster method of accountability does not go far enough. The decision to call this inquiry creates a new and dangersous system in which all future governments can be held accountable not just to parliament and the people but to their successors in the executive.”

Round 2 of Chaplains case in High Court today

A follow-up to the School Chaplains case will be heard by the High Court today, again challenging expenditure by the Commonwealth government that is not backed by specific legislation. The earlier decision upheld the separation of powers by requiring legislative approval before the executive could spend taxpayers’ money. The Gillard Government responded with legislation that gave a general authorisation without specifying which programs were covered—today’s challenge will decide if that is sufficient. Professor George Williams thinks the Commonwealth will probably lose, and says, “What’s under challenge is the Commonwealth’s ability to give money to whomever it wants, whenever it wants. It’s hard to overplay the significance of this case. This goes to the very structure of how we are governed.”

If pension age rises, should judges work longer?

The Abbott Government has confirmed its plan to increase the pension age from 67 to 70, with Treasurer Joe Hockey stating, “We should also not see someone’s life ending when they turn 65 or 70. They should work as long as they can.” Professor Brian Opeskin has asked whether the same logic should apply to judges, who are forced to retire at 70: “Just as the government is now asking us to accept that the retirement age for the pension should increase, we should ask whether the same thing should be considered for judges. Seventy is now quite young and many judges have a lot to contribute.” The judicial retirement age was enshrined in section 72 of the Constitution by a successful referendum in 1977, because the separation of powers makes it difficult to remove judges who are affected by advanced age. It would require another referendum to change the age.

Controversial “baseline” sentencing bill introduced

The Sentencing Amendment (Baseline Sentences) Bill 2014 has been introduced to the Victorian parliament, with the aim of increasing penalties for certain crimes. The legislation sets out an intended median prison term for an offence, and requires judges to “act compatibly” with that intention—without setting out a process to follow. Senior judges responding to a draft version of the bill told the government it was “unworkable”. The introduction of baseline sentencing was an election commitment made by the Coalition in 2010, which has been controversial. The incoming government sought the Sentencing Advisory Council’s advice on implementation, but its report observed: “The Attorney-General has not asked the Council for advice on the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. The majority of stakeholders expressed strong opposition to a baseline sentencing scheme.” The Law Institute of Victoria says the bill would “unduly limit judicial discretion, over-complicate the sentencing process and, ultimately, fail to act as a deterrent.”

Governor-General to be sworn in and knighted

Australia’s first female Governor-General, Quentin Bryce, has finished her five year appointment. Her successor, Peter Cosgrove, will be sworn in today. He will also be awarded a knighthood (and Ms Bryce a dameship) after the Prime Minister asked the Queen to reintroduce those honours in Australia. The awarding of honours is a royal prerogative, though it is generally exercised on advice from the government.  Knights and dames had been removed from the Australian honours system in 1986 at the request of the Hawke government.

Separation of powers threatened in Nauru

The chief justice of the island nation of Nauru, Geoffrey Eames QC, has resigned, saying “I could not be assured that the separation of powers and the independence of the judiciary would be respected.” In January, the Nauru government deported its chief magistrate, ignoring a Supreme Court injunction. It also banned Chief Justice Eames from returning to Nauru from Australia, saying it would not issue him a new visa “under any circumstances”. New magistrates have been appointed for just six months, raising concerns about the executive’s influence over the judiciary.

Mooted reform might weaken critical judge

Queensland Attorney-General Jarrod Bleijie is considering reforms to the hierarchy of courts, splitting the Court of Appeal: “Mr Bleijie could introduce a civil and criminal court of appeal, allowing him to choose which judges hear criminal cases.” It is reported that the move “could weaken the position of [Court of Appeal] President Margaret McMurdo”. Last year President McMurdo wrote to Bleijie to express concerns about his changes to sentencing law. She has not been consulted by the Attorney-General about his latest proposal.