Precedent (Australian Lawyers Alliance)
JEALOUSLY GUARDING JUDICIAL INDEPENDENCE
By Greg Phelps
With substantial reflection, I take up the mantle as ALA’s new national president. I pay due homage to the giants that have gone before me, especially to the succinct and tireless advocacy of our outgoing president, Andrew Stone. I will rely on Andrew and others in the next 12 months.
I am a lawyer in Australia’s least populous jurisdiction, the Northern Territory (NT), and am cognisant of the significant task of ensuring the mainstream business of ALA remains front and centre. NT law faces the same issues ALA has focused on for more than a decade. Claimants with personal injuries in public places, the workplace and motor accidents have their rights settled by, most often, unsatisfactory legislative formulae. Of all jurisdictions, defendants in the NT face perhaps the most prolific mandatory sentencing regime in criminal proceedings. NT criminal property forfeiture law is recognised as Australia’s most extreme, extending to the confiscation of lawfully acquired property (as distinct from ‘proceeds of crime’) so that, in certain prescriptive circumstances, a minor criminal mandatorily loses everything that he or she ‘owns or controls’. Often the court’s role is reduced to determining facts and then imposing the politicians’ sentence.
The common feature of so many laws today is that compensation, punishment or forfeiture is not decided by the courts to be weighted and proportional to fit the factual events but by prescriptive legislation. In response to budget and media drivers, politicians have cast in statute the amount that a victim is to be paid; the length of time a defendant is to serve; or the property to be forfeited. This is all done without knowledge or regard for the individual circumstances and neuters that essential part of the courts’ judicial discretion.
Separation of powers is foggy law, perhaps inadequately entrenched. As lawyers, we should resist the increasing reality that courts are losing their role to determine the quantum of compensation and punishment to politicians with their ‘one-size-fits-all’ prescriptive statutes. Media sell print by sensationalising the injustice of those 1 per cent occasions where a victim’s payout is too high or a defendant cops too light a sentence. The knee-jerk legislative response has often resulted in many defendants over-punished and victims underpaid.
ALA must defend the intellection that the best-placed decision-makers, having considered the individual evidence and facts, are the courts, where sit experienced and wise legal professionals appointed to the bench for these attributes. The judge’s role is to ensure justice; how can this be done if the outcome is prescribed? How often must we witness magistrates and judges apologetically issue the prescribed minimum before the penny drops?
When faced with the prospect of ludicrous mandatory outcomes, negotiations with prosecutors may bring ‘fairness’ by their exercise of discretions that once resided in the court – or they may not. There is not the transparency of an open court and it is not discretion exercised with the benefit of judges’ wisdom.
We must lobby the lawmakers in respect of this erosion of the courts’ function, including ALA’s specific areas of interest: Comcare, CTP and the National Injury Insurance Scheme. We must also ‘lobby’ the courts by challenging the validity of laws at every relevant occasion and urging judges to stand tall. Experience shows we will struggle for traction; but we will get none at all if we do not repeatedly take the point.
In the intimate NT jurisdiction, admission-to-practice ceremonies are personal and cause the Court to reflect on the importance of our profession. I close with words of the NT’s eminent Riley CJ, who reminds new lawyers:
The rule of law is concerned to uphold the rights of all persons, regardless of popularity ... to protect the weak and the friendless. It is there to protect all members of our society...[and] to ensure those freedoms continue for the protection of this generation and generations to come we must maintain and jealously guard the independence of the judiciary and we must maintain a strong and independent legal profession.
ALA’s role must be to carry these principles with our collective and clear voice, as cornerstones on which justice relies.
Greg Phelps is a Partner with Ward Keller in Darwin. EMAIL firstname.lastname@example.org.