Peter A Clarke

Bob Carr and Janet Albrechtson raise my hackles for a few reasons. Shrill, populist and for supposed intellectuals seem to tread along a very narrow path.  But they are at their most hackling when they do their Henny Penny thing on the Charter of Rights.  And the all purveying influence of the “unelected judge” slithering into our Garden of Eden is a constant theme in their ramblings.  

It is timely then that Chief Justice French  has a bit of a go back with In Praise of Unelected Judges.  He nails the Albrechtson line when he says:

There is, however, a subtext that can be associated with the repeated invocation of the term “unelected judges”. It is what might be called in contemporary political discourse a kind of dog-whistle signal suggesting a lack of democratic legitimacy in what judges do. And it conveys the not too subtle suggestion that judges see themselves as philosopher kings whose mission in life is to sculpt the nation’s laws according to their own values.

I am not sure it is a dog whistle, your Honour.  Albrechtons et al use a battery operated megaphone.  And do they like the sound of their own voice! 

It is a fairly prosaic speech.  Actually quite dull.   His Honour focuses too much about the evils of electing a judiciary and points to, where else, the United States of America.  Frankly that is a straw man argument.  That is not where the fight is.  Nobody in Australia seriously suggests that judges of whatever level and jurisdiction be elected.  It is a false dichotomy.  The argument used by Albrechtson and co is not about whether there is an evil about judges not being elected but whether they will usurp the role of the legislature, which is elected.  The real battle is the role of judges in a common law jurisdiction.  And French’s description of how judges interpret statute and the constitution is a “by the numbers” description of the type I recall studying in legal process.  To properly push back against the Albrechtson line needs a more a full blooded defence of the common law.  Start with the proposition that, yes, judges do make law.  So what.  Equity and common law require constant evolution, incremental and not radical.  The world changes so must the law.  There is hardly anything dramatic in any of this.  Similarly with interpretation, some legislation without interpretation leads to chaotic and unintended results in practice.  French touches on, or more accurately brushes against, this issue. 

On the question of judges appointment there is an argument that judges be subject to a more transparent appointment process.  There is a nod in that direction by the current Federal Government.  The process in the States is still the same old sudden appointments after some vague consulting  (or not).  Why shouldn’t a nominee be subject to some scrutiny or at least consideration by a parliametary committee.  There are many ways that can be done without importing the ( much exagerrated) ills of the the US Senate confirmation process. There need to demystify the legal system is as pressing today as ever.  How loud and hard a Chief Justice should be in the defence of the judiciary is always a tough ask.  Most chiefs rarely raise their heads over the battlements and look down on the swirling masses.  I think a more muscular approach is called for.  The best we will get are the occasional words of wisdom via speeches to otherwise dull conventions.

To his great credit, French is out there.  He has made 19 speeches since September last year .