Elected judges almost inevitable: Abbott

Alexandra Kirk Federal Opposition Leader Tony Abbott says if the courts keep on handing down lenient sentences then Australia will probably move to a system of elected judges. Mr Abbott made the comments after being confronted with concerns about crime and sentencing during a community forum in Brisbane last night. He says he would rather not change the system, but too many judges are handing down sentences that do not reflect community anger at crime. I never want lightly to change our existing systems but Ive got to say if we dont get a better sense of punishment fitting the crime, this is almost inevitable he said. If judges dont treat this kind of thing appropriately, sooner or later well do something weve never Questions: done in this country: we will elect judges and we will elect judges that that will better reflect our anger at this kind of thing. Prominent law professor George Williams says a system of electing judges is the worst thing that could be done to Australias judicial system. He says there are a number of things wrong with Mr Abbotts suggestion. It mistakes the role of the judges currently doing sentencing, he said. There are cases where people are concerned about lenient sentencing, but in the main I think its very clear that judges are doing a good job in this regard. And people do need to remember if there are sentences that people are unhappy with then there are avenues for appeal and looking at these matters again. But secondly, even if people did want to move to a new system for appointing judges, electing judges is clearly not the right way to go. We need to maintain an independent judiciary in this country, judges who are free of politics and partisanship and the worst thing we could do is to mire judges in politics and to undermine the important role they play in our society. Professor Williams says if Australia elected judges it would be following in the path of some states in the United States. With judges with campaigns just like politicians, where judges would make promises along the lines of how you could expect that they would act, he said. These are the sorts of things that would fetter their ability to act independently and wed lose the independent umpires we currently have to decide these disputes and end up with politicians who would decide cases not just according to the justice that was required, but according to their desire for re-election and the political promise that they had made. A backward step Senator George Brandis, a lawyer and the shadow attorney-general, supports the existing system. But he would like to see more severe sentencing. Well I think rather than putting words in his mouth, we should accept what Mr Abbott did say and that is that he had serious concerns at the possible consequences of a judiciary that gets too far away from public sentiment in relation to the leniency of sentencing, he said. Federal Attorney-General Robert McClelland says moving to a system of elected judges would be a regressive step. Judges should be appointed and weve tried to ensure that judges at the federal level at least are appointed on merit by having a panel that recommends suitable candidates to be appointed, he said. There is a real risk that if we appointed judges who have some allegiance to a political outcome, that we may see political decisions on the bench, and that would be entirely undesirable and quite inconsistent with the system of justice that we have inherited.
http://www.abc.net.au/news/2010-11-11/elected-judges-almost-inevitable-abbott/2332538

Questions: 1. What issue has prompted Mr Abbott to reach his conclusion regarding the appointment of Australian judges? 2. According to Mr Abbott, how will electing judges overcome this issue? 3. What is available to those who are unhappy with a sentence handed down by a judge? 4. What are some implications of electing judges? 5. How are judges currently appointed?

Excerpt from New York Times article:

In 2004, Terrence ODonnell was running hard to keep his seat on the Ohio Supreme Court. He was also considering two important class-action lawsuits that had been argued many months before. In the weeks before the election, Justice ODonnells campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice ODonnell joined majorities that handed the three companies significant victories. Justice ODonnells conduct was unexceptional. In one of the cases, every justice in the 4 -to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs. An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favour of contributors 70 percent of the time. In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times

Questions: 1. 2. 3. 4. Explain what happened in the example of Terrence ODonnell What are campaign contributions? What do you think recuse might mean? How does this excerpt highlight the importance of the separation of powers?

French philosopher Montesquieu proposed that the separation of powers was essential to protect the stability of the government and the freedom of the people. Explain the doctrine the separation of powers and assess the extent to which it operates in the Australian legal and Parliamentary system 2+4=6 marks 18 Lines 12 minutes

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