One of the great injustices of our legal system is that individuals are made to wait for months and years to have their day in court. People charged with serious criminal offences languish in prison waiting for their trial to take place, and injured workers face continued financial and emotional stress because claims for compensation may not be heard for up to four or five years after they had to give up work because of some mishap at their workplace.
Fortunately, some governments around Australia are doing something to address this dire situation. Victorian Attorney-General Rob Hulls is appointing acting judges to that state’s County Court to help clear the backlog of cases. One would have thought that the legal profession would applaud Mr Hulls’ desire to ensure that the wheels of justice are well oiled.
Not the body that represents Victoria’s 1300 barristers – the Victorian Bar Council. It has thrown a monumental dummy spit over Mr Hulls’ decision to appoint a highly experienced magistrate and former barrister Barbara Cottrell as an Acting Judge on the County Court. The Victorian Bar Council says it won’t attend Ms Cottrell’s welcome ceremony because it is opposed as a matter of principle to the appointment of acting judges. The Victorian Bar Council makes it clear that it thinks Ms Cottrell is an outstanding lawyer, it’s just they don’t think she should be an acting judge.
And why? The Victorian Bar Council thinks that these temporary appointments interfere with the doctrine of the separation of powers. By only appointing a judge on a temporary basis, they argue, that individual is too dependent on the state to be as fearless and independent as a permanent judge who cannot be removed, except through a complex parliamentary process.
This argument is simply absurd. To suggest that lawyers, who by nature are fiercely independent, would be inclined to favour the views of the State in cases before them, because if they don’t they might have their temporary appointment taken away from them, is the stuff of fantasyland. It shows that the Victorian Bar Council has little faith in the integrity of its members.
What’s more, the practice of appointing acting judges to ensure that justice delayed is not justice denied has been around in the UK for decades. Barristers regularly take time out of their practice to sit on the bench for a few months before returning to the Bar. Is anyone suggesting that the UK legal system is any the worse for this practice? Of course not.
The Victorian Bar Council has a long history of opposing change. In 1987 (I was a member of the Bar Council at this time) the Council opposed the appointment of Bernard Teague to the Supreme Court because Teague was a solicitor and not a barrister. And the Council defends the opaque and secretive process of appointment of silks (SCs) by the Chief Justice, despite rumblings of discontent from among its own members about the inherent unfairness of the process.
Tell me its not true Hulls, that you have activation clauses on this contracted “judge” and not even a 3 year contract. What exactly do you think independence means? Being able to go to the toilet without asking? Don’t forget that these sorts of changes have a way of coming back and biting the people who started them later, especially when they are voted out of office. Not just a Slippery slope. More like a Monster precedent that would make Stalins mock trials look half decent. Oh by the way, where in your bill of rights, that has no right to compensation per se, are there guarantees for fair trials? Who cares about laws, if there are no rights to real Judges? Forget the Common Law. Its Hulls “no laws” now.
I don’t get it Hulls, if the person to be appointed is 62 years old, and has to retire at 70 anyway, why not appoint her for the 8 years if she is so highly qualified as you say? Instead you as the A-G propose that a 3 year trial contract would be better. Now, either it is the money and retirement perks that matter, or it is your control over the person’s career. Either way, you look bad, Hulls. I mean, what are you saying, that this is a win-win, that these Labor appointees benefit more under your contract too? Why bother with Judges, Hull, if they are not free from fear or favor? Why not just toss for heads or tails and cut out the whole charade? That sounds fairer to me than having your proxie deciding matters that you are prosecuting. Jeepers, thank heavens for juries. Or have you decided that only your pals get to sit on them too?
Greg, on that logic, why appoint permanent judges at all? Just give them public service contracts and keep them on while you’re happy with them.
Ironic to find Greg Barns holding up the British as a model! If we are short of judges, why not appoint proper, permanent ones? Ms Cotterell would be an excellent appointment. The Bar Council may be conservative and look out for its members, but in this case it has sound principle on its side.