Under our Commonwealth and State Constitutions judges in Australia can only be removed from office on the grounds of misbehaviour or incapacity and only by both houses of parliament. In the State of Victoria, a special majority (60%) is required in both houses, in the Legislative Council and in the Assembly. Given this onerous threshold, the removal of judges in Australia is extremely rare. Only one appears to have ever been removed from office. That was in 1989 in Queensland. Australia would probably currently have over 700 judges, with many more sitting over the past 27 years. So, that removal probably amounts to well less than 0.1% of all judges.
It is therefore apparent that judges are essentially immune from removal from office. As a result, they can be dishonest, even blatantly dishonest, biased, incompetent, show a reckless indifference to the truth, ignore evidence, abuse their powers and fail abysmally in their core function of administering justice and still retain their privileged position.
As economist, Thomas Sowell, said “It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”
We accept that even those with the best of intentions can make mistakes, but we expect consequences to flow from those mistakes. That applies in all other walks of life. Every every employee – from entry level to c-suite executives – is assessed on performance, and those found wanting can be (and often are) are fired. This should also apply to judges. In fact, judges should be held to a higher standard – as their decisions have great consequence.
If their performance is found to be substandard, judges should suffer consequences proportional to the severity of their failure. This could extend to dismissal and even loss of (non-contributory) pensions for dishonesty, bias, reckless indifference to the truth and ignoring their core duty of administering justice.
It is clearly in the interests of society that we have good judges. Substandard judges must be replaced. We cannot tolerate an untrustworthy judiciary failing in its core duties. But, how do we hold judges to account?
CLA proposes that:
- Our Commonwealth and State constitutions be changed to provide for juries to consider complaints made against judges and impose proportionate consequences on those found lacking.
- The Chief Justice, reporting to the Attorney-General, must assess the performance of every judge and those whose performance is substandard, who for example have experienced a high level of overturned decisions, should also be removed from office.
- Individuals and small businesses are to receive an equal level of legal representation as government bodies and public officials in action by or against such government body or official.
- Substantial change is made to testamentary law as regards determining the validity of wills, which will significantly reduce both the cost of and timeframe for getting a decision, and will give parties greater clarity on the validity of the will concerned.
- Legal proceedings are only commenced as a last resort, only after the parties have collected and exchanged evidence, used at least reasonable endeavours to resolve matters and have endeavoured to mediate a resolution.
- All judgements should include an explanation of how the decision handed down is a just one – how it meets the fundamental duty our judiciary to administer justice.
- Our Supreme Courts be required to find a way to give ordinary folk realistic access to justice, access to dispute resolution through our courts. The current cost and risk is way beyond the capacity of most ordinary folk.
- Since judges are appointed by, paid by, and promoted by government, they are inherently conflicted in matters concerning government bodies and officials. Those matters must be determined by a jury, not by judges. In cases requiring specialised knowledge, such as tax law, a jury could be comprised of people well-experienced in that field.
The fundamental duties of our judicial system are to administer justice and protect us and our property, which includes protecting us from government overreach. It is currently failing abysmally in that regard. A CLA government will ensure the necessary changes are made.