- Appointment of Judges
- Due Process
- Mandatory Sentencing
1. Appointment of Judges
The process of appointing heads of jurisdiction has been the topic of a public debate within recent years. The Judicial Conference (2015 pvi) outlines that the Executive government is responsible for such appointments, obligated by the parliament who is ultimately selected by the electorates. Affectively this would suggest that a generalised political view at the time decides which individual is appointed. It is the purpose of the executive government to maintain the public’s interest while supporting institutional judiciary independence. Allsop (2012) states this independence is a requirement central to the rule of law (p. 440) and furthermore, it is core to our democratic government system.
Various States and Territories have different applications when selecting candidates, in the past, the protocols of this application have not been clear. According to the Judicial Conference (2015, p. 39) in 2010, the then Attorney General of Victoria introduced reforms for the purpose of making this process more transparent. One of the reforms was to advertise the expressions of interests. This reform can be seen on the Justice Victoria website, which currently states “the Attorney General seeks expressions of interest from qualified persons for appointment to the Supreme, Country and Magistrates Courts of Victoria…” It is advertisements like this which is current practise for most Australian States and Territories, although different mediums may be used. What is interesting to note, no expressions of interest are used for the federal Court.
In addition to this reform, a publication of the selection criteria was introduced. The framework on which a person might be selected is referred to the Judicial College of Victoria website, which discuss requirements of knowledge, skills, behaviours and attitudes are expected for the judicial role (2008 p. 1). It is this framework which aids the development that a judge may aspire to. These include abilities in technical skills, authoritative communication, decision making, efficiency, professionalism and management in leadership (Judicial College 2008, p. 3). Further educational programs are offered at the Judicial College however, it remains unclear if an appointed judge is required to complete these programs.
To insure the successfulness of the appointed judge, a lengthy legal career as a barrister, solicitor or legal academic is expected and necessary. This career length varies by different sources, some outline 5 years while others state 8 years. Because Judicial appointment is based on merit (Evans and Williams, 2008, p. 297) another reform, made in 2010 was to include a wider range of consultations before appointing a successful candidate. The Victorian Bar, the Law Institute of Victoria and Victoria Legal Aid were some of the associations included in deliberating over a potential judge. Although these consultations are common across Australia’s States and Territories, they can be general and informal in practice (Judicial Conference 2015, p. x).
When a judge is appointed, an oath is preformed affirming their professional conduct. Those appointed are generally aged fifty years or older although, a person will not be appointed in Victoria once the age of seventy is attained. It is suggested by Allsop (2012 p. 441) that the built up of knowledge from an experienced career allows a newly appointed judge to begin their role immediately
2. Due Process
The underlying nature of due process, is established legal rules and regulations that protect and secure human rights. It is these rules and regulations that are particularly paramount to provide a neutral and impartial legal system, that all individuals are seen equal within the law. According to White and Perrone (2005, p.81) this is the premise of what our legal institutions are formulated upon. In Australia, it is ingrained traditions and conventions of common law that preserve the act of due process.
The role of due process ensures the individual access to a fair trial and no judgement is pressed without adequate hearing. In Australia, there are a number of essential elements that maintain due process. Firstly, Notice must be given, Churches (2015 p. 28) state that the courts or executive arm is required to give notice of any allegations. This can allow ample time for the defendant to conduct a defence. Secondly, the requirement of transparency insures an open access to court, this allows the public to feel informed whilst providing a visual concept of justice. There is also a tendency that transparency may in fact limit the action of a fair trial. It is issues of biases and prejudices that could allow ‘in camera’ hearing. This is further supported by McLachlin (2003 p. 4) who acknowledges the core values of open court can be limited, due to protection of privacy rights and sensitive information. An additional element to due process is the extensive rules and guidelines which determine the use of evidence. The evidence collected is subject to cross examination of the opposing party, this is where any objections can be expressed.
During the trial, impartiality of the judiciary can be seen as the foundational core value (Anlue and Mack 2017 p. 21). It is in the desire that no underlying ties or connections occur within the judiciary to that of the trial. For existing connection would compromise the process of a fair hearing, undermining the right of due process. Another element of due process involves cases which require a jury. Bronitt and Hogg (2003 p. 2) states the historical values of juries, safeguard personal liberties against the ruling government. It is the verdict that rests within these ordinary citizens, who can often reflect community values offering a form of ‘natural’ justice. At times, a conviction can often lead to disputes. In this occurrence avenues of appeal to higher courts can review any convictions, this allows the accused to raise any concerns or introduce further evidence. This could be seen as a safety net for individual rights, if a fair trial is not achieved. Furthermore, concepts of due process can be observed in the importance of adequate legal representation. However, in Australia issues with restrictions to legal representation has recently been a topic of debate. Lastly, it is understood that a core concept to due process is the notion of human rights. It is the application of habeas corpus, being brought before the court, which acts as a visual aid, securing personal liberties.
Collectively it is these ingrained legal practices that help maintain a fair and fluid application of due process which protect and maintain human rights within the law.
3. Mandatory Sentencing
Mandatory sentencing has drawn attention as an interesting topic of debate. Although this debate maybe recent, Roche (1999 p. 1) and Morgan (1999 p .267) confirm that during the eighteenth and nineteenth century mandatory sentencing was applied to various offences. However, such sentencing strategies were predominantly discarded, making way for discretionary conviction practices.
Mandatory sentencing is implemented throughout Australia and is widely applied to different criminal offences. There are few crimes that carry this practice, in general it is crimes that are serious in nature. Here in Victoria, under the Sentencing Act 1991 gross violence offences will incur this application. Furthermore, under the Commonwealth Migration Act 1958, people smuggling crimes will also be sentenced under these guidelines (Cowdery 2014 p.3).
The practice of mandatory sentencing, is the application of fixed penalties placed upon certain criminal offences. These penalties only imply the type of sanctions, but not the length of the sentence. Often, mandatory sentencing is used in conjunction with mandatory minimum sentencing. This is a minimum sanction which must be impose upon the offender by the courts. Once the defendant has been found guilty of a crime that holds the sanction of mandatory sentencing, the courts then have a limited amount of discretionary power (Hoel and Gelb 2008 p. 7). As a result, the imposed sentence must reside within the statutory range. For example, in Victoria an individual found guilty of manslaughter in circumstances of gross violence, the mandatory penalty must be incarceration. This crime will also incur a mandatory minimum sentence length of 10 years’ non-parole period (Sentencing Advisory Council).
Mandatory sentencing was formally introduced by the legislative government. Many scholars including Goldflam and Hunyor (1999 p. 212) state it arose from tough on crime election campaigns. However, due to the separation of government powers, it is the judiciary which ultimately interprets these laws and imposes the punishment upon guilty offenders.
According to Hoel and Gelb (2008 p. 1) the purpose of mandatory sentencing aims to improve public confidence in the courts, providing sentencing that reflect community views. It is the sentence that acts as punishment, providing the public’s perception of crime and justice. Additionally, it is mandatory sentencing which can be viewed as a public response to perceived problems within the criminal justice system.
There are three principals which underpin the justification to mandatory sentencing. Firstly, the implement of fixed punishment addresses the consistency of sentences. This is based on the idea that consistency offers fair and just outcomes to all the individuals who commit the same offence. Secondly, mandatory sentencing generally imposes sentences of incapacitation and recently, diversionary programs for the youth. The intent here, is to reduce further incidences of criminal offences increasing community safety. Lastly mandatory sentencing aims to encourage the notion of deterrence. This is based on the understanding that fixed punishment will discouraged criminal activity.
It is understood that mandatory sentencing was introduced to effectively apply proportionate and consistence sentences. However, it is important to note that many professionals have raised issues and concerns with the use of mandatory practices. It remains for now, a sentencing method within the Australian courts.
- Allsop, J. (2012). Continuing judicial education: the Australian experience. Judicial review, 10(4), 439454. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=20122169;res=AGISPT
- Anlue, S., & Mack, K. (2017). Impartiality and emotion in judicial work. Judicial Officers Bulletin, 29(3). Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=770117778832600;res=IELHSS
- Bronitt, S., & Hogg, R. (2003). The role and future of the jury in the Australian legal system: The 21st century jury: The rhetoric and the reality. Faculty of Law Australian National University, 12(2). Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=200308401;res=IELAPA
- Churches, S. (2015). Western Culture and the open fair hearing concept in the common law: How safe is natural justice in the twenty-first century Britain and Australia. The Chinese Journal of Comparative Law, 3(1), 2846. doi: 10.1093/cjcl/cxu020
- Cowdery, N. (2014, May 15). Mandatory sentencing [Speech script]. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=109356315527541;res=IELAPA
- Evans, S., & Williams, J. (2008). Appointing Australian judges: A new model. Sydney law review, 30(2), 295327. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=20083200;res=AGISPT
- Hoel, A. Gelb, K. (2008). Sentencing matters: Mandatory report. Retrieved from https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Mandatory%20Sentencing%20Sentencing%20Matters%20Research%20Paper.pdf
- Hunyor, J., Goldflam, R. (1999) Mandatory sentencing and the concentration of powers. Alternative Law Journal, 24(5), 211215. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=19994899;res=AGISPT
- Judicial College of Victoria. (2009, November 20). Framework of judicial abilities and qualities. Retrieved from http://www.judicialcollege.vic.edu.au/judicial-education/framework-judicial-abilities-and-qualities
- Judicial College of Victoria. (2008). Framework of judicial abilities and qualities for Victorian judicial officers. Retrieved from http://www.judicialcollege.vic.edu.au/sites/default/files/2009JCVFramework-JCVsite_0.pdf
- Judicial Conference of Australia. (2015). Judicial Appointments a comparative study. Retrieved from https://www.jca.asn.au/jca-papers-reports-submissions/
- McLachlin, B. (2003). Courts, Transparency and the public confidence – to the better administration of justice. Deakin Law Review, 8(1), 111. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=200311486;res=IELAPA
- Morgan, N. (1999). Capturing crims or capturing votes? The aims and effects of mandatories. University of New South Wales Law Journal, 22(1), 267-279. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=109300416613766;res=IELAPA
- Roche, D. (1999). Mandatory sentencing. Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice, (138), 16. Retrieved from https://search-informit-com-au.ezproxy.federation.edu.au/fullText;dn=200005810;res=IELAPA
- Sentencing Advisory Council (2018, December 18). Guide to sentencing schemes in Victoria. Retrieved from https://www.sentencingcouncil.vic.gov.au/publications/guide-sentencing-schemes-victoria
- Victoria State Government. (2019, May 13). Judicial appointments. Retrieved from https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/judicial-appointments
- White, R., & Perrone, S. (2005). Due Process and access to justice. In Crime and social control an introduction. (pp. 81112). South Melbourne: Oxford University Press.