Saturday, April 15, 2017 10:00am
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 10th April, 2017
An independent Judiciary is a cornerstone of our justice system. There must be no impediment to a Judge acting without fear or favour. They need to make decisions without influence (either overtly or through subconscious bias) on the basis of the available facts. To ensure this, Judges are appointed with security of tenure.
The Government recently appointed Deputy Presidents Calligeros and Dolphin of the South Australian Employment Tribunal as Judges of the District Court. For more than two years, they were presiding over cases without security of tenure. This was in circumstances of the Government frequently being a party in the case and the Tribunal being funded directly by the Attorney General’s Department. Their appointment as Judges is both appropriate and important because anyone who appears in a court must have confidence in the independence of the Judge presiding.
However, inconsistently, the Government introduced a law to provide for Judicial Registrars in the Supreme, District and Magistrates Courts. They can be appointed for only up to seven years unless the term is extended by the head of the court to which they are appointed.
The Judicial Registrars can hear full contested civil and criminal trials as directed by the head of the court. The only restriction, even with major criminal trials, is that if there is a finding of guilt and possibility of a jail sentence a Judge with security of tenure undertakes the sentencing process.
The Judicial Registrars do not satisfy the criteria for independence.
The Government has argued that because the extension of the seven-year term is at the discretion of the head of the court, the Judicial Registrar is independent.
However, retired and current High Court Justices Heydon and Gageler in two separate, recent papers, have emphasised that an independent Judge is someone who can act independently not only of the potential influence of Government but also that of fellow Judicial Officers.
When the Bill was first debated the Liberal Party did not support the suggested role. It was notably after the Chief Justice wrote to the Attorney General indicating support of the Bill that the law was finally passed.
In this way, unusually, a letter from the Chief Justice was used in the political process to support a contention that the heads of jurisdictions can ensure the independence of Judicial Registrars.
Seeking independence in relation to Government does not address the concern of a lack of independence from influence, even subconsciously, from the head of court nor the important principle that, in all respects, justice must not only be done, it must be seen to be done.
With the courts besieged by case overloads and hamstrung by inadequate Government funding, it is easy to see the attraction of Judicial Registrars as a way to ease some the pressure on the courts. But while they may provide a cost saving compared to Judges it is another example of justice on the cheap and at the expense of fundamental legal principles designed to ensure justice.
Tony Rossi PRESIDENT