Not all roses over Supreme Court appointment

For the most part I agree with Vicepope that courts need to be run by those qualified in the law, but this should not mean that lawyers own the law. It is owned by all of us and the principles and common sense need to be supplied by more general public debate.
A few questions that need lay input might be:
How much responsibility should we all take for our own safety? (not diving into shallow water and then sueing the lifesavers for not catching you)
How much should we be expected to foresee the consequences of our actions?
Should people be punished for their actions or the consequences of those actions?
How do we work out what a “reasonable” is, as in reasonable force.
These are not questions that can be answered by reference to a legal education, they need to be decided by what kind of society we want to live in.
When we get down to the nitty gritty details of administration of the law, that’s when we should hand it over to the lawyer.

By simply ranting about how out of touch judges are we don’t address any real issues.

The only sensible aspect of this stupid selection was that terry wasn’t consulted.

AAMan – I have read Whitton and his tired little rant. He seems to me to be just another journo who was too lazy or thick to do law. Like the CT people who used to rave regularly about defamation. Someone I know once said that the only thing justice had to do with the law was that it was what you got called after you became a judge. Notions of justice are almost always arbitrary and subjective, whereas law is a body of principles.

If I throw up two hypotheticals it might help. First, suppose that I get convicted or lose my civil case before the People’s Revolutionary Court of the ACT (commonsense applied) and I believe this to be a bad result. To whom do I appeal – to another random collection of citizens with commonsense, who might take a different or more enlightened view? If so, what standard do they follow, and how do they assess the correctness of the original decision? Or do I go to a court that applies the law, and have the decision set aside on the basis that it was hopelessly badly made. Legal analysis offers at least a rational and, in most matters, predictable approach.

Second, suppose I wander up to the gates of the WACA later this week, and announce that I want to umpire. After all, I say, I don’t really know the rules all that well and I have personal views (about LBW for example) that conflict with those rules. But I understand the vibe of the thing, and I want the right decisions to be made. Within 30 minutes, would I be (a) in a psych hospital or (b) out in the middle wearing a capacious white hat? Cricketers and spectators, involved in a game, are entitled to a fair approach from an independent and expert arbiter, so shouldn’t the same apply to people whose liberty and welfare is at stake?

The European approach (with some countries usng lay assessors to work with judges) has something to commend it, but it is a system where the individual can be overwhelmed and where the appearance of judicial impartiality can be compromised, despite the quality and personal integrity of the judges. The American system of elected judges is simply a joke.

Another possibility for AAMan, as someone who wants to do the right thing. Become a mediator. They operate with the consent of parties, and usually the encouragement of courts, to produce satisfactory and realistic results. Or press for the trial of concepts like restorative justice and circle sentencing, that give victims a better chance to be heard.

Special G – overall, I’d suggest the ACT courts are as good as most. Sometimes there are stupid decisions, and they get a lot of publicity (as they should). But they almost always get knocked off on appeal, and that is a powerful lesson to the judge who erred. (I don’t mean the cases where it’s a genuine coin toss about some unusual issue of fact or principle, and the appeal court simply tossed the coins differently).

To Vicepope & boomacat

What a load of crap – I take it you are lawyers !!

The key problem is that the law should be about serving the community & justice instead it is about serving the legal fraternity which after the wharfies is the last great closed shop.

At least in European Law the parties seem to be comitted to getting to the truth.

A mate of mine (who incidentally is a lawyer) made a couple of interesting observations)
1. If you want to get on to a jury do not dress well or look intelligent – you will terrify both prosecution & defence
2. You will get many things from the legal system but do not expect justice.

Suggest you read Evan Whitton – The Cartel – Lawyers and their 9 magic tricks

yep.

I’m confused. Is JHD etc referring to the c’wealth parliament house? And now this person is running ACT courts?

Vicepope almost got it right except the bit about ACT Court generally being credible. On the civil stuff they get it right on the criminal stuff they are so far from the view of the community they are not even playing the same sport.

well said vicepope

AAMan – do you really want someone to bite? Courts are about the law (not abstract ideas of justice or populist notions of right and wrong). The ACT’s courts are generally credible because they mostly apply reasonably consistent standards of the law. Lawyers are trained for years to understand the system of law, and most of them try to achieve results within it. You don’t get a law degree from the back of a cornflakes box.

While most public attention focuses on the criminal law end of the spectrum, where there is a range of community views, a huge part of the work of courts is concerned with civil law. An all sorts group of people with common sense may have difficulty focusing on the tedium of contract disputes and the complexities of medical negligence in the same way as they may think they could with a murder or a rape. And the ACT Supreme Court has a significant public law function, and that can be numbingly dull for people other than anoraks.

We have mechanisms in Australia that may represent the kind of thing that might interest AAMan. Some examples – make a submission to a Parliamentary or Legislative Assembly inquiry or to an appropriate Australian Law Reform Commission inquiry. Try not to avoid jury duty, but see it as an opportunity to examine how common sense (the role of the jury) interacts with that of the judge and the lawyers. Get a job as a tribunal member – some seek deliberately to go beyond lawyers. Contribute to your favourite sport or social club as a member of its discipline committee. Stand for the Legislative Assembly, on the basis that if you have half a mind to do it, you’ll be twice as well equipped as most of the members. Or even go through the tedium, the torment and the expense of getting a law degree.

Seems to me that the quality of ACT Justice would improve ENORMOUSLY if instead of promoting lawyers to the bench they promoted people from the community who had common sense.