Not all roses over Supreme Court appointment

Jazz 11 January 2008 28

Back in December we ran this story on the somewhat controversial appointment of Hillary Penfold to the ACT Supreme Court.

It seems that there was more to it than we first suspected because local Bar Association President George Brzostowsk has come out with comments to the effect that her appointment wasnt quite as transparent as some others have been in the past. In this instance Attorney General Simon Corbell has seemingly neglected to consult the Law Society or The Chief Justice about the appointment. Or was it just a case of expediency to get a pro-govt justice on the bench? Make of that what you will.

ABC online have the story here and a bit more from the CT here.

[Ed. Not to be outdone, Zed Seselja has thrown in his 2c saying that the Legal Affairs Committee should choose judges.]

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28 Responses to Not all roses over Supreme Court appointment
BBadger BBadger 2:13 pm 17 Jan 08

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.

barking toad barking toad 9:09 am 14 Jan 08

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

VicePope VicePope 11:47 am 13 Jan 08

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).

Affirmative Action Man Affirmative Action Man 10:54 am 13 Jan 08

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

sepi sepi 7:39 pm 12 Jan 08


ant ant 7:35 pm 12 Jan 08

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

Special G Special G 7:24 pm 12 Jan 08

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.

Dacquiri Dacquiri 7:10 pm 12 Jan 08

The way I’ve heard it from those who have been close to both JHD and DPS is that the transition involved a change from people who knew what was involved in running a building to an emphasis on bean-counters who were totally out of their depth in terms of what was required and how to get it done. As a result, people with nuts-and-bolts knowledge (some of whom may have been ‘dead wood’ but many who definitely weren’t, and all of whom were passionately dedicated to looking after the building) were badly treated and de-valued. People involved in everything from construction projects to the loading dock have voted with their feet to the point that corporate knowledge has been dangerously eroded. Outside contractors (electrical, plumbing, building, etc) are reportedly reluctant to work directly for DPS, now that the general contractors who had been overseeing much of the work are being booted out of Parl House (one of those decisions of Hilary’s deputy, probably the most reviled man in the history of Parl House management). The 2 private contractors in question have basically been stepping in and covering DPS’s arse by doing huge amounts of building maintanence because DPS has acknowledged they don’t have the expertise to do it. Rest assured that Faulkner has been the recipient of a variety of juicy tidbits. In the interest of protecting the employment future of the sources close to me, I’d better leave it at that!

boomacat boomacat 3:49 pm 12 Jan 08

well said vicepope

VicePope VicePope 2:24 pm 12 Jan 08

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.

Affirmative Action Man Affirmative Action Man 1:27 pm 12 Jan 08

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.

VicePope VicePope 11:10 am 12 Jan 08

Dacquiri – I can remember being told that the old JHD was a lot less than wonderfully managed, though I can’t really assess whether that’s true. This was in the days well before the merger and the rise of Her Honour. If even partly true, she inherited a mess that had to be combined with other bits of other empires.

Anyhow, the Senate has a robust and entertaining Estimates process (more people should watch it and read transcripts for the sake of schadenfreude). If you or anyone else has some juicy morsels, I’m sure a recipient could be found.

Dacquiri Dacquiri 11:12 pm 11 Jan 08

According to people who work for DPS (those who who haven’t resigned since Penfold took over), the best thing about the appointment is that it gets her out of Parl House, where she has done untold damage. Just about anyone who had any competence and knowledge about how the building worked and how to get things done has resigned or taken early retirement in response to her management (I use the word loosely) style. Within the past 6 mo. or so, all experienced project managers except 1 have left, her deputy (recently hired by ACT Govt, for god sakes) was even worse, alienating everybody from contrators to dedicated secretaries. Penfold’s last act seems to have been to hire as the No.2 an ‘office manager’ with no experience of building management or construction projects. Faulkner was well aware of a lot of what had been going on, so her days would have been numbered. It’s just a shame that more hasn’t come out about the extent of the mismanagement and its sorry legacy.

VicePope VicePope 7:58 pm 11 Jan 08

And I just read the views of our alternative Chief Minister, the aptly named Zed. There is no chance of therabble that he leads winning office (see comments by Mr Mulcahy) so he’s trying to play them into participating in government, as if his collection of drones has anything more to offer than Stanhope’s.

A committee decision will (a) leak like a sieve and (b) quickly become partisan (Liberal and Labor candidates for judicial office?) and (c) turn into an incompetently conducted confirmation hearing of the kind the Americans don’t do all that well with possible judges being quizzed minutely on ever social and moral belief they may have and pressed to say they favour maximum sentences for all offenders. Let’s not go that way. No-one with any self-respect and discretion would voluntarily be a part of it.

A fair number of judges get appointed every year in Australia. The process is usually very quiet and backroom. It throws up precious few real duds, whose shortcomings become obvious and who can usually get shifted somewhere they can’t mess up. It’s not perfect, but nor is it a sideshow.

Crikey Crikey 2:48 pm 11 Jan 08

I just don’t know how Hillary is going to be a Judge and US President at the same time!

Mælinar Mælinar 2:47 pm 11 Jan 08

So it was that jessica character then ?

VicePope VicePope 2:27 pm 11 Jan 08

Caf – yup. One of their better efforts, especially given that Her Honour shares her surname with a wine label.

caf caf 2:18 pm 11 Jan 08

By the way, to the CT subeditor who came up with “Government in bar fight…”: good show, that (wo)man!

Mr Evil Mr Evil 1:41 pm 11 Jan 08

What about the real issue at play here: has Corbell done anything to make the Supreme Court carbon neutral???? 🙂

VicePope VicePope 1:00 pm 11 Jan 08

The local union leaders are complaining that a non-unionist got the job. What’s new.

Penfold J, with whom I have had occasional past dealings, is scarily clever and should manage the court practice stuff with no real effort, especially if she picks a process anorak as her associate. After all, she could be seen as replacing another judge (Connolly J) whose past limited legal experience did not stop him from becoming very highly regarded. It was a good choice.

Hugh Selby, normally a very clever and articularte bloke, got it wrong when suggesting, in the wake of this matter, putting judges on probation for a period. The effect on perceptions of independence would be disastrous.

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