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Not all roses over Supreme Court appointment

By 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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Not all roses over Supreme Court appointment
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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 9:09 am 14 Jan 08

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

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 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 7:39 pm 12 Jan 08


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 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 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!

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