The joke of our legal system

johnboy 22 December 2012 32

The Canberra Times is letting Crispin Hull off the leash to give Canberra’s Supreme Court a going over.

Otherwise, I am afraid, the torpid languor of one hand will continue to wash the drowsy procrastination of the other.

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deepsouf deepsouf 7:34 am 30 Dec 12

Wilco said :

The administration of justice in the ACT has been brought into disrepute. As Attorney-General and first Law Officer of the ACT, Simon Corbell has a clear responsibility to act to restore confidence in the Territory’s Supreme Court. Not to do so is a clear abrogation of his duty.

Our legislators routinely flout their duties. And there lies our problem: Canberra has become a fully fledged city yet our politicians scarcely befit a small town council.

Corbell has never responded to real world problems, like those afflicting the Court. Remember that the blowout in ACT hospital waiting lists first arose while he was Health Minister in the early/mid 2000s. He did nothing and was later ditched from the portfolio (as well as from Planning, the other area he held for which he received much public criticism).

Corbell’s first job was as a political adviser after university (unless your count his career in student politics at UC). He then was elected to the Assembly at age 26. He is now 42. The man, like many of our representatives on both sides, has never lived in the real world. His priority is the game.

Ex nihilo nihil fit.

Wilco Wilco 10:14 am 28 Dec 12

Banco

Au contraire there’s quite a lot that Simon Corbell can do, if he is so inclined.

He can initiate the processes prescribed by the Judicial Commissions Act 1994.

One consequence of this is that the judicial officer concerned would be excused from duty but can be authorised to perform specific functions. Finalising outstanding reserved judgements would be top priority and that the individual concerned not be authorised to perform any other judicial tasks.

While the Commission is on foot, Simon Corbell can appoint up to two acting judges to deal with Court business in an orderly, efficient and expeditious manner.

The administration of justice in the ACT has been brought into disrepute. As Attorney-General and first Law Officer of the ACT, Simon Corbell has a clear responsibility to act to restore confidence in the Territory’s Supreme Court. Not to do so is a clear abrogation of his duty.

IrishPete IrishPete 9:44 am 28 Dec 12

cleo said :

I wonder if it were Corbell who had to wait for justice, how he would feel, what about the victims of crime?? Who have to wait it out, to see if justice will be done in the ACT, I’m sure if it were him, he would appoint two judges, which is desperately needed, but Oh let’s pretend that Canberra doesn’t have a problem with criminals, Canberra has the most drug addicts and alcohol problems then any other state in Australia, but they won’t release the true numbers, there are no rehabilitation centre’s in Canberra, only other states, because they can’t admit it’s got a very big problem. The mentally ill are either in prison or let out on the streets to do more damage, just walking around as if nothing had happened.

Wow, this post is full of inaccuracies:

there are rehabs in Canberra, several of them, Karralika probably being the best known. Canberra Recovery Service (aka ManCare) is also in Canberra. An indigenous-only rehab is being built near Tharwa. There’s a tendency for rehabs to be in semi-rural areas, which Canberra lacks, so even if the ACT is under-represented in the number of rehab places, that’s to be expected.

Mentally ill people in Canberra should be in hospitals, and generally are when they need to be – you probably mean the small number who are mentally ill and commit dangerous offences, and there are several places for them too, it’s just that one piece of the jigsaw puzzle (a secure mental health unit) remains missing for want of political motivation to build it.

If “they” won’t release the numbers, how do you know Canberra has the highest number of anything? Actually, there probably are good sources for this information, like various surveys of drug use, but I can’t be bothered to find them for you. Look for National Drug Strategy Household Survey.

IP

cleo cleo 3:47 am 28 Dec 12

I wonder if it were Corbell who had to wait for justice, how he would feel, what about the victims of crime?? Who have to wait it out, to see if justice will be done in the ACT, I’m sure if it were him, he would appoint two judges, which is desperately needed, but Oh let’s pretend that Canberra doesn’t have a problem with criminals, Canberra has the most drug addicts and alcohol problems then any other state in Australia, but they won’t release the true numbers, there are no rehabilitation centre’s in Canberra, only other states, because they can’t admit it’s got a very big problem. The mentally ill are either in prison or let out on the streets to do more damage, just walking around as if nothing had happened.

banco banco 8:10 pm 27 Dec 12

Wilco said :

Bundah

Save for the appointment of two additional judges, I totally agree with everything you say.

Not unreasonably in my view, the Attorney, for cost reasons, has declined to appoint any additional full time judges. At around $2m per judge per annum, that’s not a bad call in circumstance where there’s at least one current judge who is simply not cutting the mustard.

There is a statutory process for acting on the Bar Association’s complaint of delays in handing down reserved judgements. A complaint against a sitting judge is a serious matter, particularly where the competence of the individual concerned is called into question. Simon Corbell should act on it as soon as possible. It may be necessary to appoint an acting judge if he opts for a Judicial Commission.

Separately, the appointment of replacements for the CJ and Master should proceed. However, the Selection Panel needs to be aware that it is not looking for prospective judges who need trainer wheels for three years while drawing $402K per annum for the privilege of keeping the Bench warm.

Come on let’s not kid ourselves Corbell isn’t going to do anything in response to the complaint (to be fair there’s not much he can do that wouldn’t be fraught with difficulties). The Judge who isn’t cutting the mustard isn’t going anywhere any time soon. In the meantime can we really afford to have such a poorly functioning legal system?

The Labor Government has a lot to answer for given the appointments they’ve made.

Wilco Wilco 7:10 pm 27 Dec 12

AAM

A perfectly reasonable and legitimate question that’s easy to ask. Unfortunately, it’s slightly more difficult to answer.

There’s a protocol in the ACT Supreme Court that allows any lawyer who is concerned about a delay in delivering a reserved judgment in a case in which he or she is acting, to raise the matter with the President of the ACT Bar Association or ACT Law Society. The President will refer the inquiry to the Chief Justice without disclosing the identity of the practitioner concerned. The Chief Justice will then take up the matter with the judge or judges whose decision is reserved.

According to the Supreme Court’s web site, the Court has a goal of delivering each judgment within three months from the date on which the judgment was reserved.

Section 7 of the Supreme Court Act 1933 states that “the Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the court and accordingly may, subject to this Act and to such consultation with the judges as is appropriate and practicable, make arrangements as to the judge or judges who is or are to constitute the court in particular matters or classes of matters”.

The key word here is “may”. Its use imports a discretion that might not otherwise have been the case if the Legislative Assembly had used words like “shall”, “must” or “is required” in the legislation.

In other words, the power is vague and uncertain.

Simon Corbell, as part of a reform project, recently released a discussion paper on the issues of judicial complaints and the arrangement of court business. Hopefully, the project outcome will clarify the powers of the head of jurisdiction in organising court business, and in dealing with fellow judicial officers of the court, without fettering the discretion of the head of jurisdiction to arrange court business as they see fit.

Or, in plain English, the law will hopefully be clarified to allow the Chief Justice to “kick butt”.

Affirmative Action Man Affirmative Action Man 4:34 pm 27 Dec 12

Obviously some of the correspondents are from within the legal fraternity yet no one can answer why judges are not given a time limit (1month, 3 months, 1 year ???) to deliver the judgement.

Wilco Wilco 9:08 am 27 Dec 12

Bundah

Save for the appointment of two additional judges, I totally agree with everything you say.

Not unreasonably in my view, the Attorney, for cost reasons, has declined to appoint any additional full time judges. At around $2m per judge per annum, that’s not a bad call in circumstance where there’s at least one current judge who is simply not cutting the mustard.

There is a statutory process for acting on the Bar Association’s complaint of delays in handing down reserved judgements. A complaint against a sitting judge is a serious matter, particularly where the competence of the individual concerned is called into question. Simon Corbell should act on it as soon as possible. It may be necessary to appoint an acting judge if he opts for a Judicial Commission.

Separately, the appointment of replacements for the CJ and Master should proceed. However, the Selection Panel needs to be aware that it is not looking for prospective judges who need trainer wheels for three years while drawing $402K per annum for the privilege of keeping the Bench warm.

bundah bundah 9:21 am 26 Dec 12

banco said :

Wilco said :

Bundah

May I respectfully refer you to the ACT’s Judicial Commissions Act 1994 (the Act).

Section 14 of the Act states that a person may complain to the Attorney-General about a matter that relates or may relate to the behaviour or physical or mental capacity (emphasis added) of a judicial officer.

According to the Act’s Dictionary, a judicial officer includes a judge of the ACT Supreme Court.

Section 16 of the Act allows the Attorney General, if satisfied that a prima facie case exists, to request the Government appoint a Judicial Commission to examine the complaint.

The subsequent process, including how a judicial appointment may be terminated, is set out in in the remaining sections of the Act.

According to Crispin Hull, the ACT Bar Association has already made a complaint to the Attorney-General about one judge. The ball is now firmly in Simon Corbell’s court (no pun intended) as to whether he opts to engage the statutory options open to him under the Act.

Mental capacity is meant for cases where judges develop some form of dementia or mental illness. It wouldn’t cover not getting through work quickly enough due to work habits etc.

So after chewing the fat let’s go back to Crispin Hull’s article for a moment where he mentions that ‘Justice Dyson Heydon was moved to extraordinarily florid language for a High Court judge: “A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

Hull goes on to say ‘The legal profession is not blameless, either. Justice Heydon in the AON case talked about the parties’ duty to the court. That means their legal representatives. ACT practitioners have been allowed to get away with a lax attitude to deadlines for evidence gathering and other matters leading up to trial that would not be tolerated in other jurisdictions’

Of course we mustn’t forget the guvmints role
‘The Government has to take some blame, too. It has clearly not made very good appointments in the past. It must improve its appointments. Two more judicial appointments are coming up next year when the Chief Justice and the Master retire.

The government needs to find good lawyers’ lawyers – people who have had at least a decade and a half at the Bar writing opinions and advocating in the courts in a variety of matters and who have the respect of their peers. All other considerations should be put aside. Barristers who have that sort of experience of marshalling complex facts and difficult law into solid written opinions are in an ideal position to get through the work quickly and efficiently’.

When one considers these aspects it’s totally understandable that one would be pessimistic re justice ACT style.Something still needs to be done however to improve the current state of play and i maintain my position that appointing an additional two judges will go a significant way to achieving that goal.

banco banco 12:25 am 26 Dec 12

Wilco said :

Bundah

May I respectfully refer you to the ACT’s Judicial Commissions Act 1994 (the Act).

Section 14 of the Act states that a person may complain to the Attorney-General about a matter that relates or may relate to the behaviour or physical or mental capacity (emphasis added) of a judicial officer.

According to the Act’s Dictionary, a judicial officer includes a judge of the ACT Supreme Court.

Section 16 of the Act allows the Attorney General, if satisfied that a prima facie case exists, to request the Government appoint a Judicial Commission to examine the complaint.

The subsequent process, including how a judicial appointment may be terminated, is set out in in the remaining sections of the Act.

According to Crispin Hull, the ACT Bar Association has already made a complaint to the Attorney-General about one judge. The ball is now firmly in Simon Corbell’s court (no pun intended) as to whether he opts to engage the statutory options open to him under the Act.

Mental capacity is meant for cases where judges develop some form of dementia or mental illness. It wouldn’t cover not getting through work quickly enough due to work habits etc.

Wilco Wilco 8:03 pm 25 Dec 12

Bundah

May I respectfully refer you to the ACT’s Judicial Commissions Act 1994 (the Act).

Section 14 of the Act states that a person may complain to the Attorney-General about a matter that relates or may relate to the behaviour or physical or mental capacity (emphasis added) of a judicial officer.

According to the Act’s Dictionary, a judicial officer includes a judge of the ACT Supreme Court.

Section 16 of the Act allows the Attorney General, if satisfied that a prima facie case exists, to request the Government appoint a Judicial Commission to examine the complaint.

The subsequent process, including how a judicial appointment may be terminated, is set out in in the remaining sections of the Act.

According to Crispin Hull, the ACT Bar Association has already made a complaint to the Attorney-General about one judge. The ball is now firmly in Simon Corbell’s court (no pun intended) as to whether he opts to engage the statutory options open to him under the Act.

bundah bundah 3:46 pm 25 Dec 12

@ Wilco

Replacing judicial officers is nigh on impossible.Section 72 of the Australian Constitution provides the following
“The Justices of the High Court and of the courts created by the parliament —

(i) Shall be appointed by the Governor General in Council;
(ii) Shall not be removed except by the Governor General in Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) Shall receive such remuneration as the parliament may fix but the remuneration shall not diminished during their continuance in office.”

Justice Vasta, a Supreme Court judge in Queensland, was removed in June 1989 by the Governor, on an address from the Legislative Assembly.The only other judge that came close was Justice Lionel Murphy in 1986.

So that option is pretty much closed,so just how exactly,do you propose that someone who may very well be performing to their maximum ability is going to be able to lift their game?

Wilco Wilco 12:48 pm 25 Dec 12

bundah said :

@ Breda and Wilco

An intelligent person possessing wisdom is able to look at the ‘whole picture’ and make a judgement as to what is the most appropriate course of action to take in order to resolve an unacceptable situation.Whatever one may think of Tezza Higgins,and i’ve certainly been critical of his judgements and sentencing,he is undoubtedly capable of understanding the shortcomings in the judicial system and how to rectify them.Higgins has called for the appointment of an additional judge for years which has been ignored by Corbell.The people of Canberra deserve much better than what we currently have, which is clearly a farce.I have,at least,recommended an option which i believe is needed and should be implemented asap.

Perhaps you should read the following speech by our Chief Justice to our newly appointed practitioners,who knows it might even open your mind.

http://images.canberratimes.com.au/file/2012/12/14/3891713/Admissions%2520Speech%252014DEC12%2520edited.pdf?rand=1355485428776

Bundah

At least we agree that the present system is a farce and that the people of Canberra deserve better.

The CJ ably articulates the nature of the problem. I have no doubt that appointing two additional (and competent) judges would result in some improvement, even if it will cost, according to the CJ, $4m per annum.

However, with great respect, that is not the point at issue. What’s been ably articulated by Crispin Hull and others is the fact that there are current members of the ACT judiciary who are clearly underperforming. Either getting them to lift their game or replacing them with people who can do the job will go a long way towards rectifying the problems highlighted by both Crispin and the CJ, with NO additional cost to the public purse.

bundah bundah 11:11 am 25 Dec 12

@ Breda and Wilco

An intelligent person possessing wisdom is able to look at the ‘whole picture’ and make a judgement as to what is the most appropriate course of action to take in order to resolve an unacceptable situation.Whatever one may think of Tezza Higgins,and i’ve certainly been critical of his judgements and sentencing,he is undoubtedly capable of understanding the shortcomings in the judicial system and how to rectify them.Higgins has called for the appointment of an additional judge for years which has been ignored by Corbell.The people of Canberra deserve much better than what we currently have, which is clearly a farce.I have,at least,recommended an option which i believe is needed and should be implemented asap.

Perhaps you should read the following speech by our Chief Justice to our newly appointed practitioners,who knows it might even open your mind.

http://images.canberratimes.com.au/file/2012/12/14/3891713/Admissions%2520Speech%252014DEC12%2520edited.pdf?rand=1355485428776

Wilco Wilco 8:32 am 25 Dec 12

breda said :

bundah, you said that a review would take forever, so hire more judges and bugger the expense.

This is the attitude that has plunged Europe into massive debt. Don’t fix anything, just throw more borrowed money at the problem and hire more people.

There are many other ways to address these problems. Justice Rogers fixed up the NSW Supreme Court’s interminable waiting lists for commercial matters by a combination of administrative streamlining and calling the bluffs of plaintiffs who wanted extensions. He also monitored the judges, with regular phone calls to require explanations about outstanding judgements.

Of course it can be done. But, it would involve annoying some very entrenched and comfy interests.

I respectfully agree. Demonstrated/proven ability to make difficult efficiency, management and personnel decisions at a time of fiscal restraint should be an essential criterion on the Chief Justice Selection Criteria. The Section Panel Chair should be an interstate judicial officer who, like Leroy Brown, is “meaner than a junkyard dog” (in the management sense). And the Panel’s recommendation should on no account be disturbed by play bureaucrats, political advisers and others of that ilk.

breda breda 10:17 pm 24 Dec 12

bundah, you said that a review would take forever, so hire more judges and bugger the expense.

This is the attitude that has plunged Europe into massive debt. Don’t fix anything, just throw more borrowed money at the problem and hire more people.

There are many other ways to address these problems. Justice Rogers fixed up the NSW Supreme Court’s interminable waiting lists for commercial matters by a combination of administrative streamlining and calling the bluffs of plaintiffs who wanted extensions. He also monitored the judges, with regular phone calls to require explanations about outstanding judgements.

Of course it can be done. But, it would involve annoying some very entrenched and comfy interests.

bundah bundah 7:51 pm 24 Dec 12

Wilco said :

bundah

Appointing two additional judges at $402K each per annum (which is in excess of $1m per year with oncost) would be an outrageous waste of taxpayers’ funds.

Crispin’s article contains some helpful statistics. It wouldn’t take much effort to make some comparisons with inter-state jurisdictions, review the performance of those who currently grace the Bench in Knowles Place (and elsewhere), and deal with those who can’t cut the mustard. The ACT taxpayer (and voter) deserves nothing less!

Disagree,what’s outrageous is how incredibly tardy and woeful the judicial system has become.Waste within the public purse is a fact of life and isn’t about to miraculously disappear overnight if ever.So i have no issue with paying additional tax if that’s what’s required to fix the problem.

banco banco 6:09 pm 24 Dec 12

Wilco said :

bundah

Appointing two additional judges at $402K each per annum (which is in excess of $1m per year with oncost) would be an outrageous waste of taxpayers’ funds.

Crispin’s article contains some helpful statistics. It wouldn’t take much effort to make some comparisons with inter-state jurisdictions, review the performance of those who currently grace the Bench in Knowles Place (and elsewhere), and deal with those who can’t cut the mustard. The ACT taxpayer (and voter) deserves nothing less!

How much do they piss away on other things (like the belconnen community centre that nobody seems to use for example)? It seems like having a functioning justice system is a pretty fundamental thing for a Government.

Wilco Wilco 5:31 pm 24 Dec 12

bundah

Appointing two additional judges at $402K each per annum (which is in excess of $1m per year with oncost) would be an outrageous waste of taxpayers’ funds.

Crispin’s article contains some helpful statistics. It wouldn’t take much effort to make some comparisons with inter-state jurisdictions, review the performance of those who currently grace the Bench in Knowles Place (and elsewhere), and deal with those who can’t cut the mustard. The ACT taxpayer (and voter) deserves nothing less!

bundah bundah 12:53 pm 24 Dec 12

Wilco said :

bundah said :

The simple reality is that the judiciary have underperformed for years and we can crap on about it ad infinitum however until the guvmint(who need to be reminded that their job it is to represent the citizens) take steps to appoint two additional judges our unacceptable judicial state of affairs will remain BROKE FFS.Blaming the judges,some of whom have been woeful,won’t fix anything.What’s more one cannot get rid off them unless they’re snorting coke at their bench in full view of the public.

It’s time to stop procrastinating Simple Simon and act now!

Not quite true bundah. Throwing even more taxpayers’ money at the problem fails to address the root cause. S5 of the Judicial Commissions Act 1994 (ACT) gives the Attorney some options in dealing with the underperformers. But that path will require some intestinal fortitude on the part of our elected representatives.

It just might be possible that those concerned (and it’s not only in the Supreme Court) feel so guilty about taking public monies in such circumstances that they’d do the decent thing and fall on their swords – or is that an airborne porcine squadron that I glimpse passing by my window?

In order to address the root cause one would have to undertake a comprehensive review to get to the bottom of the problem and christ knows how long that would take let alone implement change.In the meantime it’s simple arithmetic more judicial officers means more cases can be dealt with,bugger the expense!

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