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The joke of our legal system

By 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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The joke of our legal system
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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 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 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 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 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 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 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 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 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 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 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 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?

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