Ch 11: Accountability and the Courts Flashcards
What is the separation of powers?
definition: the division of government executive, legislative and judicial powers into separate arms/institutions that act separately and are independent of each other
- is reflected in Australia in the division of judicial power from legislative and executive power
- devised as a way of preventing the concentration of unchecked public power in the hands of a single person or group, it creates limited to both political power and to legal power, and also ensures each act to check and balance the other
- decision-making by the courts is separated from that of the legislature and the executive. A specific court judgement cannot be overturned by political action, although legislation can change the law that frames future court judgements
- the most important feature of the separation of powers is the independence of the judiciary
What is judicial independence?
definition: a key element of the separation of powers between parliament and the courts. Requires that a subsequent Act of Parliament cannot overturn an existing judgement of a court in an individual case. It also should not be possible for parliament to pressure the courts to make decisions approved by parliament. Judicial independence requires that judges secure tenure. It should only be possible to remove judges from office under extraordinary circumstances.
- requires that all judges are free to decide cases without fear of arbitrary interference from the legislature or executive
- the most important aspect of this independence is public trust in the legal system and thus public intolerance of attempts to pressure any single judge or the judiciary in general
- judicial independence also needs to be supported by entrenched conventions or standards, i.e.
- GG in Council will appoint the justices of federal courts and can only be removed from office on grounds of proved misbehaviour or incapacity and after a majority vote of both houses of Federal Parliament
- s72: all federal judges are appointed until they reach 70 years of age and may not have their salaries reduced while in office
- Basic Principles on the Independence of the Judiciary (1985) United Nations document
- judges are also independent of each other, no judges can direct another judge’s decision in a legal case, except through the process of appeal
What is the rule of law?
definition: the principle that all individuals are equal before the law. It asserts that laws must be based on consent of the governed, involve consistent and accepted procedures and equally apply to all actions of government as well as to the actions of individuals. The idea of the rule of law rejects arbitrary and absolute power (‘rule of laws not men’)
What is natural justice?
definition: (jus naturale) the right of all individuals of access to court proceedings that enable them to argue their case before an unbiased judge, and where appropriate, be judged by their peers. Natural justice requires that individuals have a right of appeal if the original trial contained legal flaws.
- sets standards for the application of the law and the conduct of trials
- in a criminal case defendants are innocent until proven guilty and in a civil case defendants cannot be held liable until found to be so by the court.
- both parties to a legal case have an equal right to be heard. This requires that anyone accused of an offence must be fully informed of both the accusation and of the prosecution case they can fairly defend themselves
- everyone should be treated by the legal system in an equal manner and have access to the legal system equally. The law should be applied in the same way to everyone
- court processes must be transparent and open to scrutiny. Decisions must be made in open court, not behind closed doors. As far as possible reasons must be given for legal judgements (not possible with jury trial) and the media should be free to report and comment on the outcome of legal cases
- system must not be biased: legal decision-maker must have no personal interest in a case so they can make entirely impartial decisions both in the course of a trial and in deciding the case
Describe Australia’s public dissatisfaction with the courts and the societal factors influencing this
- Australians have a fairly low level of satisfaction with the legal system, courts are less well regarded than the police
- most people have little or no direct contact with the courts. Their views appear to be influenced by media reporting that tends to sensationalise legal issues and focus on contentious or controversial judgements
- public dissatisfaction may show that people don’t see courts are acting in their individual interests. It may also indicate public ignorance of both the legal principles and the processes of the court system. The level of public dissatisfaction may be more a factor of media depiction and public perception than a reflection of any serious problem with the system
SOCIETAL FACTORS
- the integrity standards discussed above are expected to be the basis of public trust in the judiciary and the court system. However only a third of Australians express strong confidence in the courts.
- many people disapprove of individual court judgements and see the courts as a barrier to desirable change in society
- the level of trust is not dependent on age or gender, it does however reflect income level and education. People who have achieved tertiary level education qualifications have twice as high a level of confidence in the court system than less educated individuals
What has been the courts’ response to public dissatisfaction?
Courts have taken actions to improve their public profile by reforming processes and by improving the communication of their decisions. While these actions are worthwhile, they do not seem to have increased the level of public trust in the court system. This problem will persist while many Australians are relatively ignorant of the principles underlying the court system.
Training courses attended by magistrates and judges have reinforces the professional qualities that support confidence in court process – courtesy, being a good listener, patience and clear communication. Greater emphasis has been placed on communication with the public and with the media i.e. most courts now have websites that clearly explain their processes and summarise their decisions, recent reforms have increased the efficiency of court processes, especially in civil law disputes.
Attorney General and the defence of courts
definition: Senior member of cabinet who is the chief law officer of the nation. The AG is responsible for maintaining/modifying the judicial system via acts on Parliament
- AG should be the representative that defends courts & support Govt. policy
- takes responsibility for some govt. legislation such as scrutiny bills (e.g. the ASIO Legislation [amendment] Act 2003)
- by common law: has an independent role from Parliament - the nominal head of the bar & is expected to defend the judiciary, both by actions such as initiating proceedings for contempt of court & by pub. supporting legal process & individual judges
- during Howard government: AG Daryl Williams stated that he doesn’t see it as part of their role to defend the courts. Arose when PM & senior ministers attacked the HC “Activist” judgments (Wik & Mabo) & when LNP senator used parliamentary privilege to make unfounded allegations about criminal behaviour of a HC Judge. Williams added criticism of decision & didn’t defend Justice Kirby. This has left a “vacuum” as courts are determined not to enter political debate over their own judgments/issues related to individual judges
What is appeal and what are the two different types?
appeal: a review by a higher court of a decision made by a lower court in the court hierarchy. Appeals may be heard in a higher ordinary court in a court hierarchy of by special appeals courts. It is a basic principle of the Australian legal system that courts are accountable for their judgements through the process of appeal. If an appeal is successful, the superior court may quash the original conviction or send the case back to the lower court for re-trial
appeal by right: on the grounds of an error of law
appeal with leave: on the basis of claimed error of fact (or of both fact and law), or finally against the sentence handed down
What are the grounds for appeal and what is double jeopardy?
- original verdict was not supported by the evidence
- that there has been an error of law or fact
- that there has been a miscarriage of justice
Double jeopardy
the prosecution cannot appeal against a verdict on a matter of fact, once a defendant has been acquitted of a charge they cannot be re-tried on the same matter. However, the prosecution can appeal on a basis of a claimed error of law or against the sanction set in a guilty verdict. It is a contentious legal principle
What are limits to appeal?
- the appeal process does not guarantee a disputed judgement will be re-heard. In many cases a higher court may not accept that there are grounds for appeal or an appeal may not be judged in the time allowed (usually within 28 days of the trials completion) i.e. wrongful conviction cases of Darryl Beamish and John Button
- appeals involve long and expensive legal action, a barrier to their effectiveness and raising the issue of access and equity that limits the ability of the legal system to provide accountability for court decisions. In Dietrich (1992), the High Court decided that a litigant with no assets or means to pay legal costs should be provided with legal aid. However, many people with some income and assets cannot afford to pay for legal costs. This is especially a problem because, even when their action is successful, individuals do not have any right to refund of their costs in cases before the District Courts and the Supreme Courts in WA
How do the parliament and courts interact (+ example)?
- parliamentary sovereignty: statutes override judge-made law – any statute passed by parliament will take precedence over case law. However, a new statute cannot overturn previous legal judgements, but it will create new law that will replace relevant common law in full or in part, or may lead to new statutory interpretation in future cases. The impact of any court judgements can be limited by parliament that can legislate to reinforce, modify or negate the case law set by courts. In this sense, courts are accountable to parliament. The exception is constitutional law at a federal level, an act of parliament cannot overturn High Court judgements in constitutional cases. If a Federal Government disagrees with a High Court constitutional decision, then it can only pass a law amending that Constitution to overcome that decision by putting a referendum to the people (s128). However, parts of state constitutions can be modified by ordinary act of parliament
- judge-made law and statutes are generally complementary to the effective operation of the rule of law within our society. The independent creation of statutory laws by parliaments and of common law by the courts provides an important process of legal interaction. The Federal and state parliaments can, subject to their constitutional authority, override common laws developed by courts that are considered inappropriate
Native title: development of common and statutory law
- 1992: the High Court in Mabo created a new common law precedent, recognising native title ownership by Indigenous Australians (common law decision), rejecting terra nullius
- 1993: the Federal Parliament passed the Native Title Act endorsing the principles of the Mabo decision and created a statutory framework for the processing of native title applications
- 1996: the High Court in Wik interpreted that legislation, determining that native title rights could survive within leasehold land and that the granting or long term Crown leases to farmers and miners did not automatically sever and continuous occupation claimed by Aboriginal communities – expanded the law of native title
- 1997: the Parliament passed amending legislation changing the future application of the law – Native Title (Amendment) Act overcoming the effect of the Wik decision and excluding the possibility of native title claims in leasehold land
Continuing role of courts
- in this example, it is possible to see the respective roles of the courts and parliaments as sources of law and interpreters of law and the sovereignty of parliament as lawmakers
Other ways in which judge-made law and statutes interact
- the ability of statute law to be made quickly: unlike the court system that can only make common law on the basis of the cases that come before it, parliaments, subject to constitutional limits, can make laws when they see fit (to anticipate developments or react to particular events)
- coexistence of common law and statutory law: the law of negligence is the best example of this. State parliaments have enacted laws to provide for statutory recovery of damages for certain negligence claims (i.e. workers compensation schemes) and to specify certain statutory standards of care (i.e. occupational health and safety legislation) but the courts and the common law continue to govern most law over negligence actions. The two branches of negligence law coexist on their own terms but those whose negligence claims are governed by statutes often will have their common law rights removed or reduced by such statutes
- the ongoing role of the courts as the interpreters of statute law: the creation of statutes by parliaments to regulate an area of law rarely guarantees certainty. All statutes tend to have ambiguities or uncertain provisions. Even when parliaments seek to limit the application of the common law, as seen with the legislation arising out of the Mabo case, the courts are still vital to the workings of statutes because they are required to interpret their meaning through case law. The two sources of law provide an interrelated and often interdependent framework for the articulation of legal principles within our community
What are the principles underlying sentencing?
- proportionality: requires that the overall punishment should be appropriate to the gravity of the offending behaviour
- aggregating factors: can lead to a more severe punishment and mitigating factors can result in a less severe punishment
- mitigating factors: factors that reduce the severity of a sentence
What is mandatory sentencing and what are problems with mandatory sentencing?
definition: a fixed minimum penalty for an offence. A number of recent statutes have introduced mandatory sentencing laws that reduce the sentencing discretion of judges. Rather than allow judges to determine the level of severity of punishment in court, the statutes have set mandatory sentences that must be applied to all offenders found guilty of particular offences.
Over recent decades, there has been much public disquiet on the issue of crime and sentencing. There has been a wide-spread public belief that the amount of criminal behaviour in the community is on the increase and that judges are too lenient on convicted criminals. Often people making these claims, have perceived this to be an issue of judicial accountability, arguing judges are not accountable to the general public for their decisions in individual cases.
Examples
- property offences committed by juvenile and adult offenders: offenders had committed three offences of home burglary were required to be sentenced to one year of imprisonment or juvenile detention (introduced in WA and NT in the late 1990s)
- assault on a police officer, prison officer or public security officer: mandatory sentence of 12 months’ imprisonment for anyone found guilty (2010 WA)
Problems of mandatory sentencing
- incompatible with the separation of powers: shifts the real decision about sentencing from the judiciary to an executive body (Police/Director of Public Prosecutions)
- no single appropriate charge for an alleged offence: allows discretion of law enforcers. A judge’s decision can be seen as more accountable because it is based on established and known principles of sentencing i.e. assault on police and other public officers allegedly by a mentally ill woman, the case did not go to court because the police withdrew the charges. The executive effectively made the decision about her guilt or innocence, not the executive which opponents of mandatory sentencing argue is the rightful role of a judge to determine a proper sanction
What is access and equity?
A key principle supporting the integrity of courts is the idea of natural justice. It cannot guarantee that everyone has an equal experience of the legal system. Equal treatment requires equal access to the courts and equitable treatment by the courts. It is clear that all citizens are not equally able to seek to uphold their legal rights nor have they been treated the same by the legal system. This issue is partially explained by the relatively low level of trust in court processes.
access: to the legal system refers to the degree to which citizens are able to readily exercise their legal rights through utilising the legal system available to them. Therefore, equal access assumes that all citizens can seek to avail themselves of their legal rights
equity: refers to the degree to which citizens are treated with equal fairness by the procedures and personnel of the legal system once they have commenced their legal actions
What are the factors affecting access and equity?
Cultural factors
- language barriers: in a legal system based on the near singular use of English, the ability of all people to be aware of their legal rights is affected by lack of English by limiting awareness of basic laws, having few lawyers who are multi-lingual and, in a general sense, limiting the opportunities for legal education and awareness. In terms of equity, language barriers require the provision of adequate interpreters within the court system to facilitate fair treatment and these are often not available to people including migrants
- cultural barriers: the majority of the Australian judiciary are male and of Anglo-Celtic Caucasian background and this is said to contribute to social and cultural biases and perceptions of unequal treatment of certain groups within society. This is argued to be the case because the dominant cultural background of the judiciary reinforces particular perceptions of those participants who are not from such a background
Social factors
- wealth: one of the major criticisms of the adversarial system is that its costs have effectively precluded many members of the community from being able to exercise their legal rights (justice is increasingly only affordable to the wealthy). Legal Aid budgets are not able to fund all cases that seek their assistance. In addition to this basic impediment it is also argued that the ability of corporations to claim legal expenses as tax deductions has meant that legal fees for individuals are being set in a market that reflects the ability of corporations to claim relief for costs that individuals cannot
- education: the higher an individual’s level of education, the more likely it is that they are aware of their legal rights and be able to afford to exercise them. A professional person is more likely to know of people who can provide the legal assistance they seek their assistance and may be able to obtain quick and effective legal advice. Conversely, the prison population of Australia overwhelmingly has low levels of education
- the complex nature of laws and the legal system itself make it a system that can be much more effectively used (some would argue manipulated) by those people with high levels of wealth and education. In a cultural sense the combination of wealth and education is seen by many to have created a legal system that looks after its own, by encouraging highly restrictive barriers to access and equity within the system
- example: legal trials of Alan Bond, the degree to which his wealth enabled him to conduct appeals of a technical nature to the High Court and present a range of psychiatric and medical evidence and witness in the various trials he was involved in, the degree to which his prominence within the WA community affected his treatment, especially his sentencing, he was fully entitled to use all avenues open to him to present his best possible case. However, the issue for consideration is the degree to which his ability to use the legal system is one that is effectively open to all individuals, and the degree to which his personal background affected his treatment within the legal system
Gender issues
- relative economic status: although equal pay is a legal principle of the Australian workplace, the average earnings of women in the community are still markedly less than that of mean. In addition, the interruption of working careers for child-rearing also affects the relative financial standing of women in the community. Accordingly, with fewer direct financial resources, women are less likely to either seek or commence legal action
- nature of the legal system and its personnel: the hierarchy of law is still dominated by men and the judiciary is still predominantly men (females have only recently been appointed as High Court Justices)
- as a consequence of this domination the cultural atmosphere and bias in the legal system disadvantage women from pursuing their full legal rights. Despite changes in the laws of evidence that prevent rape victims from being cross-examined on their sexual history, studies show that the majority of sexual offences against women are not reported as women fear that the criminal trial process will be intimidating and harrowing
Attitudes of administrators and enforcers
- the legal system encourages stereotypical attitudes about the behaviour and role of women can be seen in judge’s comments and sentencing. The imposition of these custodial sentences by a male dominated judiciary reflects their lack of understanding of the relative social and economic position of women. Women who commit relatively minor victimless offences such as social security fraud are statistically more likely to receive custodial sentences than male offenders who commit similar crimes
- i.e. manager of failed investment company Robyn Greenberg was sentenced to 17 years jail for defrauding clients of $37 million while fellow West Australian Alan Bond was convicted of defrauding a public company of an Australian record amount, $1.2 billion and was sentenced to 4 years of jail
- in the late 1980s, a SA judge commented that a married woman could expect rougher handling than usual as part of her sexual relationship with her husband. At the beginning of the 1990s, a Victorian judge stated that a prostitute who was raped would suffer less trauma than other women
Geographical location
- growing divide between services provided in rural and urban areas (suffering from tyrannies of distance). The ability of outlying and regional communities to have access to adequate legal services, both in terms of number and quality directly affects considerations of access and equity
- lack of legal facilities within certain regions means that for people living in these districts, extra costs and time is involved in seeking to gain legal advice and/or commence legal proceedings
- in major matters that are to be heard by the Supreme Court, it may not be possible to obtain a hearing of the court on circuit (when the court travels around to regional centres to hear cases). This may mean a matter may either have to be delayed or transferred to the capital city of a state, which may or may not be possible due to the costs and/or practicalities involved
Which judicial officers have served a custodial sentence?
- NSW Chief Stipendiary Magistrate Murray Farquhar, 1985: found guilty of attempting to pervert the course of justice by trying to pressure a fellow magistrate to drop a case against a friend and sentenced for 4 years jail. The court made it clear that the claimed good character of the defendant carried less weight than in other cases as the public was entitled to expect that a judicial officer be of good character and integrity
- Former Supreme Court and Federal Court Justice Einfeld, 2008: sentenced to 3 years imprisonment for making a false declaration under oath and perverting the course of justice, committing, deliberate, premediated perjury to avoid paying a $77 speeding fine
- QLD Chief Magistrate Di Fingleton, 2003: jailed for 6 months for threatening a judicial officer as she had threatened to demote another magistrate for supporting a colleague in a dispute with her. This was overturned in the High Court, ruling that the Chief Justice’s actions in her professional role were not covered by criminal law
