The Press on the Chief Justice

The Press editorial is hard hitting:

The flouting of convention that the Chief Justice’s address on penal policy represents is such that it is very hard to see any other explanation for it except that it was a preparation for resignation from the Bench. Even then, her observations were something that would have been more properly delivered after she had left rather than before.

The Chief Justice has effectively declared herself in opposition to the policies endorsed by voters at the last election. Any decisions she makes in future will be tainted with the fact she has entered the realm of partisan politics, and the respect for her decisions will be greatly lessened.

Once appointed, judges hold their positions until they reach retirement age. It is, for all intents and purposes, impossible to sack them and they are answerable to no-one. These provisions are designed to ensure that their judgments are given without fear or favour, and in particular that they are free from political interference.

The other side of this arrangement is that judges loyally apply the laws passed by Parliament and refrain from inserting themselves into political debate. These conventions are now hundreds of years old and have stood the test of time better than any of the alternatives tried in other jurisdictions.

Departure from them risks compromising the integrity of the justice system. The Chief Justice’s address crossed the line between what is proper under this convention and what is not.

And the Chief Justice said herself, she knew her speech would provoke a reaction.

The Chief Justice speaks with the authority of her high judicial office, although it should be remembered that that does not give her any particular expertise in penal policy. It would also be interesting to know what her attitude would be if any judge whose views differed from hers were to make his or her opinions publicly known.

Indeed. Is it open slather for Judges now? Can other Judges give speeches demanding Parliament impose longer prison terms?

Unlike judges, politicians are answerable every three years for their opinions and actions on political topics. Like anyone else, judges are free to enter into these political debates if they wish to do so. But if they do wish to do so they must be answerable for the policies they advocate. They cannot do so from the privileged position they occupy on the Bench.

The real danger is that Elias may use her position as head of the judiciary to impose her personal views that sentences should be much shorter, regardless of what Parliament says. We have already seen the Court of Appeal consistently knocking a few years off non parole periods in a couple of cases.