THE VICTORIAN Government faces a revolt by judges over its plan to appoint acting judges to make the state’s court system more flexible and efficient, and to release a backlog of cases said to be clogging up the system.
Legislation introduced into the Victorian Parliament this year would allow the State’s barristers, solicitors and legal academics to take short-term appointments as acting judges.
However, a leading national judicial body, the Judicial Conference of Australia (JCA), has decried the proposal, arguing that there is “a substantial body of opinion” in the Australian judiciary that the notion of acting judges is inconsistent with the principle of judicial independence.
The JCA has released a copy of a letter from Justice Ronald Sackville, JCA chair, to Attorney-General Rob Hulls declaring that Victorian judges and magistrates have expressed their opposition to the proposed legislation.
Law Institute of Victoria (LIV) president Chris Dale said there is a common cause for concern expressed by the judiciary, the Victorian Bar and the LIV. “All raise concerns about the appointment of acting judges,” he said.
While the JCA acknowledges that the legislation of the states and territories allows the appointment of acting judges, it argued the proposed Victorian legislation “appears to go well beyond the practice in other Australian jurisdictions”.
The legislation may “pose a significant threat to the principles underpinning judicial independence even if one accepts the proposition that the appointment of acting judges, of itself, does not necessarily threaten judicial independence”.
Through the organisation, Australian judges take issue with the proposal to appoint acting judges for a term of up to five years. Other jurisdictions, the JCA argued, “limit the term of appointment to a maximum of six or twelve months”.
“This reflects the obvious legislative intention that acting judges should be appointed only to deal with particular listing difficulties and, even then, only for a short period,” wrote the JCA in its letter to Hulls.
Dale said earlier this year that the notion of appointing judges for six months raises the issue of independence.
“If the appointee wishes to be extended in office or reappointed later then they are sitting up there making decisions conscious of the fact that they may need to be consistent with government policy,” he said.
Dale also had concerns about using acting judges as a solution to long-term problems. “They may have a place to cure temporary issues,” Dale said, but the court backlog is not going to be cured by a “temporary fix” such as this.
In order to remedy the acute problem of the backlog of cases, according to Dale, the appointment of acting judges will do little compared to the appointment of permanent judges.
In its letter to Hulls, the JCA raised the concern that the institution of acting judges could be used as a means of assessing the suitability of candidates for judicial office. “Might there not be a perception, for example, that the Government was assessing the attitudes of an acting judge towards sentencing?”
“If an acting judge under consideration for a permanent appointment decided a controversial case in favour of the Government, might there not be a suspicion in some quarters, however ill-founded, that the decision was influenced by a desire to secure the permanent appointment?”
Dale last week recommended deferring this issue where no real detriment will be caused by further consideration of it. Temporary problems could be cured by the use of acting judges, he said, “but this is not so acute that there could not be some deferral of this important matter so more detailed consideration could be given of it”.
An extract of Justice Sackville’s letter appears on page 10.