31 May 2011

Judicial Reform: Part 2

(See also: Judicial Reform Part One)

Under the terms of the Australian Constitution there are two Houses of Parliament: the House of Representatives and the Senate. Members of both houses are elected by popular vote. Examination of the Constitution reveals that there is a “third house” in our Parliament, the Judiciary. Positions in this house are appointed (for life) and are not the result of popular elections. We have by definition two houses which are “democratic” in nature and one which operates as an old-fashioned autocracy. The judiciary answers to no one and it is “self regulated”, except under section 72 of the Constitution, where a joint house sitting can dismiss federal judges.

In a measure to protect the independence of elements of Australian Government, the doctrine of the “Separation of Powers” has been adopted in Australia (although not clearly spelt out in the Constitution). There is still debate about what the separation of powers means but in general terms it can be described as those who make the laws don’t interpret them, those who interpret them don’t enforce them. There will be those who disagree with this simple description but it will serve for the purpose here.

There is general agreement on the need for an independent judiciary. Political pressure perhaps should not be focused on the judiciary, especially during the conduct of a current active case before the courts. Rarely in the history of Western Nations have courts been the subject of obvious interference by other sections, the media or the public. They are usually left to their processes without interference.

If we examine the judiciary as a house of parliament and not a system of courts, we can see that they are set up by the government and maintained by the taxpayer, in the built environment and the salaries etc for court personnel, not unlike other arms of government. But the judiciary (and let’s include solicitors here as they are ”admitted to the courts” by a formal process and under various Acts of Parliament they have exclusive and protected domain to practice law and give legal advice; they are part of the judiciary in the same way as police officers are part of government), has an exclusive nature to its make-up. An individual has to have legal qualifications and experience to even be considered to an appointment to the bench. Likewise, solicitors are part of an elite in western society. They are qualified in some way in study of law and they are seen to be a “profession”.

If we consider the separation of powers and the need to recognise the independence of each element of government we can clearly identify that the judiciary is a fortress in relation to how it operates as compared to the House of Representatives and the Senate, where anyone with a nomination fee and good community support and a bit of luck can theoretically enter those houses. Not just anyone can enter the judiciary though only suitably qualified individuals can be allowed.

We now consider the make-up of individuals who occupy the “peoples houses”, the Senate and the House of Representatives. A large number of these individuals are qualified lawyers. Ordinary people can not enter the judiciary, but elements of the judiciary can come and go in the other houses as they please. In fact, given the large numbers of lawyers in the federal government it could be seen by reasonable individuals as being actively encouraged. Gone are the days of warfies, railway engine drivers and shearers occupying seats in the peoples’ houses.

Lets have a look at the current Federal Government in terms of lawyers:

Labor (33)

Julia Gillard 1
Senator Penny Wong 2
Andrew Leigh 3
Bill Shorten 4
Senator Joe Ludwig 5
Peter Garrett 6
Brendan O’Connor 7
Craig Thomson 8
David Bradbury 9
Daryl Melham 10
Janelle Saffin 11
Senator Michael Forshaw 12
Graham Perrett 13
Kelvin Thomson 14
Kirsten Livermore 15
Laura Smyth 16
Mark Butler 17
Mark Dreyfus 18
Melissa Parke 19
Michelle Rowland 20
Mike Kelly 21
Nicola Roxon 22
Richard Marles 23
Senator Mark Bishop 24
Robert McClelland 25
Shayne Neumann 26
Stephen Jones 27
Stephen Smith 28
Tony Burke 29
Yvette D'Ath 30
Simon Crean 31
Jason Clare 32
Senator Don Farrell 33

Liberal (34)

Tony Abbott 1
Joe Hockey 2
Malcolm Turnbull 3
Phillip Ruddock 4
Julie Bishop 5
Bronwyn Bishop 6
Senator Brett Mason 7
Christopher Pyne 8
Greg Hunt 9
Senator Helen Coonan 10
Kevin Andrews 11
Senator Nick Minchin 12
Steven Ciobo 13
Senator David Johnston 14
Peter Dutton 15
Senator George Brandis 16
Senator Gary Humphries 17
Peter Slipper 18
Senator Eric Abetz 19
Alan Tudge 20
Senator Guy Barnett 21
Senator David Bushby 22
Josh Frydenberg 23
Senator Mary Fisher 24
Senator Mathias Cormann 25
Kelly O’Dywer 26
Senator Michael Ronaldson 27
Paul Fletcher 28
Senator Russell Trood 29
Senator Ian McDonald 30
Senator Marise Payne 31
Sophie Mirabella 32
Senator Michaelia Cash 33
Senator Concetta Fierravanti-Wells 34

Independents (2)

Robert Oakeshott 1
Senator Nick Xenophon 2

Greens (1)

Adam Brandt 1

(Past Lawyer Politicians include to name but a few : John Howard, Peter Costello, Peter Reith, Bob Hawke, Robert Menzies, Gough Whitlam, Billy Snedden, Billy McMahon, Harold Holt, Neville Wran, Lindsay Tanner…there are a whole lot more)

This comes to a grand total of 70. Can we imagine 70 ordinary individuals occupying positions as judges in that other house? The movement of lawyers in and out of the peoples’ houses can be seen as a breach of the separation of powers which should be addressed. Their presence in the numbers that they have is an over-representation of one type in our government, still the major political parties encourage this.


Addendum: The Queensland Parliament:

Labor (12)

Andrew Fraser 1
Cameron Dick 2
Dean Wells 3
Evan Moorhead 4
Geoffrey Wilson 5
Kerry Shine 6
Mark Ryan 7
Murray Watt 8
Paul Hoolihan 9
Paul Lucas 10
Peter Lawlor 11
Stephen Wettenhall 12

Liberal-National (3)

Jarrod Bleijie 1
Mark McArdle 2
Timothy Nicholls 3

Independent (1)

Peter Wellington 1

Judicial Reform Part 3 is on the way.

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