Bar slams Abbott’s court comments following Carmicheal

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The NSW Bar Association president Jane Needham SC has defended the court system after Abbott’s comments on potential court corruption, following the Federal Court’s decision on the  Carmicheal mine development.

The Prime Minister reportedly stated that courts could be used to ‘sabotage’ development projects and that, ‘as a country, we must, in principle, favour projects like this’.

Needham has slammed Abbott’s comments, saying they demonstrate a lack of understanding around the role of the court in a democracy.

“The courts are not the servant of the Executive – any such implication is inimical to the basic principle of the separation of powers, which is fundamental to our Westminster-style system of government,” said Needham.

“The courts exist to make decisions according to the law, not to further the interests of particular individuals or organisations, including government. They are an independent arbiter of disputes, and politicians need to understand and respect their non-partisan role.”

“It is critical that our courts make decisions on the basis of the legislation they are charged to interpret and the facts of each individual case before them.  Legislation imposes strict conditions on developments such as coal mines, and the courts’ task in these circumstances is to scrutinise the Executive’s actions to ensure that any approvals fall within legislative parameters,” Needham added.
  • William on 18/08/2015 12:21:45 PM

    The timely current events involving the Royal Commissioners speech and Judge Dina Yehia actions in determining that a police officer couldn't wear guns in court support my argument.

  • william on 12/08/2015 10:16:16 AM


    Aniko States:

    "I find the comment " It could be argued then that Judges require regulation in how they make their minds up."- “alarming and, frankly, absurd.”

    Absurdity amounts to “unreasonableness” . Some dictionaries define absurd as wildly illogical. Further discussion on the doctrine of absurdity is found at https://en.wikipedia.org/wiki/Plain_meaning_rule

    . Lord Greene stated "It is true that discretion must be exercised reasonably. Now what does that mean? ... [T]here may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation. see also Wednesbury

    The evidence of Justice Callinan (a sensible person) gives credence and reasonability to the argument for regulation. That Justice Callinan has raised the issue of bias means that the comment is not absurd.

    Justice Callinan has identified the issue and the issue should be discussed without defamation. It would be absurd to ignore the real problem of judge’s bias. It is a clear avenue of appeal.

    That Justice Callinan has raised the issue of bias means that the comment is not absurd. Furtherore, in the USA the problem is addressed by some states by election of judges by the people and not appointed by the politicians.

    Aniko asks:

    "What kind of regulation is considered ? "

    see:
    https://en.wikipedia.org/wiki/Retention_election
    http://www.judicialselection.us/

    The above references are related to the issue of appointment/selection of judges and to their retention.

    There has been some debate from time to time to consider that Judges should be elected instead of selected by the government of the day. Therefore the people can easily sack (or at least refuse to re-elect) a Judge.

    There is already some regulation in the form of Parliament being able to dismiss a judge. It could be made mandatory for politicians to sack biased judges. But in recent years politicians have been found wanting as the newspapers have reported a “knife wielding” magistrate and a “sleeping” judge. The response to this kind of behaviour has been slow. It is likely that had a retention vote been taken that both of these judicial officers would have been voted out by the people.

    Aniko asks:

    "That Judges should not be biased ? That Judges consider the evidence and the Law ? Is'nt that self evident ? "

    The practical reality needs to be dealt with here...what is evident is that Judges bring their personal baggage to the court when they shouldn't. And of all people who know that ...Judges are on top of the list. Enforcement is difficult when the politicians of the day have selected Judges who will likely direct opinions in the way that the politicians of the day are heading.

    In the article the Prime Minister has been attacked because the Judges made a finding in favour of the environmental political lobby. A different judge may have found in favour of the mining lobby. It is clear that politicians have the responsibility to change the law. It is the duty of politicians to interpret the result of any particular court case and raise it for discussion in parliament. The Prime Minister had every right to bring the discussion to the table as he was elected like all parliamentarians to raise those issues. The criticism of the Prime Minister (who is just doing his job) by the head of the Bar Association is unwarranted and inaccurate.

    Inimical is defined as: “tending to obstruct or harm”. Politicians are entitled to criticise judges and those politicians have parliamentary privilege to say the things that others can’t without reprisal. The article shows Needham as seeking to protect judges and not seeking to protect the people. The article shows Needham as one inimical to the principle that parliament discusses and reforms legislation in accord with the wishes of the people; attacking the right to free speech.

    For example, it is clearly demonstrated by the lenient sentences that Judges have provided to serious offenders. These lenient sentences are not in line with public opinion. Why should judges set lenient sentences when the people seek otherwise.

    I do note that the article is not a matter presented in a court of law. If it was, then Susan Needham QC should have provided the evidence that was adverse to what she was submitting. It’s clear that the article does not provide the adverse side of the argument and therefore the article is merely political in nature.

    Aniko States:

    “Or is the regulation that is sought " Judges will do as the politicians of the day dicate- in which case, why have our judicial system in the first place.”

    Judges are appointed by politicians and it is clear that there is substantial political bias in the selection process. The judges that are in place, reflect what the politicians wish to accomplish.

    One might consider that the persons selected by politicians of the day do exactly what is expected. One might explain how magistrate Pat O’Shane remained in her position as a judicial officer when she has been investigated and determined to be biased. Yet, the politicians of the day have done little about it.
    There is a limit to the theoretical and idealist proposition that judges should be allowed to act in accordance with any opinion that they have. The practical reality is that Judges do not refrain from personal decision making in arriving at their conclusions and that there is a high likelihood that politicians have selected them because of it.

    I submit for your consideration the appointment to the bench of a 20 year public servant with two months experience as a solicitor in preference to many capable applicants for the position with many years of court representation.

  • Aniko Cripps Clark on 11/08/2015 11:49:25 AM

    I find the comment " It could be argued then that Judges require regulation in how they make their minds up."- alarming and, frankly, absurd. What kind of regulation is considered ? That Judges should not be biased ? That Judges consider the evidence and the Law ? Is'nt that self evident ? Or is the regulation that is sought " Judges will do as the politicians of the day dicate- in which case, why have our judicial system in the first place.

  • John Finlayson on 9/08/2015 1:10:04 PM

    Jane Needham SC's comments are to be commended.
    Too often politicians like Abbott want to get their way at the expense of due process or the basic tenets of separation of powers which our democracy is founded upon. Democracy is very fragile and we must be forever vigilant. Justice is paramount.

  • Garry on 8/08/2015 12:44:41 PM

    Absolutely. Tony is just a political opportunist.

  • william on 8/08/2015 11:11:11 AM

    The article states:


    “Needham has slammed Abbott’s comments, saying they demonstrate a lack of understanding around the role of the court in a democracy.”


    I’m surprised at that comment particularly as it is likely that Jane Needham has likely not consulted fully with the Prime Minister.

    Needham States:


    “The courts are not the servant of the Executive – any such implication is inimical to the basic principle of the separation of powers, which is fundamental to our Westminster-style system of government,” said Needham.

    That judges can be sacked by parliament is an issue here. Bad Faith is one reason for the sacking of judges and as such there must be someone to ensure that judges act in accordance with the wants of the Public.


    Parliament as the regulator is clearly entitled to scrutinise Judges’ opinions acts and character.


    The article states:


    “The courts exist to make decisions according to the law, not to further the interests of particular individuals or organisations, including government. They are an independent arbiter of disputes, and politicians need to understand and respect their non-partisan role.”


    The “non-partisanship” and “independence” is exactly what the Parliament is there to ensure. The media had reported Justice Callinan at about the time of his retirement that he wished that members of the bench would leave their political baggage behind. His inference was that some judges had biases that should not be part of their decision making.


    To understand the mechanics of bias in the judiciary one need only Google " magistrate Pat O'Shane and bias" where the various articles report a finding of bias against police.


    There is an inference in the words “need to understand and respect” that the Prime Minister was being disrespectful or not understanding. It speaks for itself that he as a parliamentarian was fulfilling his duty to the electorate and to the Country in raising an issue of concern. In fact as a legislator he has a duty to open the dialogue to reform legislation.


    “It is critical that our courts make decisions on the basis of the legislation they are charged to interpret and the facts of each individual case before them. Legislation imposes strict conditions on developments such as coal mines, and the courts’ task in these circumstances is to scrutinise the Executive’s actions to ensure that any approvals fall within legislative parameters,” Needham added.



    It is clear that not all judges are black letter law judges and they find ways out of what legislation requires. In my Law School reference was made to methods of judges in their decision making and support was found in the cannibalism cases. (refer R V Dudley and Stephens; wiki - Speluncean Explorers) It could be argued then that Judges require regulation in how they make their minds up.


  • Owen Harris on 7/08/2015 3:53:31 PM

    Hear hear! I'm sick of politicians crying foul whenever their attempts to bypass procedural fairness and the checks and balances fail.

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