Reforming Victoria's Unaccountable Judiciary

Although the State government won’t concede it’s true, Victoria is in the middle of a crime wave.

You also won’t hear the government confront an obvious part of the problem: we’re beholden to a judiciary that is politically appointed, insulated from public scrutiny, and seemingly unaccountable to anyone outside Spring Street.

For some time now police, victims, commentators and even a few rogue magistrates have been sounding the alarm about repeat offenders cycling through the judicial system, breaching bail and reoffending.

If you wanted to design a system that slowly drifted away from community expectations on crime and sentencing, you’d do exactly what Victoria has done. Judges are not elected by the public or confirmed in open hearings; they are tapped on the shoulder by the Attorney-General and formally appointed (i.e. rubber stamped) by the Governor on that advice.

There is no independent judicial appointments commission to test candidates against clear, public criteria. Once appointed, judges in Victoria can sit on the bench until the mandatory retirement age, with no term limits and virtually no practical mechanism for removal short of proven misconduct.

A judge selected today could be shaping bail and sentencing outcomes for decades. Suffice to say, even if Victorian voters one day oust the Labor Party from government, the effects of their judicial appointments will be felt for decades to come.

The courts are meant to be a check on the state, not an extension of it. Yet when the government of the day quietly fills judicial vacancies from a pool of insiders, we should not be surprised when the courts start to look and sound like the government.

In Victoria, Labor has been in power for most of the last 30 years. Unsurprisingly, practically all senior judicial appointments have occurred on Labor’s watch. The result, fairly or unfairly, is a widespread perception that the bench leans ideologically left – soft on crime, soft on bail, and hard on citizens who make every reasonable effort to abide by the law.

It’s not an attack on the courts to say this model is broken. On the contrary, a truly independent judiciary depends on public confidence. When the public suspects that judges are ideologically inclined to support the government of the day, that confidence erodes.

A study of Australia’s High Court has already found a “loyalty effect”, where judges tended to favour the government more often while the Prime Minister who appointed them remained in office. If that can happen in our highest court, why would we assume Victoria’s courts are any different?

Other democracies do things differently. In the United States, federal judges must run the gauntlet of public Senate confirmation hearings. Nominees are grilled on their philosophy, their record and their approach to rights, all in front of the cameras. Canada uses a more polite version, with Supreme Court nominees appearing before a committee in a public, non-binding session. The United Kingdom uses an independent Judicial Appointments Commission and allows parliamentary committees to hold pre-appointment hearings for senior roles. None of these systems is perfect, but all of them treat the public as stakeholders, not mushrooms to be kept in the dark.

Some jurisdictions go much further. Many US states elect judges. Others use retention elections, where voters simply vote “yes” or “no” on whether a judge should keep their job. California even allows recall elections for judges who so egregiously misread public expectations that citizens decide they should be shown the door mid-term.

In 2018, voters in California recalled a judge after outrage over a lenient sentence in a rape case. You can argue about whether that specific result was right or wrong, but you can’t deny one central fact: in that system, judges ultimately answer to the people.

By contrast, in Victoria, a judge can grant bail to a serial violent offender, watch that offender commit another serious crime, and face no meaningful consequence beyond a stern op-ed or two, if that.

The politicians shrug and mutter about ‘separation of powers’ as if that sacred phrase excuses them from building an appointment system that commands public trust.

Separation of powers does not mean judges must be chosen in secret, without scrutiny or insight into the (allegedly) merit-based process. It means each branch of government must be free from domination by the others, and right now, the Executive’s grip on judicial appointments is a problem.

Last week, Victorian Legislative Council MP David Limbrick proposed a modest change. He moved a motion calling for a new process in which prospective judicial appointees would be invited to appear before a parliamentary committee for a public hearing before appointment. He pointed out that other Commonwealth jurisdictions already do this and that greater transparency would increase public trust.

The two major parties joined forces to defeat the motion. The uniparty closed ranks to defend their cosy cartel over who gets to wear the robes. That tells you everything you need to know. When the two major parties are suddenly in furious agreement, it’s almost always about protecting themselves from scrutiny. They were not protecting judicial independence; they were protecting their own power to stack the bench without accountability.

A libertarian approach to reforming Victoria’s judiciary would be guided by two principles: disperse power and empower citizens.

Courts are a necessary part of a free society; they protect contracts, property and rights. But they cannot do that job if they become an untouchable ruling bloc appointed by the very politicians whose excesses they are meant to restrain.

Victoria’s crime wave has exposed a justice system that is failing both victims and the wider public. The Government’s refusal to consider even the mildest reforms, sufficiently proven in other jurisdictions, tells us that they value control over confidence, and party advantage over public safety.

Reforming Victoria’s unaccountable judiciary is not a fringe cause, it’s central to restoring the rule of law, protecting liberty and making our streets safe again.

If judges are going to decide who walks free and who goes to jail in our name, the least we can demand is that the process for choosing them is transparent, contestable and accountable to the people they serve.