Separation of Powers: Politician Tells Judge to Resign or Face Removal

New South Wales District Court judge Clive Jeffreys made headlines recently, criticised for being too lenient. One newspaper’s headline read “Judged Inadequate” while another’s said “Fails of Justice”.

Judge Jeffreys, appointed to the bench in 2011, has faced attacks not only from the media, but also from a Senior NSW Government MP. Andrew Constance, the NSW Transport Minister, has slammed Judge Jeffreys for what he describes as “gob-smacking and incompetent sentencing”. The Minister called on the highly-respected judge to resign or face the prospect of being removed from office.

The attack is based on a mere eight cases over which Judge Jeffreys has presided in the years following his appointment. The Daily Telegraph stated: “since his appointment in March 2011, Judge Jeffreys has had five sentences which were appealed by the DPP increased by the appeal court.”

These sentences were overturned on the grounds they were too lenient, and three other decisions made by Jeffreys – including decisions to exclude certain evidence at trial – have also been overturned on appeal.

However, Judge Jeffreys has heard hundreds of cases, so those overturned represent only a small fraction of his judgments. And there is nothing unusual with a judgment being overturned on appeal. In fact, District Court judges regularly have judgments reversed by the NSW Court of Criminal Appeal – just as magistrates may have their decisions overturned in the District court.

Interestingly, judges are almost never criticised in the media for being ‘too harsh’ – there is one Local court magistrate who has been known to sentence defendants to prison for no more than a charge of possess prohibited drug. This is corrected on appeal – but we don’t see this in the papers.

Who defends the judiciary?

Judges unfairly attacked by the media have very few options to correct misinformation and speak out for themselves. It has long been the case that the only public voice of a judicial officer was their one in court. Airing personal views or explanations has been traditionally disapproved of, although Chief Justice Tom Bathurst of the NSW Supreme Court has recently advocated a greater voice for the judiciary.

Traditionally, defending the judiciary was the job of the Attorney-General, but several people who have held that office in recent times have shown reluctance to do so.

In the case of Judge Jeffreys, the District Court stands behind him, dismissing suggestions that he should step down or hear civil matters only, just because the papers and a politician want him to.

A spokesperson of the Court said: “Judge Jeffreys is a judge in good standing, experienced in the criminal law, and is currently sitting in the criminal jurisdiction… There is no intention that he will sit in the civil jurisdiction. The sentencing process involves difficult decisions, about which sincere views can legitimately differ. In at least one of the cases where Judge Jeffreys was corrected, two appeal judges took one view, and one appeal judge took the opposite view.”

Could Judge Jeffreys face dismissal?

The NSW Minister for Transport wants Judge Jeffreys to be referred to the Judicial Commission for review. If the Commission concludes he is unfit, Jeffreys may be brought before both houses of parliament who would need to recommend his removal, before he could indeed be removed from his position.

There are only two grounds for removal – misbehaviour and incapacity – and under current rules, no magistrate or judge in NSW has ever been removed from office, although a few have resigned in the face of imminent investigation.

Having a system which makes it hard to remove magistrates and judges means they can be more independent – not having to worry about making decisions that will please the newspapers and politicians. It maintains the ‘separation of power’ between the parliament and judiciary, and means they can indeed impartially assess the vast amount of information before them, rather than making decisions based upon external factors.

The independence of the judiciary is a crucial safeguard in our democracy, ensuring against the concentration of power and protecting against political and media pressures. There is a strong argument that judges should not feel the need to make ‘popular’ decisions in order to keep their jobs.