Ask any experienced criminal lawyer and they will tell you that the outcome of a criminal case can be affected to an extent by the particular magistrate or judge that you get.
Although the judicial system expects members of the judiciary to exercise impartiality and make unbiased decisions according to law, a number of judges have faced criticism in recent years for relying too heavily on their personal and political views in the courtroom.
And in a society where the media and general public are increasingly scrutinising judicial decisions, judges and magistrates are expected to justify their decisions or risk facing public and even professional backlash.
But to what extent does a judge’s personal views or opinions really shape the outcome of a case, and what should be done about it?
Every day, magistrates and judges are called upon to make difficult decisions which affect the lives of defendants as well as the wider community.
The independence of the judiciary means that judges and magistrates are allowed to exercise a degree of discretion in making decisions. This effectively means that, subject to certain limitations, they have the freedom to decide the outcome of cases without interference from the government or other bodies.
However, this does not mean that judges make decisions completely free of any government influence. Rather, members of the judiciary often need to make decisions within the limits of parliamentary made laws – commonly known as ‘Acts’ or ‘Statutes’ – and this requires the proper interpretation and application of the law.
Higher courts are often permitted to make findings that overrule statutory laws where the government does not have the power to make the laws; for example, where they conflict with the Australian Constitution. The High and Federal Courts in particular bear the responsibility of ruling on the legitimacy of statutes made by the government.
Overstepping the Mark? Judicial Activism
While judges are expected to exercise discretion in carrying out their duties, problems may arise when they incorporate personal views or opinions in their decision-making.
‘Judicial activism’ refers to the practice whereby members of the judiciary make rulings based on their personal or political views instead of legal principles. This has the potential to undermine the expected independence of the judiciary and can result in wrongful decisions being made.
Over the years, several prominent judges have faced claims of judicial activism.
Current Queensland Chief Justice Tim Carmody has been accused by his fellow colleagues of being too close to the conservative Newman government which previously held power in Queensland, after he made a number of controversial decisions supporting the former government’s anti-bikie agenda.
And former High Court Justice Michael Kirby, well-known for his progressive views, also faced criticism during his years on the bench with some saying that he used his position to advance same-sex rights and other social causes.
Every day in the Local, District and Supreme Courts, defendants in criminal cases find their fate in the hands of a Magistrate or Judge.
Some members of the judiciary have earned reputations for being ‘hard’ on defendants – consistently handing down pro-prosecution judgments and harsh sentences. Others are seen as being ‘soft’ and are more likely to ‘go easy’ on defendants, imposing lenient penalties and being more amenable to granting bail.
Whether a judicial officer is seen as harsh, soft or somewhere in the middle depends on many factors.
For instance, prior to being appointed to the judiciary, some magistrates and judges may have worked for community legal services such as Legal Aid and may therefore be considered more empathetic towards defendants from underprivileged backgrounds. Others may be shaped by personal experiences – for instance, a judge whose family member was killed by a drunk driver or victimised in an assault may be more inclined to impose a harsh penalty on a defendant charged with such an offence.
For these reasons, the outcome of a case can depend partly on the traits and characteristics of the magistrate or judge who hears it. Lawyers do not normally have any direct power to choose which judge hears a particular case, so it often comes down to ‘luck of the draw.’
Is Activism Always a Bad Thing?
On the surface, the potential for judicial activism to undermine the independence of the judiciary is a cause for concern. However, in recent times, prominent judges who have been labelled ‘activists’ have hit back at critics, arguing that judicial activism is a necessary part of the judicial system.
Michael Kirby, for instance, has repeatedly expressed the view that judicial activism is ‘inherent in the judicial function’. He argues that the most vulnerable members of society, including indigenous people, members of the gay community and asylum seekers may benefit from judicial activism.
Whether activism is viewed as a good or bad thing depends largely on the audience in question, the issue under consideration and the position of the magistrate or judge in respect to that issue.
Recent events have led media outlets to espouse the view that judges are often too lenient and unjustifiably grant bail to certain defendants. These outlets may therefore applaud the ‘harsh’ judge who is known for handing down heavy penalties or keeping those accused of crimes locked up.
But on the flip side, civil libertarians and criminal defence lawyers may support judges who act leniently or use their clout to advance human rights.