Minister’s Criticism of Sentences and Rule of Law
A commentary arguing that Minister Dutton’s criticism of sentences imposed by judges is inappropriate and undesirable. See Report by The Guardian on 15 January 2018
Rule of law is a principle that needs to be nurtured and protected. Some of its main characteristics are that everyone including the government is subject to law, that laws are made in accordance with procedures known publicly, that laws are known in advance and are administered by courts of law.
Thealternative to rule of law is government above the law, in which the law merely reflects the wishes and policies of the government. Such a system is to be found in dictatorship where the law may not necessarily be known in advance and where it is applied not in accord with long standing principles but in accordance with the wishes of the government. In our system, everyone is subject to the law. Parliament must make laws in accordance with procedures for its enactment, or such laws will be found to be invalid by the courts. In addition our parliaments only have the power to make laws if the federal or a state constitution grants them such power. If a Parliament makes a law where it lacks the constitutional power to do so, the courts will invalidate such laws. Parliament makes laws, which if enacted correctly and not in breach of the constitution, will bind the judiciary. Sometimes, in the absence of a parliament made law, courts will apply the common law or legal principles as developed by the courts, incrementally and by analogy. Where parliament disagrees with the law as applied by the courts, parliament simply needs to pass a law replacing or amending the law or as applied by the courts.
Which brings me to Minister Dutton and his criticism of judges. His statement is devious because it implies that judges may pass whatever sentence they want. In fact parliaments prescribes the penalties to be imposed for the commission of a crime. Where parliament does not impose a mandatory penalty, judges exercise their discretion to determine the appropriate penalty within a specified penalty range. However, even such discretionary power is exercised in accordance with criteria set down in parliament made law.
When I worked in prosecution, one of my roles was to determine what penalty was appropriate. I did this by considering the relevant law and previous sentences imposed in similar earlier cases. This required taking into account considerations such as prior convictions, age etc I would then present an oral submission to the judge indicating, on behalf of the Director of Public Prosecutions, what the prosecution believed to be the appropriate penalty. Where a judge imposed a penalty noticeably out of step with that required by law and previously imposed, I would write a report to my superiors recommending an appeal. In this way, the legal system ensures that judges impose sentences and exercise their discretion in accordance with law. Judges simply cannot determine appropriate sentences because of ‘political correctness’, unless that term is intended to refer to laws governing sentencing passed by parliament.
If Minister Dutton, speaking on behalf of the government, seeks to criticise penalties imposed by judges in sentencing convicted offendersm, he should take the complaint to parliament, as parliament makes laws, in accordance with which the government is required to govern. Instead his criticism implies that what governments say, courts should do. In reality it is our courts that keep governments in check by ensuring that what a government does is in accord with the law. Criticism of the judiciary has the potential to undermine public confidence in the law – an essential requirement of rule of law.
Dutton’s criticism is also a cheap shot as it is considered a breach of the Code of Judicial Conduct for a judge other than the most senior judge of a jurisdiction to respond to such criticism.