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Attacks on 'lenient' judges harm society



Alarm at supposed youth gangs in Australia is not new. But the current response to claimed Sudanese gangs has a fresh and disturbing aspect: the attack by politicians and their media allies on judges and magistrates for lenient sentences and the granting of bail.

Gavel and scalesSince the British settlement of Australia, people of dominant ethnic and religious origins have complained of Irish gangs, Indigenous gangs, Italian gangs, Lebanese gangs, Vietnamese gangs and generic Muslim gangs. Politicians and media have regularly appealed to public fear and rage, demanding variously that members of the 'gangs' be birched, flogged, imprisoned, deported or shot.

As a result the communities targeted have become fearful and resentful. Their young people are alienated and society becomes more coarse and irrational. Politicians harvest a few votes and the media a few readers.

The reality is that in immigrant groups, particularly those whose experience has been traumatic, some young people are alienated from society and act criminally. They naturally gravitate to similarly alienated people from their own and other ethnic communities. But their forms of association lack the leadership and organisation that we associate with gangs.

Their behaviour needs to be addressed by helping them integrate into society, by good policing to deal with criminal behaviour, and by judicial and welfare processes that protect society and help the young people to change their ways. Voters can help by ensuring that politicians who wallow in mud are subsequently not elected.

The current attack on judicial discretion and the pressure to impose blanket penalties are concerning. They are part of a broader movement to remove from officials the discretion to measure the law to circumstances and to persons, with the effect that the will of the executive is made absolute.

It is now common for politicians to attack judges whose decisions do not meet government expectations, and for attorneys-general to refuse to defend judges against attack. This has harmful consequences. Precisely because judges are an easy populist target, the conventions of respect that surround them are important. They support the trust of citizens that the weakest in society will have recourse against tyranny and the abuse of power. That trust is fragile. It demands support in a democratic society, particularly from its elected representatives.


"Persons are not simply members of a class, and when the administration of law treats them as if they are, it harms society."


The same distaste of governments for discretion can be seen in the lack of flexibility allowed government officials in dealing with individuals concerning health, welfare and immigration.

One of the factors in the attack on discretion is the increased capacity of governments to gather, correlate and disseminate information. This enables them to provide a detailed checklist of conditions that will control officials' response to people who come before them. These conditions will reflect the information gathered about particular groups of people.

We can, for example, establish the statistical likelihood that a 50 year old Niger women will overstay their visa. It is easy then to assume that all Niger women of an age are homogeneous and to remove the discretion of immigration officers or appeal tribunals to take into account individual circumstances and experience. Individual applicants will be judged by the qualities attributed to the group.

This assumption that our enhanced factual knowledge about groups entitles us to make sure judgments about individual members underlies the hostility of governments to judicial discretion. For people who want neatness and exceptionless regulations, such flexibility is intolerable. For them, the qualities of the group define its individual members and provide the matrix for their treatment. In criminal law, sentences will be measured exactly to the harm done to society by the relevant criminal action and applied inflexibly. Within this logic, there is no need for judicial discretion. Computer print-outs will do.

At stake in judicial discretion is the place of law in our society. The basis on which our legal framework rests is that each human being is worthy of respect, that this respect demands limitation of the powers that rulers have over them, and consequently that the complex human factors involved in any action need to be weighed when coming to a decision that is detrimental to them. Persons are not simply members of a class, and when the administration of law treats them as if they are, it harms society.

In the judicial treatment of people who have committed criminal actions, the degree of responsibility of the offenders for their actions, the short term protection of the community, and its longer term protection through the rehabilitation of offenders need to be taken into account.



Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

Topic tags: Andrew Hamilton, Sudanese youth, African gangs, judiciary



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Existing comments

If there is any area of the law where Christian principles are reflected in legal principle, it is in sentencing. Judges are guided by a set of principles which have their genesis in Christianity. However there is sometimes legitimacy to criticism by the community of sentencing and bail decisions (but mostly its law and order rhetoric). Recently there was much criticism of sentences for incest in Victoria and the High Court agreed ('Dalgliesh'). I am always amazed when people criticise judges. In my work I regularly see juries acquit people of serious crimes, even in the face of a strong Crown case. Juries often lack common sense and buy the spin that there is reasonable doubt. Call it merciful but in my view there is frequently injustice in our criminal justice system (e.g. victims are disbelieved) at the hands of juries.

Georgie | 24 January 2018  

You are absolutely right Andrew. We have a long history of labelling individuals with some assumed characteristics of a general group. You will remember the divide we used to have between Catholics and Protestants in Australia. I'm sure that most of the politicians who advocate that we have harsher sentencing for certain kinds of people, irrespective of their particular circumstances, and who carry on about Muslims, Asians, refugees and any other group that looks like a popular target, know very well that this is wrong. But they see that it could attract some votes, so vote-winning overrides the kind of leadership that would be both humane and beneficial to our society.

Brian Finlayson | 24 January 2018  

Thanks, Fr Andy. Yours is a welcome voice for principle and perspective. Community safety is a key driver for Government policy, but it can only be advanced on a broad front - as you put it so well: "... behaviour needs to be addressed by helping them integrate into society, by good policing to deal with criminal behaviour, and by judicial and welfare processes that protect society and help the young people to change their ways." Judicial discretion is a key part of this package: rules that do not allow the particular circumstances to be taken into account are the antithesis of enabling young people to change, and thus to making society safer for everyone.

Denis Fitzgerald | 24 January 2018  

Thank you Andrew. It is such a relief to read something that defends the judges. The two tiered system we have is the best on offer and as much as the government seems to not like it they really need it. I worry about our society that scapegoats some of its citizens. I also think that it is not going to get any better unless we change our attitude to our environment. If we continue to mistreat our planet then such behaviour amongst ourselves will only increase. I believe the two are closely connected.

Tom K | 24 January 2018  

Great piece, Andy! I can't resist a resounding Three Cheers for the ABC's Tom Ballard, who has mercilessly ridiculed the racial profilers in the Liberal Party for their criticism of the magistracy on this question. Its not what Jesus might have done, but, hey! He was pretty merciless with the pharisees, wasn't he.

Michael Furtado | 24 January 2018  

A judge of my acquaintance reckons that justice is often miscarried in our juridical system. I imagine such miscarriage applies on both sides of the divide between the accuser and the accused.

john frawley | 24 January 2018  

Judicial decision-makers are not infallible and, like everyone else, need to be subject to democratic but courteous critique. The decisions of the higher courts are written and published, these days online so anyone can read them. The decisions of magistrates and judges at the ‘junior’ levels of the hierarchy, ie., the court officers who deal with the matter first-hand, may be oral only, or, if written, may not be hard- or softcopied to the public domain, making it difficult for a journalist, public interest advocate or interested member of the general public to acquire a picture as close as possible to first-hand. A jury does not need to record reasons for its verdict, and may deliver a verdict that appears perverse, but the address to them by the judge stating what in law they must consider and what they must not, if in the public domain, can be reviewed later for fairness and accuracy.

Roy Chen Yee | 24 January 2018  

In addition to all of the comments above - and I commend Fr Andy's article - has no-one noted that the adverse comments are by Federal ministers on matters that are under the jurisdiction of State governments? And Labour governments in the relevant cases? So much for extolling "Australian Values", and the Rule of Law in particular! Thinly disguised political shots ahead of state government elections soon forthcoming, and also fanning the anti-migrant/ asylum seekers sector of society to prop up their support for inhumane treatment of these new arrivals.

Dennis | 24 January 2018  

It's concerning, all right. In fact, it's getting close to terrifying. (I admire your moderation, Fr. Andrew, but see no need to imitate it). Our legislative arm is trying to tie up the judicial arm, to its own benefit. "Unelected officials" seems to be the pejorative used against judges, but how happy I am they are unelected. They aren't elected to do their job, just appointed and highly trained - and free of pressure from the party in power. At least, that's how it's supposed to be...

Joan Seymour | 24 January 2018  

It's not just conservatives and/or nativist a in Australia who try to intimidate or preempt the judiciary. We observe it in the UK re. Brexit, Turkey, Hungary, Poland etc.; the latter two predominantly, albeit nominally Catholic even have bishops attacking Pope Francis for his statements on respecting immigrants and minorities.

Andrew J. Smith | 24 January 2018  

Further to Dennis's observation, has no-one noticed that the federal politicians making these attacks are often ex-lawyers (eg. Michael Sukkar) people whose professional obligation is to respect the court system. Further, that the most blatant attacks come from an ex-policeman, Peter Dutton?

Ginger Meggs | 26 January 2018  

"...all Niger women of an age are homogeneous...." Yes Fr Andrew, time and again, opportunistic politicians with hidden motives have unreservedly demonstrated human tribal mentality, our primitive instincts are well and truly alive. They knowingly spread fear, panic at the expense of a 'homogeneous' community! Voices of discretion and reason are tramped, or appear insignificant. And so integration in the process is hit with a hammer. Hence, us-and-them gap widens.

Francis Deng | 27 January 2018  

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