Saturday, 4 May 2013

Attack on Judicial Independence - or is it just government incompetence

The honour and privilege of becoming a Member of Parliament does nothing prepares you for the sheer incompetence of the elected government of the day. This week in Parliament the government introduced a Bill to control judges salaries by limiting any increase by the independent Remuneration Tribunal to 2.5%. The government asserted that judges salaries should be restricted just like all other public servants. 

At first blush this might be seen to be reasonable. Why shouldn't judges salaries be capped just like public servants and politicians? 

But there is a far greater and more important principle at stake. It is a fundamental principle called the doctrine of separation of powers. Our democracy as part of the Westminster system requires the separation of the judicial arm of government from the legislative arm and of the executive arm of government. Independence of the judiciary is fundamental to democracy. Attempts to interfere by the executive government or by the Parliament in judicial salaries is an interference with judicial independence. Judges have to decide whether or not the executive government's action is lawful or in fact whether parliaments legislation is constitutional. Courts every day are deciding cases where the government is on one side and ordinary citizens are on the other. It happens in both criminal and civil cases. 

It is the case that the executive government is accountable to Parliament for the expenditure of public funds. It is the case that the Parliament is the ultimate decision maker for the appropriation of public money. For hundreds of years in this country and in England, to avoid the perception of the government being able to interfere with the judicial independence an independent Tribunal was established so that judges salaries can be decided by an independent body at arms length. It is designed to preserve judicial independence. 

The ridiculous Bill (Statutory and Other Officers Remuneration Amendment (Judicial and Other Office Holders) Bill 2013) that passed the Legislative Assembly this week is such an an attack on the independence of the judiciary it prompted according to the Sydney Morning Herald the Chief Justice of New South Wales, who is also the NSW Lieutenant Governor speaking out strongly. 

According  to the Sydney Morning Herald "The NSW Chief Justice Tom Bathurst has condemned the state government's plan to control judicial salaries as an attack on judicial independence, warning that taken to its extreme such logic could see judges' pay linked to conviction rates." 

The head of the state's judiciary rarely speak publicly about government policy let alone 'condemns it'. On the very rare occasions that happens it is important that governments listen. As I told parliament this week Members of Parliament are required to respect the institutions of the Westminster system upon which our democracy is based. Members of Parliament whether they are part of the executive or not are only here temporarily, that we are trustees of the Westminster system and trustees of the doctrine of separation of powers. We must ensure that we preserve and enhance those democratic institutions and doctrines and always act to create the perception that they are being preserved. 

I genuinely suggested, and this was not political, that there was a better way.I suggested the government could have amended either the Act or Regulations to give greater weight to its policies in trying to reduce expenditure of all public sector salaries which would have resulted the same outcome, but it would have been seen to be at arms length. 

The most frightening part of the debate on the Bill was when the Treasurer tried to compare judges to nurses firefighters police and teachers. It is a frightening prospect when a senior member of the government does not understand what the difference is between employees who are part of the executive arm of government and the judicial arm of government. He obviously did not understand the need for there to the judicial independence and did not understand the need to preserve and protect the Westminster system of which he is only a trustee.

The most concerning part of the debate this week was that the Treasurer of New South Wales, a person who is often talked about as a future leader and Premier, did not really understand the significance of what he was doing. As I said at the beginning nothing prepared me when I was elected for this sheer incompetence. 

The video of the speech to parliament is here:

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