Speeches to note: In Praise of Unelected Judges

02/07/2009

Chief Justice Robert French yesterday delivered an address, 'In Praise of Unelected Judges", at the John Curtin Institute of Public Policy in Perth. The chief justice reflected upon the use of the term "unelected judges", which has been used to argue against a charter of rights because it would confer on the judiciary the power to make decisions which should be reserved to elected officials, and expose it to political controversy. He said:

The force of these arguments will be a matter for the politicians to decide. There is, however, a subtext that can be associated with the repeated invocation of the term "unelected judges".� It is what might be called in contemporary political discourse a kind of dog-whistle signal suggesting a lack of democratic legitimacy in what judges do. And it conveys the not too subtle suggestion that judges see themselves as philosopher kings whose mission in life is to sculpt the nation's laws according to their own values. �

Justice French said the US Supreme Court decisions in White and Caperton, regarding campaign contributions for elected judges;

demonstrate powerfully why we should not have elected judges. The judicial task remains the same irrespective of the mode of a judge's appointment.� But the elected judge's burden of maintaining public confidence and avoiding concerns about impartiality and conflict of interest appears to be more difficult...What we expect of our unelected judges is that because they are unelected and because they are not beholden and do not appear to be beholden to campaign commitments or campaign financiers, they will be able to discharge the official oath or affirmation requiring that they decide the cases that come before them without fear or favour, affection or ill will. �

View Justice French's speech>

**2 July 2009 **