One of the great injustices of our legal system is that individuals are made to wait for months and years to have their day in court. People charged with serious criminal offences languish in prison waiting for their trial to take place, and injured workers face continued financial and emotional stress because claims for compensation may not be heard for up to four or five years after they had to give up work because of some mishap at their workplace.

Fortunately, some governments around Australia are doing something to address this dire situation. Victorian Attorney-General Rob Hulls is appointing acting judges to that state’s County Court to help clear the backlog of cases. One would have thought that the legal profession would applaud Mr Hulls’ desire to ensure that the wheels of justice are well oiled.

Not the body that represents Victoria’s 1300 barristers – the Victorian Bar Council. It has thrown a monumental dummy spit over Mr Hulls’ decision to appoint a highly experienced magistrate and former barrister Barbara Cottrell as an Acting Judge on the County Court. The Victorian Bar Council says it won’t attend Ms Cottrell’s welcome ceremony because it is opposed as a matter of principle to the appointment of acting judges. The Victorian Bar Council makes it clear that it thinks Ms Cottrell is an outstanding lawyer, it’s just they don’t think she should be an acting judge.

And why? The Victorian Bar Council thinks that these temporary appointments interfere with the doctrine of the separation of powers. By only appointing a judge on a temporary basis, they argue, that individual is too dependent on the state to be as fearless and independent as a permanent judge who cannot be removed, except through a complex parliamentary process.

This argument is simply absurd. To suggest that lawyers, who by nature are fiercely independent, would be inclined to favour the views of the State in cases before them, because if they don’t they might have their temporary appointment taken away from them, is the stuff of fantasyland. It shows that the Victorian Bar Council has little faith in the integrity of its members.

What’s more, the practice of appointing acting judges to ensure that justice delayed is not justice denied has been around in the UK for decades. Barristers regularly take time out of their practice to sit on the bench for a few months before returning to the Bar. Is anyone suggesting that the UK legal system is any the worse for this practice? Of course not.

The Victorian Bar Council has a long history of opposing change. In 1987 (I was a member of the Bar Council at this time) the Council opposed the appointment of Bernard Teague to the Supreme Court because Teague was a solicitor and not a barrister. And the Council defends the opaque and secretive process of appointment of silks (SCs) by the Chief Justice, despite rumblings of discontent from among its own members about the inherent unfairness of the process.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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