Free, strong societies arise from participatory legal systems
Public confidence has a crucial role to play in the administration of justice, writes James Spigelman.
The Supreme Court of NSW was brought into existence on May 17, 1824, almost precisely 181 years ago. It is one of the oldest courts in continuous existence in the world.
The contribution of our longstanding institutions to social stability and economic prosperity cannot be overstated. Without the rule of law, administered by judges with a high level of independence, impartiality and integrity, and supported by a legal profession that manifests the same virtues, neither personal freedom nor economic progress would be possible.
We Australians take much for granted. When we turn on a tap, we expect clean water to emerge; when we flick on a switch, we expect electricity to be immediately available. We rarely pause to think about the complex infrastructure that lies behind such simple phenomena.
The same is true of our assumption that we can go about our daily lives without fear and plan for our future and our family's future with a high degree of certainty.
None of this would be possible without a properly functioning legal system. We are right to take it for granted, because the system has worked effectively for almost two centuries and shows no sign of decay.
Participants in the system, both judges and practitioners, are well aware that its efficacy depends on the high level of trust the public has in the operation of the courts. This element of trust was once called "the majesty of the law"; today it is more appropriately called "public confidence in the administration of justice".
It cannot be taken for granted by the persons who participate in the system. It is trust which must continually be earned, so that public confidence can be continually replenished.
The participation by members of the public in the process of the administration of justice, whether as parties, witnesses or jurors, constitutes a crucial mechanism for ensuring that trust in the administration of justice stays at a high level.
Regrettably, such participation is not reinforced by enough civic education in schools. Nor are other mechanisms for ensuring that the public becomes aware of the actual operations of the system as comprehensive as is desirable.
Over recent years, I have become increasingly concerned that public confidence in the administration of justice, and public respect for the judiciary, is diminished by reason of ignorance about what judges actually do, particularly in terms of criminal sentences that are imposed.
Sentencing engages the interest, and sometimes the passion, of the public more than anything else judges do. The public's attitude to the way judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.
Plainly there are occasions when a particular sentence attracts criticism and that criticism is reasonably based. What concerns me is that such cases appear to be widely regarded as typical, when they are not. NSW judges impose thousands of sentences a year, of which only a few dozen attract attention.
Judges approach the task of sentencing with all the gravity that should attend such a serious process. It is simply not true to suggest that judges collectively manifest excessive leniency and are out of touch with community values.
The reason debate about sentencing will know no rest is because the ineluctable core of the sentencing task is a process of balancing overlapping, contradictory and incommensurable objectives.
Requirements of deterrence, rehabilitation, denunciation and punishment do not point in the same direction.
Specifically, the requirements of justice, in the sense of just deserts, and of mercy, often conflict. Yet we live in a society which values both justice and mercy.
The Honourable J.J. Spigelman is Chief Justice of NSW. Tomorrow marks the 181st anniversary of the founding of the Supreme Court of NSW.