Justice takes aim at mandatory sentencing

A QUEENSLAND supreme court justice has launched an attack on the "disturbing trend" of governments to undermine courts through mandatory sentencing.

Justice Philip McMurdo took particular aim at the NSW "one-punch" laws and Queensland's bikie and sex offender laws.

He also called for an overhaul of the Chief Justice selection process following the controversy surrounding Tim Carmody's appointment.

Speaking about the "hot topics" at a supreme and federal court judges' conference in Darwin on Wednesday, Justice McMurdo said criticism of the court was not new but he was concerned about "what I see as its increasing prevalence".

He said the Queensland and NSW governments creating new offences in response to perceived issues within our communities and setting mandatory minimum sentences meant the courts were bound to impose heavier sentences without regard for any mitigating factors surrounding a crime.

"The underlying premise of each of these responses by governments is that courts cannot be trusted to administer the laws which the parliament has enacted in the way in which, at that moment in time, the government says is demanded by the public," he said.

"Of course it is within the power of governments to impose mandatory minimum sentences or to remove the option of suspended sentences.

"But the disturbing trend is in the readiness of governments to restrict the ability of courts to perform their core judicial functions such as sentencing.

"These demands for heavier sentences, continuing detention and refusal of bail are not based in evidence.

"These demands derive essentially from emotion. Emotions such as anxiety or anger cannot be dismissed by courts as irrelevant."

Justice McMurdo, who is Judicial Conference of Australia president, questioned whether the United Kingdom system, where such appointments go through an independent statutory body, might be the answer to avoid the controversy in Queensland surrounding Justice Carmody's appointment.

He acknowledged that method had not been universally commended, noting one criticism that it took too long.

"I mean no criticism here of the merit of this appointment in stating the obvious, which is that in this case the process has seriously failed," he said.

"This process has been widely criticised and there have been many calls for its replacement with others under which, it is said, there would be a transparency which would provide more assurance to the public that appointees are being selected for the right reasons.

"In my own view, there is much to be said for a process by which an independent panel recommends a shortlist to the Attorney-General of those who are considered suitable or most suitable for the appointment.

"The government could then appoint from outside that shortlist. But should it do so, it is important that this be disclosed to the public, for otherwise the public could be misled to think that the appointee had been recommended as suitable."

Justice Carmody has come under fire for being too closely aligned with the Newman Government, though he has hit back at suggestions he would not be independent.



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