A Public Appointed Judiciary
To manifest a separation of the judiciary from the clutches of both the executive and the legislature, as currently exists in Australia6, might initially leave us with a situation where judges and magistrates become a power unto themselves answerable to no one. This might not necessarily be altogether a great idea.
“All power is, in Madison’s phrase, ‘of an encroaching nature.’…Judicial power is not immune against this human weakness.” J Brennan, ex Chief Justice HCA#
The most fundamental tenet of democracy is that those who rule over us must also be accountable to us. Currently there are at least two countries (Japan and the United States) where the people can vote to arbitrarily remove judges, but surprisingly most democracies grant significant law making and other power to members of the judiciary who not only are not elected but also cannot be removed unless they are involved in serious misbehaviour that brings discredit to their office. In Victoria one would be hard pressed to name any judge who has been removed from the bench against his or her will.
As Sir Harry Gibbs said when he was Chief Justice of the Australian High Court:
“… it is certainly not democratic that decisions on matters of social and economic policy should be made by unelected judges who are not accountable for their decisions except to their own consciences.”
Obviously what would be preferred is the practice, as exists in most American states, where judges who wish to have power over the citizenry, must first get their approval in an election.
As an improvement for democracy as this would be, there still may be a simpler method to attain accountability.
Rather than an election for every new judge and magistrate who has to be appointed and also removed where it is believed required, why not simply elect a judicial appointments board every election cycle to carry out such duties?