Why non-activist justice matters

In the administration of justice, black-letter legal conservatism matters, as Samuel Griffith ­Society president Allan Myers told the group’s conference last year. High Court judges (or any judges, for that matter) should not be “innovators remaking society”, Mr Myers said. “Their duty is to administer the law and thereby to keep the foundations of society steady. If they are unhappy with the constraints of judicial office, they should, like Doc Evatt did, resign from office and seek election to parliament.” Being a legal conservative, as Janet Albrechtsen writes in Inquirer, is about freeing citizens from the yoke of “centralised unchecked authority, be it a federal government or judges ignoring the Constitution”. It is just as important at state level, and among legal authorities other than judges, such as prosecutors.

This has been demonstrated in a series of rows in which five NSW judges have accused the state’s chief prosecutor, Sally Dowling, of running meritless rape cases, with no hope of securing a conviction. As we reported last month, 15 rape cases have been discontinued following an audit launched by Ms Dowling.

In the latest row, she has been accused of trying to “exert influence” over the judiciary and engaging in “ethically questionable” behaviour, Ellie Dudley reports.

In a complaint to the NSW legal watchdog, the Office of the Legal Services Commissioner, Judge Penelope Wass claims Ms Dowling possibly defamed, bullied and intimidated her when issuing a media statement saying her private comments to Chief Judge Sarah Huggett were “entirely appropriate” and contained a “matter of mutual concern”. Judge Wass also alleges Ms Dowling blurred the separation of powers and put the independence of the judiciary at risk in private correspondence with the Chief Judge about Judge Wass’s conduct in three separate cases.

The controversies, and the issues driving them, must be resolved, in the interests of rape victims and legitimate complainants (who must not be deterred from coming forward). It is just as important for those accused of rape, a serious crime that, rightly, carries long jail sentences, and for the sake of public confidence in the administration of justice.