Accepting That Justice is Fair

Community understanding and acceptance of the justice system as one that is fair is played out on a daily basis in response to reports of sentencing decisions. The quote of an observation by the former Chief Justice of New South Wales, the Hon James Spigelman AC QC, included by Bartels in the opening section of her chapter, reflects that position acutely, namely that “sentencing engages the interest, and sometimes the passion, of the public more than anything else judges do.

The criminal justice system is tested all the time in terms of fairness. Writing in 1983, in his collection of essays, Reform the Law, the Hon Michael Kirby AC CMG remarked that “the sentencing of convicted criminals is a matter about which citizens have strong opinions”.^[15] Professor Arie Freiberg, quoted again by Bartels, amplified such a view in saying that sentencing is “played out not only in the courts but in the broader arena of public opinion” and that it is “as much about politics as it is about law or criminology”.^[16]

The three chapters weave between them the subjective and objective aspects of justice as fairness. Surveys and interviews capture very directly the subjective element - the lived experience of the law. Data collection of sentencing practices provides a connection to the objective of policy formation and law reform, as well as informing judicial decision makers on a daily basis.

Inconsistency and disuniformity in the name of individual judicial discretion may be no more than lazy self-indulgence on the part of a legal profession resistant to change. The defence of the right of the judge or magistrate to have his personal idiosyncratic views, at the cost of the citizen coming before him for judicial punishment, is no longer acceptable.^[17]

Another metaphor to describe the common threads in the chapters is that of a mirror. The chapters reflect inwards, looking closely in the looking glass. But they also provide a challenge to turn the mirror outwards, to use the critical insights obtained to provide a basis for continuing reform of the law. Through a careful and, over time, a more extended consideration of the subjective, lived experiences of the justice system in the areas under review, those insights will increase in value and validity. Such a mirror needs to keep turning — from the inwards to the outwards view — so that the conversation continues.

With respect to sentencing and law reform, Michael Kirby reminds us that “the reform of the sentencing of convicted criminal offenders is a controversial task. The last word will never be spoken on sentencing and criminal punishment”.^[18]

Many words are required for improvement of the law: by academics — through critical analysis, building of data and by submissions to law reform and other bodies engaged in law reform projects; by sentencing councils and similar bodies, in continued analysis and the development of model guidance; and by law reform bodies — where appropriate Terms of Reference are given or independent research initiated. The suffragists of the late nineteeth and early twentieth centuries adopted and advocated the policy of “much speaking” in order to achieve their goals. It is a good rule of thumb in law reform and in interrogating “justice connections” — the theme and title of this book.