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September 9, 2026 — 5:00am
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Violent crime is out of control in Victoria and there is undoubtedly a temptation to offer simple solutions, even when it’s clear they will not work.
A significant factor in this crisis is poor decision-making in the appointment of magistrates and judges. Parties of both political sides have used these government appointments as a way to reward and protect their supporters. They have used this power to ignore the public interest and fill the benches with friends and those to whom they see themselves as indebted.
Occasionally a worthwhile appointment is made but during the 14 years Labor has been in power in Victoria there has been a host of entirely inappropriate appointments.
However, the radical solution proposed by Opposition Leader Jess Wilson is a retrograde step. If elected premier in November, she plans to increase prison sentences by appointing the Liberal Party’s preferred judges to the Court of Appeal. This would be enacted by splitting the Court of Appeal into two courts, a Court of Criminal Appeal and a Court of Civil Appeal, a policy that indicates a lack of understanding of the way the judicial system works.
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Wilson’s expressed intention is to appoint “tough” new judges to the new criminal appeal court, jurists the opposition leader described as “additional judges specialising in criminal matters”. Her proposal indicates a lack of awareness of the separation of powers and the way courts function in our constitutional system. It can only be attributed to the sort of law-and-order promises that surface each time we have an election and which served the Liberal Party so poorly at the last election.
In 1995, the Kennett government established a permanent single Court of Appeal in Victoria. The court became the definitive body for hearing civil and criminal appeals from the Supreme Court Trial Division, where the cases are first heard, as well as specific matters from lower courts and tribunals.
In theory, the very best lawyers were to be appointed to the appeal court and initially, they were. There can be no difference between the ability of the best lawyers to deal with civil and criminal cases irrespective of their practising experience and all are equally capable of applying the law whether it be civil or criminal. Wilson’s promise to split the court into separate divisions makes no sense, especially since the president of the court allocates appeals to judges based on their expertise and interest.
Some of the best criminal appeal judges in recent years have been judges who have not practised in crime prior to their elevation but who have excelled in myriad other areas of legal practice.
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If parliament is unhappy with the way criminal offenders are being sentenced, it is for parliament itself to act. Judges are trained to apply the law, not to make the law. Parliament has the sole power to legislate, and if dissatisfied with sentencing in a particular area it can introduce legislation or amend existing legislation to bring sentences into line with its collective wishes.
Parliament can, if it desires, legislate for mandatory minimum sentences that judges are obliged to impose, irrespective of their own personal views. The same directives can apply to magistrates who deal with serious criminal offences before they wind their way to higher courts as well as the less serious crimes.
Surely it is more effective for the Liberal Party to legislate to address its concerns rather than appoint allies and hope for the best. Once appointed, judges are unconstrained unless bound by statute.
The separation of powers, as adopted by Australia federally and by the states from the Westminster system of the United Kingdom, rigorously applies a separation between the legislature and executive arms of government on the one hand and the courts on the other; neither is to stray into the area of the other. Wilson’s promise to appoint “tough” judges betrays a complete lack of understanding of the constitutional system reminiscent of former Queensland premier Joh Bjelke-Petersen’s response in 1988 when asked about the separation of powers: “What’s that?”
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A more constructive measure that Wilson could take, if she were serious about improving the courts, would be to halt their politicisation by establishing a judicial appointments commission with eminent and experienced members to recommend appointments to judicial and quasi-judicial positions.
Further, there has been much criticism of the Independent Broad-based Anti-corruption Commission, which has turned out to be an entirely useless body. The late Stephen Charles, a former eminent member of the Court of Appeal, the one Wilson wants to abolish, exposed the deficiencies of the organisation over a long period, as have Robert Redlich, another former member of the Court of Appeal and himself a former chairman of IBAC, and Deborah Glass, a former ombudsman.
IBAC has limited power to investigate corruption, which one might have thought to be its raison d’etre and which distinguishes it from the Independent Commission Against Corruption of NSW, which has proved itself to be an effective organisation with a proven record of operating in the public interest.
Wilson’s proposal to reconstitute the Court of Appeal and appoint tough judges is ill-considered, ignorant and will achieve nothing to control crime in Victoria.
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Gavin Silbert, KC, is a member of the Victorian Bar and a former chief crown prosecutor for Victoria.
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Gavin Silbert is a Queen’s Counsel who has practised as a barrister for 40 years. He was Chief Crown Prosecutor for Victoria from 2008 to 2018.AdvertisementAdvertisement