Australian Courts

Questionable Judicial tactics #

In a free society any person is not only entitled to criticise the conduct of the courts or of a judge; we have a fiduciary duty. The courts cannot be and are not immune from criticism which may extend to robust observations of a particular decision or how it was determined. Judges are neither omniscient, omnipotent or infallible.

The courts originated in medieval times where judges derived their singular privileged status of supreme prerogatives over the ignorant masses.

Presently universal education has produced outsiders with vastly more expertise than many judges. Judges must defer to them. The Kathleen Folbrigg case is a prime example.

In any democratic system, the courts must always be the trusted ultimate arbiters, which is why they hold such an eminent position in society. Once they betray that trust, they shred their own respect, authority, and legitimacy.

Trust detriment, through poor decision making, reflects organisational cultures that do not focus on public interests. Such cultures promote short-term, small time power assertions, over longer-term public faith. Senior leaders, lacking willingness to tackle the cultural and systemic problems, undermine public faith, contributing to a lack of public confidence and trust in the entire system.

Albert Camus admires intelligence, but distinguishes between “intelligent intelligence” and “stupid intelligence”.

Intelligence is stupid when it is uses eristic or legalistic tricks. Intelligent intelligence is ethically serious – but not necessarily earnest.

Judicial attitudes suffer paradigm shifts, insidiously detrimental to society; sophisms - subtle, tricky, superficially plausible, but generally fallacious methods of reasoning, become tacitly accepted. The concentrated power invested in whimsical decision making, spells hubris, fomenting skewed judgments.

Australia’s pendulum swings freely back and forth. We have had some high peaks followed by low troughs. The extravagances of the nadir Barwick years were followed by many outstanding exemplars of honourable judges.

Good Judges #

The following is my potted history of justice in Australia.

Outstanding Judges include David Collins, the first Judge Advocate who, anticipating the French Revolution, treated convicts as equal under the law.

Fortunately, within twenty years, English hierarchical order was restored with the appointment of the Bent brothers, (by name and deed) who relegated the convicts back to where they belonged and favoured the free settlers, begetting a bunyip aristocracy.

In 1822, the pendulum swung back with the arrival of a progressive Francis Forbes, (1784–1841). Living during the times of the American and French Revolutions, he ‘acquired political opinions of the freest tendency’. He was committed to provide for the better administration of justice in New South Wales and Van Diemen’s Land and for the more effectual government thereof.

While Forbes maintained cordial relations with Governor Brisbane, and later, Governor Bourke, following disputes with John Macarthur and Samuel Marsden, he clashed frequently with the imperious Governor Darling over freedom of the press, the appointment of former convicts as jurors and the allocation of land to immigrants.

Forbes is also credited with establishing a public free Grammar School, and the in 1830 he laid the foundation stone of the Sydney College. Forbes was chairman of both.

Governors Brisbane and Bourke wrote glowing tributes to Forbes.

John Hubert Plunkett, an Irish Catholic prosecutor who successfully brought the murderers of the 1838 Myall Creek massacre to justice despite the resistance and hostility of the media supporting the budding bunyip aristocracy of landowners.

Situations deteriorated as expansionist settlers merely covered their tracks more successfully and squattors ignored laws restricting claims outside the nineteen counties.

Sir Redmund Barry, another Irish immigrant who brought enlightened decision making to the profession. Barry became unofficial standing counsel for the Aboriginals. He laboured as hard and as earnestly upon their cases, often capital matters, as he did upon his other briefs, though he rarely, if ever, received a fee for such services.

His interest in the Aboriginals was general and lasted all his life.

He presided over the trials of most of the Eureka rebels in 1855. No charge of bias or harshness can be urged against him here, and all the accused were acquitted.

His outstanding contributions to civic institutions in Melbourne grant him an enduring legacy.

Sir Owen Dixon, commemorated for sterling uprightness in jurisprudence.

Garfield Barwick’s leap frogging from barrister to cabinet minister, to Chief Justice was overtly political. While tacitly accepted, his tawdry engagement in the dismissal of Gough Whitlam cost him the support of most puisne judges and the direct opposition of Lionel Murphy and Sir Ninian Stephen. His reputation is unlikely to recover.

Evan Whitton, who has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian

A fearless crime reporter, Whitton saw June 25^(th) 1969 as the high point in the rise of organised crime in Australia. Leonard McPherson, a well know colourful identity was fined a nominal $100.00 for consorting by Judge Murray Farquahar on dubious evidence given by Sergeant Frank Charlton.

From that day until the mid 1980’s, black and white hats, including the Premier, Robert Askin, the Police Commissioner, Norman Allen and Fred Hanson, intermingled freely with the stench of corruption like a rotting carcass in a stagnant pool rising to the top, rolling over and slipping below the surface again. (Evan Whitton)

Underworld figures have operated with impunity both in Melbourne, Brisbane and Sydney for years. We also have evidence that politicians have been compromised, yet we simply put up with it. How and why did things change?

Whitton inspired a number of other bright brains into legal journalism to expose incipient, incestuous and insidious corruption, including Richard Ackland, David Marr, Kat McClymont and Joanne McCarthy. Many would - be prominent politicians have ended up in jail.

The rebound to a more just society was remarkable. Progress was made in many areas to create a better society for all. Australia led the way in reforms in judicial oversight, National Crime Commission, drink driving, smoking bans …

The reaction to the corruption of the judiciary in the 1980’s, began when Clarrie Briese stood up for integrity. Many other judges followed his exemplary lead.

Frank Costigan’s royal commission into the activities of the Federated Ship Painters and Dockers Union set a renewed standard for probity, including the elite, through persistence.

Other judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, Peter McClelland AM, Kenneth Hayne….

Other High Court Judges have broken rank and spoken out about the politicisation and the closed culture within the Judiciary, including Justice Dyson Heydon and Michael Kirby.

Justice Mary Gaudron the youngest female appointee to the High Court, made significant contributions towards fostering a more progressive climate towards a just society. She is perhaps best remembered for the Mabo case, where in joint judgment with Justice William Deane, she said that Australia’s past treatment of Indigenous Australians was “the darkest aspect of the history of this nation”. (Wikipedia)

Sir Ronald Wilson, president of the AHRC, the centre of the first wave of the history and culture wars. He had been a conservative High Court judge, but went on to become co-commissioner of the Stolen Generations inquiry and Deaths in Custody.

“He began calling the Stolen children policy genocide, and was criticised roundly for it.”

Gerard Brennan, former chief Justice of Australia is clear on how the misconduct in mishandling evidence materially undermines public respect, impairing the institutional integrity of the relevant court.

Axiomatically, the legitimacy of the exercise of judicial power depends on its officers being above criticism… The power and the prerogative of a court to perform this function rest upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is a state interest of the highest order.

Appearance, no less than the reality, of independence is essential. The judiciary, … has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment. ‘Judicial Independence’ (Speech, Australian Judicial Conference, 2 November 1996)

Geoffrey Giudice, known as the ‘bosses man’ who helped make Australia’s Fair Work Commission fair.

“He brought to his professional life a mixture of humility, sophisticated intelligence, integrity, personal likeability, a preparedness to work, and a suppleness of thinking that enabled him to adjust to change,” said lawyer Michael Tehan at his funeral.

Peter McClellan, a Royal Commisioner for the Maralinga nuclear tests by Britain, and recently the Institutional abuse of children - a giant.

All judges have a primary and fundamental duty to the profession and a core ethical responsibility to the community, to foster our continuing respect for justice.

Erosion of standards #

Jeannie Suk Gersen writes;

“rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time."

There appears a phenomenon that some present day Judges have become so removed from their formative roots that they are wholly innocent of any knowledge of what Justice is all about.

I became deeply disturbed by what I consider the petty punitiveness of a recent County court’s mindset where a court sent a seventy-year-old, decent, upright, citizen, Tony Page, to an over-crowded jail system, criminalising a tragic accident.

Retributive punishments are the product of pusillanimous minds pandering to the lowest of denominators. That politicians indulge to curry populism is of concern, but judges should be capable of rising above such bases impulses.

We need to explore the complex moral terrain of forgiveness, rather than vengeance, which too often serves to pander to basic instincts of revenge rather than as an instrument of healing or justice. Though forgiveness is often linked with reconciliation or the abatement of anger, forgiveness is simply the refusal of retaliatory violence through practices of penitence and grief. It is an act of mourning irrevocable wrong, of refusing the false promises of violent redemption, and of living in and with the losses we cannot recover.

According to the Mayo Clinic, forgiveness brings a kind of peace that allows you to focus on yourself and helps you go on with life. There are many benefits of forgiving someone. Letting go of grudges and bitterness can make way for improved health and peace of mind. Forgiveness can lead to:

  • Healthier relationships.
  • Improved mental health.
  • Less anxiety, stress and hostility.
  • Fewer symptoms of depression.
  • Lower blood pressure.
  • A stronger immune system.
  • Improved heart health.
  • Improved self-esteem.

Is prison ever the answer to anything - except to protect tyrants from dissenters, or people who pose an enduring threat to society?

Tony Page could agree with Brendan Behan’s quip that:

no situation is so bad, that the intervention of the law could not make it worse.

Enlightened courts versed in restorative justice could have found a more satisfactory resolution for all. Rawls’ concept of reciprocity is much more healing than base revenge.

Populous politicians tend to pander on outdated legal fixations, while the judiciary has actually shown some great promise since Dickens’ times, but appear to be on a downward, regressive slope.

All institutions have a potential to be a force for good when they act in good faith and in the public interest. They also have the power to destroy people, and our trust in institutions, when they fail to balance that with empathy and a duty of care.

Judges project a perception of legal learnedness, but do they have any concept of Justice as espoused by Solon. Solomon, Plato, or Rawls?

Evan Whitton became understandably disillusioned by the western civilisation’s adversarial legal industry. A rickety old system is failing in England (Julian Assange) America’s Supreme court, Canada’s anaemic regulatory system and Australia’s pedantic legalistic one.

Whitton proposed root and branch reform of the “past-its-use-by-date”, adversarial system. He insisted all judges need to be trained and educated toward Justice.

We have a legal system and a justice system and never the twain shall meet.

Wendy Bacon writing in The Saturday Paper concludes:

In announcing the pardon, Michael Daley said it was “confirmation that our judicial system is capable of delivering justice … I am glad that our legal system in NSW contains provisions that allow for continual pursuit of truth and justice”.

His reassuring comment mocks Folbigg’s 22-year journey from arrest to release.

Flaws in the judicial system were an impediment to justice from the beginning. Folbigg would never have won her freedom if not for extraordinarily staunch friends, a tireless legal team and dedicated experts. The enormity of the injustice is hard to grasp.

It’s time for all judges to forego their unentitled prerogatives of arbitrary determinations and begin to rely on all available evidence to reach intelligent verdicts that meet community standards to restore our confidence, respect, and, above all else, trust, in what should be our most prestigious and valued institution.

The Brittany Higgins case demonstrates that the court of public opinion is more reliable and lucrative than our sluggish legalistic court system.

More than 220 rape cases in Canberra failed to make it to trial. Higgins’ case, aided by the media, hit a legal hurdle inexplicable to us mere mortals. Yet she appears to have hit the jackpot – was it 3 million? We may never know.

The inability of a degraded legal industry to satisfactorily resolve conflicts should be patently obvious. Look how they managed to stuff up the George Pell case. If that’s not an indictment of the entire system, what is? And we are supposed to have confidence in the system?

When the court system becomes a victim of mockery, it loses credibility in the eyes of our most respected citizens; we’re in trouble.

Allowing the Ben Robert-Smith defamation to proceed before any full investigation, appears Alice in Wonderlandish…

“Sentence First, Verdict Afterwards, followed by a trial”.

It is the cumulative failures that indicate the legal system has lost its way and appears no longer capable or competent in delivering Justice. The consequence is that, like Trump flicking the bird at the American Department of Justice, we lose our faith, confidence and trust in what is supposed to be the last guardrail of our democracy.

There is a disobliging view that those in the legal cartel are primarily interested in money, status and power; Judge Richard Posner, a US economist and appeal court judge, said this of the cartel in 1995:

”… self-interest has played as big a role in legal thought as in medical thought … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics …. an intricately and ingeniously reticulated though, imperfect cartel.".

Charles Dickens observed in 1852: “The one great principle of English law is to make business for itself.” Judge Rothwax: ‘… we have a system that is run entirely by lawyers for their own interests and for their own benefit.’ Yale law professor Fred Rodell: ‘The legal trade is nothing but a high-class racket.’

A Victorian magistrate in his sixties, Rod Higgins, left his wife to form a relationship with a young court assistant, attracting extensive media coverage which pushed her “over the top” by “salacious revelations of her private life” in the days leading up to her suspected suicide.

Mr Higgins – who has since retired as a magistrate – has shamelessly pocketed $180,000 from Ms Petrie’s life insurance and her superannuation.

It came despite Ms Petrie’s mother being nominated as the beneficiary of both funds.

The legal industry knows how to take care of its own, demonstrating its contempt for us and natural justice.

Then they expect us to respect and trust them?

How can we respect them if they show no self respect?

The reputational damage to the courts can only be avoided, by appreciating the limits to their authority. Without responsible decision making, under independent external oversight, our lack of respect will eat away at the justice system’s prestige even more.

When the court system becomes a victim of mockery, it loses credibility in the eyes of our most respected citizens, we’re in trouble. The only thing we ask of our legal system, is that they stay true to our shared values.

One of the troubling things about court cases is the fact that so many ordinary decisions are manipulated by vested interests and opaque presumptions. Courts should respect experts, rather than giving greater weight to the airy claims of hucksters and grifters with their unfounded self-serving tosh.

Why are our elected representatives so spineless in curbing the impunity of judges? During the 1980’s and 90’s, several judges had to front parliaments to explain dubious decisions or questionable actions.

Why is that not happening anymore?

It remains up to each of us to support each other against governments and public servants, who flout timeless reasonable norms, demonstrating no intelligence, public interest or integrity.

There, but for fortune, go you or I.