Australian Judges #
On the whole you could conclude that Australia - the lucky country - has had a lot of very good judges, yet there have also been many bad apples. We are lucky because some of the goodies have stood up to the baddies.
A number of Senior Australian Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their individual and professional lives. Many comment on what an isolating experience it becomes.
David Collins #
The Commission of the first Judge Advocate David Collins, dated 24 October 1786, appointed him Deputy Judge Advocate in the Settlement within our Territory called New South Wales. He also had a warrant as Judge Advocate to the Detachment of His Majesty’s Marine Forces. Henry Brewer, a midshipman, was appointed provost marshal, to bring charged offenders before the courts.
The official position was that the colony should be a multi-purpose one as a penal colony, a strategic free settler outpost, and an opportunity to acquire flax for sails and Norfolk pines for mast posts.
In terms of Indigenous peoples, the Governor Arthur Phillip expended remarkably efforts to develop mutually respectful relationships. Beautifully clear principles were enunciated.
The shedding of native blood was prohibited as a crime of highest nature”. These people were to be considered equal to the most polished European. They could not be deprived of their land without their consent. They could justifiably resist with force any invaders.
Equality before the law was demonstrated by the first court cases concerned marines; Private Green for being drunk on guard, put on probation, and Private Bramwell, who was sentenced to 200 lashes for assaulting a female convict, Elizabeth Needham, he had been intimate with, but who later refused his advances. Despite the marine’s concerns, it was a second reflection of Lord Sydney’s and Governor Phillip’s policy of treating convicts and free settlers as equals before the common law and authority. The first concern was convicts receiving equal share of food as free men and officers.
The next two Judges appointed in 1810, were the Bent brothers, Ellis and Jeffery. They were “bent” by name and deed, believing resolutely, that the law was there to protect the privileged from disadvantaged barbarians, resisting any attempts of former convicts being accepted in respectful society.
Francis Forbes #
Excerpts from C. H. Currey from the Australian Dictionary of Biography, Volume 1 , 1966.
Francis Forbes, (1784–1841) living during the times of the American and French Revolutions, ‘acquired political opinions of the freest tendency’. After studying law in London, he was appointed chief justice of the Supreme Court of Newfoundland and then as chief judge of the Supreme Court in New South Wales in 1822.
In 1823, to provide for the better administration of justice in New South Wales and Van Diemen’s Land and for the more effectual government thereof, the courts were invested with the same status and jurisdiction as the King’s Bench. As chief justice of the new court he enjoyed unique powers, as not only head of the judiciary but also a member of the Legislative Council and, ex officio, of the later Executive Council.
The new Legislative Council first met on 25 August as Forbes its virtual president.
While he 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.
Brisbane and Bourke wrote glowing tributes to Forbes.
Darling’s despotic rule was strongly resisted by Forbes due to his belief in individualism. It led him to disfavour the governor’s drastic policy of ’thorough’ in reorganizing the public service. He also disapproved his ruling through a family cabal. Forbes found Darling ‘quite unacquainted with civil business’ and possessed of ’less knowledge of the laws of his country than any gentleman filling his high official station whom it was ever [his] fortune to meet’.
Forbes and Darling clashed on issues such as:
• Controlling the press. Forbes refused Darling’s certificate to the six clauses relating to a licences because he believed them inconsistent with English law.
• Regulations in 1827 for the assignment of convicts and the granting of tickets-of-leave were ultra vires. In Forbes’s opinion masters had a legal right of property in the service of convicts assigned to them and, although he approved the principle of tickets-of-leave as inducements to reformation, he considered that they could not be given legally to assigned servants, or granted at all except under an authority conferred by parliament.
• The governor’s bitterness was intensified by a series of defeats in prosecutions for criminal libel instituted by the attorney-general.
• Darling recommended that Forbes be excluded from both councils.
• Darling questions the eligibility of emancipists for jury service.
• Macarthur urged his sons in London to seek advice on having Forbes impeached.
• Forbes answer, remitted to Downing Street through Darling, was Forbes at his best: impersonal, lucid, concise, logical, compelling and apparently final.
The last years of Darling’s term were marked by a recrudescence of the Sudds-Thompson affair, his ‘impeachment’ by Wentworth and by litigation arising from his attempts to silence press criticism. Exasperated by the inability of his legal advisers to deal with the defiant editor of the Monitor, Edward Hall, Darling turned to the judges, seeking from the Supreme Court an injunction against Hall ordering seizure of the type and press of the Monitor pending compliance with statutory requirements.
Their reply, obviously written by Forbes, advised Darling to:
‘submit the matter to the colonial legislature and have the present law amended so as to meet the emergency’.
In 1825 the establishment of ‘a public free Grammar School, and the in 1830 Forbes laid the foundation stone of the Sydney College, saw Forbes as chairman of both.
Darling’s Bushranging Act violated the spirit of English law by authorizing arrest on suspicion without a warrant and detention in custody of a person unable to prove he was not a convict. However, Judge (Sir) William Burton, informed the governor that, in his opinion, the Act was repugnant to English law
He attempted ’the legislative basis of the pastoral expansion of Australia’ by helping to determine the British government’s policy, approving Westminster’s pledge that:
’the Crown lands of the Colony shall be held sacred to the promotion of emigration’.
In August 1833 Stanley informed Bourke that the government had decided to subject convicts to punishments of different degrees in severity by sending the most hardened to penal stations and others to chain-gangs on the roads or to labour as assigned servants. Forbes objected that any such addition to the original punishment inflicted by the court was illegal, and the surrender of the Colonial Office was unconditional.
Sydney Bourke had recommended him for a knighthood.
It would be difficult in the whole range of colonial courts, to point out a person on the Bench who, from integrity and ability, legal knowledge and devotion to His Majesty’s service, is better entitled to the honour of a knighthood, than Chief Justice Forbes’.
‘If I had any success in removing abuses and opening the way to a better course of government in the Colony’, it is due to the assistance I received from Forbes I am mainly indebted’.
The knighthood was conferred in April 1837.
John Hubert Plunkett #
Perhaps the most isolated legal figure was 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. The case established the principle that “the natives of the colony have equal rights with the people of European origin to the protection and assurance of the Law of England”. Mark Tedeschi QC.
Despite this victory, the lawless squattors and some free settlers prevailed by simply leaving little evidence after wholesale slaughter of inconvenient natives. As John Clarke put it:
Australia was settled on the basis that the indigenous population didn’t exist; when it did it was hunted down.
John Hubert Plunkett became the first Catholic Solicitor-General and then the first Catholic Attorney-General of New South Wales.
Sir Redmund Barry #
Barry, Sir Redmond (1813–1880) by Peter Ryan
Adapted from Excerpts of Australian Dictionary of Biography, Volume 3, (MUP), 1969
Sir Redmond Barry born and educated in Ireland admitted to an overcrowded Bar, so was forced to emigrate to Australia in 1839.
For part of the voyage he was confined to his cabin by the captain because of an unconcealed love affair with a married woman passenger. The matter became known to Bishop William Grant Broughton and other influential people, and did not help his reputation or prospects of employment in Sydney. He was admitted to the Bar there on 19 October, but then decided to move to Melbourne.
So Melbourne became his home. No sense of exile enters his large private correspondence to England and Ireland. Though his values were wholly those of the cultivated European, he sought to plant these values in his new land.
Barry was admitted to practice by its first judge, the vituperative and eccentric John Walpole Willis. In the two years that Willis presided, Barry showed another of the qualities by which he was to be remembered — his invincible politeness and unfailing, if elaborate and old-fashioned, courtesy. His diaries show that the gross provocation of Willis from the bench often reduced the young barrister to a state of almost unendurable tension; yet his decorous demeanour in court was never seen to be ruffled.
In the early years of Melbourne 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. Though he accomplished for them little of practical value, his open-minded and unprejudiced approach was in advance of that of many even of the most liberal of his contemporaries.
In 1851, Barry was appointed its first solicitor-general, a position which he held briefly, for he was elevated to the new bench of the Supreme Court of Victoria in January 1852. During his whole residence in Melbourne, Barry was prominent or foremost in every phase of social, cultural and philanthropic activity. To list all the causes or organizations whose interests he promoted would be almost impossible; as examples, he was a founder of the Melbourne Mechanics’ Institute (now the Athenaeum), a prominent member of the Separation movement, thrice president of the Melbourne Club, active in the Melbourne Hospital, the Philharmonic Society, the Philosophical Institute, the Royal Society of Victoria — even the Polo Club. He also held a commission in the Victorian Volunteers, the local militia. It is curious, and is perhaps attributable to his friendship with many prominent squatters, that he seems to have played no active part in the anti-transportation movement, though his opinions were distinctly against sending convicts to Victoria. His concern for the diffusion of learning was such that he allowed members of the public to come at night to read books and journals in his house, before there was a public library.
His private benevolence was liberal, though discreetly bestowed. Irish famine relief, the building of new colonial churches both Protestant and Catholic, the needs of less fortunate relations in Ireland and the alleviation of personal distress in Melbourne all made inroads upon a fortune which, though never great, he did not seek to augment by speculation. Public labour left little time for private aggrandizement; at various periods of his life he trod uncomfortably near the edge of real financial difficulty and died a poor man.
He was the indubitable prime founder of the University of Melbourne, of which he was first chancellor (1853), a position he held till his death. He was equally the father of the Melbourne Public Library (now the State Library of Victoria) and its then associated Art Gallery. Over the library trustees too he presided until his death. In both spheres his achievement was great, for the university was able to attract outstanding men as its first professors and well within Barry’s lifetime its degrees grew to command world-wide respect. In the same period the library became recognized as one of the great collections of the world, administered upon the most liberal principles. Any detailed criticism of the precise significance of Barry’s role in the development of these institutions must recognize that the greatest help came from his drive, energy and influence, his ceaseless care and toil for them, rather than from any more refined or subtle intellectual powers. He was as capable at dusting the books or acting temporarily as porter as at chairing the trustees’ meetings at the library. At the university he would pace out the dimensions of some new building on the muddy ground before going in to preside as chancellor. He was criticized in both capacities for being autocratic.
As a judge he was hard-working, competent and conservative. He undertook more than his fair share of the cases, worked very long hours and endured the arduous travel by coach, train or horseback required by the circuit courts. Moreover, because he lived nearer to the city than any of the other judges, his leisure was frequently interrupted by urgent applications at his house for legal processes. He gave much thought to matters concerned with the general administration of the law, to the quality of the Supreme Court Library, to the design of the new and splendid court buildings in William Street, though he did not live to sit there.
In criminal cases Barry had a reputation for harshness, though it was a harsh period and he was in tune with his times. The florid and slightly sanctimonious speeches with which he frequently seasoned his sentences cannot have made him loved, and certainly he valued the purely retributive elements of the law. Yet he supported the Discharged Prisoners’ Aid Society and stressed the importance of the rehabilitation of a criminal who had paid his debt to society. He thought of Victoria as a frontier area where the law was not yet sufficiently respected. In sentencing Henry Garrett to ten years labour on the roads for robbery in company in 1855, he said: ‘The sentences of the Court may be thought harsh, but those sentences will be mitigated as the country becomes more settled and composed’.
He presided over the trials of most of the Eureka rebels in 1855, including that of Raffaello Carboni. No charge of bias or harshness can be urged against him here, and all the accused were acquitted. In the cases of the convicts accused of the murder of John Price, inspector-general of penal establishments in 1857, he conducted the several trials with a rigor and severity out of keeping with the best judicial attitude, and is perhaps most open to criticism for refusing to assign counsel to defend the accused.
His attitude to indigenous peoples was sympathetic and fair.
Probably his most famous trial was that of Ned Kelly in 1880. Though the Kelly legend continues to excite attention, no substantial criticism of Barry’s conduct of that trial can be sustained.
When the chief justice, Sir William à Beckett, resigned in 1857 Barry very reasonably expected to succeed him. The post went instead to (Sir) William Stawell, the attorney-general, after a series of political manoeuvres hardly in accordance with the highest traditions for judicial appointments.
Barry made the acquaintance of Mrs Louisa Barrow. Though they never married, the relationship between them remained affectionate, tender and devoted in the extreme until the end of Barry’s life. She bore him four children. Parents and children frequently appeared together on public occasions. The relationship earned him occasional criticism, especially from Charles Perry, the Anglican bishop, yet it was not a cause of his failure to be appointed chief justice. His city residence, for most of his judgeship, was in Carlton Gardens.
The inscription on the base of his statue in Swanston Street, outside the State Library, records his honour. On various occasions he was acting chief justice, and once briefly administrator of the government of Victoria.
He died in East Melbourne on 23 November 1880, only twelve days after the execution of Ned Kelly.
In affairs of the mind Barry was a classicist and a traditionalist rather than an innovator, a man of immense energy and conviction rather than of subtlety. He tended to be a little behind rather than abreast of the great new ideas of his time, as for example in controversies over evolution.
Harry Higgins #
Harry Higgins instituted the Harvester Judgement in 1907 establishing that:
the test of a fair and reasonable wage was ‘the normal needs of the average employee regarded as a human being living in a civilized community’. This set in concrete Australia’s reputation of fair go and egalitarianism.
Australia was recognised as one of the most egalitarian and prosperous countries until after WWI.
Owen Dixon #
Owen Dixon, High Court chief justice from 1952 to 1964, and a model of strict legalism. Geoffrey Robertson claims Dixon had the best legal mind in Australia, if not the world.
The Australian Dictionary of Biography records that Dixon employed the common law method in his judgements with rare skill and with faith in the capacity of its reasoning processes to reach just and correct solutions to legal problems. He took the view that there was ’no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. It is legalism, in the sense of the ‘strict logic and high technique’ of the common law, which permeates his judgements. In particular, he considered it essential that the common law method should be applied to the construction of the Commonwealth Constitution in order to maintain public confidence in the court’s judgements as apolitical.
Consistent with his endorsement of the common law method, Dixon believed that the doctrine of precedent was of paramount importance. He remained committed to the principle that in general judges should proceed upon the basis that they inherit and develop the corpus juris, but do not make it afresh. He deplored ’the conscious judicial innovator’ who ‘is bound under the doctrine of precedents by no authority except the error he committed yesterday’. His adherence to precedent is to be seen most clearly in the transport cases decided under section 92 of the Constitution over a period of some twenty years. In the course of this line of cases he bowed to the view of the majority from which he had initially dissented. He was subsequently able to dissent again in McCarter v. Brodie (1950) on the basis of the Privy Council’s decision in the Banking case (1949), but followed the majority in McCarter v. Brodie when he passed judgement on Hughes & Vale Pty Ltd v. State of New South Wales (1953). On appeal, the Privy Council adopted the reasons Dixon had given in dissent, principally in McCarter v. Brodie, and expressed much of its judgement in Dixon’s own language.
Yet, Dixon’s regard for the doctrine of precedent did not prevent him from refining, confining or extending the law in accordance with the common law method. While he accepted the decision of the court in the Engineers’ case (1920), his dissatisfaction with the theoretical basis of that decision was shown in the way in which he applied the case more narrowly than others. He admitted that the Engineers’ case ‘is one that I have always applied with restraint’.
Further, Dixon held that the High Court, as a court of final resort, had a duty to expound the law correctly. The court was not compelled to follow decisions of the House of Lords or of itself where they were manifestly incorrect. Moreover, he never shirked a decision which reason or principle required, as is demonstrated by the Communist Party case (1951) which involved the validity of the Communist Party Dissolution Act (1950). Dixon was strongly anti-communist and devoted a great deal of time to considering the case, ‘much of it . . . in vain attempts to construct arguments in favour of [the] validity [of the Act] which would hold water’. For all that, he decided with the majority that the Act was invalid. Latham dissented and showed Dixon a draft of his judgement; Dixon wrote:
’[i]t sickened me with its abnegation of the function of the Court and I said so’.
Appointed chief justice on 18 April 1952. His appointment was universally acclaimed. Many thought that he was the greatest judicial lawyer in the English-speaking world; others regarded him as the most distinguished living exponent of the common law. His judgements carried persuasive effect wherever the common law was applied. An English judge, Baron Wilberforce, wrote:
‘There is no such thing as substandard Dixon, but from time to time there is Dixon at his superb best’.
Grant Anderson and Daryl Dawson, ‘Dixon, Sir Owen (1886–1972)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, https://adb.anu.edu.au/biography/dixon-sir-owen-10024/text17671, published first in hardcopy 1996,
Doc Evatt – Herbert (Bert) Evatt #
Evatt became the youngest High Court Judge at 35 years. He left to become Australia’s wartime Attorney-General and minister of external affairs. His domination of the San Franciscan Conference, founded the UN, became first President of the General Assembly and was the leading architect of the post – war rules based international order.
His approach was that “the law should lay its protective shield over the poor, the weak and the oppressed”.
Herbert V. Evatt, whom Peder described as his most brilliant student, recognised the danger of this view pleading that the conventions which constrain this intervention of monarchical power should be put down in black and white, and transformed into an enforceable code. This has been a continuing struggle from the Magna Carta -1215 through the ages. Its glacial progress is characterised by two steps forward, one step back.
In 1950, Menzies went all out to destroy the Communist party. He wanted to purge the Public Service of all communists. While Menzies wanted little other change, he felt that like America, Communists and socialists were the real evil. The Liberal Party’s manifesto supported free speech, free association – but not for commies. While both Chiefly and Evatt also wished to curb the Communist’s influence on Trade Unions, Menzies wanted them outlawed - purged.
When Menzies’ 1950’s legislation to outlaw the communist party was challenged in the High Court, Evatt and Barwick switched sides, the former for the Unions, the latter now for the government. Menzies exploited the fear factor to the maximum. He immediately smeared the entire Labor Party with being communist sympathisers.
Menzies attempt to outlaw the communist party failed in the Senate, the High Court and in a plebiscite because it violated our basic human right. The proposal was that all it needed is a declaration by 3 Ministers and the Governor General. There could be no trials or appeals to the courts. When Chiefly died, Evatt took up the challenge to defeat the referendum. Evatt’s main thrust was that the passing of the referendum would erode all citizen’s civil rights and guarantees to liberty. It could eventually apply to any group the powers that be wanted to ban. He ran a vigorous campaign against all odds and won.
The Menzies government clawed into office using the “reds under the beds” scare campaigns leading to Donald Horne claiming Australia was a first-rate nation run by second rate leaders.
This extended campaign drove a great man, Evatt, to insanity.
Sir Garfield Edward John Barwick #
AK GCMG QC (22 June 1903 – 13 July 1997)
Some Judges are renown for their reasonable arguments, others for the vanity of wielding their persuasive powers eristically.
Without any Judicial experience, Barwick was promoted to the position of Chief Justice, replacing a highly respected Sir Owen Dixon, by Sir Robert Menzies in 1964. He retired in 1981.
After an undistinguished political career where Barwick managed to alienate most of his party and colleagues in the cabinet, the situation became so tense that Menzies offered him the recently opened position as the Chief Justice of the High Court. He had never been a Judge, yet by political patronage he is suddenly promoted beyond his competence. You would have to wonder how the fellow judges on the High Court would feel about this promotion of misplaced power and bullying superiority.
Credited with building new High Court – Gar’s Mihal - Justice Garfield gained notoriety with his controversial advice to Sir John Kerr regarding the constitutional right to dismiss the Whitlam government in 1975, the nadir of the Justice System in Australia. Official lies covered up the roles of Anthony Mason, Malcolm Fraser, Prince Charles, Queen Elizabeth and countless others implicated in a constitutional coup de’tat.
His legacy has not been enhanced by the following “Humpty Dumpty” revelations: The tax evasion sluicegates opened in 1957 when trial lawyer Barwick persuaded the High Court that “absolutely” in the 1936 Tax Act did not mean “absolutely”; there could be exceptions. The torrent became a flood in 1974 when Barwick CJ, along with Harry Gibbs and Doug Menzies JJ, ruled that a profit of $2782 was a loss of $186,046. Evan Whitton
Sir Richard Kirby writes:
“For forty years Sir Garfield Barwick stood at the centre of power in Australia. He was an advocate who saved the private banks from Chifley and fought to destroy the Communist Party. He was the Attorney-General who reformed the divorce laws and the Foreign Minister who put Australian troops in Vietnam. He was the Chief Justice who broke down the tax laws, dramatically advanced the power of Canberra and gave Sir John Kerr the constitutional imprimatur to dismiss the Whitlam government.
Barwick is the portrait of a complex and driven man who began life in the Sydney slums, a man totally committed to the exercise of power and utterly certain of the rightness of his beliefs. It is also a remarkable insight into the inner workings of Australia’s supreme legal institution.”
Robert French #
The Australian Chief Justice Robert French comments on the interpretation of Statutes:
The common law is an important source of principles governing the interpretation of statutes. Those principles mark constitutional boundaries between courts and legislatures which must be respected when statutes are interpreted. The function of the common law in relation to the interpretation of statutes therefore has a constitutional dimension. It underpins the institutional function of the courts as the authoritative interpreters of the law. In so saying, of course, it is necessary to recognise the reality that many other people interpret the law in a way that is effectively final for many members of the community. There are vast volumes of ‘soft law’ to be found in manuals and guidelines given to public officials who administer the delivery of government services and carry out a vast array of regulatory functions. While that is the reality, the ultimate determinant of interpretation under our system, in the event of dispute, is the judicial process.
Judicial process; also called due process, or procedural fairness is fundamental to our trust in our institutions and good governance.
Guiding principles include five basic pillars of ethical obligations of all decision making:
- Full discovery of all pertinent and relevant facts, material evidence within context and overall perspectives.
- The rigorous testing of claims, assertions and testimony.
- Fair balance of presentation – Judges should not be readily influenced by persuasive techniques.
- Honest and accurate appraisal of evidence based on sound reasoning and credible inferences.
- Reasonable conclusions based on substantive foundations.
It is vital that if pubic confidence is to be maintained that the judicial process of interpretation be seen as objective, fair and supported by grounded evidence.
Judges should avoid the “Humpty Dumpty” perception that the meaning of a word is determined by “Who is master, that is all!” As Samuel Johnson put it:
“Power is insufficient evidence of truth”.
According to the Old Testament,
The LORD shall not judge by what his eyes see, or decide by what his ears hear; but with righteousness he shall judge the poor, and decide with equity for the meek of the earth; and he shall smite the earth with the rod of his mouth, and with the breath of his lips he shall slay the wicked. Righteousness shall be the girdle of his waist, and faithfulness the girdle of his loins, (Isaiah II:1-4)
Judges held to account - 1980’s #
A number of Judges were implicated in consorting with criminals throughout the sixties, to the early eighties. Judges Murray Farquhar, Lionel Murphy, David Yeldham, and Marcus Einfeld all betrayed their special position of trust demanding the highest standards of conduct. As well a number of judges have routinely had to face Parliamentary committees to explain some of their decisions.
Lionel Murphyis perhaps the most conflicted, controversial and polarising. Variously described as a reformer and a man of principle or a reckless activist Judge. Credited with reforming the Family Court, no fault divorce, trade practices Act and Racial discrimination, he courted many fierce enemies. His appointment to the High Court so enraged The Chief Justice, Edward Barwick, he claimed to the Prime Minister, Gough Whitlam, that Murphy “is neither competent nor suitable”. Barwick was fully qualified to know, due his own lack of suitability, as we saw above. Murphy’s supporters claim he was hounded by opponents whose only motivation was to get rid of a political activist who posed a threat to established social order.
During the eighties flood gates of allegations opened. Of the 41 allegations, made as inquiry submissions, 20 were rejected out of hand.
Those that survived, but remained untested, chiefly centre on the relationship between Murphy and NSW Labor premier Neville “Nifty” Wran, and Murphy’s alleged willingness to tap Nifty for a few favours for mates, prominent among them, Sydney gangster Abe Saffron. By current standards, the loot was modest: a lease on the harbourside land occupied by Sydney’s Luna Park, before a 1979 fire there; contracts to refit Central Station. “Evidence” that Murphy was in cahoots with Saffron, included that he used to dine at Saffron’s motel restaurant in Edgecliff. A motel restaurant in Edgecliff! Them’s were the days.” Guy Rundle
George Williams, a highly regarded legal expert, contends:
“that other inquiries would typically not release allegations lacking in credibility as here”.
Outstanding Judges who had the courage to stand up against corruption included Clarrie Briece and Paul Flannery.
Now we have to add the name of Justice Michael Wigney to that illustrous list.
Frank Costigan #
In 1980, Frank Costigan QC. chaired the royal commission on the activities of the Federated Ship Painters and Dockers Union. The commission courageously moved from the investigation of union criminality to allegations of tax evasion by prominent leaders; Judges, other QC’s and organised crime. Since then governments have learned to impose more narrow terms of reference on all commissions so that their mates are not embarrassed. Senior Barristers and some Judges were further embarrassed in the late 1990’s when an intrepid investigative Journalist found some a little hesitant in paying income tax.
Enforcing the law is harder than it might seem, when those involved in enforcing it, have contempt for it.
Since the 1990’s politicians and officials use narrow terms of reference to avoid embarrassing finding that might implicate them. Financial and political scandals seldom result in anyone being indicted these days.
Justice Marcus Einfeld #
In 2006, Einfeld contested a $77 speeding fine by claiming that he had lent his car to Teresa Brennan, an academic from the United States. Journalists from the Daily Telegraph checked the facts and it became clear that Teresa Brennan had been killed in a car accident in early 2003. He then made a second false statement leading to his conviction of perjury.
Rumour has it that he was having a furtive affair with a lady, across the harbour bridge. His wife cautioned him about this and he was attempting to hide his whereabouts.
Einfeld, a stellar Judge was jailed for two years for deliberate, pre-meditated perjury.
Outstanding Judges: #
Judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, Peter McClelland AMand many others.
At least two cabinet ministers have been jailed as a result of these official inquiries; Rex Jackson in NSW for accepting bribes in an early release of prisoners and Police commissioner Terry Lewis in Queensland.
Writing twenty five years later, Tony Fitzgerald, credited with bringing down a Queensland Government, reflects on the hazards of speaking out. The pressure on Mr Fitzgerald and his team at the inquiry was relentless.
“We couldn’t stop, it was 24/7,”
Asked about the impact at home, he agreed there had been “consequences”, but even now he won’t go into detail about what his family went through, explaining that they had all moved on from that fraught time.
“In a sense, I think that anyone who does an unpopular task puts themselves at risk, whether it be physical or professional risk or critical risk. That’s a consequence. It’s always out there.”
Mr Fitzgerald said ultimately he realised that it would be impossible for him to stay or work in Brisbane. In 1998, he and his wife moved to Sydney, where he became a judge of the appeals division of the NSW Supreme Court.
He is scathing of the legal bar in Brisbane, of which he was once a prominent member, branding it fearful of change. *“Up there in the legal profession I’m a square peg in a round hole,” he said:
“There . . . are always character assassins, there are always the envious. Up there . . . to me, conformity is an absolute way of life.” JAMIE WALKER, THE AUSTRALIAN SEPTEMBER 21, 2013
Anatole France (1844-1924): “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread”.
When Anacharsis, a wise man, saw Athenian democracy at work, he remarked that it was strange that in Athens wise men spoke and fools decided. Anacharsis laughed at Solon for drafting laws, imagining that the dishonesty and greed of the Athenians could be restrained by written laws.
Such laws ,are like spiderwebs: they catch the weak and poor, but the rich can rip right through them.
It remains my conviction that reining in erring judges allowed good judges to shine their beacons of sound justice. 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)
Justice Guadron resigned early during a dispute with the Chief Justice’s failure to defend Michael Kirby who was being attacked by a member of Parliament.
All knew the dossier Senator Heffernan was using to smear Justice Kirby was bogus; that Justice Gaudron became the first known whistleblower in the history of the court by leaking that information; and that the row with Justice Gleeson led to her early retirement in 2003.
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.”
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.
The Howard Government appointed Giudice a judge and president of the Australian Industrial Relations Commission in 1997.
Peter McClellan #
A former brickie’s labourer, McClellan rose quickly through the ranks, to become a respected lawyer and Judge. His first Royal Commision was as counsel into the Maralinga nuclear tests by Britain. It came down with damning findings against the Brits and the government of Robert Menzies.
Richard Ackland contends that Justice Peter McClellan deserves to be the Australian of the Year for his relentless pursuit of prestigious leaders under scrutiny by the Commission into Institutional Responses to Child Sexual Abuse.
Evidence of bearing witness to survivors appeared in an early hearing by how respectfully victims’s pain was received by those listening.
Most important, however, in an investigation with so much raw human suffering, has been the kindness and empathy that McClellan displayed to survivors. According to Leonie Sheedy from the Care Leavers Australasia Network (CLAN), McClellan “gets it”. She is sceptical of anyone wearing the mantle of authority and was suspicious of McClellan at first, yet when he came to a CLAN meeting held in a garage, sat down and asked everyone to call him Peter, and then listened attentively all afternoon to survivors, Sheedy was impressed. She became more hopeful.
He tread where angels fear to tread. McClellan proved to be a chair intolerant of disingenuity, and made it clear that status could not buy immunity. He challenged pillars of the community and senior church figures, including Arch-bishop George Pell, Australia’s most senior Catholic and third in line in the world,over claims they did not know abuse was occurring.
One of the many positive paradigm shifts of the Royal Commission into Institutional Responses to Child Sexual Abuse is the increased sensitivity around the treatment of victims (survivors) especially in our courts. Peter McLellan has reset the system by assimilating past trauma into the national psyche, making it acceptable to listen to the victims and believe the hurt, anger and pain and not allow it to be re-enacted to feather the nests of unscrupulous desperate depraved lawyers. Evan Whitton tells of victims vomiting in the witness stand.
Aeschylus is credited with the concept of having crimes assessed and determined by the accused peers. In his trilogy, The Oresteia, Athene, abdicates her position as supreme arbiter and calls on 12 citizens of Athens to hear both sides of a family blood feud to come up with a rational solution to break a cycle of blood vengeance. When the Jury results in a six – six tie, Athene casts her ballot on the side of dismissal.
Judges are just human – or at least some are as vulnerable as the rest of us.
Kathleen Folbigg #
The Kathleen Folbigg case ran for nineteen years. Originally found guilty of causing the death of her four infants, her legal team lodged repeated failed appeals.
The latest appeal, from the three Appeal Court judges, Justices Basten, Paul Brereton and Mark Leeming, confirmed the view of the commissioner who headed the earlier inquiry, Justice Reginald Blanch, that:
“there was an ample basis, consistent with the scientific evidence, for the judicial officer to conclude that there was no reasonable doubt as to Ms Folbigg’s guilt”.
This initiated a public brawl between the Scientific community and NSW’s judiciary. The Australian Academy of Science, on the same day, issued a statement directly contradicting the judges, saying:
“There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”
150 scientists and science advocates, including two Australian Nobel laureates, called for the pardon and release from jail of Kathleen Folbigg, the convicted child killer.
The Folbigg case calls into question the ability for the legal system to assess the reliability of expert evidence.
In May 2022, the NSW Governor Margaret Beazley ordered an new inquiry to be lead by Former chief justice Tom Bathurst.
When Folbigg was eventually released, Wendy Bacon writing in The Saturday Paper concluded: 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”.
Balderdash! delayed justice is justice denied. Huge compensation payments are funded by guess who?
Daley’s 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.
Michael Lawler #
HSU union boss Kathy Jackson and Fair Work Commission Vice President, Michael Lawler’s appearance on ABC’s Four Corners gave us an insight into the delusions of a power couples’ depravity. Lawler admitted that he became “cunt struck” with Jackson, but failed to declare this conflict of interest.
Guy Rundle’s take was:
It seems more than possible that actual folie a deux, the madness of couples, has taken over. Two people become each other’s sole other: they affirm, feed back and amplify their own self-justifying version of events; the private worldview, passed back and forth, becomes all-encompassing. Eventually, they lose the capacity to test it against a more general reality.
Power corrupts!
Rod Higgins #
A magistrate in his sixties, 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.
But the newspaper that led the coverage says the 23-year-old clerk sought out the stories and co-operated with its reporter.
Higgins told ABC’s Media Watch that Ms Petrie got up about midnight on the day of her death and went for a walk.
“I begged her to stay but she said she needed to clear her head. Over the next hour, she sent me four or five text and voice messages, one of which said, ‘I can’t cope with all the coverage’. She apologised to me and said she loved me but I’d be better off without her,” he said.
Mr Higgins said Ms Petrie suffered from depression and anxiety and had recently told him she was “in a dark place”.
He said the media coverage about their relationship was a factor in her death.
“She was a lovely, young, fragile, impressionable girl. I have no doubt at all that the Herald Sun and Daily Mail articles tipped her over the top.”
In a statement, Herald Sun editor Damon Johnston said Ms Petrie not only supported the stories being written about her relationship but “repeatedly asked” the newspaper to publish a story about her previous relationship with another 59-year-old magistrate Costas Kilias.
Mr Johnston said Ms Petrie agreed to go on the record when she was told the story would not run, saw a proof of the story before it was published and thanked the reporter for the story.
“On the day it was published she contacted the reporter, and expressed her annoyance we’d received no follow up tips,” Mr Johnston said.
Ms Petrie appeared to show continued support for stories about her. Supplied: Herald Sun
Mr Johnston defended the stories as public interest journalism given concerns raised by “several senior legal figures” within the court system about the relationship, and said Ms Petrie wanted to expose a toxic culture at the court and “saw herself as a whistleblower”.
“Ms Petrie … made it clear in correspondence … that she was not concerned with the coverage and importantly did not indicate to us she was suffering any ill-effects as a result of any articles or was in a fragile state.
In June 2021, The Age newspaper revealed that Mr Higgins – who has since retired as a magistrate – had 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.
………
Federal Circuit Court Judge Joe Harman silently stepped down from the bench after an internal court inquiry found him to be guilty of sexual harassment.
Harman went on leave in August 2020, after the first complaint was filed by the ex-employee in July 2020, and resigned as judge effective midnight on 30 June 2021. According to the AFR, the resignation was a move to duck a possible parliamentary inquiry that could have resulted in Harman being the first federal judge to be dismissed from office. Australian Lawyer Editor
Justice Michael Wigney #
Australian Judge Salvatore Vasta is a thug and bully who runs his court rooms in line with the Spanish Inquisition, or if you want to be kinder, like the Star Chamber. He brooks no challenges to his absolute authority in his chambers.
What is amazing, because it happens so rarely, is that the Australian system of justice, on its own has pulled him into line.
The full bench of the federal court described the inferior court judge’s actions as a:
“gross and obvious irregularity of procedure”, with “serious and fundamental errors”, exceeded his jurisdiction, and was not entitled to the protection of judicial immunity.
Vasta has form, jailing anyone for contempt of court, merely for questioning his authority.
In ruling that Judge Vasta deserved no immunity, so was personally liable to pay $50,000 in damages to his victim, Justice Michael Wigney of the Federal Court has assured his entry into the Australian Hall of Fame for all Judges worthy of the honour.
Justice Salva-tore Vasta #
Christopher Knaus and Nino Bucci on 1 Sep 2023 reporting for the Guardian Australia
Judge Salvatore Vasta was denied judicial immunity when a federal court found in favour of a man, falsely imprisoned by Vasta during a routine property settlement dispute.
Vasta, believing the man was withholding financial details, jailed him for contempt.
The federal court described the inferior court judge’s actions as a:
“gross and obvious irregularity of procedure”, saying he committed “serious and fundamental errors”, exceeded his jurisdiction, and was not entitled to the protection of judicial immunity.
In another case, Jorgensen, a Queensland tourism operator, also before Vasta on a minor civil matter relating to alleged underpayments in 2018. Believing he had breached freezing orders, Vasta found Jorgensen guilty of contempt of court and sentenced him to 12 months’ imprisonment, though he was to be released after 10 days if he paid money to the Fair Work Ombudsman.
The full bench of the federal court intervened after the man had spent two days behind bars. It found Vasta’s trial of the man for contempt of court had:
“substantially miscarried for at least four reasons”, including the “primary judge’s excessive, unwarranted and inappropriate interventions”.
The court described Vasta’s behaviour in the Jorgensen case as an:
“egregious departure from the role of a judge presiding over an adversarial trial”. The departure had meant his ability to “objectively evaluate the evidence was fundamentally compromised”. The court described his approach as “sarcastic, disparaging and dismissive of significant parts of Mr Jorgensen’s evidence” and said his questioning was “aggressive and, at times, unfair”.
His case also alleges Vasta should not be afforded the usual judicial immunity that protects judges from being sued, because he acted without jurisdiction or exceeded his jurisdiction.
His claim against Vasta alleges an “abuse of government power” and a “disregard for Jorgensen’s rights”. It also alleges Jorgensen suffered mental harm and humiliation due to the imprisonment.
The Australian Bar Association, meanwhile, has said the Stradford decision should prompt urgent consideration of legislative reform.
The association’s president, Peter Dunning KC, said the decision raised “potentially significant issues” for the work of judges in inferior courts.
“Judicial immunity is an important institutional requirement in facilitating the fearless administration of justice by judges across Australia. When occasions arise, such as the present, that in a significant way impact the understanding of its boundaries, it is always appropriate to consider whether the immunity remains appropriately calibrated to securing that fearless independence.”
Dreyfus told more than 80 federal circuit and family court of Australia judges that any model for a commission
“must respect the independence of the courts and judiciary enshrined in the constitution” as “this independence is fundamental to the rule of law and democracy in Australia”.
Justice Michael Wigney of the Federal Court demonstrated fearless courage in ruling that Judge Vasta was personally liable to pay $50,000 in damages to his victim.
Jamie Walker of the Australian reports that 76 Judges were up in arms over the $309,000 damages award to a father wrongly jailed for contempt of court, with some boycotting scheduled sittings.
Who says judges don’t have a union with political heft?
Suzie Miller #
Suzie Miller is an internationally lauded playwright who divides her time between London and Sydney. She honed her storytelling instincts as part of a large, Catholic working-class family in St Kilda. Later, she wrote plays part-time while working as a human rights lawyer who has always had that fire in her to stand up and make a difference. Many of her plays are about distressing stories she encountered while representing the downtrodden. According to Megan Lehmann in the Australian Weekend Magazine, she has an inborn hunger for redressing imbalances and contesting inequality.
Her best-known plays, which include the acclaimed Prima Facie, soon to be adapted into a film and novel, and RBG: Of Many, One, revolve around people whose lives become ensnared by the workings of power.
Prima Facie has been an international success with runs in London and New York. It has elicited constructive responses with National Theatre recording compulsory viewing for Irish Judges, English Police officer training and others in the legal world. Sexual assault cases are the most traumatising for both women and men and yet very few get to trial and fewer result in convictions. Britany Higgins won hers in the court of public opinion.
Jailbaby interrogates a different part of the justice system. We take property offences so seriously, often more seriously than we take other offences against the person, and [when I worked in criminal law] I had young men who would go to prison who would tell me about the most horrific sexual abuse they were enduring. They changed in prison. There was no real rehabilitation or assistance in having skill sets for when they left prison. Instead they were tortured in there. This is happening right now.
Jails don’t make better citizens; they produce better crimminals. Yet somehow the Western democratic world sees it fit to put more and more of its citizens behind bars. It’s absurd I mean dumb - stupid - ignorant - but that’s what we let our politicians do.
Helen Garner #
Helen Garner is an award-winning novelist, short-story writer, screenwriter and journalist. Her books include Monkey Grip, Joe Cinque’s Consolation, The Children’s Bach, The Spare Room and This House of Grief.
She writes incisively and balanced about our legal system.
A judge directed the jury to acquit the woman because the charge against her could not be proved. We all stood up, incredulous. But then came to me a sharp flash of illumination: what we were bowing to was not this thin, tough faced man in a red robe, but to the power that he exercised, that passed through him, that our society gives him. I felt the spirit of the law – something tremendous restraining itself by reason. They really do have to prove it.
Helen is fond of court. It is where she feels whole. In court, she can trim the shadow between reason and emotion.
“I feel that all the different parts of myself are integrated with all the other parts of myself, and that my mind and heart are functioning together, and not against each other, as they often are in ordinary life.”
She sometimes feels intensely that a person should be punished. The feeling unsettles her. She felt it during the Joe Cinque trial, felt the anguish of his parents and the wrath they felt towards his killer. She shared their anger. She hates the way a good barrister can disappear a crime.
“It surprises me when I look back on those trials … It shocks me when I look back at that book now, how little empathy or compassion I felt.”.
Conclusions: #
Maintaining a sound Judicial System is difficult, but essential to a healthy democracy and a prosperous society. Once the community loses confidence, respect and trust of officialdom, the fabric of society ir rendered and all and sundry find ways and means of rorting the system.
The Brittany Higgins fubar demonstrates just how archaic legalisms and the entire adversarial systems are - totally unfit for purpose. Radical reform is urgently needed but as long as legal self-interest lies at the heart of the legal industry, Justice will never prevail.