Mood:
energeticTopic: legal
The legal administration seems to be suffering some post holiday hangover headaches here in NSW. Made more painful by the election sound chamber drilling into the brain.
First a declaration: The writer is a junior solicitor in NSW and for a good six months now also a tea totaller who no longer worries about hangovers. There is a $140 invite to the “2007 Annual Opening of the Law Term Dinner” for two on my desk which was held last night but my budget doesn’t allow. The relevance of the dinner is revealed below and how.
The chronology seems to be this:
Magistrate O’Shane got mugged in the media recently for a pretty decent and rational decision to let an Aboriginal defendant have another chance in life as reported here at SAM:
Monday, 22 January 2007
Magistrate O'Shane transcript shows a professional judge, not so Iemma or ABC TV news Mood: a-ok Topic: legal
[Just click the date at top right hand corner or go to the topics at right.]
But she got attacked in the election to and fro as an easy mark given past controversies:
Media/pollies 1, judges 0
This writer took up the cudgels versus Big Media and cynical selective politicians on the Melbourne Indy Media site as an example for failing to address the provocations of racism argued by the defendant in the case. A glaring omission bespeaking systemic bias.
In the washup O’Shane has come out smelling pretty good as here in Fairfax to quote a postscript to another story on SAM of 25th January
“A moving article about Magistrate OShane ran with a picture in The Sydney Morning Herald yesterday, which indeed was a good balancer to all the baiting she has been getting: O'Shane makes peace with her demons”
Integral to the recent O’Shane winning PR was gutsy backup of the independence of the judiciary by Chief Magistrate Henson early in the flurry this January 07. He had the reassurance of a decision of the Judicial Commission Conduct Division, 3 senior judge panel, in O’Shane’s favour in another legal conflict.
media-pollies 1 , judges 1
with honourable mentions to Tim Dick of Fairfax for some outstanding redemption coverage of the OShane career, and Green MP Lee Rhiannon who stuck by the judge when it counted (with some prodding by this writer).
Premier Iemma then goes technical in this political bunfight with “2 community members to be appointed onto the Judicial Commissin Conduct Division”. Get it? Not so many as to change the majority 3 judges, but enough to signal displeasure at the judges ratification of OShane which Iemma implies is a closed shop. We are getting disturbingly close to interference with the independence of the judiciary here. Even so with this significant election PR we can call this technical move by Iemma:
media-pollies 2, judges 1
Then Richard Ackland the well respected editor of legal magazine http://www.justinian.com.au/
as well as a long time Fairfax correspondent takes a cruel and likely fair prod at the Chief Judge of NSW JJ Spigelman AC for giving boring Law Dinner speeches in past years here:
Friday January 26, 2007
Uniformity and lying down on the job
The politicians are back from holidays with an amended line-up of prefects and house monitors, writes Richard Ackland.
Talk about cutting and amusing copy. The CJ would have been fuming about that public mocking, albeit gentle manner of presentation by charming Ackland. Try this cracking sledge here that would have had every serious lawyer in Sydney choking on their weeties with hilarity (one hopes anyway being notoriously grey folks):
“In 2003 his law term dinner speech was about previous speeches he'd made. A speech about speeches, which included references to a speech about the importance of plans for a uniform scheme for the regulation of a national legal profession. The Chief Justice said he trusted that the national approach would not be delayed for too long "by the processes of discussion required in a federation such as ours".
Sadly, four years on, this noble, if hardly radical, enterprise remains a work in progress, as some states have not yet passed the newfangled "model laws".
Riveting stuff … not, is the accusation. And the subtext is ‘Jim get relevant and get real.’ Ackland may well be exaggerating and it was mildly flippant. Here is Big Jim’s 2006 speech so judge (!) for yourself:
http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_spigelman300106
Nevertheless we can certainly call this certainly:
media-pollies 3, judges 1
But Big Jim Spigelman CJ is one tough cookie and this writer for one is scared of him or perhaps respectful of his capacity and power is more appropriate language. He is not Chief Judge in tough town Sydney “for nuthin” to borrow a phrase.
Today we have the Beak's riposte. Not only has Jim met the Ackland challenge with a speech with serious interest, he has made the news on the issue de jour (of the day) as we march to the election drum beat: ABC radio report that the Law Dinner last night saw the Chief Judge condemn the intrusion of ‘any group with an agenda’ such as victims rights groups having any role in the panel of the Conduct Division.
Here is a press edited version of the high impact speech already placed with the Sydney Morning Herald obviously from the night before to make the deadline. (Not read by this author on first version of this post including the part below about importance of separation of powers):
A judge's lot to protect independence
and full text likely will appear on legal websites in due course. A quote of this profound speech is worthwhile, because it is so stirring and profound:
"We tinker with this institutional arrangement at our peril. Today, this tinkering is often expressed in terms of judges being "out of touch". However, as the Chief Justice of the High Court, Murray Gleeson, has observed, the real complaint is not that judges are "out of touch" but that they are "out of reach". Judges are meant to be hard to get at.
It is essential to understand that the most frequent litigant in the courts of this state is the executive branch of government.
People who are used to getting their way do not usually take kindly to their wishes being frustrated. In the past that has included the aristocracy, when it was the centre of social and economic power. These days such centres of power include major corporations and the mass media. Throughout history the executive branch of government has been such a centre of power.
It is vital that the independence of the judiciary does not depend solely on the personal integrity and resilience of individual judges. Independence has been institutionalised.
The exercise of judicial power must be insulated, indeed isolated, from pressure or interference by the executive branch of government.
[bold added]
On sound public policy grounds our top judge must be right. How can non judicial officers have a judicial role over the staffing of the judiciary in a constitutional system of separation of powers. The sector via Law Council, Bar Association and Law Society almost certainly concur. Ex practicising lawyer Iemma is being too cute by far.
Here is press reaction from News Ltd this morning:
Iemma defends judicial interference
NSW Premier Morris Iemma is standing firm in the face of a withering attack by the state's top judge over political interference in the judicial process.
and then later "Public cannot judge us: law boss" p11 30th Jan 2007;
and in Fairfax also:
http://www.smh.com.au/news/national/top-judge-takes-government-to-task/2007/01/29/1169919274725.html
I am willing to call this
media-pollies 3* - judges 2
* the raw scoreline is misleading, and doesn't quite reveal Judge Spigelman's genius. With the added impact of a red card for likely breach of the constitution this leaves the media and pollies seriously down in team resources with 7 weeks left still to play. As all the converts to the World Cup know, you can’t win in the top division without a full team.
The smart money would be on the Judges this far out.
In the other main match in the legal admin election tournament we have the media-pollies B team led by Debnam versus police-pollies A team led by Minister Watkins: The first half of that match has been about the Police Academy churning out “F-Troops” who can’t pass their ethics exams for a start:
NSW Police Commissioner defends recruitment practices Sunday, 28 January 2007 http://www.abc.net.au/news/items/200701/1834871.htm?nsw
That's a big 1 to zero against the government-police team.
This writer rang yesterday to encourage the ABC Law Report show on radio national to take an interest not only in police failing ethics classes in a diverse and demanding job, but also young lawyers: When this writer studied theory of law called Jurisprudence in 1989 at ANU and revelled in it, I was bemused at the widespread rebellion of ambitious law students against the subject, who hated being taught the purpose and social context of the law. "What's the point?" was the disturbing refrain. My guess it's not just police who have a problem with social awareness and moral concerns.
Seven more weeks of this. Like viewing the World Cup soccer these debates of law and order are going to be entertaining, ugly, painful, and frustrating, with only one guarantee - everyone will be exhausted at the end, win lose or draw.
Postscript #1
The Australian is running this feature story today by their highly intelligent resident ratbag Imre Salusinszky NSW correspondent
Fighting for justice The turbulent life of controversial NSW magistrate Pat O'Shane, voted a national treasure, is heading for a showdown.
Why ratbag? Well for instance he omits the element of racial provocation accepted on the evidence in the OShane decision to acquit one Mr Rose, and secondly that 3 senior judges in the NSW Judicial Commission comprehensively exonerated her in another complaint while Salusinszky merely notes "the case was dismissed". That's stingy sloppy reportage of unconscious or deliberate bias against OShane, and perhaps sour grapes for an exclusive story with the Sydney Morning Herald recently over his paper The Australian.
