21 August 2019
"Quis custodiet ipsos custodes?" (Who will guard the guards themselves?)
-Decimus Iunius Iuvenalis (Juvenal)
In February of last year, Dyson Heydon AC QC, a former Justice of the High Court of Australia, published a paper examining the issues of contempt which arose following criticism of the courts by several government ministers. The resultant furore almost brought the government down, and we can assume that politicians will forever more be aware of the sub judice rule and keep it in mind before holding forth on the subject of the judiciary.
The former High Court Justice did note that judges may at times deserve criticism, writing as follows:
"There are many admirable Australian judges, with respect. But Australian courts have several faults. Some judges lack the capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow, through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor."1
More recently, his Honour Judge Robin Tolson QC published a working draft for wellbeing in the Central Family Court in England. The working draft suggested ignoring emails after 6 PM and taking a proper lunch break. All wonderful sentiments, all very likely to be impossible to be applied in practice.
Two unrelated publications, it might seem, but the issues they raise are well and truly live in Queensland and have the same solution: a judicial commission.
The issues of judicial criticism that prompted the first article touch on a problem in our state. Without a judicial commission to address any allegations of poor performance or inappropriate behaviour in the judicial ranks means that the concerns which prompted the federal ministers’ ill-advised comments are probably shared by some of the Queensland public. If it is open to our judges to be a law unto themselves, some people will no doubt conclude that they are.
Similarly, the wellbeing initiatives proposed by his honour Judge Tolson QC would be equally as welcome here in Queensland—and equally as impossible in practice. Sane working hours and work-life balance will always be difficult to sustain when the ranks of our judiciary are too thin; we need more judges. A judicial commission would speed the process of appointing judges, as a pool of meritorious and acceptable appointees would be maintained, rather than over and again calling for expressions of interest and seeking feedback on those who respond.
By bringing transparency and performance management into the judicial process, the public’s confidence in the system would be bolstered; surely nobody would suggest that is a bad thing?
On to happier thoughts, I will be once again soaking up the legendry hospitality of our regions at the end of this week by heading up to the Kingaroy Intensive for what looks like a great programme, covering everything from ethics to cyber-security, succession to family law. These trips are great therapy for me, getting to partake of the wonderful collegiality in the region and to mix and mingle with members at the end of the day, including presenting members with pins for membership milestones. Looking forward to it and I hope to see all our local practitioners at the Motel Oasis on Friday!
Bill Potts, QLS President
1. JD Heydon | February 2018 DOES POLITICAL CRITICISM OF JUDGES DAMAGE JUDICIAL INDEPENDENCE?
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