23 January 2019
One of the fundamental tenets of being a solicitor is that you do what is right, even if what is right is not popular. After all, anyone can do the right thing if it brings the applause of the crowd; when the right thing brings the slings and arrows of outrageous fortune-or indeed, unfortunate outrage-people are often content to do the wrong thing, or at least not to act at all.
Solicitors do not have that choice — it is the right thing come hell or high water. For judges, that burden is even more acute; their decisions must be made without fear or favour, even when that decision will draw the ire of politicians, public and press. What is more, judges have to sit sphynx-like through the storm, neither explaining why the decision was correct nor responding to attacks on their integrity.
Such was the case a fortnight ago when Justice Bowskill made a carefully considered, rational and entirely correct decision to allow serial rapist Robert John Fardon to re-enter the general community; you may have heard this news.
Of course you heard about it, because the decision drew the standard response from the usual suspects, and as expected much rancour was directed at the Judge, largely by people who had not read (and certainly not understood) the judgement. In the circumstances I was glad to be afforded a chance to address the media on this issue, and to make the defence of the decision that Justice Bowskill is prevented from making.
The key is the defence of the decision. I was neither defending Fardon nor excusing his reprehensible deeds — just noting that the decision that was made was in accordance with the law and entirely correct, and that we have to be guided by experts in cases like these.
Inevitably some people will not see it that way. My stance won’t put me on too many people’s Christmas card lists, but it was simply the right thing to do. I suspect all solicitors (whether or not they do criminal law) have been called on at parties and weddings to justify the more uncomfortable decisions of the criminal courts, usually without convincing the audience that the system works.
We still have to try though — educating the public on the system is the only way to get progress on this issue. We do need to explain ourselves and our system to ensure we have the confidence and support of the public, and I pause here to acknowledge the excellent work on this issue by journalist Marg Wenham, who actually read the decision and produced a fair-minded and accurate opinion on the Fardon matter. We could use a few more pieces like that one.
We need those pieces — the education — because we need the public to understand the crisis in the system and make it a vote-changing issue. Our judges, magistrates and tribunal members do a superlative job, but they are struggling under an intense workload, despite their great efforts to increase efficiency.
Those efforts have borne fruit, and I was pleased to read recent reports that the Federal Circuit Court had halved the average waiting times for Brisbane families and children by testing an Australian-first case management experiment. Three judges undertook intensive case management of all cases until they settled or went to trial. The profession can be proud of their efforts, but this is hardly the sort of thing that makes newspaper headlines; it is up to us to make sure the public knows about it.
This is an excellent outcome and we can be proud of the efforts of all involved (judges, court staff and lawyers) but it is hardly ‘job done’ and there is a limit to how much time can be saved via case management. There is no solution to this problem that does not involve more judges and court staff; without extra resources our courts will continue to struggle no matter how efficient they are in future.
That means that we need to speak up about these issues, to educate the public and our politicians alike, to ensure that our courts get the resourcing they need to continue to provide their vital services. It may not be popular, but it is right — and isn’t that what we signed up for?
Bill Potts, QLS President