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31 December, 2004  
Newspaper frenzy over judges' holidays turns to poo

The Australian turned the Jeff Shaw story into a campaign. Unfortunately, as in the “pampered” judges beat-up, there were a few less than desirable journalistic moments.

The Australian, the Dirty Digger’s Thunderer Down Underer, is incandescent with rage over its discovery that some supreme courts close down for six weeks or more over Christmas and New Year. Worse still judges on a variety of courts can take annual holidays of up to 10 weeks and even 12 weeks for the chaps on the High Court.

This was unproductive and inefficient as resources are left idle for too long, said the newspaper. Importantly, it was another instance of the venal “guild traditions” of the judiciary and the bar.

Last Friday’s (December 3) editorial summed it up this way: “In line with its guild traditions, both the judiciary and the bar have not been noted for disciplining poor performance or for pursuing efficiency with the same vigour that applies to most of the rest of the workforce.”

This was backed-up up by an op-ed piece which sang from the same sheet: “Australia’s judges are a pampered lot. To be sure, their work is lonely and the job is stressful. But does this justify some of the most generous holiday entitlements in the nation?”

Welcome back to the old team of Michael Stutchbury and Greg Barns. Many will remember them as a double act at the Financial Review years ago. Stutchbury applied his economics expertise to pinging the then prevailing anti-competitive rorts of the Bar & Grill and Barns, kicking around on the edges of politics and the law, did a column which bashed-up on the same juicy issues.

And pioneering stuff it was too.

imageThese days Stutchbury (seen here), older and fatter, is editor of Murdoch’s national broadsheet and Barns, still in the wilderness, is readily available to columnise. At the top of the paper’s food chain is editor-in-chief Chris Mitchell, who has brought some crude “campaign” techniques from his old lair, Brisbane’s Courier-Mail.

The Curious-Snail used to trot out regular beat-ups on judges for the amusement of sun-stroked banana-benders.

Stutch retains his red-hot detestation of what he sees as a legal protection racket run by the bar and judges. This may explain why The Australian parachuted a journalist and photographer into the ABA’s sun drenched fiesta in Florence during the July break.

Photos of The Tub looking at handbags in a Tuscan market and Michael McHuge and others chatting with wine goblets in hand helped the paper push the question how come taxpayers are subsidising all this offshore fun?

You can be sure some snapper also will be in the bushes at the judges’ January tropical retreat in Darwin.

Then there was the aggressive pursuit of Jeff Shaw (of which more next week) and now the lavishness of judicial holidays and it must be said that many of the courts’ public information officers are feeling a bit stitched-up by what happened over the past week. They thought they had assurances from the reporting team about a balanced approach to the stories. Instead they got a bucket job.

On day one of the campaign the paper put the mug of criminal lawyer Andrew O’Brien, from Ryan & Bosscher, on the front page. He was quoted as saying that the six-week summer recess in NSW meant two of his clients, a couple with a young child, would spend Christmas in prison. The mother, who is a first offender, might be able to appeal for a non-custodial sentence but a hearing date was not available until mid-February.

However, transcript of proceedings on November 8 before Registrar Riznyczok in the Court of Criminal Appeal dealing with that couple’s application reads as follows:

O’BRIEN: It’s O’Brien for the record. It’s my understanding this matter is ready to take a date.

KELLY (for the Crown): The only difficulty is that although grounds of appeal have been received, the Crown hasnt received a copy of the submissions.

O’BRIEN: I can undertake to get a copy to the Crown.

REGISTRAR: All right. So appellant re-serve written submissions within seven days, which is 15 November. It will be about an hour?

KELLY: There’s actually two applicants, Registrar. JP and TS.

O’BRIEN: Two hours I think would pull it up, Registrar.

REGISTRAR: How about 18 February?

O’BRIEN: I’ve got dates in December if theres anything available.

REGISTRAR: What is the Crown’s attitude?

KELLY: I havent even seen the submissions yet so I don’t I’m sorry, but I haven’t seen the submissions and I don’t have any transcript or anything at this point. I’d prefer the February date.

REGISTRAR: Any reason for urgency this year?

O’BRIEN: No, there’s nothing that I can raise, Registrar. What was that date you mentioned?

REGISTRAR: I was suggesting the 18th.

O’BRIEN: That’s a suitable date.

REGISTRAR: For both matters?


None of which quite fits with the angle The Australian was pushing.

After all the indignation from the paper nothing much seems to have happened. The Chief Minister of the dinkyville ACT government was quoted as saying he would “review” the 10 weeks annual leave given to the judges in his principality. Whether the executive can direct the judges how to work would be a matter of vibrant contention.

imageA few worthies weighed in. Ian (“Hormones”) Harrison (pictured here), who is president of more Bar & Grills than you can poke a stick at wrote to Stutchbury:

“Let us get a few things straight.

First, judges are employed to work five days a week. It is impossible for them to do their work within that time. As a result, almost all judges work no less than six days a week

Secondly, there is no such thing as an eight-hour day for a judge

Thirdly, the workload is daunting. Judges write long and complicated judgments All judges use the greater part of the court vacation for this purpose”

P. Selth, the executive director of the Sydney Lounge, also wrote to the paper, but his letter was spiked:

” is Greg [Barns] aware that under the Journalists (News Limited Metropolitan Daily Newspapers) Award 2002, The Australian’s most capable scribes are entitled to ‘six weeks and three days annual leave on full pay, irrespective of sick leave’ (section 21.1)? Now that News Ltd is domiciled in the United States, where two weeks annual leave is the norm, will hard-nosed American investors question the unjustified pampering of the company’s journalists?”

State Attorney General Bob Debus picked up the same theme and the newspaper again editorialised, saying that because the reptiles of the press have to work on public holidays they deserve six weeks off.

Things did not improve. There was an attempt to connect the length of judicial holidays with the rate at which cases are disposed of. The paper pointed to a report from the Productivity Commission, now almost a year old, which said the NSW Supreme Court had finalised only 59.6 percent of non-appeal criminal cases within a 12 months time frame. Of all the states this was the lowest rate of finalisation.

Western Australia apparently was the most successful with 95.7 percent on non-appeal criminal cases completed within 12 months, then Victoria with 90.5 percent, Tasmania with 86.9 percent, Queensland with 85 percent, South Australia with 77.2 percent, followed by NT and the ACT.

One of the paper’s faithful scribblers Ean Higgins declared that this showed the courts with the longest summer holidays have “the biggest criminal case stockpile”.

After all Western Australia’s judges only had two weeks off at Christmas-New Year and it was top of the pops with a 95.7 percent criminal finalisation rate within 12 months.

However, all this information was from a “matters finalised” table in Higgins’ story which carried a headline “Clearance rates”. The Productivity Commission tells me that there is some sort of confusion on the newspaper’s part as clearance rates and matters finalised are two quite separate things.

Finalisations represent the completion of matters in the court system whereas clearance measures the volume of completed cases to the volume of new cases it is a measure of productivity.

There were other curiosities that confounded Higgins’ thesis. If one were to take his criminal finalisations table at face value in the six to 12 months time frame the WA Supreme Court was the least efficient in the country, clearing only 13 percent of cases and NSW was the most efficient finalising 41.2 percent of criminal cases.

And why are judges in Victoria so successful in clearing criminal cases within 12 months when they can take much the same summer hols as their NSW counterparts?

None of it makes sense and, put simply, there are other factors at play – factors beyond the newspaper’s realm of examination. Instead, it lurched off into Tasmania, discovering the Apple Isle had the worst finalisation rate for civil cases while judges took seven weeks off at summer.

Unfortunately, the paper didn’t proceed to point out that WA with its two weeks leave at Christmas for judges had the second worst clearance rate for civil cases in the 12 months category, while NSW was looking pretty good at 77.6 percent.

What the newspaper failed to point out was the caveat the Productivity Commission put on these figures: “Care needs to be taken when comparing timeliness data across jurisdictions because both the complexity and distribution of cases may vary.”

Chief Justice Spigelman in NSW was onto that point in a flash. He put out a statement saying that “no care was taken in The Australian’s article.”

He said the important measure was not the finalisation of criminal cases per se but the finalisation of criminal matters “by trial”, and on this latter basis NSW was performing well.

The difference between the two measurements is a reflection of guilty pleas. Because the Supreme Court of NSW handles a higher proportion of serious crime, such as murder, than other Supreme Courts there tends to be far fewer pleas of guilty, particularly as the average murderer these days has to be taken down for 25 years.

As Spigs put it:

“The Australian’s repetition of the false assertion that this court is ‘the most inefficient in the country’ continues to be based on a biased and distorted use of the statistics.”

It seems as though what the newspaper was trying to cram down everyone’s throat was a pile of poo.