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Evan Whitton
9 August, 2005  
Judicial ethics. Please explain

The risks of turning tommy gunners into judges without first re-wiring their brains. There should at least be an oversight body that sends out a polite “please explain” to intellectually dishonest judges

To connoisseurs of the bizarre, law invented by dubious English lawyers and judges is an endless feast, and one of its more exotic dishes is its incoherence on judicial ethics.

Some “vexed issues” were noted by the Hon Marilyn Rabbit CJ (Vic) in an address, Judicial Ethics in the 21st Century in February 2005. She began by saying:

“Ethics can be defined as a system or theory of moral values … any discussion of judicial ethics must involve a broader consideration of the nexus between law and morality. Otherwise we will find ourselves purely discussing judicial ethics in the context of the individual conduct of judges … In my view, law and morality must be inevitably connected.”

That is nice, but she may have been asserting what should be, rather than what is. The Hon Russell Fox says a legal system gets its morality from searching for the truth, and English law has never stooped to that.

Which leaves individual judicial conduct. But judges are not trained as such; they are trained only as lawyers, and law professor Murray Schwartz said: “When acting as an advocate for a client, a lawyer … is neither legally, professionally, nor morally accountable for the means used or the ends achieved …”

“That sounds like psychopathy,” said Dr Elizabeth O’Brien, a noted Sydney psychiatrist, and Monash law professor Adrian Evans said on July 13, 2005: “A lawyer without ethics is like a psychopath with a machine gun.”

Are there risks in turning tommy gunners into judges without first re-wiring their brains? They could say they don’t have clients now, but the received wisdom is that Barwick CJ, for one, never gave up the intellectual gratification of casuistry. Who gained when he blew away the tax chaps in the 70s? The tax accountants who had employed him? His chums at the tax bar? The better people?

imageRabbit CJ (pictured) asked: if standards for judicial conduct do exist, who is to enforce them? And if breached, “what range of penalties is to be applied?” But, she said, “unlike other professions, there is no provision for fines. Removal … appears to be the one and only enforcement option”.

England’s Act of Settlement (1701) said judges have tenure, “as long as they behave themselves well”. The Australian Constitution says they can be removed only by a vote of both houses of parliament, and only for “proved misbehaviour or incapacity”.

But what is misbehaviour? If intellectual dishonesty is included, there should hardly be a US judge left sitting. Harvard law professor and criminal lawyer Alan Dershowitz said in The Best Defense (Vintage, 1982): ” ... lying, distortion, and other forms of intellectual dishonesty are endemic among judges.”

Judge Ian Dodd, 56, of the NSW Dizzo has been persuaded to remove himself because he had the odd kip in court, as who doesn’t? In effect, that is a fine of some $1.4 million.

Justice Lionel Murphy, had he lived, would rightly have been removed for various misdemeanours, but he could not begin to compete with Barwick’s intellectual dishonesty on tax, e.g. a profit is a loss, which resulted in an $800 million fraud on the revenue. Barwick was not removed.

Judicial conduct has been virtually beyond query for three centuries. To reinforce confidence in the system, there should at least be an oversight body with the power to send out polite please explains in cases which baffle the unlearned and even some lawyers.

The obvious chairman of such a body is former Queensland appellate judge Jim Thomas. His Judicial Ethics in Australia (Law Book Company, second edition, 1997) was a snip at $127, but is, unfortunately for the judiciary, out of print.

In a way, Jim is already on the job. In his farewell speech in 2002 he gave judges a bollocking for doing the Santa Claus bit in negligence cases, and in The Curious Mail of June 25, 2005 he gave Gleeson, McHugh, Gummow, Kirby, Hayne, and Heydon “a bad mark” for having “moved the goalposts” in Princess Di v the Queen.

The baffled would also be grateful to have this explained: if painters and dockers were naughty to send documents to the bottom of the harbour, why is it OK for tobacco companies to do the same?

Just asking.