Peter A Clarke

The Australian and the Age are running a story about Federal Magistrate who has stood aside for, on the face of it, a fairly damning case of plagiarism. They are virtually salivating over it. A sign of the times.

Judges meeting a sticky end happen occasionally but when compared to the number who serve for years and retire without incident is a  miniscule minority.  There will always be cases of personal foibles such New South Wales Supreme Court Judge Jeff Shaw’s collecting a car when tired as a newt, or failing to file a tax return and being prosecuted for it, as happened to Victorian County Court Judge Kent in 2001.  The consequences are almost always more severe than are visited on John Q Public.  Sometimes they are quite draconian outcomes.  They almost invariably walk the plank before being pushed by the Parliament.  There are those very rare cases of judicial officers living in the grey areas, as happened with Justice Yeldham and his high risk, as far as representing the human face of the judicial process, lifestyle and the the New South Wales Chief Stipendary Magistrate Murray Farquahar who ended up a convicted felon .  That is less understandable or forgivable.  Yeldham suicided when subpoenaed to appear at the Wood Royal Commission. Farquahar served time and then The Queensland judge Anthony Vasta was removed in 1989 in the wash up from the Fitzgeral Royal Commission in Queensland.  There was more than a touch of political payback there by the incoming Labor Government . 

Non performing judges and other judicial officers are exceptinally rare occurences. We are served well by our judges.  But given the place they occupy on the public landscape when they fall over, when they fall over the sound reverberates.  The front pages of the newspapers go into overdrive and put judges front and centre in the political debate.  Often it is overkill but sometimes it highlights some of the problems practitioners feel.  Delay is front and centre for litigants and lawyers.  One of the worst example for me, as a practitioner, was that of Vince Bruce, a New South Wales Supreme Court judge, took 2 years to write a judgement in the Copper IUD class action.  That delay was apparently symptomatic of the manner in which he handled cases.  He cited illness and had an utterly cringe-worthy interview on 60 minutes to save his job.  There are plenty enough delays in litigation, with its associated costs, to give plenty of grist for the Australian’s mill (read complete ideological obsession) about the process without this sort of nonsense. Delays are the curse of our system and there is plenty of room for improvement. 

Today’s report in the Age Federal Magistrate Rimmer standing down because of serious delay and, a new one for me, plagiarism is serious.  Unfortunately there is no guarantee when appointing a person to judicial office to know how the appointment will turn out.  Almost invariably judges live up to expectations, often exceeding them.  Making sense of what Parliaments claim to be legislation sometimes takes the wisdom of the ages.  Conservative commentators like Janet Albrechtson whinge about judicial activism but there is no alternative. 

The bigger problem, from my end of the bar table, is when judges become bored, tired or just plain grumpy.  That can lead to a slippage in quality.  It also gives plenty of work for Court of Appeal.   The Victorian Court of Appeal’s decision this month in VCP Investments Pty Ltd & Ors v J McCubbin & Sons Pty Ltd & Ors highlights the frustration of dealing with sub standard decision making.  It is not often you get Appeals judges letting loose as they did here.  It didn’t involve swearing but it wasn’t far off it, in legal speak at least.  Sounds like they had good cause to be annoyed.  Not the County Court’s finest hour.

So what to do.  The Law Report did one of its usual talkfest in 2001 in the wake of Judge Kent’s resignation with the usual suspects including that media commentator/tart George Williams (who occasionally makes sense – when he moves away from base polemics masquerading as legal analysis) waxing lyrical about judicial commissions and Victorian Attorney General Hulls talking about establishing a transparent process of investigating complaints.  Nothing much happened.  Justice Kirby waxed lyrical about it in his lecture about the issues, the balancing act and the options in his paper titled  Judicial accountability.  Removing a judge is about as hard as it gets.  And so it should.  It traditionally involved bringing him or her to the bar of the Parliament. Now judicial commissions are all the rage.  It should always be very difficult to remove a judge.  Given the legislatures desire to ride rough shod over civil liberties thathave developed over hundreds of years having a fearless and independent judiciary is vital.  Just look at the wimpishness of the Commonwealth AAT in authorising wiretaps by the bushel load to see the difference in attitude between independent judicial officers and those holding fixed term appointments. 

Then again there should be some form of resolving a problem beyond two options, quarantining the judge and hoping a retirement is in the offing or removing him or her. Its hardly ever an issue of honesty or criminality.  The real problem is how the courts handle judges who are dissatisfied, bored or not managing the huge workload.  In the public service, where sacking is still next to impossible, people who don’t perform are given “special projects”.  The worker is given next to nothing to do and hopefully he or she will get frustrated and walk.  It almost always works.  People generally want to do something useful.  Boredom is a killer.  Tight budgets and full lists make that option less appealing for Chief Judges and Justices when dealing with their bretheren.  Why not give an unhappy judge an out, either a long sabbatical or some means of returning to another life, even if temporarily, if they so chose. Recharging the batteries and a bit of think time can only help.  There is some limited study leave and sabbaticals but hardly deals with the issue.

Given the ridiculous obsession of the Australian in hunting down any foible in the legal system it would be good if a range of options were available.

A matter of watch this space methinks.

Petro Georgiou has had a remarkably undistinguished Parliamentary career, even by the slothful standards of backbenchers in a dominant goverment.  Georgiou’s achievements are not nearly as great as has been heralded.  The treatment of asylum seekers was becoming a hot button issue and the “doctors’s wives” were donning war paint well before Petro the pouter became a darling of the black clad ABC commentariat.  His hellenic cousin, Sophie Panopoulos has been spruiking up hill and down dale in conservative quarters, sometimes saying sensible things in committee and setting herself up for a junior ministerial gig in a last term Liberal Government.

The tilt by Frydenburg gives an insight into how the Liberal “factions” do their thing.  None of this organised branch stacking.  That’s a NSW thing for the Liberals.  In Victoria it is a fight around personalities.  This fight is a proxy fight between patricians.  Its fair enough to see malcontent Fraser backing his old staffer; he needs to address his relevance depravation syndrome as he ponders the point of it all in 101 Collins Street.

Frydenburg looks good on paper (though spies from his campus days say he was “all hat no cattle” to use the Texan terminology) and Georgiou is shite in reality.  But in the battle between the blue bloods Frydenburg is history.  It will be fascinating to watch the line up of patricians tooing a froing.  Another 3 years of medicore representation.

Michael Bachelard is a nice enough scribe.  I knew him when we both worked in Canberra in the mid nineties, him as the ACT Politics main man for the Canberra Times and me as the long (or it felt like that) suffering Chief of Staff for the Deputy Chief Minister.   For his sins he covered ACT local government politics. He specialised in “analysis” pieces on who was who in the ACT zoo.  He tried earnestly to make  that sandpit sound interesting and relevant.  He sometimes succeeded in that difficult task.  At the time ACT politics had moved out of its feral beginnings and was just mildly  eccentric. Michael, like most journos in Canberra, was in thrall with the new broom approach of opposition leader and later Chief Minister Kate Carnell. Like Keating before her in the federal sphere she was the toast of the press until she finally crashed and burned over the financing of Bruce Stadium.  For a long time her charisma and networking had the local press lauding her,  hinting at her ability to turn water into wine and, most importantly, ignoring her often glaring weaknesses.  She deserved to crash well before then but that is another story for another time. 

Back to Michael.  Like his earlier coverage of Kate I believe he has acquired a major case of Stockholm syndrome with Bill Shorten.  The coverage in the most recent Weekend Australian under the heading Right on target to boot out Labor veterans is at best a nauseating pap piece. At worst, and more accurately, it is a partisan piece which is an inappropriate use of the press to advance one person over another in a factional brawl.  Bachelard has left the stands and is down on the field as a runner. 

After quotes like “Shorten, 38, is a star. Even his sworn enemies concede the Australian Workers Union secretary has talent and will make a contribution in Canberra.” its time Bachelard told News Limited to keep that weeks salary and submit a invoice to Bill. 

How is Bill a star?  Crunching numbers is hardly a star quality.  What has he actually done?  Who are these sworn enemies and what did they actually say.  Lots of assertions and not many facts.  It is lazy sloppy journalism and typical of the hagiography that Bachelard engages in when he goes starry eyed over a political operator.  No doubt Bill can be charming.  But when Bachelard went from short pants at the Canberra Times to wearing big peoples clothes at the Australian one would have thought he would have sort of looked beyond the cliches and political hackery which are Bills strong suits. 

It is worth reading (or listening to) the most recent Background Briefing and get an idea of some of the real problems with the ALP, one of which is loading up the front bench with union hacks and political operators.  Not that it is a new problem.  Kim Beazley Snr once famously declared:

When I joined the Labor Party as a boy, the branches were filled with the cream of the working class.  When I leave it, it has been replaced by the dregs of the middle class.

(The Dictionary of Australian Quotations, Mandarin, 1992).

It is even truer now.  And Bill ain’t in the cream category, unless it is linked to the word “puff.”

This day in 1945 773 British Avro Lancaster bombers dropped 2,500 tons of bombs onto Dresden’s city centre.  It left 135,000 dead and the capital of Saxony, nicknamed the Florence on the Elbe, a smoking ruin.  In a war full of excesses in the name of strategic or tactical advantage, the shelling of Monte Casino, the bombing of Cleves to mention but a few, the bombing of Dresden stands out. The critisism of Harris was so strong that he moved to South Africa after the war.

I think Harris got a bad wrap.  World War II, like World War I and the wars of the preceding half centures were total wars between the people.  It wasn’t a war involving small armies marching till they met each other, engaged in a day or two long battle and then maneuvered again until one side sought an armistace.  Sherman’s march to the sea during the US Civil War was aimted at breaking the South’s economy and will to fight . As his army marched through Georgia he burnt plantations and did whatever he could to “make Georgia howl.” It worked.  In the later stages of 1864 and 1865 desertions in the Confederate armies were endemic as soldiers rushed back to their homes.  What Harris did was a logical next step from what had been done before and he did it with the knowledge and blessing of his political masters. 

International jurisprudence has sought to make total war a thing of the past.  There has been enough lip service but no real test.  We haven’t had a war involving major powers on either side and big enough stakes to see whether they will exercise restraint when the chips are down.  Wars are about winning and to win you need to fight and to fight you need to kill.  If attacking your opponents cities and cowing their populace is what is required then that will probably happen. 

Interestingly city bombing didn’t work on morale in World War II as expected.  If anything it strengthened resolve until the overall war situation got really bad and then it pushed morale into free fall.  What it did do well was  dislocating industry and soak up huge resources in anti aircraft defences. 

Lleyton Hewitt’s claim of invasion of privacy is no more.  Down at the Downing Centre local court Hewitt settled and the invasion of privacy case is no more.

That doesn’t mean there is no good reason for a test case.  It is just a matter of time.

That Australia does not have a right to privacy is an inexplicable gap in our law.  Who would have thought Lleyton Hewitt would want to remedy this situation.  The Sydney Morning Herald reports a fascinating test case in the Dowing Centre Local Court.  Even if he wins in a claim for invasion of privacy it sets no precedent if that is where matters end.  But if it goes on appeal and works its way to the Supreme Court then we might be seeing new law.  That is a long way off and there has been way too many false dawns in this area of law. 

And about time this issue was properly tested. The High Court skirted the issue in ABC v Lenah Meats but decided that wasn’t the case.  Its time for a common law right to privacy.  The legislature has been hopeless in protecting what most of the rest of the world regards as a fairly basic right.  At the moment any claim of invasion of privacy is prosecuted as a mixed trespass and nuisance claim. 

 C’mon!

All of the adulation in the press about Wee willy Shorten taking on a seat and ultimately leadership of the Parliamentary wing of the ALP is nauseating.  The guy is connected and gets plenty of coverage but what has he actually done?  What does he believe in?  The  Daily Flute had an opening salvo against him last Friday.  And fair enough. 

I had dealings with Shorten at Monash and found him to be a less than impressive machine operator straight out of central casting.  Said all the things right wing wannabees said and pulled all the undergrad tricks in the eternal but ultimately unproductive factional fights Uni labor politics is famous for.  But the thing is that Bill, of Xavier heritage and blue blood tradition, believed in a lot of not very much but power.  His soundings in the press has been a lift from US management books.  At least his MBA has been put to goodish use.  He markets himself as a Tony Blair/Bill Clinton for Australia, the new brand of social democrat who will outmaneuvre the conservatives by being friends of the middle class while keeping a foot in the working class camp. 

An empty suit who knows how to hustle the contacts. 

It was always a treat to catch the Munsters.  As I was growing up it was classic Saturday morning fare.  It was just great slapstick non message comedy.  Not as good as the Three stooges but great fun. 

So it is sad to read that Grandpa Munster has died at age 82. 

Vale Al Lewis.  From a better era in television. 

Nothing like 3 hours in a plane from Zagreb to Paris, 8 hours in Paris, another 12 hours from Paris to Singapore and another 6 hours from Singapore to home to make yesterday a total blur.  I sorta remember getting home and then it was time for a fall down, get up, fall down, have a shower, fall down and get up in the wee hours today.

So back in the saddle in chambers and ready to contribute to the legal world of Melbourne.

Cheers all and keep watching the blog.

Yet again the god of travel acts as he promised.  The flight left right on time, which I guess isnt that big a deal for Praguers.  Being sandwiched between Germany and Austria has given it some germanic qualities.  Pulled in at 8.20pm and here I am a little before 10pm tapping away in an internet cafe across from Bonbons.

Despite my demands Zagreb hasnt mended its evil ways.  It is still a flea bitten, plague blighted heap of unreconstructed neo realist rubble of uncertain provenance.  To combat the evilness that lies within I came well prepared; sacred Armani aftershave courtesy of those humanitarians at Duty Free and in the absence of incense I have settled on a packet of Vuegeros Cuban cigars, again with the comfort and support of the Duty Free.  I have been chanting Druidish incantations (or maybe it is just my drunken ramblings to the voices).  Anyway so far so good.  But Bonbon is full to the gills and I know of no other place for asylum.  There is an upside.  In my directionless wanderings I have beheld, and approved of, the Croatian womens penchant for wearing skin tight jeans and knee length boots.  They are seriously cute into the bargain.  Like Poles with a bit of an edge.  Sweeeeet.

Anyhow the hunt continues for a sanctuary. 

Flying out tomorrow on a little after midday.  Hope the cigars last till then.  Will keep puffing till then.