Two of the undercurrents lurking in the Fingelton saga are the increasing politicisation of court appointments and the increasing willingness of judicial officers to go public.
We published a piece yesterday by Senator Joe Ludwig, who was is Federal ALP Justice Spokesman, suggesting alternative, transparent approaches to the essentially political ones we use now for appointing judges to the High Court. The same arguments apply to state courts.
There is no doubt that the process has become increasingly politicised. In early 1982 the Queensland Liberal Party seriously considered leaving the Coalition because of political interference in the appointment of a judge. Premier Joh found out that the preferred candidate – Mr Justice James Douglas – had voted Labor at one time. He allegedly got the information from Don (Shady) Lane, a Liberal Minister, who had somehow seen the ballot paper when the candidate had used a postal vote. He was vetoed.
When I was asked for my advice back then I said that the public didn’t care one way or the other and you couldn’t win an election on it. That would still be my advice today. That doesn’t mean that it didn’t, and doesn’t, matter.
When Matt Foley was state Attorney-General there was a slew of appointments made on what were widely regarded as political and gender grounds. Di Fingelton is one, but there were others. This has led to critism and defence of her from both sides based on political allegiances and friendships rather than the facts. The result of this comment and argument is the undermining of confidence in the judicial system.
It is also undoubtedly partly to blame for John Jerrard, an Appeals Court Judge, publicly attacking the Chief Justice of the Supreme Court, Paul de Jersey, his superior. Jerrard did this in an op-ed published in the Courier Mail where he confesses to being a friend of Fingelton. This conflict of interest should have been enough for a judge to abstain from the argument, not join it. And his op-ed has done nothing to further the prestige of the judicial process.
However Jerrard may not have joined the argument if de Jersey hadn’t been on the airwaves and in the papers defending his colleagues against criticism. This is in itself unusual judicial behaviour, possibly reflecting the increasing tendency for judges to accept a public profile (see the case of Justice Michael Kirby), or the fact that in the past the Attorney-General would have been defending the court himself. Again, this has the tendency to bring the judiciary into disrepute, no matter who accurate and well-intentioned the comments.
I don’t necessarily agree with Ludwig’s solutions, but there is need for a better system of selection than we have at the moment. Not only that, but there is a need, particularly at the lower court levels, for a system of reviewing the performance of judicial officers. On a day when Australians are protesting against changes to “unfair dismissal” laws there is one class of Australian employee that is virtually immune from dismissal of any sort, and that is judges.
There are good reasons why they should be virtually impossible to sack, but with the current haphazard system of appointment, and the proliferation of judicial officers, there are many who are making more serious errors of law, and with more far-reaching consequences, than the one that sent Di Fingelton to jail. How just is that?