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Tulkinghorn
26 February, 2010  
Judicial "independence"

A lot of fruity-sounding rhetoric accompanies “judicial independence” ... It’s really a trade union thing … French CJ, Bindi Irwin and The Mensch are among the most trusted Australians


imageJudicial independence means that no one can tell judges what to do.

It is counterbalanced (inadequately) by judicial accountability.

Judicial independence/judicial accountability is best understood as a judges’ trade union thing.

Not that Lord McCluskey, a Scottish judge and former Solicitor General, would agree.

In October 2006 he said:

“Judicial independence is not the slogan of a judges’ trades union; it is one of the central pillars of democracy.”

But then again, he is on record as having a tendency to switch his brain off while his lips are moving.

Early in his career, as a bowler-hatted QC, he represented Sir Paul McCartney in connection with drugs charges, asking the court if the multi-millionaire could have “time to pay” a £30 fine.

imageTo be fair to McCluskey (pic), perhaps he had vacuumed up all McCartney’s sources of ready cash, and wasn’t prepared to lend him any back.

On December 7 last the Senate Legal and Constitutional Affairs References Committee tabled a report on Australia’s Judicial System and the Role of Judges.

Its very first recommendation was …

“The High Court of Australia adopt a written complaint handling policy and make it publicly available, including on its website, within one month of the tabling of this report.”

No sign of it yet. That’s judicial independence in action, so to speak.

High pay is fundamental to judicial independence.

This is why …

“there is probably no topic of greater importance and interest to judges in the United States than judicial independence. The Chief Justice of the United States Supreme Court annually speaks to the connection between the conditions of judges’ employment, specifically their pay, and judicial independence.”

(From Only Connect: Toward a Unified Measurement Project.)

When ordinary unions maximise worker pay and pensions, and minimise worker work, preferably ensuring that workers can’t be fired for incompetence or lack of productivity, that is to benefit their members.

imageWhen judges’ unions do it, it is driven by a desire to benefit the citizenry.

As Chief Justice Gleeson (pic) said in 2008:

“Independence is not a perquisite of judicial office; the independence of judicial officers is a right of the citizens over whom they exercise jurisdiction.”

One argument never used in judicial pay speeches is that high salaries might actually undermine independence.

Twelve years ago an Australian authority, Stuart Littlemore, said:

“I think it’s paying judges eight hundred thousand dollars a year – or the chief judge, 1.2 million … lawyers will say to you … that when the government pays these enormous salaries … that that [sic] guarantees the independence of the judiciary. I think [ordinary people] would say no, it puts the judiciary in the pocket of the government.”

The former solicitor general of Singapore, Francis Seow, has said:

“Given their princely pay, perks and privileges of office, no Singaporean judge would be mad enough to rule against Lee and his political confrères.”

One might also think that judicial promotion opportunities should be abolished, because the prospects of increased pay threaten judicial independence by creating a temptation to curry favour with the executive government.

However, judges are routinely promoted from one court to another.

Australian Chief Justice Gerard Brennan said in 1996:

“There is nothing dishonourable about hoping for promotion when an appropriate vacancy occurs; but it is dishonourable actively to seek a promotion”.

imageJudicial independence, however, entitles judges to act independently of each other. Some of High Court Justice Dyson Heydon’s (snap) publicly expressed views …

“were described by contemporaneous commentators as a “job application” for appointment to the High Court by the conservative government of Prime Minister John Howard.

See Wikipedia

Judicial independence means that minor incompetence etc. is ignored.

Richard Posner, Chief Judge of the Seventh Circuit, has put it this way in Overcoming Law (Harvard University Press, 1995):

“A federal judge can be lazy, lack judicial temperament, mistreat [his] staff, berate without reason the lawyers who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility, be continually reversed for elementary legal mistakes, hold under advisement for years cases that could be decided perfectly well in days or weeks, leak confidential information to the press, pursue a nakedly political agenda, and misbehave in other ways that might get even a tenured civil servant or university professor fired; [yet he] will retain his office.”

imageIn NSW the judicial trade union president is James Jacob Spigelman AC (pic), Chief Justice of the Supreme Court of New South Wales.

On February 1, at the law term dinner, he mentioned “consultations … with respect to the possibility of a national scheme for judicial complaints”, and said:

“If one wishes to promote a national judiciary this is the last thing one would turn one’s mind to. It is not clear to me why it has become the first.”

Chief Justice Spigelman should thank his lucky stars that the Swedish and Finnish approach to judicial complaints is not being mooted for Australia.

The Swedes, who invented the Ombudsman concept, treat their judges as ordinary civil servants (which is essentially what they are).

As such, they are accountable to an ordinary Swedish ombudsman.

imageA 1980 publication, Judicial Accountability: Scandinavia, California & the USA (available here for a modest charge) quotes Ombudsman expert Walter Gellhorn (pic):

The [Swedish] Ombudsman’s power over the courts is especially interesting to Americans, who think of judicial independence as the very foundation of the rule of law and who tend to equate judges’ ‘independence’ with their being unsupervised except by other judges.

The Ombudsman acknowledges that foreigners often wonder whether his work undermines the independence judges should have. But he has no fears on that score.

‘I myself come from the ranks of judges,’ he has written, ‘and can assure that I have never heard a Swedish judge complain that his independence and unattached position is endangered by the fact that the [Ombudsman] may examine his activity in office’.”

NSW Appeal Court Justice Gordon Samuels has said Australian judges …

“are not accustomed to the notion of an Ombudsman or any other person from outside our court sitting in judgement upon us and making findings and recommendations about judicial conduct.”

Perhaps the judiciary should become accustomed to it.

It’s doubtful that the Swedish judiciary is held in as low a regard as the Australian one.

imageOfficial corruption in Sweden is perceived to be lower than in Australia.

They must be getting some things right.

The 2009 Reader’s Digest survey of Australia’s 100 most trusted people listed only two judges: High Court Chief Justice Robert French came in at 61 (a little bit behind Bindi Irwin at 58) while the other, at 97, was (former federal judge) Marcus Einfeld.

He is currently in jail.