Drawing the line on judicial expression of partisan views

Of all the right wing shock jocks, I find Andrew Bolt by far the best read. If you ignore the coat trailing and name calling – like calling ‘Liberty Victoria’ ‘far left’ (declaration of interest – I’m not sure if I’m a full paying member right now but I join it when asked) and look to the substance of his allegations, I agree sometimes strongly with this piece. I didn’t see the Q&A show having lost interest in it for its instinctive heading for the usual ideological left-right argy bargy, so perhaps there’s some context I’m missing, but what the hell is a judge doing saying things like this in a public forum:

On having an early election, which the Opposition wants . . .  “I don’t think we should be talking about elections again . . .”

On this Parliament. . .  “It’s far too partisan.”

On limiting welfare payments to people on $150,000, as outlined in the Gillard Government’s Budget [something with which I agree: NG]: “I find it difficult when we look at the disparity between rich and poor in this country to think that those in the top 20 per cent do need welfare subsidy.”

On the chaplains-in-schools program [with which I disagree: NG] . . . “We shouldn’t have chaplains of any denomination in state schools.”

 

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24 Responses to Drawing the line on judicial expression of partisan views

  1. Jacques Chester says:

    Judges should emulate Her Maj, I think. Everyone has suspicions about her leanings, but she is scrupulous in observing her public impartiality. The system doesn’t work if people think the officers are biased.

    We should at least hold judges to the same standards as AEC volunteers, I reckon.

  2. Nicholas Gruen says:

    It’s an interesting question. I tended to be irritated with Justice Kirby’s various bloviations, but at least when I read them I did appreciate that he had some quite well worked out philosophical understanding between what is acceptable for a judge to say and what it’s not. It’s obviously unacceptable for a judge to express themselves in a politically partisan way – which is a line Her Nibs was obviously crossing here.

  3. Ken Parish says:

    The Guide to Judicial Conduct is published by the Australian Institute of Judicial Administration (a body of which I’m sure Hampel J is a member). The rules regarding self-restraint include:

    5.6 Public comment by judges

    5.6.1 Participation in public debate

    Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.

    Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.

    Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute include the following:
    • A judge should avoid involvement in political controversy, unless the controversy, itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice;
    • The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause;
    • There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge;
    • Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court;
    • A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate;
    • A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge’s terms.

  4. Patrick says:

    I agree with NG, and Jacques, and Bolta, but I don’t have to apologise for doing so ;)

    I agree that they seem well to the pale of appropriate commentary, although maybe not more extreme than some other judges in relatively recent times (who was that Federal Court judge again?).

  5. Nicholas Gruen says:

    Patrick – do you think of Liberty Vic as ‘far left’?

  6. Patrick says:

    No, I wouldn’t characterise them as soft-left. I don’t agree with absolutely everything he (or anyone else for that matter) says, and I probably should have added a qualification to the effect that I agree with all of you on Justice Hampel’s seemingly gratitious commentary (and on Judges in general).

  7. Nicholas Gruen says:

    I think you mean that you wouldn’t characterise them as far left but you would characterise them as soft-left. If so we have another outbreak of agreement.

  8. Patrick says:

    Lol that’s a tired slip if ever there was one. We do have an outbreak of agreement but rather accidentally! In fact I thought about saying exactly what you did but then thought I’d omit the soft-left bit entirely just to maximise agreement.

    The execution clearly left something to be desired :(

  9. paul walter says:

    Well, I went to the link and started reading the article – the usual hot air, lies and slander, such as “left wing” used as an insult to induce a response parallel to the response from the public Heffernan got attacking Kirby J for his sexual preferences
    Do we really find people like Hampel, really are “bad” people”, particularly for no better reason then they are, in Bolt’s opinion (or prejudice, perish the thought!). Perhaps or not, but we must not embark on further investigation; Bolt says they are”
    left”, sounds like this a “bad” thing and even if its not true ( or a bad thing) at least we haven’t sacked inadvertantly, any rightist judges.
    We know, if Bolt says it, it can only be true, why bother looking for real flaws or more relevant and reality-based criteria for judging the performances of legal people, when we just have to read Bolt and his obsolete McCarthyite thought-relics from the nineteen fifties, rather than think the slightest bit further on this issue.
    Thank Christ we have people like Bolt, to do our thinking for us; also great to see he learnt his lesson from his last court case, about slagging off at others for no good reason.

  10. Pedro says:

    I suppose we should assume that Bolt would make the same comment if a judge had gone on the show and pushed right wing issues. Hampel had no business being there at all unless she had resigned.

    I agree with Paul Walter that “left wing” is a slanderous accusation ;-) but truth is a good defence in Victoria I believe. The snide comments about Hampel’s fashion sense are a bit rich though.

  11. Rafe says:

    On a side issue, I don’t like the term “right wing shock jocks” because I agree with most of their positions (not all!) and I don’t answer to the label “rightwing”.

    What is Liberty Victoria? I generally disagree with leftwing positions, apart from motherhood statements but there is common ground that needs to be explored in the interests of better policy. Like winding back middleclass welfare which is one area where the Swan budget is heading in the correct (right?) direction. Also getting people back into work.

  12. wilful says:

    I completely agree that felicity hempel should not be on a program liek Q and A, there’s no excuse for her exposing herself in this way.

    However, if you look at what she said, at least as reported by Blot, and assuming these were the worst things she said, I reckon this is a storm in an utter teacup.

    On having an early election, which the Opposition wants . . . ”I don’t think we should be talking about elections again . . .”

    This isn’t partisan, saying that governments shoudl run their full terms.

    On this Parliament. . . ”It’s far too partisan.”

    this is a call for better government, wahtever the hue, for better debate. Who really thinks this parliament isn’t too partisan? Again, this is not an ideological comment

    On limiting welfare payments to people on $150,000, as outlined in the Gillard Government’s Budget [something with which I agree: NG]: “I find it difficult when we look at the disparity between rich and poor in this country to think that those in the top 20 per cent do need welfare subsidy.”

    This is perhaps getting a bit social justicy, though every economist I’ve read in recent weeks agrees with this principle. She’s agreeing with the IPA!!! Again, hardly scandalous.

    On the chaplains-in-schools program . . . “We shouldn’t have chaplains of any denomination in state schools.”

    This is a legal opinion which she’s entitled to have.

  13. Jacques Chester says:

    This isn’t partisan, saying that governments shoudl run their full terms.

    It’s partisan if one side is using that as an argument.

    this is a call for better government, wahtever the hue, for better debate. Who really thinks this parliament isn’t too partisan? Again, this is not an ideological comment

    It’s still easily casted as a political comment. Usually the government of the day accuses the opposition of being too partisan.

    This is perhaps getting a bit social justicy, though every economist I’ve read in recent weeks agrees with this principle. She’s agreeing with the IPA!!! Again, hardly scandalous.

    I don’t care who agrees with it. It’s a policy setting and policy settings are generally attached to partisanship.

    This is a legal opinion which she’s entitled to have.

    Judges are expected to not give legal opinions outside of cases before their bench.

    Here’s the point: it doesn’t matter if this judge is a RWDB or a Balmain Basketweaver. For the system of justice to work judges must not only strive to be impartial, they must appear to be impartial. The place for policy disputes is Parliament, not the Court.

    To be a good judge you must neuter yourself politically. If you don’t, you will eventually be neutered legally.

  14. wilful says:

    Don’t get me wrong, I completely agree she shouldn’t be out there talking about public policy, ever. She’s incredibly wrong and ill-judged to do so.

    However, no one can tell me that they really think she’s some form of ideologue based on those reported comments. Those comments seem exceedingly moderate, there’s nothing there that reasonable people could describe as partisan (except maybe in the weird little bubble that is the News Ltd take on Australian politics at the moment). What Australian that isn’t invested in one particular party would think they were unreasonable?

  15. Nicholas Gruen says:

    Wilful, there’s a political party calling for an election. Surely you jest when you say that it’s not partisan for a judge to say ”I don’t think we should be talking about elections again . . .”

    As for her views about Parliament, the judiciary goes out of its way not to have views about the legislature other than constitutional and legal ones. In the jurisprudence of every legitimate legal system the legislature makes the law. Judges only interpret it! (Which by the way doesn’t mean that it’s literally true, as one usually can’t interpret ‘hard cases’ without in a sense making law, but any legal system that has pretensions to being a legal system – that is a system for the administration of the rule of law – has to be built around that principle.)

  16. wilful says:

    Yeah but the coalition aren’t actually serious about calling for an election… it’s all piss and wind and bluster, everybody knows that.

  17. Nicholas Gruen says:

    For the record – for when I come back to this – Matt Cowgil sent me this great link.

  18. Ken Parish says:

    “On the chaplains-in-schools program . . . “We shouldn’t have chaplains of any denomination in state schools.”

    This is a legal opinion which she’s entitled to have.”

    It isn’t a legal/constitutional question because the freedom of religion guarantee in the Australian constitution only applies to the Commonwealth and not to State schools per se.

    Nevertheless, and given that the chaplains in schools program was a Howard government-funded initative, it’s conceivable that it raises constitutional issues (although there probably isn’t a constitutional problem in light of the DOGS case). The point is that it remains controversial in a partisan sense and might even one day be the subject of a court challenge which might even come before Hampel J (although such a challenge would almost certainly be removed into the High Court). Nevertheless, that makes it even more reprehensible for Hampel J to have commented on that question. As the AIJA ethical guidelines state:

    There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge.

  19. Ken Parish says:

    Nicholas

    I suspect you might have intended to post that Cowgill link on one of the tertiary education posts rather than this one???

  20. Nicholas Gruen says:

    OOps – yes you’re right Ken.

  21. Pedro says:

    Is the Chaplains in school point a legal opinion in any jurisdiction?

    “116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

    Ummm, it’s optional, and my son used to go to the Library or something rather than listen to the blather.

  22. Patrick says:

    Actually Nick I don’t think that much of LV now that I have had a look at some of their papers.

    Their asylum seeker stuff seems to be the advocacy group equivalent of a tantrum at your best friend’s house – no harm really done, and boy (I’m sure that) felt good, but bugger-all good to anyone either. Deeply ironically in light of their position on anti-vilification laws, they could learn a thing or two from the religious groups!

    Their anti-vilification laws submission, now that we get to it, was almost embarrassing. Great, they don’t like religious organisations and they don’t think that they serve a point. They clearly also haven’t thought through how much more important religious groups are in helping the world’s marginalised than the latte left, for example.

    If they ask you again, Nick, you should probably tell them that you’d love to spend your money on local and substantive human rights/civil liberties advocacy, but that they don’t appear to be it, lately (the contrast with older pieces is stark).

  23. Nicholas Gruen says:

    Thanks Patrick – I agree.

    Lots of QCs defending their clients right to pay them 8K a day.

    I get invited to the odd function, and usually leave pretty unimpressed.

    Still one thing I did like was their championing of Major Mori. Love it when people take those national myths seriously and live them!

  24. Tel says:

    If anyone can show me a middle class family on $150k that gets back from government more than a small fraction of what they pay in tax, they have earned the right to use the term “middle class welfare”.

    What Wayne Swan is really talking about is just raising taxes on the middle class, that’s what it is in plain English. The middle class already pays the brunt of the tax burdon in Australia for the simple reason that the poor have nothing worth taking and the rich can vigerously defend themselves.

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