“You wouldn’t believe some of the things judges used to do,” says Geoffrey Watson SC. “If I told you, you would say: ‘no, you’re lying!’. It was just appalling.”
The eminent silk — formerly counsel assisting the New South Wales Independent Commission Against Corruption (ICAC), these days a director of the Centre for Public Integrity – was reflecting on the little dependence that could be placed on meeting civility in NSW state courts, especially the District Court, during the stormy days of the 1980s.
One judge, he said, was a “notorious drunk”, others simply thundered abuse at the parties or insulted counsel on a regular basis. Time seemed to stretch, he recalled, the occasion another climbed up onto the bench and, pointing his finger at Watson’s opponent, roared: “Shut up, you!”
Legal practice back then, in other words, was hardly for the faint-hearted.
“But,” says Watson, “a degree of [poor conduct] remains.” The difference nowadays is that the very worst examples in most states and territories typically manifest not in the state courts but the federal courts.
In this connection, few would or could overlook “Queen of Hearts” Salvatore Vasta, whose penchant for jailing or threatening to jail litigants in routine civil matters has ventured from the bizarre to the downright embarrassing, prompting some commentators to ponder whether Vasta might rightly be described as Australia’s “worst judge”.
In 2018, the then Federal Circuit Court judge courted controversy for threatening a same-sex couple with five years’ imprisonment if they refused to have their child baptised. In another instance — described on appeal as an “affront to justice” — Vasta left a father of two to languish in prison on suicide watch for six days following his wrongful decision to jail him for contempt during a property settlement dispute. It goes on.
Incidentally, the only state superior judge to be stood down for misconduct over the course of the 20th century was none other than Vasta’s father, Angelo Vasta.
Then there’s Sandy Street, also of the Federal Circuit and Family Court, who within four years of his appointment in 2015 had acquired not only an unrivalled reputation for reliably adverse findings against asylum seekers, but had also achieved the improbable feat of having more than 90 judgments overturned on appeal.
In several of these and other instances, Street — whose father, grandfather and great-grandfather before him each served as the chief justice of the New South Wales Supreme Court — was castigated on appeal for failing to perform the most basic of judicial functions, such as delivering reasons, professional courtesy and ensuring procedural fairness.
And last but not least among the headline names is former High Court justice Dyson Heydon, whose formidable reputation for legal brilliance was recently superseded by independent findings he sexually harassed six former associates — his strong denials notwithstanding.
While it’s also true Victorian magistrate Richard Pithouse, whose reputation for offensive comments precedes him, is once again making waves, the difference there is that he’s been stood down pending an investigation by the Judicial Commission of Victoria.
By contrast, the one unifying thread in the foregoing examples, quite apart from their propensity to lay waste to public confidence in the judiciary, was the clear absence of any comparable regulatory body to receive and investigate complaints against the judges in question.
It’s largely this backdrop, says Watson, that has given rise to the growing chorus of calls to establish a federal judicial commission — a recommendation aired more than 20 years ago by the Australian Law Reform Commission and again reiterated in its recent landmark report on judicial bias.
“Just in the way a federal ICAC has been seen to be missing, so has a federal judicial commission been missing,” Watson said. “This isn’t to say there isn’t already pressure on poorly performing federal judges [to improve], but it’s either peer group pressure, which doesn’t work, or the press, which isn’t a desirable way to do it.”
It’s a sentiment shared by public law expert Professor Gabrielle Appleby, who said people were invariably “shocked” to learn “there is no transparent, accessible and robust complaint system at a federal level”.
“It obviously dints public confidence [in the judiciary],” she told Crikey, “particularly in an environment of expected accountability, where other professions are held to account.”
As things stand, the only way in which a federal judge can be stood down for “proved misbehaviour” is on the agreement of both houses of Parliament. Anything falling short of conduct warranting that “sledgehammer” approach is dealt with internally on a purely discretionary basis through poorly-defined structures.
Drawing on the NSW experience, which established a judicial commission in the late 1980s, Watson said the last three decades had put paid to the arguments commonly marshalled against them.
“I lived through the creation of the NSW Judicial Commission in the late 1980s and I can tell you that it ripped the heart out of friendships when it was introduced,” he said. “Some thought it was an atrocious intrusion into judicial independence, and others thought it was an essential development.”
But in reality “the idea [such bodies] interfere with judicial independence” has instead proved heavily freighted.
“Few people, if anyone, seriously doubts the excellent function [judicial commissions] fulfil. It’s all about public confidence in the judiciary. Judicial legitimacy can’t exist without it.”
Most federal judges are, by virtue of the traditions and values of the judiciary, scrupulously diligent and honest, but it’s the conduct of some notable exceptions that’s fed the perception it’s something that can no longer be taken for granted.
And, in circumstances where judicial officers enjoy security of tenure, loss of public faith in judicial independence inevitability casts a long shadow. Little wonder, then, that Attorney-General Mark Dreyfus has a federal judicial commission noted on his to-do list for 2023.
