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Tuesday, 8 February 2005
Page: 108

Senator SANTORO (7:18 PM) —I want to speak tonight about judges’ pay and conditions. In doing so, I am mindful that the federated nature of Australia produces different judicial structures and sometimes generates widely variant responses to what on the face of things might seem to be similar issues.

In this chamber, we meet in the middle of the Australian Capital Territory. The ACT is a place that almost anywhere else in the world would be a city, but which in federal Australia has been accorded the status of a fully-fledged territorial government. This means it has a Chief Minister who can make far-reaching decisions at a government level. Now I do not mean that the ACT should not be a territory. It is an honoured and very pleasant part of our federation and it is served with distinction in this chamber by my very good friend and colleague Senator Humphries and also through the energetic focus of Senator Lundy. But I was interested to see that at the beginning of December the ACT Chief Minister had been reported in the press as vowing to review his judges’ leave provisions to put them in line with something he described as community standards. The Chief Minister was reported to have been stung by revelations that ACT judges enjoy more than two months of holidays a year. He should not have been stung; he should have known that, particularly as a former Attorney-General. But then, perhaps he did.

A Chief Minister should certainly know that judicial holidays—which critics like to describe as lengthy—actually provide for rather more than just extra time at the beach under the umbrella, having slip-slop-slapped and put on a hat of course, for members of the bench. According to the Australian on 3 December last year, the ACT Chief Minister became the first state or territory leader to promise action to curb what senior legal figures have described as the outdated luxury of extended annual leave for the judiciary. He was the first of a number of political leaders to jump on that bandwagon this time around. It is also said that the Chief Minister believed there was a concern that the public might regard the level of leave as inconsistent with community standards and that it might impact on the efficient administration of the courts. I think we need, as a legislature and as a community, to consider very carefully what it is we mean by community standards insofar as they apply to the rates for the job.

Obviously there is no system that cannot be improved, whether in the discipline of dog catching or the business of court administration. Efficiency is vital and timeliness is crucial, especially in the delivery of justice and judgment. But at the same time, chanting mantras about community standards is a bit of cop-out when the only obvious motive is to press the populist button. We need to understand as a community what it is that judges do, and what it costs them to provide that essential public service. Most judges go to the bench from the bar. Many—if not in fact all—lose money when they do so. Senior barristers at the peak of the legal profession are very well remunerated. The people deserve justice delivered effectively and efficiently, with scholarship and learning and with scrupulous fairness.

In order to achieve these objectives, judges must lead what is in effect a reclusive lifestyle, and so must their families. A judge must be detached from influence. She or he must be seen to be independent. A judge must accommodate herself or himself to the significant loss of social opportunity that comes with having to remain detached from the community. It is important that they keep up with judicial issues and matters and continuously work to inform themselves of all manner of legal arguments and decisions. It is not a nine-to-five job.

From time to time, some people have a lot of sport with judges’ holidays. It is sometimes open season on judicial travel. For example—you know the sort of thing I am referring to, Mr Acting Deputy President Bolkus—some catchy headline might proclaim: ‘Judge Gadabout takes flight’. Of course it is not only judges who enjoy holidays or who, for that matter—to mention a point publicised only this week—join the lengthy list of Australians who have failed to lodge their tax returns on time. Holidays are a professionally enhancing element of a doctor’s or a scientist’s career, for example—and for a plethora of academics they are an actual art form, and, dare one say it, that is so even for newspaper editors and senior journalists. It is odd how no journalist or newspaper editor ever comes back from a freebie and confesses publicly to its all having been a horrid waste of time and an expense that would better have been avoided.

We often hear the argument that judges are on the public payroll and are invited to conclude that wasting private payrolls on sabbaticals and other perks is another matter. But who else is going to pay our judges? Who else is going to provide the level of superannuation that was opposed by the Labor Party before the last election? It will be interesting to hear what the newly recycled Labor leader has to say about that matter now—the level of superannuation that judges deserve and that helps to guarantee their independence and the integrity of the justice system.

That is not to say there cannot be improvements made to the administration of justice either at the Commonwealth level or in the various state and territory judicial systems. I am reminded that last year the member for Denison, himself a QC, told the House of Representatives in an appropriations bill debate that he had been in correspondence with former Federal Court Justice Russell Fox, who had been advocating the need to look at judicial process to ensure that Australia has the best and most efficient system of administration of justice. The member for Denison, for whom I have great respect as both a lawyer and a representative, made the point that efficient management of the judicial system is a dark corner of public administration. He noted that it has little academic or public attention except when particular matters come to light because of the grossness of the way in which delay has occurred or procedures have gone awry.

He made the further point that ‘routinely’—as he put it—large amounts of litigants’ moneys are wasted, and procedures are often anachronistic and not properly reformed because attention is not given to them in a strategic or systemic way. Without going into the substance of his argument or indeed arguing that things probably are not quite as dismal in that unexplored corner of public administration as the member for Denison asserts, of course we can always do better and of course we should always try to do better. However, it is unlikely that we shall do better so far as the administration of justice is concerned if we allow populist tub thumping by premiers and chief ministers to pass without comment or correction—or, even worse, to win the day by default.

My friend Senator Mason in a contribution in this chamber last March attacked the then Labor Party position of reducing judges’ superannuation. Senator Mason noted that under the then Labor leader, Latham—the unrequited leveller—judges would be shifted to a so-called ‘community standard superannuation scheme’, calculated to constitute a 60 per cent reduction in judges’ superannuation entitlements. The sheer folly of this proposal is obvious. It is in the community’s interest to attract the best judicial brains to the bench. That is where Labor’s so-called ‘community standard’ should really come into play.

Arriving at judicial decisions is not like driving a bus. Driving buses is a skilled occupation for which the community rightly demands appropriate training, discipline and appropriate skills, and a clean driving record. Deriving a fair and reasonable judgment from a body of law, free from the influence of any other party, is also a skilled occupation, but one of an entirely different character. I do not think most Australians would be very happy at the thought of judges driving buses. I believe most Australians, very sensibly, would be remarkably averse to a bus driver hearing complex legal argument in court and then deliberating on that argument. To put in its proper context, we must continue to ensure that we get the best judges we can and reward them accordingly.