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PM must act now to reverse Federal Magistrate appointment.

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Nicola Roxon MP Shadow Attorney-General

3 July 2006

PM must act now to reverse Federal Magistrate appointment

Nicola Roxon, Labor’s Shadow Attorney-General, has called for an urgent response from the Prime Minister to her request to reconsider the controversial appointment of Liberal staffer, John O’Sullivan, to the Federal Magistrates


‘I took the unusual step of writing to Mr Howard on this because it a very serious and very urgent issue that goes straight to the credibility of our courts’ Ms Roxon said.

Mr O’Sullivan has been a senior adviser to Workplace Relations Minister Kevin Andrews since 2003.

‘Mr O’Sullivan is clearly a political appointment. He lacks the legal experience to do an effective job as a magistrate. He was a lawyer for less than four years before he went to work for the Liberal Party in Mr Andrews’ office.’

‘He has been appointed as an industrial relations specialist, but given his background as one of the authors of the Government’s extreme IR laws, he will be tainted with a clear perception of bias on any IR matter that comes before him.’

‘There is no evidence he has any experience at all on any other areas of law Federal Magistrates can be required to deal with - family law, trade practices, copyright or native title for example,’ Ms Roxon said.

Mr O’Sullivan’s appointment is set to commence on 10 July 2006. From that date on, he will be constitutionally protected from dismissal until he reaches the age of 70.

‘This matter couldn’t be more urgent. The Prime Minister has exactly one week to reconsider this terrible decision. After that, his mistake will be irreversible.’

‘Mr Howard should realise the error of judgement he and Mr Ruddock have made and stop this appointment before it is too late,’ Ms Roxon said.

Monday, 3 July 2006

For more information call Jacob Varghese: 0417 108 362 or 02 6277 4767

Note: A copy of Ms Roxon’s letter to the Prime Minister, dated 25 July 2006, is attached.


I take the unusual step of writing to ask that you urgently reconsider the Cabinet decision to appoint Mr John O’Sullivan to the Federal Magistrates Court.

As a magistrate who will be appointed to serve until he is 70, with constitutional protection from removal, you must consider the impossible position you are putting both the Court and Mr O’Sullivan in.

Mr O’Sullivan only just meets the statutory requirement of having been admitted to practice for over 5 years - although he has not even practiced law for all that time. He appears to have no other background that might be helpful for a magistrate such as an academic or other legal background.

I understand the Government intends that Mr O’Sullivan specialise in industrial disputes, but the legislation and the Constitution do not recognise this specialisation. Ultimately, Mr O’Sullivan could be asked to hear all sorts of federal disputes from bankruptcy or native title to family law, taxation, trade practices matters, copyright and many others. In fact, the Court depends on people having sufficient generalist skills to be able to cross a number of these areas.

I cannot, and am sure you could not, be confident that a person who barely fulfils the minimum statutory requirement for appointment to this job will have the necessary legal skills to determine matters across the broad range of federal law.

As you would also be aware, judges and magistrates must be free from bias and the perception of bias.

On industrial matters it will be impossible for Mr O’Sullivan to be free from such apprehension. He is being appointed directly from the office of the Minister who has overseen the introduction of the very laws Mr O’Sullivan will now be asked to interpret.

Given his recent background, and lack of other extensive legal experience, he will inevitably been seen to bring bias to the Court, especially in any disputes: i) which involve the interpretation of the Work Choices legislation ii) in which the Government is a party or has a financial or political interest, or

iii) between an employer and an employee or union, especially if the employer is a member of the Australian Industry Group or the NSW Farmers Association.

The Work Choices Act has been one of the most contentious pieces of legislation in recent history. No doubt much of the litigation in the area will be conducted as vigorously as the political debate is.

It will be a disservice to all - applicants and respondents, employees and employers - if litigation before Mr O’Sullivan has the added complication of apprehended bias and the costly appeals that this will generate.

Having written and passed the legislation, the Government should now be content to leave it to the independent judiciary to interpret and apply it to the individual matters that arise.

In fact, if the apparent bias of Mr O’Sullivan is regularly contested and he disqualifies himself from many industrial matters, he may be required to undertake the general federal law work for which he is poorly qualified more often than not.

The combination of these factors mean that this ill-considered appointment risks bringing the good work of the Court into disrepute.

It is a serious error of judgement that does a great disservice to the Federal Magistrates Court.

I ask you to reconsider the appointment urgently, before Mr O’Sullivan is sworn in. As you know, at that point your error will become irreversible as his position will be constitutionally protected until he reaches the age of seventy.

I trust that you will consider this request urgently and treat it with the seriousness it deserves.