Judges still able to sue for swimming pool or kitchen remodelling payouts ... Public choice theory ... Pursuit of judicial self-interest ... Employing relatives and friends as associates ... Hearing bias applications ... Pension benefits ... Judges declare that they should be able to sue for defamation damages ... Tulkinghorn on the case
Subtle ways of looking after Number One
AS they go about their work, public servants, whenever they can, will put their own interests first.
That proposition, which contradicts comfortable assumptions that public servants implement the law and government policies in a unbiased way, lies at the heart of what is called "public choice" theory.
Judges are "public servants". Quite a few people who should know have said as much. In 1971 William A. Niskanen published Bureaucracy and Representative Government and at page vi he said:
"There is nothing inherent in the nature of bureaus and our political institutions that leads public officials to know, seek out, or act in the public interest."
In 2012 James Dorn (vice president of the Cato Institute) said in a YouTube video (at 2.54) that
"The main thesis in [Niskanen's] book was that people within government behave the same way as they do in the private sector ... they are both self interested."
Judicial self-interest is usually pursued in subtle ways.
However, an exception (blatant pursuit of self-interest) came to light in Queensland in 1999-2000.
Quite a few judges were found to be appointing judges' offspring to jobs as judges' associates (paying about $30,000 pa) in the judicial bureaucracy.
When it was pointed out to the judges that nepotism is generally bad, and that their behaviour was nepotistic, a typical "solution" was devised in February 1999. A "protocol" was created.
However, this still left judges with a lot of say over who gets to be appointed to these jobs.
A preferable solution, for example, would have been to get the law schools to identify and choose deserving candidates from poorer backgrounds, with the judiciary playing no role at all.
de Jersey CJ: two kiddies on the payroll
In January 2000 The Courier-Mail published an exposé of all the Queensland judges involved in nepotism - including the Queensland Chief Justice, who had two of his children featured.
One-and-a-half years after the Supreme Court protocol was put in place, the same newspaper reported that, "a number of judges continue to employ their children despite the guidelines".
Nepotism was not restricted to the Queensland Supreme Court.
At one stage, in the Queensland District Court, 10 of 35 judges had employed their own children, relatives or other judges' children as associates.
By September 2000 the Queensland Attorney General, Matt Foley, told parliament:
"I wish to inform the House of action taken to end nepotism in the appointment of judges associates and to ensure that principles of merit and equal opportunity apply to such appointments."
Local legal academic Prof. James Allan wrote in July 2011:
"Here's an interesting thing about public choice theory ... You see it applied to elected politicians all the time. But you almost never see it applied to judges and lawyers."
Because judges escape attention on the "public choice" front, no one bats an eyelid at headlines such as, "Judges see lack of bias as their key attribute". (The Australian, May 29, 2009.)
Judicial bias begins with the law on bias itself.
Any litigant who thinks his or her judge is or might be, or appear to be, biased, has to apply to that judge to stand aside.
This is ridiculous. A former High Court Chief Justice, Sir Anthony Mason, said in an article published in August 1998 and referred to at page 169 of the 2012 edition of the book The Australian Judiciary:
"There are ... strong arguments favouring the determination of a disqualifying objection by the High Court and appellate courts instead of leaving the resolution of the objection to the justice or judge who is the target of the objection ...
Indeed, it can be said ... that the other members of such a court are in a better position to apply the standard impartially than the judge who is the target of the objection, notwithstanding any embarrassment they may feel in ruling upon the eligibility of a colleague to sit."
Callinan: declared himself not biasedThis defect in bias law was seen in action when Justice Ian Callinan wrongly refused to disqualify himself in the Hindmarsh Island Bridge case.
There is another legal doctrine that can be pulled out of the bias law hat, and used to advance judicial self-interest, and it is called the rule of necessity.
The Supreme Court of Pennsylvania in Philadelphia v Fox 169, 185 (1870) expressed the rule in this way:
"The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest - where no provision is made for calling another in, or where no one else can take his place - it is his duty to hear and decide, however disagreeable it may be."
The "rule" can be explained in terms of judges rushing in to rescue litigants who cannot find a forum to hear their case and, unsurprisingly, judges do explain it in such terms - but that is not the only way to explain it.
Instead, think in terms of judges wanting pay increases or yummy superannuation arrangements.
If the legislature won't deliver pay increases or tax reductions etc, then the judges will of necessity have to do it themselves.
US Supreme Court justices evaded their responsibility to pay income tax for many years, finally yielding in 1939: O'Malley v Woodrough overruling Evans v Gore.
It seems that matters of constitutional "principle" were also raised by some Australian judges during the Great Depression when they refused to be subjected to pay cuts to which ordinary civil servants were subjected.
See Prof Sawyer, para 5.03, who may be contradicted on this by a CJ of South Australia at para 5.02 - it is difficult to tell.
In 2011 the Governor of New Jersey launched a tirade (download here) against a NJ Superior Court judge who had declared unconstitutional plans to change pension and health benefits insofar as they affected the judiciary.
NJ Governor Chris Christie: wanted to pare-back judges' benefits
The decision was upheld by the NJ Supreme Court but was eventually effectively reversed by the ultimate jury, the people, who overwhelmingly approved the changes in a referendum.
But, we are just getting started on judicial bias.
US Professor Benjamin Barton in Do Judges Systematically Favor the Interests of the Legal Profession? says that this bias means cases, "will be decided in the way that offers the best result for the legal profession".
US Court of Appeals judge Dennis Jacobs in The Secret Life of Judges confirms the existence of such an "insidious bias", which is "unobserved and unrestrained".
The bias results in the law itself becoming biased in lots of areas.
Robertson: swimming pool verdicts
UK barrister Geoffrey Robertson in his book The Statute of Liberty took on politicians, but not the legal profession, regarding libel laws. These contain a lot of bias created by judges for their own reasons. Robertson points out:
" ... politicians are the last people who want to change libel laws, the winnings from which traditionally go to remodelling their kitchens and installing swimming pools."
On September 24 this year five justices of the NSW Court of Appeal grappled with the issue of whether judicial officers should continue to allow critics of judges to be sued for defamation, when all the critic had been doing was criticising a judge's performance as a judicial officer.
This affects all judges. None of them, as far as I can see, declared any self-interest in the matter.
Of the five judges who heard the case, two of them said that a judicial officer had no cause of action, while the other three said the opposite - that judges should continue to be able to sue.
So the case could have gone either way.
I had better leave things there. I don't want to have to fund a swimming pool payout.