More respect, please

NSW Chief Madge, Judge Graeme Henson, lets fly at AG bureaucrats ... Hard-pressed beaks ... Gripes about conditions ... Magistrates want the same perks as judges ... Furious response to newspaper article ... Department does nothing to fix court problems ... Lorenzo Glanfield seriously rebuked  

From Daily Telegraph, April 19. Chief Magistrate livid

23 April 2012

The Honourable Greg Smith SC MP
Attorney General 
Parliament House 
Macquarie Street 
Sydney NSW 2000

Dear Attorney General

I write in relation to the article Court up in a push for more job perks published in the Daily Telegraph on 19 April 2012. I do so for two reasons, firstly to correct the record regarding the palpable errors in information provided from the Director General's office to the media and secondly to express my disgust at the lack of respect and hence professionalism emanating from the senior levels of your Department directed towards the magistracy... 

No one should be under any illusion that this campaign [probably effectively] to undermine attempts on my part to improve the working conditions of magistrates is regarded by the members of this Court, and by me as contemptible. Whether I can continue to have confidence in the competency and integrity the "bemused senior bureaucrats " within your Department who seemingly view my efforts with derision is questionable. This is not the first time misreporting of this nature has been the order of the day.

In all likelihood you will be advised that the article in questions is based solely on a reading of documents innocently obtained through a Freedom of Information application. However, an objective reader would quickly come to the conclusion that the phrase "derided by bemused senior bureaucrats as the CM's wish list" suggests some of the report comes from direct contact between the reporter and some eminent grise from with the Department. Quite frankly at this point any self serving response by the Department is of little concern to me. The damage has been done. 

I believe we would both agree that the level of distortion of the truth reflected in the article has done and will continue to do significant damage to the judiciary in the Local Court. The Magistrates of the Local Court, who unfailingly give of their energy, professionalism and dedication to the community at large, often at considerable personal expense, do not deserve to be represented to the world at large in this fashion.

As you know, unlike the effectiveness of the media resources within your office I do not have the capacity to correct the manifest errors within the particular article. Further, it is not appropriate for the Judiciary to become embroiled in the one-sided world the media [sic]. Given the highly personal attack by the Daily Telegraph any attempt by me to engage with the media would simply result in the customary distortion.

Whether you wish to correct the record is of course a matter for you however I am sure you share my view that allowing the level of ignorance and misunderstanding generated by these articles to remain unaddressed would represent a failure to accurately inform the wider community and do nothing to support the reputation of the Court in particular and the Judiciary in general.

The correct position is set out hereunder to assist you in making that assessment.

Leave

Magistrates in this State receive less leave than public servants - including the "bemused senior bureaucrats" who deride my supposed "wish list". A magistrate receives 4 weeks annual leave. Since 2000 the Court has also been provided with a Christmas Vacation period. The period in question varies from as little as 10 days up to 14 days. Most of this period is made up of weekends and public holidays.

In return for this "largesse" one of my predecessors as Chief Magistrate agreed that Courts would start at 9.30 am in lieu of 10 am wherever practicable. In essence the government received far more back from magistrates in terms of productivity than it gave out. Effective case management practices to one side it is precisely because of the broad application of a 9.30 start that the Local Court has been able to manage the 28% increase in its workload without any additional resources being provided to it.

I am advised a public servant receives 4 weeks annual leave and has access to 18 days additional leave by way of flexible work arrangements. Putting the Christmas vacation at its highest, and deducting the weekends and public holidays within the vacation period a magistrate is provided with 27 days of leave on an annual basis. A public servant has access to a potential 38 days.

It is ironic that Police Prosecutors, Police Officers, Legal Aid Solicitors, DPP solicitors all have access to considerably more leave than the magistrate before whom they appear.

Extended Leave

Putting to one side the usual perpetuation of tall poppy syndrome the legitimate question that needs to be answered by government on this issue is  - when Judges in other jurisdictions are provided with an entitlement to 6 months sabbatical leave after 5 years, why is the position any different in relation to magistrates? Don't they form an equally valuable component of the justice system?

The Daily Telegraph article suggests that it is impertinent for a body of people such as magistrates to seek an improvement in their working conditions. Why the reporter should reach such a conclusion no one would know. Asking for a level of consideration does not guarantee the outcome. It is and always remains a decision for government. It is suggested that unlike the remainder of the community the working conditions of magistrates should remain fixed in time whilst the rest of the workforce moves forward? This would appear to be so in the minds of some within your Department.

What their point of view has to do with discussions between a body of the judiciary and the executive government I do not know. Until now I was not aware that policy decisions were being made by junior bureaucrats of limited insight into the workings of the judiciary.

It should be neither forgotten or peremptorily dismissed from consideration that since 1995 the Local Court has absorbed over 40% of the previous criminal and civil caseload of the District Court. The cost effectiveness of this Court to government is not in issue. Yet despite the recurrent contribution to the administration of justice the politics of envy are once again used as a weapon against any constructive and objective review.

Although it is contrary to my belief that like should be treated as like the suggested 80% percentage of a Judge's sabbatical leave is simply based on the fact that Magistrates receive 80% of the salary of a Judge of the District Court. Although I acknowledge there are some within the community who are beguiled and then prejudiced by the constant negativity peddled by the media I would have hoped that this issue could be approached with a measure of objectivity.

Travel Cards and E-Tags

I did raise this issue with Mr Savary [courts' policy manager, NSW AG's department, Marcel Savary] and asked what it would cost. He undertook to find out and advise me further. Early in 2012 I met with Mr Savary in my chambers. My Executive Officer was present. I asked for the answer to the question of cost because I well know that if it was significant, then the request was not worth pursuing in the current economic environment. Mr Savary told me in clear and unequivocal terms that travel passes and e tags for Judges were provided to the Attorney General's Department by the Department of Transport at no cost.

The figure of $370,000 by Mr Savary has never been mentioned to me, or to my Executive Officer who I ensure is always present at such meetings. Had it been, that would have been the end of the matter.

Once again Mr Savary's expertise is misleading to the point of ridicule. Even if his figures are genuinely expressed, they rely for their totality on every Sydney Metropolitan magistrate using a private car and a bus, train or ferry on the same day every day. The magistrates of this Court are highly qualified professional and dedicated however even they would find it difficult to accomplish this feat of transport gymnastics.

There is no reason why travel arrangements for Magistrates should be different than those available to Judges. Unlike Judges, Magistrates move from court to court, sometimes more than one in the same day. Use of such a benefit on a regular basis would involve at best, about 15-20 magistrates. You will know that magistrates live all over Sydney. Where possible they are allocated to Courts that are reasonably accessible to their place of residence.

The picture Mr Savary seeks to portray is absurd. One of the side benefits of moving to the travel pass/e-tag approach was intended to bring about the elimination of lodging and processing vouchers etc. for claims arising out of travel expenditure. This would have been of administrative benefit to clerical staff within my office and also within the Director General's staff area.

If the advice given by Mr Savary to me in my chambers is correct - what is the problem in providing a no cost minor benefit to magistrates in return for a saving in administrative costs to the Department? One further thing needs to be said on this issue. Until I became aware that you may apparently be supplied with false or inaccurate information I held the view that matters such as this put to government were treated with objectivity. Mr Savary's secrecy, his presumption that he is entitled to express subjective opinions and supply information that differs from that supplied to me raises legitimate concerns that each of us should share. You may recall the absurd figures proffered by the Director General at our recent meeting concerning the proposal for a mid-year vacation. I thought at the time that providing the Director General with extravagant figures was merely indicative of a lack of insight within the Department. Now in light of a second episode I am not as convinced.

Motor Vehicles

This is yet another misrepresentation. Contrary to Mr Savary's belief, magistrates are not provided with "Departmental cars".

On some country circuits involve involving [sic] a significant level of travel Court staff are provided with a circuit vehicle. The magistrate may travel in that vehicle if they wish. It is not for their use. So far as I am aware most magistrates prefer to use their own vehicle.

It is true they are provided with an allowance for kilometres travelled when a private motor vehicle is used for official business. It is no different to the kind of taxation concessions or allowances provide to tradesman and other members of the workforce who are required by the nature of their work to travel from place to place. The maximum compensation paid is arbitrarily limited by the Director General to a designated number of kilometres or percentage of official business usage. It does not provide magistrates with an additional form of income.

More Staff

There is an assertion in the second paragraph of the reporter's article that I have lobbied for more staff. This is incorrect. What I have done over the last 4 years is write to the "bemused" senior echelons of your department about the need to establish a properly trained and accountable body of court officers that would address almost all of the problems that beset administrative support in the management of caseloads in the Local Court.

I have proposed, to deafening silence, that such an approach be developed from within existing resources. To be fair it may be that the misrepresentation in the article at this point arises through a lack of understanding on the part of the reporter than deliberate falsehood. Nonetheless it is yet again, an incorrect statement of fact and should be corrected.

I turn to the second article entitled Paperwork mix ups put innocents in gaol. 

This article together with the earlier article refers to me "tipping a bucket on my own division". We both know that I am not responsible for the administrative resources of the Attorney General's Department. That responsibility lies totally with the Director General and is exercised by him and through his subordinates.

Yes it is true that I have been expressing my concerns in relation to the constant reduction in staff allocated to Local Courts. Whilst it is true that I have raised the consequences of overworked and overstretched staff with the Director General and his subordinates time and time again over a number of years, nothing is done. 

It seems clear that the one-dimensional  drive to reduce costs, and staff costs in particular takes precedence over the deterioration in capacity to effectively support the judicial process within our courts. One could be forgiven for thinking that the promises to Treasury to reduce staff in return for the funding or [sic] JusticeLink were based on an extravagant misconception of savings and that staff cuts represent the one dimensional response by management in an endeavour to meet the JusticeLink commitments. I sincerely hope I am mistaken on this point.

The criminal caseload of the Local court has increased by almost 28% in the last ten years; and without any increase in the number of magistrates but with regular reductions in available staff in registries. It is little wonder in that environment the staff of the Attorney General's Department allocated to Local Courts find it increasingly difficult to cope.

One only has to look to the regular payments to persons aggrieved as a result of errors within the justice system and the pending class action before the Supreme Court to know that there is something intrinsically wrong with the decision making processes that are supposed to underpin the effectiveness of management.

I am sorry this letter is so long. However, given the likelihood tis will not be the last Freedom of Information ruse you will understand that this is necessary on my part to ensure that this letter forms part of the next response and thereby can at least alert the reporter to the dangers of being given misleading information.

I closing I do not apologise for the fact that I care both for the well being of the Magistrates of the Local Court and the staff who do their utmost to assist them in their increasingly burdensome task. If my support for both falls on deaf ears then that is unfortunate. Shooting the messenger however does not make any of these issues disappear.

I leave the foregoing in your capable hands.

Yours sincerely

Judge Graeme Henson 
Chief Magistrate

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26 April 2012

Mr L Glanfield AM
Director General
Department of Attorney and Justice
GPO Box 6
Sydney NSW 2000

Dear Mr Glanfield

You are aware of the article published in the Daily Telegraph on 19 April 2012 regarding certain portions of correspondence sent by me to the Attorney General and to you regarding the twin issues of problems within the court support areas of the Local Court and in relation to a review of the existing terms and conditions for Magistrates. From our brief discussion on this issue you will be aware that I regard the comments attributed to "bemused senior bureaucrats" in your department regarding some of my correspondence on the issue of Magistrates' working conditions as beyond the pale of acceptability by reason of apprehended bias, lack of professionalism and unquestionable discourtesy. You may regard this letter as a formal complaint.

As indicated by you, the more salacious aspects of the Daily Telegraph report are based on incorrect information contained in or provided by Mr Savary of your Department. Some of the reporting attributes editorial comment to Mr Savary [courts' policy manager] in relation to correspondence marked "Private and Confidential" and on discussions held in my chambers in the presence of my Executive Officer. Even here the record made by Mr Savary is incorrect.

The most glaring example of misreporting relates to the assertion that I have sought travel passes and e-tags for Magistrates and that this would cost $370,000. At no time has such a figure ever been mentioned to me. To the contrary, Mr Savary, again in the presence of my Executive Officer, informed me that advice from the Department of Transport indicated that this organisation provides the travel passes and e-tags issued to Judges to your department at no cost.

The consequences of the manner and content of your department's engagement in this process will, as was the case in 2009, again contribute to a diminution in the reputation of the magistracy. Many of the members of the Local Court express the view that these articles are the product of a deliberate campaign from within your organisation to de-rail discussions with government on relevant issues to do with the structure of the magistracy. I would be hard pressed to argue with them.

As we both know when it comes to the media, correcting the record in a way that undoes the damage occasioned by incorrect reporting is rarely, if ever successful. Of course no one from within your department has made the slightest apparent effort to correct the errors and distortions in the Daily Telegraph article. Perhaps those magistrates who have spoken to me about an agenda from within your Department have cause to reinforce their views.

I presume you have sought appropriate advice concerning the release of the information provided to the Daily Telegraph and that such advice deals with the potential argument against disclosure set out in part 1 of the Table to Section 14 of the Government Information (Public Access) Act 2009 at paragraphs (d) (e) and (f). So that I might be satisfied that what was provided was entitled to be provided I would be pleased to be comprehensively briefed on these considerations.

The magistrates of this Court and I look forward to receiving your response in due course.

Yours sincerely

Judge Graeme Henson 
Chief Magistrate

cc: The Hon. Greg Smith SC MP 
Attorney General 

*   *   *

Daily Telegraph, April 19, 2012: Local Court Chief Magistrate Graeme Henson caught up in push for more job perks 

Daily Telegraph, April 19, 2012: Paperwork mix-ups putting innocent in jail