Australia would rarely have had a senior judge with more experience in politics and the executive branch of government than Jim Spigelman. The NSW Chief Justice moved with ease through the political ranks as adviser and chief of staff for Gough Whitlam as Opposition Leader and Prime Minister before effortlessly making the transition to departmental secretary running media policy. But for the crass stupidity of the NSW Branch of the Labor Party which refused to find him a winnable seat, he might be leading the federal party today instead of heading the queue for elevation to the High Court should it be Labor’s task to replace Murray Gleeson.

Justice Spigelman is well qualified to make a comment or two about the way that politicians forget about the medium and long term consequences of their words and actions when it comes to election time. It takes one to spot one, as they say, and he composed a bit of political rhetoric in his time. So it was timely that he chose the opening of the legal year yesterday to remind NSW politicians none too gently that there is a price to pay for attacking the independence of the judiciary. “Our society cannot be governed by the rule of the law,” Justice Spigelman said, “without an institutionalised arrangement for the independence of the judiciary. Further more, democracy depends on the courts enforcing what the Parliament intended, not what the executive wants.”

Warming to his task, His Honour referred to the most frequent litigant in NSW being the executive branch of government. “People who are used to getting their way do not usually take kindly to their wishes being frustrated,” he commented. It was vital that the exercise of judicial power be insulated, indeed isolated, from pressure or interference by the executive branch of government.

Those comments were by way of a prelude to attacking the NSW Premier Morris Iemma for promising to impose two community representatives onto the conduct division of the NSW Judicial Commission. The conduct division has the job of considering complaints about the way judges perform their job. Justice Spigelman disclosed that he had written to the Premier expressing his disappointment that there was no prior discussion about the proposal and stressed “it would be wrong and contrary to constitutional principle if an appointment to a conduct division were to be made by the executive branch of government.”

Behind all the polite language, this was an amazing attack by the head of a state’s judiciary on the head of the executive government. Not that Mr Iemma seems too worried. His response this morning was to say: “the chief justice is entitled to represent the views of the judiciary but I am representing the views of the people of NSW who expect a higher level of judicial accountability and transparency when it comes to the hearing of complaints against judges”. A spokesman for Mr Iemma said he rejected the notion, as argued by Justice Spigelman, that political interference undermined the courts.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey