Piers Akerman: Judges seemingly governed by a different set of rules
The case of Justice Peter Tree, who has his live-in partner as a legal associate, shows why more scrutiny is needed of our nation’s highest-ranking public servants, writes Piers Akerman.
Opinion
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The reputations of Australian courts from the least to the highest have taken a hammering this year and now there appears to be one set of rules for judges and their associates and another for others covered by the Public Service Act.
Without wishing to scandalise the court, the pub test requires a review of the domestic and occupational arrangements of Justice Peter Tree who last year was appointed to the Appeal Division of the Family Court of Australia.
Justice Tree, a respected senior judicial figure, has as his associate, Tim Ranson, his live-in partner.
Both judges and their associates are technically employees of the Australian Public Service (APS).
The APS notes that: “Employees of the APS occupy a position of trust. They are entrusted by the government and the community to undertake important work on their behalf. With this trust comes a high level of responsibility which should be matched by the highest standards of ethical behaviour from each APS employee.”
The APS code of conduct states “while it is not uncommon or wrong for couples or other family members to be working in the same agency it is not usually appropriate for one to have any line responsibility over another”.
This is where the question of Justice Tree’s private and official arrangements overlap and get interesting, and become a hot potato for both Attorney-General Christian Porter and the Chief Justice of the Family Court Will Alstergren.
Mr Porter has been aware of the arrangement for some years.
Justice Tree was first appointed to the Family Court in January, 2013, by then attorney-general Nicola Roxon.
When questioned as to why Justice Tree has his live-in lover as his associate the Attorney-General’s office advised me “this is entirely a matter for the court. As you know, courts are independent (and fiercely) so your enquiry should be directed to Chief Justice Alstergren”.
The spokesman for the Chief Justice however said associates of all federal courts are engaged under the Public Service Act by the agency head or their delegates and confirmed that this was the case with Justice Tree’s associate in 2013.
Then the spokesman made a particular distinction which has some members of the judiciary and legal profession falling to the floor laughing.
“Judges work with their associates, but do not manage them. The formal management of associates is the responsibility of other employees such as team leaders and registry managers, not individual judges.”
Yet, in a case on workplace relations – Balemian v Mobilia Manufacturing Pty Ltd – delivered in the Federal Circuit Court in April, 2017, it was stated that “control over the important aspects of the working arrangements and day-to-day activities of the Applicant, including the manner in which the Applicant carried out his duties” were key to determining the nature of a workplace relationship – the so-called “control test”.
Certainly judges hold “the power to direct (their associates) as to what work was to be performed, how it was to be performed and generally when it was to be performed” to use the phrasing of the judgment in that case.
The court wishes to emphasise that “team leaders” exercise “formal management” but that is judicial sophistry at its best as the day-to-day management of associates is largely in the hands of their judge.
Some senior legal figures insist to me that judges daily tell their associates what to do, and therefore manage them.
From organising the judicial calendar, conducting legal research at the direction of the judge, typing of judgments after dictation, organisation of accommodation and travel arrangements, as well as assistance in ensuring references to case file material and legal precedence are accurate, to directing them to liaise with registry staff for the attendance at court of an interpreter, the associate is acting solely at the direction of the judge.
The role requires malleability in reacting to varying scenarios and enacting the judge’s wishes when situations arise.
For the purposes of the PSA, Justice Tree has daily “line responsibility” for what his associate does and how and when he does something.
Why is the professional relationship between Justice Tree and his associate being treated differently from all others who appear before the courts.
This is a case the Public Service Commission must investigate – and no more legal weaselling please.