Justice ‘blurred lines’ with MP voice attack

A former Federal Court judge has slammed Justice Ian Harrison for his extraordinary attack on a Nationals MP.

Justice Ian Harrison and Federal Member for Cowper Pat Conaghan.

A former Federal Court judge has accused NSW Supreme Court justice Ian Harrison of spectacularly “blurring the lines” between the judiciary and legislature when he launched a vicious attack on Nationals MP Pat Conaghan over his anti-voice comments, as a senior barrister raised grave concerns over the implications Justice Harrison’s comments have for the legal profession at large.

Alan Robertson SC, who served as a Federal Court judge from 2011 to 2020 and is a current director of the Australian Academy of Law, told The Australian sitting judges should avoid projecting their ­opinions onto current political ­debates because they risked compromising key ­pillars of justice.

“If it came up in a case they were hearing that would be one thing, but this entirely separate,” he said. “Sitting judges should not comment extrajudicially on matters of current political controversy, because otherwise it tends to blur the lines and demarcation between the judicial branch and the legislative branch.”

Mr Robertson’s comments come following revelations printed in The Australian on Thursday that Justice Harrison had sent an email to Mr Conaghan accusing him of racism because he opposed the Indigenous voice.

In the highly charged email, Justice Harrison described the federal MP’s views as “disgusting” and paternalistic.

Nationals Member for Cowper Pat Conaghan during Question Time in the House of Representatives.

It was sent in response to a speech to parliament Mr Conaghan made on Tuesday in which he had accused those attacking a No vote on the basis it denied historical atrocities of being “recklessly dismissive”, and said it would encourage Australians to vote on emotion rather than logic.

“I was moved while listening to you speak to write to you not to express my complete sadness, not that you have predictably taken the stand that you have, but that you obviously do not understand or appreciate the depths of paternalism and racism that oozed from your words,” Justice Harrison wrote.

Senior barrister John Bolton, who has practised over 50 years, said it was “quite wrong” for a judicial officer to be heard to take a political stance, “let alone accuse someone of being racist.”

Mr Bolton, who agrees with Mr Conaghan’s opinion that the Constitution provides ample powers to allow government to assist Aboriginal communities, told The Australian Mr Harrison’s attitude could have serious implications on the profession as a whole.

“I shudder to think what would happen to my career if I was still in active practice and, having expressed Mr Conaghan’s opinions, a senior judge labelled me ‘disgusting’ and ‘a racist’,” he said.

“It would be reasonable for me to expect that, one day, I may appear before that judge or another judge who knows what his judicial colleague thinks of me. It would be fair to say, my chances of a successful career would be short-lived.

“The sinister side of this is many articulate, skilled lawyers have been silenced because this is what they perceive will happen.”

In a rare statement issued on Thursday, NSW Chief Justice ­Andrew Bell urged judges to steer away from controversy, but pointed out that Justice Harrison’s comments were not written for the public’s eyes.

“It’s generally prudent for judges to avoid making public statements on topics of political or public controversy,” he said.

“Justice Harrison’s email … was not a public statement nor intended for public consumption.”

Mr Conaghan on Thursday said he would not “walk back” from comments opposing the Indigenous voice to parliament and said he was “proud” of his speech to the lower house this week.

“In the Constitution, there’s a section that talks about the separation of powers … between the judiciary, the parliament and also law enforcement. It’s been a long-held principle that separation of powers should be adhered to,” he told the House of Representatives.

“I would not contemplate telling a police officer how to do their job, nor would I consider … telling a magistrate, judge or justice how to do his or her job.”

Opposition legal affairs spokesperson Michaelia Cash said Justice Harrison’s comments were “disgraceful”.

“Personal attacks on politicians risk undermining the court’s reputation and impartiality,” she said.