Chief Justice Tom Bathurst will save us from ourselves-Tim Blair, Daily Telegraph,2017
by Ganesh Sahathevan
It was recently revealed on this blog that NSW Chief Justice Tom Bathurst undermined the authority of a brother judge of the Supreme Court, Desmond Fagan, by praising the work of the Muslim Legal Network NSW,despite the MLN publicly accusing Fagan of lacking fairness and failing to perform his role of administering justice impartially.
Additionally Bathurst seemed unconcerned that the MLN has on its website advice that can hinder the work of ASIO, Border Force and the AFP. That the MLN advice had been criticised by the minister concerned, Peter Dutton, also seemed not to bother the Chief Justice despite his duty to uphold the law.
The Chief Justice's determination to insert himself into the public debate on immigration and jihadism has embarrassed the judiciary since at least 2017 (see commentary by Tim Blair in The Daily Telegraph below). His conduct at the MLN dinner in 2019 cannot therefore be considered an one-off. Then there is his belief in conspiracy theories, which seems to have led him to approve of the re-writing of the facts of a reported decision of his own court.
In the interest of preserving public confidence in the judiciary, Mr Bathurst ought to step down immediately. The President of the Court of Appeal, Andrew Bell, can be elevated to the position of Acting Chief Justice NSW while a suitable replacement is found.
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Judges know best. They are more knowledgeable and caring than politicians. They are also more knowledgeable and caring than the voters who elect those politicians.
We know this because the state’s leading judge, Tom Bathurst, says so.
In a speech to the Opening of Law Term dinner, Chief Justice Bathurst declared it was the judiciary and not the government who can be relied upon to promote fairness and equality. Left to our own devices, and without the soothing touch of all-wise judges, Australians would apparently descend into rampant racism.
“It should give us pause that one of the most serious threats to the rule of law in Australia was grounded in xenophobia,” Chief Justice Bathurst said, much in the manner of his predecessor Jim Spigelman.
The chief justice’s speech will no doubt please that sector of our community which is essentially suspicious of and distrusting towards the majority of Australians. Bathurst reinforced this notion with a line about promoting equality, fairness and the rule of law “in spite of popular sentiment”.
Poor old popular sentiment always cops a bashing from the we-know-better brigade. This is frequently ill-considered. After all, popular sentiment led to stopping the people smuggling trade in our region – and therefore ending a murderous practice that cost around 1200 lives at sea during Labor’s six years of power.
Interestingly, the legal fraternity – those promoters of fairness and equality – even now forms a large part of the movement dedicated to ending Australia’s life-saving border security operations.
Chief Justice Bathurst reached all the way back to 1888 for one example of the judiciary’s wisdom over popular opinion. During that year the NSW Government ordered police to stop Chinese passengers getting off a ship which had docked in Sydney Harbour, only for the government to be eventually overruled.
The chief justice sees parallels between the events of 1888 and Australia’s current mood, at least in terms of then-NSW premier Sir Henry Parkes’s comments at the time.
Sir Henry is presently unable to respond, having been dead for more than 100 years, but we would submit that Australia has changed a great deal during the intervening period. We are now a multicultural, tolerant, educated and thoughtful people who are quite capable of seeking fair outcomes without being bossed into them.
If Chief Justice Bathurst would like to have more of a say in the state’s affairs, he is welcome to run for elected office.
