Ian Harrison, like every other judge of the NSW Supreme Court, is entitled to hold personal views on political issues – so long as he keeps them to himself.
But last week, Harrison crossed the line.
He aligned himself with the “yes” case in the coming referendum and he used his Supreme Court email account to criticise a member of parliament and the National Party for supporting the “no” case.
The MP concerned was Pat Conaghan, who was so startled by Harrison’s conduct that he discussed it with fellow members of parliament and from there it soon leaked to the media.
Much of the criticism of this judge has focused on the separation of powers and the division in society over the referendum. But that is just the beginning.
Harrison’s injudicious email will inevitably cause problems for some barristers and litigants who might appear before him.
It has already prompted NSW Chief Justice Andrew Bell to issue a statement about Harrison that is notable for what it skips over.
Harrison’s email to Conaghan verges on the abusive. It says the position of the MP and the National Party on the voice is “niggardly and cruel and mean-spirited”, and “indecent in its ignorance”.
The problem is that the judge was not writing as a private citizen. He used his judicial position to make a political point.
The email came from his official Supreme Court email account and the signature block at the end informed Conaghan that it was from “Justice Ian G. Harrison, Supreme Court of NSW”.
The judge used invective and his judicial position to encourage a member of parliament “to be ashamed of yourself” for taking a position that is in line with that of his party and almost half the electorate.
When this became public, Chief Justice Bell issued a statement that contains not one word of criticism of Harrison. According to consistent media reports, it merely says: “It is generally prudent for judges to avoid making public statements on topics of political or public controversy.
“Justice Harrison’s email to Mr Conaghan was not a public statement nor intended for public consumption.”
The Chief Justice’s statement raises a troubling implication. Surely he cannot be suggesting that Harrison’s spray was legitimate because he wanted it to remain private?
Think that through for a second. If it is legitimate for judges to intervene privately with politicians over live political issues, is it also legitimate for politicians to intervene privately with judges over live cases?
Public statements that breach the separation of powers are regrettable but it must surely be the case that more damage can be done to this doctrine by private lobbying between judges and politicians about live issues.
The lack of clarity from Chief Justice Bell is in marked contrast to the approach outlined in the Guide to Judicial Conduct – a publication produced for the Council of Chief Justices and the Australasian Institute of Judicial Administration.
After stating that judges “must avoid involvement in political controversy”, it warns that: “Expressions of views on private occasions must also be considered carefully as they may lead to the perception of bias.”
Unlike Chief Justice Bell, the Guide to Judicial Conduct also has something to say about the use of official emails for unofficial purposes.
“A judge should be mindful that email correspondence might identify the writer as a judge, and in that way is equivalent to using the judicial letterhead,” it says.
And the problem with using judicial letterhead, according to the guide, is that when it is used for unofficial matters it “might be taken to suggest a request for, or expectation of, some form of preferential treatment”.
The problem for Harrison is that he could eventually face applications to recuse himself from some matters because of his strongly expressed support for the voice.
The guide warns that when a judge is known to hold strong views on issues that are relevant to a case “possible disqualification of the judge may have to be addressed, whether or not the matter is raised by the parties”.
“The risk is especially significant when a judge has taken part publicly in a controversial or political discussion,” it says
There is no suggestion that Harrison, a former president of the NSW Bar Association and a judge since 2007, would be incapable of setting aside his personal views and deciding matters free from actual bias.
But freedom from actual bias is not enough. Judges must also be free from the appearance of bias.
And that is now beyond the judge’s control.
It is not far fetched to suggest that some barristers and their clients might feel uneasy about appearing before Harrison if they, like Conaghan, have criticised the voice.
It will be revealing to see if the NSW Bar Association – which supports the voice – addresses this issue.
Will it risk offending its former president and the “yes” campaign by going to bat for barristers who publicly support the “no” case? Or will it sit on its hands and await the inevitable recusal applications?
Two weeks ago, the High Court explained that the test for an apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to bear.
In that case, known as QYFM, Chief Justice Susan Kiefel and Justice Stephen Gaegler wrote that the hypothetical fair-minded observer understands that attitudes which are conscientiously discarded by a judge might still sometimes have a subconscious effect on even the most professional decision makers.
