Australian judges role in Fiji debateable
Updated
An attempt by a Fiji non-government organisation to have an Australian Judge serving on the High Court of Fiji investigated in her home state of Victoria, raises significant issues, according to the Victorian Bar Council. The Pacific Centre for Public Integrity has written to the Victorian state attorney general, and to the state's Legal Services Commissioner, asking for an investigation into the professional conduct of Judge Jocelyn Scutt. The PCPI argues that any Australian lawyer appointed to the Fijian bench after the 2006 coup is breaking their oath to uphold the law. Peter Riordan, the Victorian Bar Council chairman, tells Bruce Hill the PCPI obviously feels that expatriate lawyers shouldn't serve as judges in Fiji at the moment, but says judges might argue they are actually trying to uphold the law.
Presenter: Bruce Hill
Speaker: Peter Riordan, Chairman of the Victorian Bar Council, Australia
RIORDAN: They've made their complaint to the right person, the Legal Service Commissioner because anybody who wants to make a complaint about the conduct of a barrister who is a member of the Victorian Bar should make the complaint to the Legal Service Commissioner.
HILL: Have questions about the behaviour of Australian lawyers who have been appointed as judges overseas come up in the past?
RIORDAN: Never to my knowledge. This is a new one.
HILL: Why do you think it's come up now?
RIORDAN: You're really asking me to get into the minds of the people lodging the complaint. But I gather that they are people who do not recognise the current regime in Fiji and therefore want to challenge appointments made by that regime.
HILL: Do you think they're going to get very far in asking Australian legal authorities to get into that? It's more of a political question, isn't it, than a legal one?
RIORDAN: It seems to me more like a political question, but as I've already said until you actually know the details or complaints, it's pretty dangerous to prognosticate about the prospects of whether or not they'll be able to establish some breach of the Victorian Legal Profession Act.
HILL: If Australian lawyers do get appointed as judges in places overseas where there is controversy about whether the government is actually legal, are they doing anything illegal or perhaps immoral or unethical, depending on your point of view?
RIORDAN: Three questions in one there, Bruce. Illegal, again without knowing what it said that they've done, it's very difficult to comment. But at first blush, one can't imagine the accepting of an appointment overseas would be illegal. The other issues involve a tougher one, but other people can make that judgement. And obviously it would depend on whether you were being appointed by Saddam Hussein and some would say that it would be a great contribution to make to go over and try to establish the rule of law in some lawless country hypothetically. Others would say that you should not give support to the authority that's appointed you and it does sound a bit like a political question, doesn't it?
HILL: Although there might not necessarily be any legal repercussions, if Australian lawyers have become judges in Fiji come back to Australia, do you think there could be any repercussions for them professionally or personally from their peers?
RIORDAN: I wouldn't have thought so. Again, you'll need to give me some assumptions as to what it is they might have done over there. But the mere fact that they've been appointed to a South Pacific island, to accord on that island, accepted that appointment, and then returned, one doesn't immediately think that they'd be subject to being sent to Coventry over that.
HILL: Some people are suggesting that it's an illegal regime installed at the point of a gun. Is it a good look for Australian lawyers to act as judges for a regime so installed?
RIORDAN: Fiji probably is in much need of good judges who could be seen to be independent, rather than for example, the Commodore in this case appointing his own supporters. And so on one view you could argue that you were filling a current void with somebody who is likely to act independently and apply the rule of law. As you've suggested other might see it as selling out to an illegitimate regime.
