December 03, 2004
AUSTRALIA's judges are a pampered lot. To be sure, their work is lonely and the job is stressful. But does this justify some of the most generous holiday entitlements in the nation? This is particularly so when the backlog of cases in most jurisdictions means that innocent people remain locked up in remand centres and litigants are forced to put their lives on hold as they wait in the long queue for the resolution of their case.That judges should have leave entitlements of anything more than four weeks in 2004 is outrageous. And the fact that the legal profession and the nation's attorneys-general are not screaming from the rooftops about it simply indicates what a cosy club the legal system can be at times.
To take an analogous case, if doctors and nurses were to insist on seven or eight weeks' annual leave, Australians would be outraged as already long hospital waiting lists were stretched further.
The example used by Sydney lawyer Andrew O'Brien in this newspaper yesterday gives an indication of why our politicians and judges should end the holidays scam right now. He says: "The six-week summer recess in NSW meant two of his clients, a couple with a young child, would spend Christmas in prison ... he cannot get a hearing date for a sentence appeal in the Supreme Court until mid-February."
For O'Brien's clients, and for thousands of other lawyers' clients around the nation, this is a case of justice delayed is justice denied. The impact of generous leave entitlements for judges in the nation's superior courts (that is, state supreme courts and the federal court) is graphically illustrated by a table in the Productivity Commission's 2004 Report on Government Services.


Wade through this thick document and you will come across tables 6.17 and 6.18 which give you an indication of the backlog of cases. The tables are based on standards agreed upon by all the state, territory and national court administrations. The national standards for the supreme courts and Federal Court are that no more than 10 per cent of civil and criminal cases pending completion should be more than 12 months old. And zero per cent of cases should be more than two years old.
According to the Productivity Commission's tables, in civil cases, none of the state courts or the Federal Court meets these standards. The best performer is the South Australian Supreme Court, where only 6 per cent of cases are dealt with outside the 12-month category and 5 per cent outside of the two-year category. But in Tasmania a staggering 64 per cent of cases are outside the 12-month standard, and 44 per cent outside the two-year standard. In NSW, it's 29 per cent outside 12-month case standards and 20.4 per cent outside the two-year case standard.
In criminal cases, only Queensland and South Australia succeed in having no cases outstanding over both the 12-month and two-year benchmarks. NSW has the worst record, with 17.5 per cent of cases outside the 12-months standard and 5 per cent exceeding the two-year standard. Western Australia has more than 6 per cent of cases exceeding the two-year benchmark.
Our eight attorneys-general should have reacted with horror in January this year when these Productivity Commission findings were released. But the lawyers' club includes politicians. While attorneys-general and other politicians are happy to lambast judges over lenient sentences or other rulings that don't suit the political climate, when it comes to the work habits of judges you can hear a pin drop.
The defence for long judicial holidays is paper-thin. To argue, as Queensland chief justice Paul de Jersey did yesterday, that January is a convenient time for judges to take a long holiday because: "For example, medical witnesses and members of the legal profession themselves tend to take their leave at that time because it fits in the school holidays," is a nonsense.
The nature of work these days is such that while one partner in a relationship might take time off over January, the other may work through that period. Furthermore, most offices now restrict their Christmas break to the first few days after the new year.
Perhaps the last word on this issue should go to one of Australia's most eminent judges, the High Court's Michael Kirby. "The ultimate foundation for judicial independence ... lies in the manifest integrity of the judiciary itself and the general acceptance of that integrity by the communities whom the judges serve," Kirby told an audience of fellow judges in 2000.
If judges were to curtail their leave entitlements and work to ensure that the Productivity Commission's targets were met each year, then this would work wonders for the community's respect for the legal system.