Former attorney general Robert McClelland has set up office at State Chambers in Sydney’s Martin Place. He is back in the law game and trying to grow a legal practice. This raises numerous issues. The first thought that comes to mind is that he is already preparing for defeat at the next election. The problem for me and I am sure a lot of voters is that he is still on full pay as a federal politician and I naturally assumed federal politicians work in their position full-time.
In an interview Mr McClelland did with The Australian it says this “He said he had maintained a practising certificate during his time in parliament because he always intended to return to the law.”
“It was partly self-interest in wanting to retain some seniority and also be seen by the legal profession as being part of the legal profession,” he said.
“I have always seen myself as a lawyer rather than a politician. That may have been to my detriment in politics, I suppose.” (Click here to read more. They have a paywall now)
I must say that I have always seen him as a criminal and not a politician. Some reporters write what a nice guy and gentleman McClelland is. The same reporters who grovel to the government for stories. I would rate McClelland as one of the sleaziest politicians in Canberra.
Abandoning Ship
For Robert McClelland to set up practise as a lawyer while he is still an elected federal politician says a lot about his own confidence in and commitment to the federal government. (click here to see his listing on the BarNet Directory Service) I have no doubt this should be banned. It is one or the other.
Conflict of interest
Also I have never seen a greater conflict of interest where someone who is totally committed to seeing the financial flourishing of an industry actually oversees that industry. But that is exactly what happened with when Robert McClelland was the Attorney General. Mr McClelland achievements as attorney general were almost zero. In fact he was a major embarrassment to himself and his party. He almost never gave interviews or called press conferences. I remember the couple of times he did call a press conference he would last maybe ten minutes and then take a couple of questions from the journalists and then do a runner once the questions got to hard.
It is interesting that Mr McClelland will be working in court with judges that he personally appointed. I wonder if they will repay the favour. I think there needs to be a law that the Attorney General is never allowed to practice law again or even better they should not be lawyers in the first place.
Failure as Attorney-General
Mr McClelland achieved almost nothing as the AG. He never brought in an independent body for the appointment of judicial officers although he did try some smoke and mirrors on this and set up two advisory committees for judicial appointments. One for federal judges and the other for federal magistrates, but he was never bound by their recommendations and the list of clear Labor Party appointments testifies to that. For example are we to believe that Julia Gillard’s former boss Bernard Murphy was approved and put forward by the advisory committee. I have a done a previous post on Justice Murphy’s appointment titled “Julia Gillard appoints Bernard Murphy, her partner in crime from Slater and Gordon Lawyers, as a Federal Court of Australia judge.” (Click here to read the post)
Nor did he set up an independent body to deal with complaints about judicial officers even though a Senate enquiry recommended this in a 2010 report.
It worth looking at the UK for example who have realised there failings in this area. They have the Judicial Appointments Commission (JAC) which “is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland.”
It also says on their website “We select candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates.”
“We were set up in order to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable.” (Click here to read more)
Can anyone name me one judicial officer in Australia and on what basis they were appointed. That’s right you cannot. In Australia it is a joke and no-more so then at the federal level and Mr McClelland was up to his neck in it.
The UK also has a number of bodies that deal with corruption and failings in the UK judiciary. For example there is the Office for Judicial Complaints (OJC) which says on their website “the Constitutional Reform Act 2005 gives the Lord Chancellor and the Lord Chief Justice joint responsibility for the system for considering and determining complaints about the personal conduct of all judicial office holders in England and Wales and some judicial office holders who sit in Tribunals in Scotland and Northern Ireland. The OJC was set up on the 3rd April 2006, to handle these complaints and provide advice and assistance to the Lord Chancellor and Lord Chief Justice in the performance of their joint role.” (Click here to read more)
The UK even has oversight for the above mentioned bodies which is the “Judicial Appointments and Conduct Ombudsman” which “investigates complaints about the judicial appointments process and the handling of matters involving judicial discipline or conduct.” (Click here to read more)
Compare what happens in the UK to here and you really start to understand Mr McClelland’s and the governments failings. Dodgy judicial appointments for the boys and girls and complaints about judicial officers being swept under the carpet every week etc.
Remember this is the guy who supported Julia Gillard and said that “Wikileaks and Julian Assange had likely broken the law” after Julia Gillard said what they did was illegal. When this was found to be wrong neither apologised.
Australia deserves better than to have part-time politicians. Imagine the outcry if one of the federal politicians worked part-time for BHP, Telstra or one of the media organisations etc. The federal government claims they are looking at a new code of conduct for federal MPs and Senators. The first point should be they are not allowed to work part-time or full-time (and make their political role part-time) in other industries that they have ultimate oversight for.
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Categories: Attorney General Robert McClelland
As a 65 year old Australian who has worked as a PAYG taxpayer for 49 years, served in the Militray for 22 years with 12 months war service, I am continuously affronted by the lack of morality and accountability in all levels of government. Politicians are only in it for self-interest and this is clealry demonstarted by the failure of Windsor and Oakshott to hold the Government to the ‘new paradigm’!
Surely you didn’t think ethics has ever been a consideration for any Labor Politician?
Former cabinet ministers, or soon-to-be former cabinet ministers should not be allowed to practise in an area of commerce or industry related in any way to their former positions for a decent period. It applies in most OECD countries but surprise, surprise, not here. It seems in Australia this rule is needed to be enforced if it is indeed the case.
McLelland should be told to toe the line here but I am not expecting anything of principle from Canberra. I recall Peter Reith doing much the same thing.
Shane I have to agree whole heartedly with you on the issue regarding conflict of interest. He, nor should anyone else be working with judges that they have appointed.
KAREN,
BEING AN AVID READER OF KCA I AM THINKING ABOUT ALL THE LEGAL APPOINTMENT’S MADE BY JULIA GILLARD. PITY ANY ENEMY OF THE GOVT THAT HAS THE MISFORTUNE TO APPEAR BEFORE THEM.
As the man said “OZ a great country run by third rate people”
if McClelland had any cojon’s when gillard demoted him he should have left but then he would have missed out on his freebies.
” I would rate McClelland as one of the sleaziest politicians in Canberra”.
Wow. That’s a big call.
I’d go for Thomson, Windsor, Oakshite, Albo and a few others.
He may be in the top 10 though…..
People like McClelland seem to fly under the radar, until someone points out the nature of their sleaze. They are the smart/cunning ones and they probably do more actual damage to the system than highly visible but ultimately fairly inconsequential and stupid people like Thomson.
Elsewhere in these pages I have used terms such as “Organised Crime”, “money laundering” etc, which some may have considered over-the-top. Surprisingly, this week following Thomson’s diatribe in the Parliament, such terms are emerging more widely.
In order to ensure that none of this Cabal of Hucksters is ever held accountable for their criminal conduct, the Judicial infrastructure had to be put in place which will render them all teflon-coated. No Prosecutor will ever take them on. They will all walk away with all their taxpayer-funded entitlements and be free to call in all their markers from Industry, Energy, Finance and the Law where their systematic dismantling of checks and balances and oversight has been years in the making.
Not only do we need a Constitution which will better protect this Nation from ever again being seized by such a nefarious gaggle of Parliamentary Representatives, we are urgently in need of a new Electoral System altogether, whereby Union thugs and Party heavies don’t get to decide who will be ‘pre-selected’ to represent the people.
We currently have 55 ex-union functionaries sitting in the House-on-the-Hill and how many more have never held any kind of job other than as Party Apparatchiks? And why would any of them ever change the status quo when they have already held several Prime Ministerships, thereby having sole responsibility for appointing their cronies as Attorney General, Governor General et al and on every Board and Quango ever devised to create the illusion of appropriate Corporate and Financial Governance.
These bloated parasitic maggots have burrowed into the very heart of our Nation.
If this individual is in practice and is a “registered officer of the court” or whatever bull jargon they use nowadays, doesn’t that make him part of the judiciary? If so, isn’t his present position a breach of the separation of powers?
Cameron
Cameron, McClelland is not part of the judiciary as he has a practising certificate to work as a barrister (alternatively he could practise as a solicitor if he had a certificate to do so); this is after completing law studies/clerkship and being admitted into the court as a lawyer (he would be the roll of lawyers).
The judiciary is the High Court of Australia and the federal courts which essentially means judges. The separation of powers refers to the parliament, the executive of the government and the judiciary all being completely separate and not meddling in each others affairs. Therefore he can work as a barrister so he is on the other side of the bench but as Shane has pointed out, is he about to jump ship or is there a current conflict of interest with his position in Parliament where he is not supposed to be working “another job”? Allison
Might be appropriate now for Mr McClelland to act for Craig Thomson in his various legal defences; it would all be paid for by the Labor Party so it’s kept all in the family. I am sure Mr Thomson will have a variety of defence actions to keep the former AG busy for a long time in his legal practice.
Really interesting that Fair Work Australia and the Fair Work Act came into being under this Labor Government with Mr McClelland as AG. Now we see the likes of Mr Albanese suggesting that FWA report states “allegations” and not factual findings on Mr Thomson. Quite bizarre really if you read the report with reference to the source documents they have uncovered to support their report. So what is the standing of FWA? If there are questions now about the credibility of FWA, why should the entity exist at all?
Mr McClelland made some very interesting appointments to the Federal Court bench – very young and inexperienced judges with leanings to the left. There’s more to all this and time will bring out the truth. The separation of powers doctrine is basically just a group of words. The more information hits the media about this government the better because the concept of the Kangaroo Court has become a reality.
Allison et al,
I make the comment that this person is a part of the judiciary, even though it is obvious that he is not actually a judge. I see him as part of the judiciary as a lawyer. How can a lawyer be anything else but part of the judiciary? What other function is he serving in this capacity.
I can understand the usual points of view from officaldom claiming all is well regarding these matters, but that would be being fair minded and invoking “Queensbury Rules” and I stopped advancing such courtesies these people decades ago.
To me all lawyers work for and are part of the judiciary just as all police or soldiers are part of the other sections of government although they are neither executive or legislator in their day to day duties. They belong to those sections of government as lawyers belong to the judiciaey,where else do the fit in the bigger picture?
When you count the sheer numbers of lawyers in the house of representatives and the senate, and If you take the view that they are inherently members of the judiciary, no wonder we are in big trouble as a nation. How can the separation of powers prevail under such circumstances? I see the separation of powers as more than “just a group of words”…pity those in power at present don’t, but then, there are a fair number of lawyers in there I suppose and its not to their advantage.
As Jonathon Swift put it hundreds of years ago “Judges… are picked out from the most dextrous lawyers, who are grown old or lazy, and having been biased all their lives against truth or equity, are under such a fatal necessity of favoring fraud, perjury and oppression, that I have known several of them to refuse a large bribe from the side where justice lay, rather than injure the faculty by doing anything unbecoming their nature in office.” ( Gulliver’s Travels ).
If Judges are appointed from the available body of lawyers, then it seems fair to place lawyers in the judiciary, even as “boy apprentices”.
Cameron
Cameron, the judiciary is the legal arm of the govt – they are independent of the legislature and executive – it is the role of the judiciary (judges, magistrates etc) to enforce Australia’s laws (http://australia.gov.au/about-australia/our-government/australian-government). All three are supposed to be separate but …
Solicitors and barristers can only represent people before the judiciary (those sitting on the bench). Lawyers, solicitors and barristers all have duties to the court to be truthful etc etc but are not part of the judiciary, just the legal profession. Members of Parliament can only make the law, but the judiciary enforces it. Allison
One of the main objects of a blog such as this I would think, is to encourage dissident thinking and voices about things judicial and legal in the perhaps forlorn hope of meaningful reform. Any examination of the separation of powers brings variation as disagreement as to the nature and purpose and application of the separation of powers and we could debate and argue forever. If we think of the judiciary as a third “House of Parliament” defined in the Australian Constitution as is the House of Representatives and the Senate, we can see anomalies, albeit anomalies steeped in “Tradition” and supported by the continuous application of the status quo in this 3rd House. It is quite easy as Allison has done, to give a more or less official description of the current accepted position of the judiciary and a description of the notion of the separation of powers. I am sure that most would agree with her analysis, especially if you adopt the “newspeak” and support the status quo. I would disagree with her assertion that lawyers are “not part of the judiciary” however. I see them as very much a part of the judiciary.
In relation to the separation of powers a brief examination of the actions of some of our “judicial” representatives ( Judicial Agents ) in the house of representative and the senate may assist dissident thinking. Back in the early 1970’s Attorney General and labor lawyer Lionel Murphy planned and led a Federal Police Raid on the ASIO Offices in Melbourne. He later recounted that he “wanted to see his ASIO file”. In the early 1980’s labor lawyer and judicial representative in the Senate Gareth Evans ordered RAAF F111 Fighter Bombers to fly over and photograph earth and dam works on the Gordon below Franklyn River in Tasmania. He later recounted that it “seemed like a good idea at the time”. This was the first time since the Eureka Stockade that military hardware and personnel had been used by a government in Australia against its people for its own benefit. In addition to these examples in 1994 the Federal Government found that the Commissioner for Taxation as acting Registrar for the Child Support Agency had been making judicial decisions about matters brought to him for review in a seeming contravention of the doctrine of the separation of powers.
Lionel Murphy in particular is a good further example of the muddling that occurs when officers of the “House of the Judiciary” ( Judicial Agents ) embark on from the duopoly that currently exists in our country from safe bases in the representative parliament. Murphy as a labor lawyer, Senator, Judicial Agent and Attorney General, introduced and saw passage through the parliament, the Family Law Act of 1975. Soon after he left the Senate and was appointed by the labor lawyer, member of the House of Representatives, Judicial Agent and Prime Minister, Gough Whitlam to the bench of the High Court, where he proceeded to hear appeals from the Family Court, regarding legislation that he was responsible for in the other houses of Parliament. You may argue that the timeliness of these events means that Murphy was not in the Parliament when he commenced to hear appeals in the High Court, which is a weak argument for dissident thinkers I would feel. He may not have been a Senator when he worked in the Judiciary, but he was a member of the Judiciary ( Judicial Agent ) when he worked in the Senate.
Of course, the judiciary has other elements inherent in its makeup which gives it distinction from those other “Houses of Parliament”. Unlike the House of Representatives and the Senate, the House of the Judiciary is not representative nor random. It is totally unaccountable in the true sense of the word and appointment to its “High Priesthood” ( i.e. the Bench ) is made ( for life ) exclusively out of the junior ranks of the Judiciary, lawyers and barristers….and no one else. The judiciary has argued add infinitum, that it is “accountable” to the highest standard that can be afforded, it is accountable to ( wait for it ) “Justice”. If that were the case, why does a blog such as this one exist.
I maintain that the judiciary is comprised of all members of those who support it, work in it or derive income, wealth or power from it, not just those on the bench. It is comprised of lawyers, barristers, public servants who work for attorney general’s and the justice department, academics as well as those lawyers and barristers who also serve in the House of Representaves and the Senate ( as Judicial Agents in the People’s Houses ). I ask that people begin to consider this point of view.
Have a look at the Judicial Agents in the House of Representatives and the Senate
Judicial Agents in the House of Representatives
Peter Slipper
Julia Gillard
Craig Thomson
Tony Abbott
Stephen Smith
Bill Shorten
Joe Hockey
Simon Crean
Peter Garrett
Julie Bishop
Mal Turnbull
Robert McClelland
Kevin Andrews
Adam Bandt
Bronwyn Bishop
David Bradbury
Tony Burke
Mark Butler
Steven Ciobo
Jason Clare
Yvette D’Ath
Mark Dreyfus
Paul Fletcher
Josh Frydenberg
Greg Hunt
Stephen Jones
Mike Kelly
Andrew Leigh
Kirsten Livermore
Richard Marles
Daryl Melham
Sophie Mirabella
Shayne Neumann
Robert Oakeshott
Kelly O’Dwyer
Melissa Parke
Graham Perrett
Christopher Pyne
Michelle Rowland
Nicola Roxon
Philip Ruddock
Janelle Saffin
Laura Smyth
Kelvin Thomson
Alan Tudge
Judicial Agents in the Senate
Eric Abetz
Mark Bishop
George Brandis
David Bushby
Michaelia Cash
Mathias Cormann
Don Farrell
Concetta Fierravanti-Wells
Mary Jo Fisher
Gary Humphries
David Johnston
Joe Ludwig
Ian Macdonald
Brett Mason
Marise Payne
Michael Ronaldson
Matt Thistlethwaite
Larissa Waters
Penny Wong
Penny Wright
Nick Xenophon
We have to cultivate a much wider view of who the judiciary is otherwise we must believe that only the Priests are Members of the Church and only the Generals are Members of the Army
Public Servants and serving military officers not allowed to enter parliament ( see Jackie Kelly ). Admitted lawyers are. It is obvious when someone resigns from the military or the public service, the question is, when do lawyers quit being lawyers?
We have seen many inquiries into our institutions, Trade Unions, Police, Hospitals. Indeed there have even been inquiries into one of our courts ( albeit a limited one into the family court which did not have the suicide of parents as a term of reference ), but we have never seen an inquiry into the “legal profession” or the “Judiciary”. Do we really have to ask why?
Are we to accept that in relation to our 3 houses of Parliament that the House of Representatives and the Senate are subject to human error and imperfection but that the judiciary ( the whole of the judiciary not just the high priests on the bench ) are not.
We have to ask the question who or what are the judiciary and if the answer to that question is in your own mind “just the judges and magistrates” then we are in for a long long struggle before any reform is possible…..
I ask readers to consider these points in the light of reform, not in a way is justified by present thought and convention, which can only ensure that the unacceptable status quo prevails.
Cameron
Cameron, younger law students nod their head in agreement when lecturers espouse the doctrine of the separation of powers as they don’t know any better but the older ones just listen because their life experiences usually indicate otherwise (you would be surprised at the number of older students studying law – anyone can study it).
Really, lawyers only have a knowledge of the law as it exists at the time of their study. There is no power in having a LLB at all because the power only comes if you enter Parliament (to make the law or amend it) or sit on the bench (to enforce the current law).
The argument from the judges is that people who are aggrieved by the court system, have rights of appeal but I remember a saying that went along the lines of “… the good system of British justice is available to you as long as your bank account holds up…”.
Yes I remember Lionel Murphy bringing in the Family Law Act as AG, then being appointed to the High Court, resigning from the Senate which was really nice of Whitlam to help his friend out …
The commonwealth government appoints the Federal Court judges and the state governments appoint the supreme court judges and so it goes on …jobs for your mates …should the judges be elected by the people?
I am not too sure about electing judges, We elect our politicians don’t we…and look at the results. I think that in the USA judges are elected and I know everything on television is not actually real, but I have watched Judge Judy in horror and disbelief.
My hope is to get some discussion going regarding the sheer numbers of “Judicial Agents” ( Lawyers ) in the people’s houses in our parliament and from there some real options on how to deal with them. We already under the Constitution, disallow public servants and military in our parliament, I would think because for the real concerns that the founders had, that they would form a powereful cabal ( Meiji Constitution of Japan ).
Judicial Agents in our parliament form the largest and strongest guild in our government. Whether or not they collude is not the real question….the shadow of the doubt is there. I would think that a good start would be to disallow all qualified lawyer from entering the House of Representatives or the Senate. Boot them back to the judiciary where they belong.
I am for more shearers, farmers, railway engine drivers and wharfies being in parliament rather than the learned friends that we have at the moment….from just about all parties.
Cameron
Cameron, there have been a fair share of “ordinary” Australians from a variety of backgrounds enter Parliament, in particular from the Labor side. Now we have a fair share of the new broom “bright and shiny” university educated Labor people (eg Thomson, Wong, Shorten etc) who represent working people but who have never actually been anything like working people during in their short job history; they stand on the backs of working people via the unions to get into Parliament. This is the new generation who are “educated” unlike their parents’ generation.
What I find offensive is that the Whitlams, Keatings and Hawkes eventually leave their working class suburbs of residence and move to the wealthy suburbs of Sydney to live and leave the working class to get on with it.
Rudd was a diplomat, Keating a David Jones suit salesman and Pauline Hanson ran a fish and chip shop, so there have been a mix of people representing us. I think the adversarial nature of the legal profession is good grounding for Parliament which is why so many lawyers go into politics.
I have read somewhere (maybe the constitution) that a legal background is not a pre-requirement of a position in the High Court but try getting there without it. The earlier judgments of the court and in fact all courts, were typed up but now with the advent of word processing, they go on and on and on … all very complicated and you need a lawyer to interpret it (how convenient).
There have been rumblings about selection panels for the appointment of judges in any jurisdiction – that would be good if people on the panels or committees or whatever, came from different backgrounds and political persuasions.