CRIKEY: Those who judge judges, lawyers need a lesson in depression

Here’s a great way to improve the quality of lawyers in Australia. Ensure that lawyers who want to renew their licences after five years of practice are made to sit through a rigorous psychological and psychiatric examination. They should also provide copies of all medical records.

Why? Lawyers are officers of the court. Some go on to become magistrates and judges. We need our legal profession to consist solely of stable, sane and depression-free individuals. We also need world peace, an end to all poverty and a Prime Minister worth voting for.

Two NSW magistrates have had to front up before the Parliament and explain to a bunch of politicians why their mental illness should not render them unfit to perform their duties. One wonders how many of the honourable members listening have (or should have) appointments with psychiatrists pencilled in their diaries.

This is the same Parliament whose numbers once included an opposition leader whose unfortunate gaffe led to a suicide attempt and admission to a psychiatric clinic. This traumatic roller-coaster ride has not stopped John Brogden from becoming chief executive of the Financial Services Council.

Brogden’s depression, a condition he shares with one in five of his countrymen and women, is not deemed by the financial services industry to render him incapacitated to do his job of overseeing the investment of about $1.4 trillion through superannuation, funds management and life insurance organisations. Yet for some reason, the Judicial Commission in its wisdom has decided that magistrate Brian Maloney is incapacitated after being diagnosed with bipolar II, an illness known to be very treatable with standard psychopharmacological treatments.

With respect, those who judge our judges and lawyers should understand that law is one of those professions very conducive to depression in its practitioners. Perhaps a good way to describe a lawyer’s job is to always assume the worst scenarios are going to happen and then protect his or her client from each of them. The best lawyers are almost always the ultimate pessimists. Too much positive thinking is dangerous in the legal game.

Life is especially tough for many small operators whose sources of work are drying out or legislated out of existence. These are often the lawyers prepared to do low-paying legal aid work for average punters. These are the lawyers who would struggle to pay their own hourly rate let alone the fees of the average private psychiatrist.

As magistrate Maloney told the NSW Parliament: “Interestingly, researchers have found that 40% of law students, 20% of barristers and 33% of solicitors have a mental illness. It is from this demographic that judicial officers are drawn. In the past 12 months three barristers have sadly taken their own lives. In recent years, two judges.”

So much of our criminal and civil justice system is carried out by the magistrates courts — simple traffic matters, drink-driving offences, family violence orders, debts and much more. A huge number of unrepresented persons, punters who can’t afford a lawyer and whose matter doesn’t come within legal aid guidelines, are seen by magistrates who generally bend over backwards to ensure no party is unfairly dealt with.

We need magistrates who have empathy and genuine life experience. That includes the experience of the large number of people suffering from mental illnesses who are disproportionately represented in our prisons, as parent-litigants in child protection cases and in so much of the business that comes before magistrates courts.

You’d think having a magistrate on the bench who is successfully managing mental illness would be an asset to the court. In short, if a magistrate is readily deemed incapacitated because of depression or bipolar disorder, the entire court system is potentially put at risk. And that’s enough to make anyone sick.

Words © 2011 Irfan Yusuf



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CRIKEY: Tabloid journalists and the presumption of innocence

OK, I'm now going to try to make this blog a little more active. So I'll start with this entry published in Crikey today ...

Tabloid journalists and lawyers have a strange relationship. Tabloid journos often have little regard for the legal rights, privacy, presumption of innocence or reputation of (especially accused) persons they report on. So I found it quite ironic when a tabloid journo threatened me some years back with a defamation suit. S/he was unhappy with my description of his/her/its ridiculous reporting of a chap s/he claimed was a terrorist.

The chap was actually accused of keeping bomb-making materials in his house. The police had already ruled out terrorism-related charges. But for the journo reporting the incident, the accused was a Muslim who had framed Arabic calligraphy on his walls and a Koran and some religious books in his bookshelf.

Anyway, the point I’m trying to make is that some journos are quick to see accused deprived of their rights, without realising that their hysterical reporting threatens the rights of all of us. Journos included.

Rights that people have fought and died to defend over the centuries. Like the presumption of innocence, and the right to refuse to be interviewed by police. These rights form a key plank in our criminal justice system. In a liberal democracy, these rights form an important element of "The Rule of Law".

So when Ben Fordham accosted Belinda Neal and asked questions like "What have you got to hide?", he effectively suggested Neal’s exercise of a basic legal right was illegitimate. He basically said she must talk, if not to the police then to viewers of A Current Affair.

Now let’s put the shoe on the other foot. Let’s say Fordham or one of his camera crew were the subject of a police investigation for potentially assaulting Neal (as I hope they are), what would Fordham say if Neal suggested that he and/or his crew must submit to a police interview?

My guess is Fordham would cry foul and self-righteously claim political interference in the criminal justice system. Fordham might even instruct his lawyers to express their disgust at this political interference, both before the magistrate and the cameras.

Populist journos and politicians are crying foul over one Queensland judge’s decision to release convicted pedophile Dennis Ferguson after finding that media saturation had made it impossible for a jury to deal with the facts of Ferguson’s impending charges in a "dispassionate" manner, despite the weakness of the Crown’s case.

Instead of blasting the judge, tabloid journos and shock jocks need to consider how their own conduct is compromising our criminal justice system. These same shock jocks should ask themselves what would happen if they were accused of pedophilia or some other criminal offence. They should understand that even accused persons deserve human rights. After all, until they are convicted, they are innocent.

Tabloid media needs to understand the meaning of innocence. And before anyone accuses me of sounding like a typical criminal defence lawyer, allow me to disclose that my area of practice is employment and workplace relations law.

Copyright 2008 Irfan Yusuf