“He had learned from his judge, so long ago, that so much could be achieved over a cup of tea with just the parties and the judge present… Serve the tea hot so that it and tempers could cool together,” writes legal columnist HUGH SELBY.

Three broadsheet newspapers delivered, rolled and dry, to his door each day: a morning edition and a slimmer early evening edition of a national newspaper, along with a national financial paper. 

He still takes that for granted: he’s not in Australia.  

He bends down slowly to pick them up (something which as a shouting paperboy outside a busy city railway station, and not yet shaving, he never thought could hurt), then unfurls them on the table. 

He has a choice among his news broadsheets, so he gets the one that lets him view an editorial along with an opposing or complementary OpEd piece side by side. He likes to have to think, to consider, to reflect, and then reach his own decision.  Right or wrong it belongs to him.

He can’t view them that way on a computer. Come to think of it, it’s well nigh impossible to find a range of views about a current issue these days without multiple subscriptions.  

It’s almost time for his audio-visual link chat with some newly appointed judges. The training institute asked him to chat about judicial independence, judicial activism and the notion of the “rule of law”, but with a practical focus in the here and now.

So be it. His life in the law began after he was discharged from active service carrying slivers of metal that would be with him for life. 

Working as a tipstaff to a senior judge he overhead a phone conversation in which his judge, with vehemence and volume, was telling someone that his legal acumen was no longer for sale, that it was now wholly in the service of the community and doing his best to deliver the correct legal result to the parties that were in his court.

He remembered the silence as he came into the judge’s room, wrongly believing that the call was over. It was the silence before a verbal storm. His judge was both listening and pacing around the room. He stopped. The judge stopped.

“I am going to say this just once. I have a witness here who served for my, his and your country. Our justice is not for sale. 

“Our judiciary is not for sale. I took an oath of office. My colleagues here took an oath of office. Its terms, unlike so many phrases in contracts, statutes and regulations, have one intent and one meaning. You want me to abjure my oath. Fuck off.”    

Community trust in judicial independence is one of the underpinnings of community faith in a democracy. How legislation is made and the mechanisms for its enforcement – both outside and inside courts and tribunals – are also important. Together these constitute the rule of law.

There is nothing abstract about the “rule of law”. It is a backbone principle that keeps democratic ideals alive.

What better example of its importance than the 2024 actions of six of the nine justices of the US Supreme Court, supposedly true republicans, who cast aside decades of well settled law to give their political leader a free pass for conduct that besmirched the office of president and falsely impugned the election process.

They exchanged the notion of judicial independence for the reality of judicial connivance with political whim pre-1688.  

So much for shared democratic ideals. So much for judicial independence. So much for the “rule of law”, attacked not only by a lack of independence but also by the abhorrent judicial activism of those who claim, falsely, to be the true preservers of the Constitution.

A news article from far away caught his attention. A director of public prosecutions (DPP) had complained to a chief judge about a trial judge who had confiscated mobile phones from witnesses. This conduct was alleged to be an interference in a fair trial. 

He smiled. The follies of inexperience, the intoxication of power, the mischievous delight the story gave to reporters seeking to foment trouble.

How right he was. Reading on, he found that the dispute had escalated. There was a counter complaint against the DPP from the judge alleging interference in judicial independence. Such a storm swirling in a teacup.

He had learned from his judge, so long ago, that so much could be achieved over a cup of tea with just the parties and the judge present. One could mediate successfully with a teaspoon as the conductor’s baton. Serve the tea hot so that it and tempers could cool together.

Quiet, purposeful, respectful approaches worked too for the necessary judicial activism that the news media ignored. That was unsurprising. They knew nothing of all the work that was needed to run a court that could deliver the right trial results most of the time, and where corrective appeals were determined quickly. 

Having led a court with colleagues with a wide range of talents, legal reasoning being only one, he smiled with the memories of harnessing those talents and personalities to create better decisions, quicker decisions, and a workspace that was inviting and supportive.

Would these newbies heed the wisdom from his past? He closed the paper then pressed “join meeting”.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.