JOCELYNNE Scutt’s amazing career has all the hallmarks of a Girl’s Own adventure story.
Throughout her busy life, this Victorian barrister has made waves in a variety of roles, and her current incarnation as a judge in Fiji is no exception.
It would, however, be a great pity if the repercussions from Scutt’s sojourn in the tropics were to engulf Victoria’s Legal Services Commissioner, Victoria Marles.
Marles has incurred the wrath of Fiji’s democracy lobby for dismissing a complaint about Scutt’s decision to join the Fiji bench.
Scutt accepted that position from a regime that came to power in the 2006 coup.
Fiji’s democrats argue that her appointment did not comply with the procedure mandated by the Fiji constitution.
It is important to note why Marles threw out the complaint about Scutt.
She did not base her decision on a view that the offshore activities of Australian lawyers were beyond her jurisdiction. She based it on a belief that Australian lawyers of good repute would see nothing wrong with breaching another country’s constitution in order to accept a job as a judge.
Her letter to democracy activist Angie Heffernan says as much: that even if Scutt’s appointment was not undertaken in conformity with the constitution, lawyers would not see this as disgraceful or dishonourable.
It’s hard to know who should be most annoyed by this assessment — Fiji’s democrats or Australia’s lawyers.
Marles clearly has an unusual view of the profession. But it would be a mistake to make her the focus of this affair. This business needs to be dealt with in a different forum.
The Marles ruling shows why. Questions of international relations and the value of democratic norms are clearly beyond the jurisdiction of a regulator of the legal profession.
The real issue now is what the nation’s governments plan to do about this. Unless they act, the existence of the Marles ruling provides comfort for anyone who wants to work for thugs who overthrow democratic governments.
It is important to keep in mind that Marles did not place Scutt in such a category. She did not find that Scutt’s appointment had in fact breached Fiji’s constitution. She said that if it had, there was nothing wrong.
At the moment, the Victorian Government is not interested in the Scutt affair. The federal Government seems to believe it can do nothing about the offshore activities of Australian lawyers.
In this part of the world, it is truly startling that the federal Government — which has strongly criticised Fiji’s junta — has taken such a hands-off approach.
Whether we like it or not, Australian lawyers are being entangled in Fiji’s struggle to return to democracy. The least Australian governments can do is provide some guidance to ensure that the profession is on the right side of that struggle.
Well-meaning lawyers might believe they are doing the right thing by giving other countries the benefit of their experience. But it’s not that simple.
If the source of their commissions lacks democratic legitimacy there will always be arguments about whether they are part of the solution or part of the problem.
The actions of incoming chief justice Robert French provide a very clear pointer for the nation’s governments and lawyers who want to do what they can to help Fiji.
French walked away from that country rather than have his part-time appointment to the Fiji bench renewed by a military-backed regime.
He recognised the reality that there are now two types of judges in Fiji: those with commissions that date from before the coup — and the rest.
One regulator of the profession has already demonstrated a willingness to deal with the offshore activities of Australian lawyers.
Next time, the outcome might be different if governments provide some guidance on the standard of behaviour expected from Australian lawyers offshore.
It’s time to close the regulatory gap by giving French’s democratic instincts the force of law. Fiji regulatory gap as authorities turn blind eye
THE Victorian and federal governments have both declined to take responsibility for the involvement of Australian lawyers with the military-backed Government of Fiji.
A Victorian government spokeswoman said the state did not want to get involved in the question of whether Victorian lawyers should take judicial appointments from the Fiji regime.
The federal Government criticised the methods used in Fiji to appoint judges, but said: “The commonwealth does not have responsibility for investigating complaints of professional misconduct against Australian legal practitioners who accept appointments overseas.”
A spokeswoman for Foreign Minister Stephen Smith said the regulation of lawyers was a state issue. The federal Government was “concerned that the independence of the Fiji judiciary has been severely compromised since the coup in December 2006”, she said.
“The president of the Fiji Law Society (FLS) has raised concerns that the appointment of a number of judges since the coup in December 2006 has been in breach of the constitution of Fiji because the FLS have not taken part in the consideration of these appointments as part of the Judicial Services Commission.
“The decision of the interim Fiji Government on 18 February 2008 to ban a visit by the International Bar Association’s Human Rights Institute provides further evidence that the independence of the judiciary and legal system in Fiji is under serious pressure.”