I have a couple of Canadian friends from law school who went to the Bench in Canada. You know what they knew about taking up the job as superior court judges? They knew that they had less scope for speaking their minds than do regular citizens. It is part and parcel of the job across the common law world. Remember, it is the judges who impose on the administrative law the notion that what matters is not just any actual bias of a decision-maker but also the appearance of bias. What would the disinterested observer think of this person’s ability to hear a matter and be impartial? And for that reason lawyers who take up the job as judges – because no one forces them to do so – have always known they have to be more circumspect in sending out their unsolicited views about moral and political matters, and most especially about party political matters.

But apparently things are today different in New South Wales. As most readers will by now know, Justice Ian Harrison of the Supreme Court of New South Wales, decided last week to send an unsolicited email to a member of our national Parliament, Nationals MP Pat Conaghan. You see, Justice Harrison disagreed with the politician’s stance on the upcoming Voice referendum. The judge’s email was, quite frankly, oozing with moral sanctimony and self-regard. It would appear that because the MP was on the ‘No’ side of this debate – and to be clear and open with readers so am I (strongly) and so are almost half of Australians according to the latest polls including retired Justices of the High Court and leading Aboriginal leaders for that matter – this was enough to trigger the judge to say that the MP’s party’s ‘No’ position ‘is niggardly and cruel and mean-spirited’. The judge claimed ‘there are no sleeping constitutional issues here’. In reference to the MP’s speech (which readers can read and which, to me, seemed wholly innocuous in the context of a political battle where those on the ‘No’ side have regularly been called racists, including by leading ‘Yes’ campaigners and by a top silk) the judge moved into condescending mode and claimed, to the MP, that ‘you obviously do not understand or appreciate the depths of paternalism and racism that oozed from your words’ while adding that the MP’s contentions were ‘subtly disgusting’. And he finished with the rhetorical flourish of hoping that the MP ‘live[d] long enough, and acquire[d] sufficient wisdom and self-awareness, to be ashamed of [himself]’.

All in all it was quite a sanctimonious effort by the judge, full of the implicit self-regard that can only come from believing one has a pipeline to God on debated moral and political issues or that one’s own moral antennae vibrate at just that heavenly frequency. Now, I won’t bother here to go into details about why the judge was flat-out wrong in claiming there are no sleeping constitutional issues around the Voice proposal and about every other assertion too for that matter. Nor will I linger in pointing out the ad hominem and divisive nature of arguing by calling your opponents racists, and better yet racists who are disgusting, cruel, and mean-spirited. Remember, this is the judge’s description of what currently looks to be the opinion of about half the country, and the one I have long claimed in print will win this referendum, those on the ‘No’ side.

No, forget all that. Instead ask yourself how it is that the NSW Chief Justice half-excused this email because it was a private communication (released – and in my view rightly released – by the MP not the judge). Is that an excuse the judges would accept in some administrative law case where one side was arguing the appearance of bias? Not a chance. Or reverse the situation and consider what the view would be if an MP had sent a private email to a top judge, maybe to the Chief Justice of NSW himself, calling the judge’s views on some matter ‘disgusting’, ‘racist’, ‘cruel’, ‘mean-spirited’ and enough to hope the Chief Justice would one day ‘be ashamed of himself’. Do any readers want to take the bet that our top NSW judge might take a slightly different view about the supposedly conclusive relevance of its being a private communication and whether that made this sort of email all okay? Because it patently does not in my view. Remember, part of the deal in signing up to be a judge is that you simply do not get to be as free with your views as you were as a regular citizen. Don’t like the deal then don’t take the job. Right? (Well, at least everywhere not called ‘New South Wales’.)

It gets worse of course. Because I also happen to believe that there is a certain political asymmetry in play here. Ponder this counter-factual scenario. A conservatively inclined top judge sends an unsolicited email to an MP from the Green party calling her precisely the same names as above. Want to bet on whether the left-leaning ABC treats it as a minor constitutional crisis and concomitantly whether the Chief Justice has a lot more to say than half-heartedly sloughing it all off as a private communication?

Or consider the matter from the point of view of future litigation. Anything that brought into play in any way Aboriginal affairs. Would any ‘No’ voter in this upcoming referendum feel that he or she would get a fair trial from Justice Harrison, remembering the test is the appearance of bias and that this judge seems to believe that the half of the population who are presently looking like voting ‘No’ have some very serious moral failings? Would Justice Harrison recuse himself from that future case, and if not why not? And what would the Chief Justice say on some appeal from that recusal application, that ‘the judge’s disdain and disgust for ‘No’ voters was only expressed in a private communication’?

For me what is most extraordinary about all this is that it would never have happened thirty years ago. The established norms were too well entrenched. But now, on a party-political matter that is dividing the country, we see Bar Councils, Law Societies, top companies, big charities, G8 universities, sporting bodies (the list goes on and on) falling all over themselves to come out for ‘Yes’. And then giving in to the temptation to call those who disagree with them their moral inferiors, sometimes in the heated language of ‘you’re a racist and a bad, bad person’. I have no idea when it was that so many people in today’s anglosphere societies came to the conclusion not just that they were infinitely better moral beings than those myriad others with whom they were differing (people like me and many of you) but also that they should make a point of telling these perceived deplorables of their moral pygmy status. But I can tell you that it leads to the breakdown of some very important social conventions (not to mention to an eventual backlash from people who don’t accept they are moral inferiors), precisely as we are witnessing in the US. One such convention is that top judges keep their mouths shut and don’t send out unsolicited communications to others, especially to MPs with whom they differ. Another is that if some judge doesn’t keep his opinions of what’s disgusting to himself then there would be a fair bit more of a response from the Chief Justice of the day than the sort of soft-pedalled ‘nothing to see here folks’ line we got last week.