AS A JOURNALIST, a documentary maker, a whistleblower and a Federal Political Candidate, senior constitutional human rights barrister James Johnson has a reputation for being unstoppable.
Adding to his previous whistleblower titles such as “The Crucible” , “Soylent Green and Gold” and “Seven Little Australians”, Mr Johnson is in full production with three more documentaries due for release this year – “Solving Debtocracy”, “Lawyerocracy” and“Lawyerocracy on Trial.”
Mr Johnson is also a lead spokesperson for a trio of public campaigns to bring back legal standards for Australia's barristers and solicitors, which the Australian High Court wholesale abolished in 2004.
1. The first campaign involves a series of proposed High Court test cases, to persuade the High Court to re-impose a legal duty of care on solicitors and to extend the same legal duty of care to barristers.
2. The second campaign involves lobbying State Premiers and Attorney-Generals to bring in independent legal regulators to replace the 'boys club' of co-regulation legal regulatory schemes which many accuse regulators of failing the public by protecting lawyers who are 'not up to the job'.
3. The third campaign, James describes as “totally surreal.” He says “It's the sort of thing Charles Dickens or Lewis Carroll might have written as a parody, a mockery of a legal process, a legal profession and a government bureaucracy all gone horribly wrong ...”
James is referring to charges of “professional misconduct” levelled against him, in late 2011 by the Victorian Legal Services Commissioner. About 120 members of the public turned up to support James at the last hearing on 21 May 2012.
Hearings resume on 6 July 2012, at VCAT, 55 King Street Melbourne.
James shrugs this off, “There is no substance to the allegations. That's why the legal regulator has already dismissed them at least twice. It's dirty politics ... a blatant political payback. Reprisals are just one part of the price I have to pay for telling the truth, for blowing the whistle on corruption and cronyism in the legal profession and in government. The allegator, a Federal Barrister, his co-allegator, a Federal Magistrate, and the prosecutor, the Legal Services Commissioner are the ones who need investigation. The three of them are co-defendants in a $50 million Supreme Court counterclaim I filed over 3 years ago. So far, I've taken the Legal Services Commissioner to the Supreme Court of Victoria, twice, in late 2008 then in late 2009. I was 100% successful on both occasions.”
“And Michael McGarvie is a former law firm partner of my political opponent, Julia Gillard. It all goes to show how deep the pay back goes.”
“The Legal Services Commissioner, Michael McGarvie, and his team of a dozen in-house lawyers are doing their utmost to become the first government officials to be jailed (for up to 2 years per count) under Victoria's still untested Whistleblowers Protection Act of 2001. And the more they keep doing it, the more they expose themselves, breaking more laws, drawing-in and implicating more lawyers in the crimes and cover-ups against me – including VCAT staff, barristers, other government agency lawyers, even judges. They have more to worry about than I do.”
The stories behind these campaigns are the stuff of Hollywood blockbusters. Which is exactly what Mr Johnson hopes will happen with two of his current documentaries “Lawyerocracy” and “Lawyerocracy on Trial” (which tracks the VCAT prosecution against him) when they are released later this year.
“Aussiewood first – Hollywood second,” says Mr Johnson, “With corruption on this scale the bright lights of Hollywood are the best antiseptic.”
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In 2004 Australia's High Court created extraordinary “world first” laws when it took away from 22 million Australians the right to sue solicitors who negligently mess up in court. This came about in a “highly contrived” 2004 test case, D'Orta-Ekenaike v Victoria Legal Aid and A Barrister. The High Court of Australia ruled 6:1 (Hon Justice Michael Kirby the lone dissenter) that Australia should remain the only nation where negligent barristers can't be sued. The High Court ignored 15 unanimous English Law Lords who abolished the privilege in England in 2000.
“The barristers' immunity was a product of the old English feudal caste system. Seventeenth century Lords were aghast at the idea of aristocrats (barristers) being sued by commoners. It is a bit of an indictment of lawyer and government ethics, and public apathy, that the privilege survived as long as it did.”
Since 2000 Australia is the only country where the barrister privilege law hasn't been abolished.
“But the real damage to the Australian public was done not by the High Court keeping that quaint and almost insignificant old law, but by it creating a new, bigger and bolder law.”
“The two Victorian government agencies orchestrating that case, Victoria Legal Aid Office and the almost anonymous Victorian Legal Practitioners Liability Committee convinced the High Court to extend the outdated 300 year old “barristers immunity” privilege to cover Australia's more than 77,000 litigation solicitors. Clients of solicitors practising in family law, wills and estates, criminal law, mortgagee evictions, all court-intensive areas of legal practice, suddenly, for the first time became prohibited from suing for damages if their solicitors were negligent in handling their case.
“The English feudal caste system has been kept alive in Australia. It's a “bunyip aristocracy” enormously strengthened in 2004 when 77,000 solicitors were upgraded to join 7,000 barristers in the ranks of the aristocrats, who can't be sued by commoners for messing up their law suits.
“This is much worse than just a ten or eleven fold increase in the number of lawyers who were suddenly put above laws that they take money from everybody else, to apply to everybody else. The flow on effect has been catastrophic. It is only 8 years since Australia's lawyers create this greater immunity just for themselves. But overwhelming evidence shows that professional and ethical standards amongst court room solicitors – litigators in family law matters, wills and estates, minor criminal matters, bankruptcies, mortgagee repossessions, evictions et cetera – have gone into rapid free fall since 2004.”
“It isn't just that ethics, skills, knowledge, morale and mental health have plummeted among 77,000 solicitors. As solicitors standards have plummeted they have taken down with them the high standards that once existed amongst the ranks of Australia's 7,000 barristers.
“The contamination has gone up into the lawyer-intensive judiciary and other government agencies and departments, spreading the downward spiral back through the other branches of government.”
With support from the Baillieu-Clark Victorian Government, several leading Australian law firms, and the Victorian government providing legal aid funding, Mr Johnson says he is confident that High Court of Australia, “under the watchful eye of Chief Justice Sheldon French”, will act decisively to admit its 2004 mistakes and bring Australia's laws of lawyering into line with the rest of the world.
“Barristers and solicitors have to be subject to the same legal professional standards they impose on everyone else. And, after all, the High Court of Australia, and the Chief Justice of the High Court, have international reputations to protect too.”
“What better way to protect and build a legal reputation than by restoring justice to the law.”
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