Transcript
STEPHEN LAWRENCE: About two years ago I was reading a judgement of Judge Khan's and I notice large portions of a conference paper of mine that had been on line for some years and that immediately concerned me. It was unattributed and presented in the judgement as the judge's own words. And look plagiarism is anathema, really, to the role of a judge. So I did raise a complaint and i chased up that complaint a number of times [with] the justice minister and eventually after a long series of no responses he wrote back to me and said, 'I think you should know I am not really interested in responding.' And one can only infer from that that Minister Adeang has not actioned the matter. That really concerns me in the context particularly of the independence of the judiciary.
DON WISEMAN: What does it reflect about this particular judge?
SL: Look I don't want to reflect on his personal characteristics. All I can say is large portions of a conference paper on Abuse of Process, which I wrote, he picked up and used unattributed as his own words. It is the function and the most important function of a judge to deliver reasons for a decision. Those reasons are meant to reflect in a faithful way the judge's analysis of the law and fact, and when they are plagiarised from online content, they raise a significant issue, about to what extent has the judge engaged with the facts and the law, and I suppose people out there might also think that they raise issues about the judge's inherent suitability and characteristics for exercising the important role of a judge.
DW: Now Mohammed Khan is a member of the Australia Bar. Do you have any recourse there?
SL: Look it is not my intention to make any complaint to any relevant Australia professional association. These are actions that Mr Khan, or Judge Khan, undertook in Nauru and I thought it appropriate, in the Nauruan context, to make a complaint to the relevant minister, Mr Adeang, and Mr Adeang seems not to have acted on it and sent me that rather curt and dismissive reply. And look that raises real issues about the extent to which the matter has been dealt with.
DW: You have had three years now of involvement with the Nauru judiciary and the Justice Minister. Are you surprised?
SL: Look I don't want to reflect in a particular way about the Nauru judiciary, or indeed David Adeang. I think the events really speak for themselves and the events in recent years, in respect to Nauru, are a matter of public record but this incident of an Australian lawyer engaging in plagiarism while playing the role of a judge in the Pacific, I think does raise issues about the role of Australian lawyers, generally, serving as judges in overseas jurisdictions. And look I have been involved in overseas legal matters for many years now, including in the Pacific, on and off, since about 2004. And expatriate judges play an important role in many instances, and may high quality people have served in those roles. But we also, and I am not reflecting here in any way on members of the Nauru judiciary, but we also see a tendency for a certain type of Australian lawyer to serve overseas, often a person [who] on their professional abilities and competence are unable to exercise that sort of role in their home country, and they manage to achieve it in overseas jurisdictions, where the rule of law is fragile, and really the expectations on those lawyers and the responsbility on those lawyers is very high, and sadly, I have seen instances where such lawyers, exercising those roles, have fallen far short of what should be expected.
DW: You can't blame small Pacific countries for having to go overseas because they just don't have the resources themselves do they, and Nauru I think doesn't have any qualified lawyers beyond those that actually work for the government.
SL: There is a very small pool of lawyers and pleaders - as the non-qualified people are called in Nauru. So Nauru like many small states inevitably has to call on the assistance of overseas judges. In the past, to go back to Nauru specifically, they long retained the services of very eminent retired Australian judges and QCs. And many other small Pacific states, and large Pacific states, have had expatriate judges. Many have played excellent roles, in my opinion, but some, unfortunately, have fallen short, some at times have not exercised the necessary independence I think, from the executive of those countries. And I suppose that this particular incident, in respect of Judge Khan, where the minister has not responded appropriately, I suppose just raises that more general issue about these different standards applying in different countries, and the different way the issues play out.
