Attracting controversy ... magistrate Pat O'Shane.Attracting controversy ... magistrate Pat O'Shane. Photo: Brendan Esposito
At 6.17am on Tuesday, very early in the news cycle, the Premier's office released a statement saying Barry O'Farrell had instructed the Attorney-General to lodge a complaint to the Judicial Commission of NSW about the magistrate Patricia O'Shane after yet another controversy in her court. It was unusual, and also good politics and good policy.
The statement elaborated: ''Mr O'Farrell told cabinet yesterday … Ms O'Shane had been at the centre of a series of controversial decisions and it was time the Judicial Commission reviewed her performance.''
The pattern is well known. O'Shane has attracted controversy on numerous occasions. Her most spectacular failure was her dismissal of charges against the triple murderer Michael Kanaan while criticising the police who risked their lives arresting him after a shoot-out.
The commission needs to examine not just the controversies but the number of times her decisions have been set aside by higher courts. It should look at cases such as DPP v Armstrong, in 2010, where Justice David Davies sent O'Shane's decision back to the local court with the express provision that she not hear the case again. In doing so, the judge criticised O'Shane for getting the law wrong and using ''intemperate language in a way that inappropriately denigrates the evidence of the police''.
No other magistrate has a notorious reputation for denigrating police evidence. No other magistrate has been the subject of so many complaints to the Judicial Commission. No other magistrate has been subject to two apprehended violence orders.
But O'Farrell should not get his hopes up. The Judicial Commission is worse than useless. It does nothing of consequence and does it slowly. It protects judges and magistrates via an opaque process deeply biased towards rationalising errors.
If there were more truth in government, the Judicial Commission would be named the Judicial Feather.
Pat O'Shane is also highly unusual among judges and magistrates in that she has been able to place great store on her Aboriginality. There is a widespread perception, which I share, that her outspoken Aboriginality has been relevant in the latitude she has been able to exercise over the years.
There is an abundance of evidence that different standards are applied to Aborigines by the law and by society as a way of compensating for past injustices. Customary law, special sentencing forums, the Aboriginal Child Placement Principle and indigenous-only programs are examples. The intent is pure but the outcome has often been counter-productive.
Just this week, the Institute of Health issued a report saying indigenous children were 7.6 times more likely than non-indigenous children to be put on protection orders and 10 times more likely to be in foster care. It is a disgrace to the status quo, especially as disproportionate child abuse in indigenous communities has existed for decades.
Yet I don't think the central flaw in the national project of improving the lives of Aborigines is being addressed or even spoken about. That flaw is the moral apartheid we accept in the name of cultural sensitivity and/or white guilt.
On Australia Day, we can ask what it means to be Australian and only the original Australians can define themselves as Australian by race. But in the thousands of years in which indigenous culture evolved, ''Australia'' did not exist. Australia is an entirely modern concept. So the modern definition of what it is to be Australian is post-racial. We are all Australians. We should all be treated the same. But we are not.
When it comes to indigenous issues, our legal and political system has monetised race. It has racialised the law. In doing so, it has created a problem about identity: who is an Aborigine? There is money involved in the answer. This is why the expert panel, appointed by Julia Gillard, which produced the 300-page Report on Constitutional Recognition of Indigenous People has come up with a monumental blunder.
The panel has overelaborated its brief by advocating that an ''advantage'' clause be inserted into the constitution which reads: ''Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.''
This clause is the embodiment of monetising race. It enshrines moral apartheid. It invigorates the problem of defining Aboriginality. It invites the kind of racial activism and exceptionalism which the electorate despises. It dooms the referendum.