"Order! I propose to call Magistrate Brian Maloney to appear at the Bar of the House and address members in relation to the report of the Conduct Division of the Judicial Commission of New South Wales, dated 6 May 2011, and show cause why he should not be removed from office."
And so Brian Maloney’s address to the Legislative Council yesterday was announced by Don Harwin. Maloney set out why he was there pretty clearly:
"Mr President, honourable members, today I stand before you to be judged both as a man and as one who holds judicial office. You are a jury of my peers. I have been diagnosed with bipolar II; an illness I did not chose to have but one I acquired. The reasons for this illness are irrelevant. I unconditionally accept the diagnosis and take up the challenge to conquer it. I am not alone. Many community leaders, politicians, high-profile personalities and legal practitioners have also been diagnosed with bipolar II. Like me, John Brogden, Andrew Robb and Geoff Gallop face the personal, medical and social challenges of mental illness, and have been prepared to speak out about it.
"Interestingly, research has found that 40 per cent of law students, 20 per cent of barristers and 33 per cent of solicitors have a mental illness. It is from that demographic that a judicial officer is drawn. In the past 12 months three barristers have sadly taken their own lives. In recent years, two judges have also sadly taken their own lives. The Bar Association, the Law Society, the medical profession and many other professional institutions have schemes in place to assist members with mental illness."
Maloney mapped out his career and family life as he described the circumstances surrounding the four complaints about him that were made to the NSW Judicial Commission between 2002 and 2010. His speech included candid disclosures about his mental and physical health. As he reflected on his experiences of mental illness, he reflected on his professional encounters with the mentally ill.
"When I was first diagnosed, I naturally felt relief that I had been diagnosed with an illness that at least gave me some understanding about a number of my problems over the years. But I would be less than honest if I did not say that I felt a great deal of shame. I had on literally hundreds of occasions since my appointment dealt with people before me in respect of what are called section 32 applications under the Mental Health (Forensic Provisions) Act of New South Wales, that is, applications that defendants be diverted from the criminal justice system because of their mental illness.
"Sadly, I was learning that, like them, I had such a problem. In time, I have done much to educate myself and my wife and friends about my problems. But, members, I am proud to tell you today that I am no longer ashamed of being diagnosed with such an illness. Indeed, may I say this: I am proud of the work I have undertaken since being diagnosed, ministering to literally thousands of matters in my professional capacity and hopefully in what I do not only administering justice but adding to the good name of the judiciary and the profession."
At the heart of Maloney’s speech lay the question as to whether a judicial officer can adequately perform their duties with a mental illness.
"No-one appreciates the independence of the judiciary better than I do, but surely it cannot be the case that because a judicial officer suffers from a mental illness, is properly diagnosed and accepts treatment they can no longer discharge their duties as a judicial officer. To adopt such an approach seems to be inconsistent with the concept of common sense, let alone the provisions of a very important Act of this Parliament-namely, the Anti-Discrimination Act 1977.
"But, most importantly, if accepting your condition and seeking appropriate treatment leads to a professional ban being imposed on an individual, then we are surely driving the issue of mental illness underground. I am willing to communicate with the head of jurisdiction, His Honour Judge Henson. I have a good relationship with Judge Henson. He granted me leave to undertake treatment. In discussions with His Honour, he has acknowledged that I am certainly not the first member of a Local Court who has been granted leave to undertake treatment for a mental illness."
In Maloney’s case, the issue of mental illness has certainly not been driven underground and indeed he referred to the difficulty of his private life being exposed for scrutiny in such a fashion. Still, he took the opportunity in his speech to criticise the broad stigma attached to mental illness in the community.
"Members, I am pleading with you to understand the condition that I suffer from in a compassionate and constructive way based on the evidence before you. The problem of mental illness is readily apparent to many in our community. As you look around you in this Chamber you may see someone who has the same or a similar problem to the one I have. You would know a loved one or a friend who has been touched by this illness. Honourable members, judges by their very nature are conservative creatures. It may well be that this conservatism has meant that the judiciary has been somewhat reluctant to deal with this problem of mental illness. Members, I ask you rhetorically: Do you agree with the view expressed by the former President of the New South Wales Court of Appeal, Keith Mason, when he said in the context of mental illness, and in the further context of the judiciary, "It is an area where for all sorts of reasons it can’t be dealt with publicly. It’s a problem for the judiciary"?
"Members, fortunately or unfortunately — and somewhat humiliating for me — the problem has become one that is being dealt with very publicly. I truly regret that that has become a reality. However, at the end of the day I believe that this is a fundamental issue that should be treated not by way of condemnation and censure but in an appropriately understanding and compassionate manner. Members, I have been true to my oath of office. I love being a magistrate. I have worked hard. I am conscientious. I seek to make a difference. I try to help those for whom there is often no help. I have made mistakes, but the Judicial Commission has found no misbehaviour based on mental illness. I have not been charged nor found guilty of an offence at law. I have not committed any act that is morally reprehensible, and I have not brought the judiciary into ill-repute.
He continued to reach this conclusion:
"This case is more important than I am. Upon your decision in this case depends whether a person suffering from a mental illness will dare to seek medical assistance. I do not bear the stigma of mental illness, as I will hereafter use my voice to advance acceptance, develop understanding and remove prejudice.
"Human progress is neither automatic nor inevitable. Every step towards the goal of justice requires sacrifice, suffering and struggle, and the tireless exertions and passionate concern of dedicated individuals. Today you can seek to reinforce the stigma and intolerance of the nineteenth century, which is so out of step with the values of many members of the wider community. Alternatively you have an opportunity to join me, Andrew Robb, John Brogden, Geoff Gallop and many others in a campaign against the injustice of intolerance of those who suffer mental illness. Honourable members, I sincerely thank you for your time."
The Legislative Council votes today on whether or not Maloney will keep his job.
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