Opinion
Ernie Schmatt's great contribution to justice
2nd Oct 2024
‘Unsung hero’ may be an overused expression but, in the case of Ernest John Schmatt AM PSM – ‘Ernie’, to pretty much everyone who knew him – it cannot be avoided. Lawyers would of course be aware of the institution he so skillfully headed for over 30 years, the Judicial Commission of NSW, but it’s hardly a household name.
This reflection on Ernie’s life, and his great contribution to justice in NSW, and indeed in Australia and overseas, is written after his death, on 23 February 2024, when he lost a valiant battle with cancer. I regarded Ernie as a good friend, although I saw him infrequently since working with him in the (then) NSW Public Service Board in the late 1970s and early 1980s. I was privileged to gain an insight into the character and personal qualities of a man who presented as a self-effacing average Joe but made such an above-average contribution.
Birth of the Judicial Commission
Legislation establishing the Judicial Commission was introduced into the NSW Parliament in 1986.[i] To say that the attendant circumstances were turbulent and controversial would be an understatement. Scandals surrounding the NSW Chief Magistrate Murray Farquhar and High Court Justice Lionel Murphy QC had shaken public confidence in the administration of justice, leading to a Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys.
The proposal of the Wran government, through Attorney General Terry Sheahan, of a statutory body able to exercise some oversight over the judiciary seemed to fly in the face of almost 300 years of precedent under which a judge could only be removed from office by address to both Houses of Parliament.
Originally critical of the proposal, NSW Chief Justice Sir Laurence Street was, however, mollified by some safeguards retaining accountability to Parliament, and the Commission commenced operation in 1987 with Sir Laurence as its President. In October of the same year, Ernie joined the Commission as Deputy Chief Executive.
In this first role, Ernie quickly demonstrated the qualities which led, in 1989, to his elevation to the role of Chief Executive of the Commission. It speaks volumes about the regard in which Ernie was held that his appointment happened at all: many thought it would be unacceptable that the Commission should have a Chief Executive who had not already held judicial office.
Development of the judiciary
Part of the reason for Ernie’s appointment as CEO was his clarity of thought and approach. Ernie, one of my direct reports when I was at the Public Service Board, had been one of two shortlisted competitors for the position, which was concerned largely with legal policy. Ernie’s other competitor was arguably the better courtroom lawyer, but Ernie’s insights into the policy side of things swung the balance in his favour.
As the Commission’s CEO, Ernie realised that the variable quality of the judiciary stemmed from an unstructured approach to the selection of judges, and the almost complete absence of training, guidance and education, over hundreds of years.
Ernie saw clearly that sanctions for poor performance were pointless in the absence of prior explanation of the rules and expected standards of performance, and the information needed for that purpose.
During that period Ernie faced, and overcame, many problems and obstacles arising from the novel nature of the Judicial Commission and the controversial circumstances giving rise to its creation. However, the inherently sensitive nature of the Commission’s work – oversight of, and guidance for, the conduct of the State’s judiciary – means that little anecdotal material can be published, even many years later.
With Ernie leading the Commission, the focus was on education and guidance for the judiciary. This included the availability of thorough and detailed information as to how judges and courts across the country have ruled in specific situations. This kind of information has of course been available for hundreds of years in the form of the common law system of precedents (and, very recently, in occasional ‘guideline judgments’), but not in any systematically organised way, or in a way aimed specifically at judges as distinct from legal practitioners generally.
The Commission of course has a function of being able to entertain and to deal with complaints about judges, and in the political climate surrounding its establishment a lesser leader than Ernie might have focused on getting a ‘scalp’ as a public display of the Commission’s effectiveness.
Instead, Ernie focused on development, in particular harnessing technology to deliver training, guidance and data to a judiciary spread across the state. The Judicial Information Retrieval System has become an indispensable tool in the administration of criminal justice in NSW.
Ernie’s impact
Ernie’s personal skill in driving this quiet quantum leap became widely known and recognised. In 1997 he was awarded the NSW Public Service Medal, and in 2018 was made a Member of the Order of Australia. Ernie also worked with the International Organization for Judicial Training and contributed to the education of judicial officers in China, Indonesia, Cambodia, Sri Lanka, Malaysia, the Philippines, Turkey, Papua New Guinea, and the West Bank and Gaza.
Former High Court Chief Justice the Hon Murray Gleeson AC called the Commission ‘the leading Australian institution in this field’ with ‘substantial international recognition and acclaim’.[ii]
In one way it is sad that a person of such great achievements should have been, in a broad general sense, largely publicly unknown. In another, however, it perhaps epitomises Ernie the man. Space doesn’t allow reflection on Ernie’s personal life, save to say that he was a disarmingly charming ‘son of the (Sutherland) Shire’ whose smile elicited a smile from all those he met.
By those who did know him, he is sorely missed.
The ALA thanks Geoff Baldwin for this contribution.
Geoff Baldwin is a lawyer in the employment law team at Stacks Champion. He has worked at senior management levels in the public and tertiary education sectors and as an independent consultant. His experience includes industrial relations litigation, property and leasing, and commercial and administrative law. Geoff has appeared in employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.
The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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