Profile: Former NSW Chief Magistrate Judge Peter Johnstone

“Interesting” and “bitter-sweet” is how Judge Peter Johnstone responds when asked how it feels for the formalities to be over and his time on the bench to be at an end. We meet inside the Law Society building 11 days after his farewell at the Downing Centre, where Deputy Chief Magistrate Theo Tsavdaridis described a “stellar career” served with “distinction and confidence.” 

Johnstone is well familiar with 170 Phillip St, having been a Law Society member since 1973. He arrives on time and after introductions, our interview begins with ease.

First impressions are of a courteous and considered thinker, open to engaging in the issues arising from a legal career spanning five decades. From the Port Kembla steelworks to Lloyds of London; from lengthy insurance bouts to leading Australia’s busiest court, it is a story of adaptation and perseverance. 

But rather than a tale with a clear trajectory, the recurring themes appear to be deft determination and an ability to seize unanticipated opportunities with zest, coupled with an appetite for knowledge (let’s call it curiosity).

Early call to law

Johnstone was one of five children, growing up in Armidale, in the Northern Tablelands region of NSW. The law came calling early. He tells the Journal he knew from about 12 or 13 he was going to be a lawyer. Not that the interest came from his father, who was a veterinary surgeon. 

“I always knew that I never wanted to be the scientist in the family,” he says. “One of my younger brothers is the scientist in the family, my other younger brother is the accountant in the family.”

For the young Johnstone, the common refrain about what motivates someone to pursue a legal career, did not resonate. “A lot of people say they want to go into the law because they want to help people and do the right thing and have a sense of justice,” he says. 

In his case there was a different driver. “Law is a very organised, logical discipline … and that was what attracted me,” he says.

Although it might not have happened, had he continued the light-fingered ways of his youth. “Unfortunately, I grew up in a part of the town where it was a little bit rough and I learnt how to shoplift,” admits Johnstone, in a story he also told at his bench farewell. 

“I was taking the comics from the local newsagent until such time as my mother discovered the cache,” he concedes with a grin. Johnstone was forced to return all of them and learnt a valuable lesson, but never fended off his fascination for Phantom comics, which continues to this day.

Formative time overseas

A year spent at school in Argentina, in between high school in Armidale and his law degree at the University of Sydney, appears to have been formative. Johnstone had joined his father, who was in the Patagonia region to help establish sheep farming country, with the support of the United Nations. 

The remit was to improve soil and pasture. “So that was really fortuitous, and it was a lovely year, had a lot of fun, made a lot of friends while I was there.”

This bonus year of secondary education, in which he obtained Argentina’s ‘Bachillerato’, was eye opening. “I think it broadened my mind considerably and gave me a totally different outlook on life because I’d come from a very cloistered … private boarding school, in the country … and I went … into a world situation, seeing another country, seeing how other people live and a different political system,” he recalls. 

They were life skills Johnstone would have to draw on repeatedly during his legal career: “Getting to know people, getting to work with people in a different situation, coping in circumstances where you didn’t know anybody, you didn’t know the language and just learning survival skills,” he says. “And I think over my career … at times I’ve had to … be self-sufficient…”

Johnstone had to learn enough Spanish to get through his schooling and was in fact the first international student to obtain the Bachillerato. It seems he stood out among his classmates. “They used to call me ‘el rubio gringo’, which is ‘the blond foreigner’.”

Only two employers

One remarkable aspect of Johnstone’s career is that he has essentially had only two employers: the law firm where he became a partner, Blake Dawson Waldron (now Ashurst) and the state, for which he served in a range of judicial roles.

Perhaps what sustained such a lengthy tenure at Blake Dawson Waldron, lasting 35 years, was the variety of work Johnstone took on. He divides his time at the firm into three phases; litigation, commercial and management.

In his litigation years, Johnstone acted in the insurance field for large corporations and insurers. It gave him extensive court experience and at times he would also appear in an advocacy role at inquests or industrial prosecutions.

The bulk of his work at the time was for Australian Iron & Steel, the steelmaking subsidiary of BHP. The business was based in Port Kembla and was beset by industrial accidents. 

Special court hearings were held in Wollongong and at the time, the cases were decided by juries. “The steelworks was a very antiquated environment in which injuries happened regularly. Work health and safety was not a priority in those days,” he says.

“I used to spend a lot of time at Port Kembla, in the steelworks, seeing how it operated, the blast furnace and the coke ovens and all the other aspects of steelmaking.” 

The personal injury cases were hard to defend, and the company lost more than 90 per cent of matters, resulting in damages. 

The experience may have been bruising, but Johnstone counts himself fortunate to have briefed a number of eminent barristers during this period, including Harold Sperling, Tim Studdert, and the late Tom Reynolds and Joe Phelan.

There was a lot of learning about evidence, procedure and courtcraft, but Johnstone took something else from these mentors; what he describes as “eldership.”

“People who’d been in practice for a long time saw it as a responsibility to look after and nurture the younger lawyers coming through,” he says.

It was an approach that encouraged respect for the profession and one that informed how Johnstone went about dealing with colleagues as his career progressed.

“It was always important from my perspective to maintain those aspects of the practice of law which epitomised professionalism, as opposed to business,” he says.

“We were focusing more in our firm on the welfare … and the wellbeing of our younger lawyers, rather than making money just for the sake of making money.

“That’s not to say we didn’t do very well … we did but it wasn’t our primary objective. Our primary objective was for people to want to go to work every day and to enjoy their practice.”

Insurance interest builds

Johnstone’s evolution into a commercial specialist came after he was seconded to work in London for Bowring Professional Indemnity Limited, the insurance brokers to Lloyds, in 1982. It was here that he developed a keen interest in insurance.

The experience meant he was well placed to respond to a major overhaul of the industry in Australia, that came with the introduction of the Insurance Contracts Act 1984. 

“We redrafted all of the GIO domestic insurance policies like home contents, home buildings, motor vehicle insurance, and other categories of domestic insurance,” he says. “And that was a lot of work and it was very interesting work. I learnt a lot about insurance law as a result of that.”

There was also work for QBE and Haematite Insurances, the captive insurance of BHP. This gave Johnstone exposure to BHP’s operations on a national scale, rather than just the steelworks at Port Kembla.

Johnstone worked on a large commercial dispute involving FAI Insurance, which ended up lasting years. The main players in the case were the company’s founder, the late Larry Adler and businessman Boris Ganke and it was over a series of loans. Johnstone was acting for the broker who had sold shares connected to the matter. “It was a very demanding piece of litigation and very vitriolic,” Johnstone says.

He recalls Ganke’s counsel, the late Laurence Gruzman QC, as being “really senior” and “aggressive.” Johnstone says the case went off on a tangent at one point, and Johnstone himself was required to give evidence in relation to discovery.

“Gruzman was one of those barristers that asked very long and convoluted questions,” Johnstone explains.

“Normally when you get applications to the trial judge, they are along the lines of, ‘Your Honour, could you please direct the witness to answer yes or no’… but I used to answer yes or no and this drove Gruzman nuts,” he says.

“[H]e made an application to the trial judge to direct me to answer with other than a yes or a no and the trial judge said this is the first time he’d had such an application in his legal career.” 

A salient lesson

Johnstone can laugh about it now, but this courtroom encounter taught him a salient lesson: one that he was keen to share with his colleagues.

“That was a most unpleasant experience being cross examined, as a result of which I then learnt never to be put into a position where I had to be cross examined on an affidavit again,” he says.

“I used to train my young lawyers never to put on affidavits unless they absolutely had to and never get into the witness box unless they absolutely had to.” 

A key turning point came in 1990, when Johnstone took on his first management role at Dawson Waldron. He was approached by the firm’s then Managing Partner about becoming Staff Partner and was invited to address a group of new graduates, there and then. 

“I suddenly got thrust into the role of Staff Partner without any knowledge that I was going to be,” he says.

“I hadn’t really had a management role within the firm prior to that, although I was probably well known for my organisational skills.”

He became Managing Partner of the firm’s Sydney office, but then resumed full-time practice, later returning to the role.

Importantly over this period, Johnstone was still able to keep practising during his management stints. This meant he could complete more important work in the insurance field, including due diligence on the privatisation of GIO.

He also advised the then Federal Airports Corporation on its insurance program, with a particular focus on the construction of the third runway at Sydney Airport.

In 1998, Johnstone relocated to Melbourne with his family, as Managing Partner of the firm’s office there. “And I ran the Melbourne office for three years and was very successful in terms of restoring its profitability to par,” he says. Dawson Waldron merged with Blake and Riggall, to become Blake Dawson Waldron.

Johnstone had already been an Acting Judge of the NSW District Court when the then Chief Judge Reg Blanch offered him a permanent position on the bench. Johnstone decided to turn down the offer.

“I thought I was too young to go on the bench,” he recalls. There was also other unfinished business. “I had an ambition to progress from being the Office Managing Partner to running the whole firm.” Johnstone fulfilled that goal when he became Chief Operating Partner, overseeing the firm nationally, upon his return to Sydney.

The refinement of his organisational skills, along with newly acquired managerial experience, would proceed to serve him well in two head of jurisdiction appointments down the track.  

By 2006, Johnstone had finally become a District Court Judge and a few years later, another of those unexpected moments presented itself, requiring him to take on a new challenge.

The NSW District Court was due to host the Biennial District Court/County Court Judge’s Conference. The Chair of the conference’s organising committee fell ill and had to retire as a judge. Johnstone was asked whether he was up to the task of taking on the event, at relatively short notice.

He told the Chief Judge he had organised several national conferences during his time at Blake Dawson Waldron. That was enough reassurance for Johnstone to be given the job.

“In four months, we got the conference up and running and organised in a very short space of time, with the assistance of a couple of other good judges on the committee,” he says.

Leadership beckons

Johnstone is convinced his role in overseeing this event was a major factor in his elevation to a position he would hold for almost a decade – one that would enable him to engage in vital reforms, that would deliver a new kind of justice to some of the state’s most marginalised and vulnerable people.

It happened in Hyde Park, where incidental interactions are not uncommon, as solicitors and counsel stride from chambers to court on any given weekday. It is also the scene of Johnstone’s photoshoot with the Journal.

He was with Chief Judge Blanch when the topic came up, out of the blue.

“We were walking over to the Opening of Law Term ceremony at St Mary’s Cathedral and in the park, he said, ‘By the way, I’d like you to take over the Children’s Court’.”

The NSW Children’s Court was established in 1905, and separately constituted in 1987. Today, it sits in four locations, as well as on several regional circuits and in the Local Court in other parts of the state.

In the care and protection jurisdiction, the court determines placement options for children assessed as being in need. In the criminal area, it hears summary and indictable offences, among other functions.

According to the NSW Bureau of Crime Statistics and Research, the Children’s Court finalised 5,837 criminal matters in 2023. The number of Aboriginal defendants increased by 8.1 per cent over the preceding 24 months. 

Most categories of offending were stable, but traffic and vehicle offences fell by 41.5 per cent. The largest category of offending was acts intended to cause injury, followed by theft and related offences.

While Johnstone had served as a District Court Judge, the Children’s Court would present vastly different challenges to the litigation and commercial work at his old law firm.

An unresponsive system

The Journal asks Johnstone what surprised him most about the role of President of the Children’s Court. “The things that struck me very early on were how unresponsive the legal system was to social issues,” he says.

“More than 60 per cent of the kids in detention were Aboriginal kids,” recalls Johnstone. “Over 40 per cent of the children removed and placed in foster care were Aboriginal children.”

The figures alone were alarming, but Johnstone felt there was something missing in how the court was approaching its task. “The system was focused on just punishment rather than trying to determine why children were committing crimes and addressing the root causes of the criminal behaviour,” he says.

Knowing this and being able to do something about it were two different things. Johnstone set about learning as much as he could about the detrimental impact of being in custody on the future development of children.

His counterpart in New Zealand, Principal of the Youth Court, Judge Andrew Becroft, shared with him an emerging field of study, about adolescent brain development and how children’s brains operate differently to those of adults.

“None of this was taken into account in the way children’s law, or criminal behaviour in relation to children was applied,” he says.

“I did a lot of research about adolescent brain development and then I set about trying to change things by applying the research, evidence-based research, in terms of the way we approached the administration of justice in relation to children in NSW.”

Filling education gaps

Johnstone identified a clear link to the absence of education. Of those coming before the Children’s Court, 40 per cent were not going to school. But there was another more startling fact.

“We discovered that there was a cohort of children that the Department of Education didn’t even know about,” he says.

“These children … were not … expelled or suspended. They just never had been engaged in schooling.”

It was an important revelation and one the new head of the jurisdiction believed needed a response.

Johnstone joined forces with Steve Kinmond and Julianna Demetrius, who were both at the Ombudsman’s office, to lobby the Department of Education to do something to address the problem. Kinmond has since become the NSW Children’s Guardian. 

Demetrius, who now runs her own consultancy, recalls a meeting with then Education Department Secretary Mark Scott, where she says Johnstone raised the idea of having ‘Justice Education Officers’ attend court.

Their job would be to secure a place in some kind of education program, for children who were not attending school.

“Mark Scott, I think, really liked it and … not long after that … it all kind of happened,” says Demetrius. “The idea was, what are the various things we can do to help kids that are disenfranchised from school?” she says. “And I think the judge was really effective in getting a spotlight on that.”

Johnstone also joined visits to communities like Bourke and Brewarrina. “I think that he had a genuine passion for stemming the flow and trying to prevent things,” says Demetrius. “And I think like all of us, we knew that school is that opportunity to do it, school is the thing that is going to change your life, if anything.”   

The four pillars

Two years into his presidency, Johnstone delivered a paper to the Annual Juvenile Justice Summit in Melbourne, in which he outlined what he called “the four pillars of a modern, enlightened juvenile justice system”. The four pillars were prevention, early intervention, diversion and rehabilitation.

He said the aim of such a system should be to have no children in detention centres, and to have other social mechanisms to deal with problem children. With poverty being the biggest factor in juvenile offending, Johnstone argued the causes of crime must come from “credible sources rather than sensational moral panic.”

A central plank of the court’s approach to diversion is the Youth Koori Court, which was developed under Johnstone’s leadership. The idea for the court came from Magistrate Sue Duncombe. Johnstone’s instincts told him how to best go about turning it into a reality, and perhaps what not to do.

“I said, ‘We will never get the government to do anything. We have to do something ourselves and once it’s a success, bring the government in behind us’.”

Johnstone says the concept was to get to the heart of what was causing criminal conduct. “What were the issues that were driving their behaviour and to involve all the agencies, sitting around a table in conjunction with the elders to say, ‘What can we do for this child that will help them develop into good citizens?’”

Early success for the Youth Koori Court saw the government provide funding for case workers and it now operates at Parramatta, Surry Hills, and Dubbo.

Johnstone says the reform required the court to show its own initiative. “We did it within our own resources, within our own processes and with no money from the government and no change in legislation … we just started it,” he says.

Johnstone says there are 20 children who have been born to graduates of the program, a fact that was mentioned at his bench farewell in July.

“You’d like to think that those 20 children, would probably have been born anyway, but would have been born into adverse socioeconomic circumstances that might have led them into the next generation of disadvantaged children committing crimes,” he says.

Another focus for the court under Johnstone’s leadership was health, because of the large numbers of children presenting with undiagnosed mental illness. 

In early intervention, a program called Youth on Track was devised to work intensively with families where children had interactions with police. Johnstone laments the fact that this successful approach is not more widely available. “It’s really something that should be across the whole state,” he says.

Moving the court

Another big change under Johnstone’s leadership was the court’s relocation from the unloved concrete hulk known as Bidura Children’s Court in Glebe, to new premises built behind the facade of the old Children’s Court building on Albion St in Surry Hills.

Johnstone consulted about the prospects of selling the Glebe site to a developer and believed Surry Hills could be built for less, which is what he says ended up happening. “So, we actually made money for the government, I like to think,” he says with a smile.

It appears to be another example of Johnstone identifying a problem and finding a way to achieve a good outcome, even when the odds are stacked against it.  

The Journal asks what it was like seeing a young person on a path to repeated offending and being able to do something that might give them a chance of breaking that cycle. “(It’s) very satisfying… to make a difference to the lives of those young people,” he says.

Leading the Local Court

After nine years as Children’s Court President, there was a pivot to another leadership role, this time Chief Magistrate of NSW. It was a position Johnstone knew he could only occupy for a few years because of his age, but one that also presented opportunities for reform.

The Chief Magistrate oversees the Local Court of NSW, the busiest court in Australia, in which 376,160 general crime matters were commenced in 2023. This figure presents an almost 40 per cent increase since 2012. The Local Court also has two related specialist jurisdictions: the Coroner’s Court and the Children’s Court.

The Local Court, more than any other jurisdiction, is bearing the brunt of a rising caseload of domestic violence. In 2023, the court finalised 49,240 domestic violence matters and a further 7,635 personal violence matters.

Several tragic events this year saw the issue gain widespread media coverage and the NSW Government enacted a number of reforms.

“It is getting worse,” observes Johnstone. “It’s a huge challenge. There’s no doubt that family violence has increased, and I think Covid has had a lot to do with it. I think the socioeconomic circumstances of the last couple of years have also contributed.”

In July, new laws criminalising coercive control came into effect. The court developed training for magistrates about the new offence, with the help of the Judicial Commission. The court also began piloting a Specialist Family Violence List, which includes a trauma-informed approach to court proceedings and consistency of staffing from case management, through to hearing and sentencing. The initiative is aimed at giving complainants a voice during court proceedings and to stop domestic and family violence at the first contact with the justice system. This area of work is largely the responsibility of Deputy Chief Magistrate Sharon Freund.

Johnstone says given the scale of the problem they are barely able to scratch the surface. “We did start some pilots but they’re totally insufficient. It really needs a total overhaul.”

On the day of the Journal’s photoshoot, Johnstone stands at the intersection of Elizabeth and Liverpool Streets, between Museum Station and the Downing Centre. Tourists enjoying the winter break and lawyers on adjournment scramble across multiple lanes, but Johnstone is unfazed by the attention.

Joined by his wife Prue, in between resets, the pair discuss plans to go on safari in Africa next year. Johnstone’s chosen tie even features small elephants.

The topic of Phantom comics comes up, as it does in our later interview. “I now have the complete collection of all the Phantom comics,” he says. “They started in 1948 in Australia, in comic form and I’ve collected a lot of Phantom paraphernalia over the years as well.” “(Prue) thinks that I should be spending my retirement selling them all.”

Looking to the future

Retirement will grant Johnstone more time for his four children and three grandchildren, but the law is unlikely to ever leave his mind. Despite making progress in some areas, many of the challenges he had to deal with remain and in some cases, have worsened.

Johnstone is proud the Local Court has gender parity and considerably greater cultural diversity, due to a series of appointments made on his watch.

Yet when asked who the legal system is failing most and why, Johnstone says, “the Aboriginal people of NSW.”

“We’re not closing the gap and to be fair, it may be wrong to say that’s the legal system that’s failing them … it’s probably a whole of government problem.”

His hopes for the future of the system are for reduced delays and better ways of operating, because he says the Local Court is no longer fit for purpose.

“It needs the introduction of technology, simplification of processes and better resourcing,” he says.

Perhaps Deputy Chief Magistrate Theo Tsavdaridis summed it up best when he said that far from being a weakness, Johnstone’s empathy was a measure of strength.