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Tatum Hands and Danielle Davies[*]
Who should defend the High Court in the face of criticism? The convergence of the very personal attack on Justice Michael Kirby last year and the current Commonwealth Attorney General's stance on defending the High Court demands that this issue be resolved. In the chorus of debate on this question since the High Court's controversial decision in Wik Peoples v Queensland (1997) 187 CLR 1 (Wik) many answers have been proffered. Some commentators maintain that it is the Attorney General's role to defend the Court in the face of criticism irrespective of its provenance or nature. Others have proposed that bodies such as the Judicial Conference of Australia (JCA) are best placed to respond to criticisms of the Court or its judges. We contend that in many matters the Court itself is best placed to speak in its own defence. Indeed it has demonstrated its ability and willingness to do so. Further, an examination of the nature of criticism directed at the High Court reveals that each of the potential defenders suggested above may have a role to play in ensuring that criticism can be adequately responded to.
Historically the High Court has been largely immune from public criticism. Prior to the 1990s the public appears to have been generally content with the Court's performance and authority. The media was generally unwilling to question or invite public comment on the legitimacy of the Court's role. For instance, while the decision in the highly contentious Australian Communist Party and Others v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 (the Communist Party Case) was criticised by the incumbent Menzies Liberal-Country Party Government (whose legislation was declared invalid by the decision), it excited little media, public or political criticism of the Court itself.[1] The same can be reported of the earlier High Court decision in the equally controversial Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 (the Bank Nationalisation Case), which invalidated key socialisation legislation of the Labor Government.[2] Indeed The Age stressed the undesirability of such criticism saying that:
No useful purpose is served by pointless similes and witless comments on the High Court bench, or other attempts to discredit the institution. The High Court is an integral part of the constitutional machinery, within which any Commonwealth Government must work, whatever its party composition or policy.[3]
During the 1970s (following the Barwick Court's anti-government taxation law decisions)[4] and the 1980s (following the decision in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (the Tasmanian Dams
Case)) a degree of partisan political criticism of the High Court was recorded, but these attacks were not usually sustained. Media commentator and editor of the Canberra Times, Jack Waterford has suggested that the media reluctance to criticise the High Court may have been due to the broad definition of contempt laid down in its early years.[5]
65
Former Chief Justice Sir Anthony Mason has stated that the historical lack of criticism has assisted in preserving both public confidence in the administration of justice as well as the independence of the judiciary.[6] The induction of the Mason Court in 1987 ushered in a period characterised by the High Court's advocacy of freedom of speech, its admission that it made (rather than simply declared) law and the introduction of media-friendly initiatives.[7] Despite the radical nature of many of the Mason Court's constitutional decisions, it was a relatively unremarkable common law decision that brought the work of the High Court to the attention of the broader public. The decision in Wik induced a torrent of misinformed criticism directed not only at the High Court as an institution but also at the judges as individuals. In this climate it became clear that a voice was needed to enable the High Court to communicate effectively with the public.
By convention deriving from the United Kingdom,[8] the office of Attorney General is said to be responsible for publicly defending the reputation of the judiciary. This role apparently stems from the duty of the Attorney General, as Chief Law Officer of the Crown, to maintain public confidence in the administration of justice and uphold the rule of law. However, in 1994, Daryl Williams (then Shadow Commonwealth Attorney General) put on record his opinion that the Attorney General should no longer play a role in defending the courts against unfair criticism.[9] Following his appointment as Commonwealth Attorney General in 1996, Williams publicly reiterated his position and put the Chief Justices of the federal courts on notice that he intended to deny the convention that the Attorney General speaks for the courts. Williams relied on the doctrine of the separation of powers to support his position arguing that the requirement that judicial power be strictly separated from other governmental powers made it inappropriate for a member of the executive to speak for the courts. Because the Attorney General is a politician and a member of Cabinet, Williams contended that any response by the Attorney to criticism of the judiciary 'might give the appearance ... that the judiciary is involved in political controversy'.[10]
Whilst a certain amount of criticism of governmental institutions is to be expected and encouraged in a robust democracy the question is, where the Attorney General is silent, who is best placed to respond for the High Court? Williams has suggested that the JCA - a voluntary association which is constituted by judicial members from all levels of state and federal courts in Australia -is the appropriate voice of the judiciary.[11] However, the JCA's low profile has caused Sir Anthony Mason to express reservations about its ability to effectively counter sustained political attack. [12] Moreover, with over 450 members, it is difficult to imagine the JCA having the capacity to reach the necessary and prompt consensus required to keep pace with the media. An alternative suggestion promotes the Chief Justice as the appropriate voice for the High Court in the context of criticism although David Solomon believes that Chief Justices should only speak for their courts on matters pertaining to lack of resources, the court's role, delay in delivery of judgments and functional or administration issues.[13] Few have advocated a role for individual judges to play in acquitting themselves, their courts and their decisions against criticism for fear it would erode judicial independence. Judicial independence is vitally important.
However, arguably, it receives adequate protection by virtue of constitutionally secured tenure and the operation of the doctrine of separation of powers. Public confidence in the judiciary is not protected and is increasingly being recognised as crucial to the administration of the institutions of justice. Might there not therefore be a role for individual judges? To answer this question we examine the nature of the criticisms of the court and consider who might be in the best position to respond on behalf of the High Court. In analysing recent criticisms of the High Court we have isolated five categories of criticism:
• court management and administration issues;
• outcome of decisions;
• individual judges of a personal nature;
• individual judges in their professional capacity;
• the Court as an institution.
In most courts, the Chief Justice comments on matters pertaining to the internal functioning of the court. In the case of the High Court, regular business meetings are held between the judges of the Court, the Chief Executive and the Principal Registrar. This has been effective in dealing with issues that might be the subject of external criticism such as delay in the delivery of judgments. In instances of sustained public criticism of this nature, the Chief Justice may respond. For example, when former Deputy Prime Minister Tim Fischer made public comments accusing the High Court of delaying delivery of their reasons for decision in Wik,then Chief Justice Sir Gerard Brennan responded in writing.
In his 'State of the Judicature' address in 1997 Chief Justice Brennan identified the fact that politicians and other interested parties have gained political advantage by criticising courts 'not for their reasons for decision but for the decisions they have made'.[14] The distinction is clear. Judges provide comprehensive reasons for their decisions and few would disagree that, in the interests of the maintenance of judicial independence and impartiality, those reasons must stand alone. But in light of the High Court's tendency to produce lengthy judgments in which the majority view is not readily apparent, is this sufficient? It is certainly not reasonable to expect the Attorney General to shed light on unclear reasons for decision, nor should the Chief Justice be obliged to clarify a majority view which he might not necessarily share. Although there has been no significant move towards clearer judgments, the High Court has gone some way to address this difficulty by, in some cases, publishing executive summaries of decisions. It will also be interesting to observe what effect, if any, the High Court's newly appointed Public Information Officer will have on its ability to communicate outside its reasons.
Since Wik, criticisms of the High Court have become increasingly personal and often directed at individual judges. A significant example of this trend occurred in March 2002 when Senator Bill Heffernan used Parliament as a forum to make public accusations that Justice Kirby had
inappropriately used Commonwealth vehicles. Rather than censuring the Senator for abuse of parliamentary privilege, Prime Minister John Howard added to Heffernan's allegations in open Parliament by reading from documents containing further allegations that were not included in the Senator's speech. When the documents that Heffernan had relied on were made public they were quickly exposed as fabrications. Nonetheless, Williams refused to express any support for either Justice Kirby or the High Court. It is arguable that the Prime Minister's apparent support and the Attorney General's silence combined to give the allegations credibility.
The Attorney General's failure to defend Justice Kirby was widely condemned by the legal fraternity. Many argued that community confidence in the justice system and the independence of the judiciary were put at risk.[15] Williams claimed that because the allegations made against Justice Kirby were personal and did not relate to his role as a High Court judge, there was no role for the Attorney General to play in defending the judge.[16] But whilst Heffernan's allegations were undoubtedly and unprecedentedly personal, he did question Justice Kirby's judicial integrity saying that his sexuality and alleged behaviour put him at 'risk of blackmail, entrapment, compromise and hypocrisy' and that he had 'failed the test of public trust and judicial legitimacy'.[17]
Previously, in 2001, following a period of frequent political attacks on the High Court in response to decisions on refugees and cross-vesting legislation, Williams conceded that there may be circumstances where it was appropriate for the Attorney General to step in to defend the judiciary:
... sustained political attacks capable of undermining public confidence in the judiciary may justify a defence by an Attorney-General. In circumstances such as these I will not hesitate to step in and lend my support to the judiciary. [18]
Apart from the attacks on the High Court itself following Wik, it is difficult to imagine a clearer case for the potential of public confidence in the judiciary being undermined than that presented by the Kirby affair. But perhaps this incident is illustrative of Williams' claimed inability to divide the political functions of the office of Attorney General from the role of independent defender of the rule of law.
In 2001, High Court Chief Justice Murray Gleeson announced that he would assume the role of responding 'to criticism of judgments or judges, in circumstances where it's necessary for someone to do that and the Attorney General doesn't do it'.[19] He publicly admonished Senator Heffernan for abuse of parliamentary conventions in the Kirby example and used the forum of an address to a public conference to make his protestations known to parliament. But what of a situation where the Chief Justice is disinclined to speak on behalf of the judge? It is tempting to suggest, as Williams has, that the JCA could defend the judge; though, the JCA might suffer from the same difficulty in reaching a consensus on whether or how to respond as the High Court itself(which split over whether to lodge an official complaint to the government about the Attorney's silence following the Kirby affair).[20] As Justice Kirby ably demonstrated by speaking out in his own defence, even in the face of serious and unsubstantiated allegations a judge can acquit himself with dignity and effect in dispensing with criticisms aimed directly at him.
Attacks on judges in their professional capacity may be loosely grouped into three sub-categories: criticism of a judge's conduct prior to being appointed to the bench; criticism of a judge on the basis of perceived bias; and allegations of unprofessional conduct whilst serving as a judge.
The first sub-category is best illustrated by the situation which arose in 1998 when a Federal Court judge made findings in a case before him that questioned the ethics of Justice Ian Callinan's conduct in a related case when still a barrister.[21] In contrast to his position on the Kirby affair, Williams was quick to move to the defence of the judge. He issued a press release detailing reasons for not holding an inquiry into Justice Callinan's alleged misconduct; among them, that such inquiry would threaten the independence of the judiciary and that natural justice demands that 'caution should be applied before accepting findings on matters still subject to judicial examination'.[22] Williams' response, which explained and upheld the tenets of the rule of law, would be considered by many to be appropriate to the situation where a judge is under sustained political attack that threatens public confidence in the judiciary. It also appeared to have the desired effect with speculation on the matter quashed until the results of the judicial appeal the following year.[23] The Callinan case proves that the Attorney General can offer an effective response to criticism of a judge in his professional capacity; however, the inconsistency with which Williams has provided this assistance renders him an unreliable defender of the judiciary. In similar circumstances it is conceivable that, were the criticism to warrant it, a judge could move to his own defence. Because this sub-category of criticism arises out of a judge's conduct prior to appointment to the bench, it would be unreasonable to expect the Chief Justice or the Court to comment.
The second sub-category concerns criticism levelled at a judge on the basis that a personal characteristic (such as their sexual preference, religion, membership of a political party or other association) or knowledge of participants in a case renders them unable or unlikely to bring an unbiased mind to a case before them. Judges take care to avoid the apprehension of bias by 'disengaging from political activity and avoiding conduct that could lead a fair-minded person to distrust their ability to decide politically sensitive cases in a non-partisan fashion'.[24] As Chief Justice Gleeson has commented:
Modem judges accept an obligation to avoid both the reality and the appearance of political partisanship. This does not mean that judges have no political opinions. And it does not mean that previous political engagement is a disqualification of judicial appointment.[25]
In all cases of perceived bias, the appropriate forum for comment and decision is the Court under application for disqualification of the relevant judge. The need for a public defender in these circumstances is therefore limited.
The final sub-category - concerning allegations of unprofessional or criminal conduct made against a serving judge in a public arena – is well illustrated by reference to the controversy that surrounded former High Court Justice Lionel Murphy in the years immediately preceding his death That controversy began with front-page news reports alleging conduct unbecoming a judge. Justice Murphy was later named in parliament and a series of parliamentary committee hearings were convened on the matter. Findings of these committees culminated in charges of perverting the course of justice being laid against Justice Murphy, ultimately resulting in his acquittal by a trial jury. The removal of the judge pursuant to the power found in s.72 of the Australian Constitution was contemplated by some members of parliament but moves in that direction were forestalled by Justice Murphy's untimely death.
As demonstrated by the Murphy case, conduct of a criminal nature is appropriately dealt with first by police investigation and then by the judicial system. A statement by either the Attorney General or the JCA would suffice to ensure that the public is aware in these circumstances that the law must take its course. Any defence to such allegations would be left to the judge or their legal representative in the context of the investigation or trial. The point at which speculation of unprofessional conduct or a proven transgression of the law becomes sufficiently serious to trigger the intervention of parliament under s.72 is not clear. No judge has ever been removed under s.72.
The aftermath of the decision in Wik provides perhaps the best example of the High Court experiencing criticism that goes to the integrity of the Court as an institution. State and federal parliaments as well as the media were used as forums to assert claims that the High Court had engaged in a 'deliberate strategy' to 'usurp the sovereignty of the Parliaments of Australia'[26] and had 'overstepped its role' as interpreter of the law.[27] Critics of the High Court went as far as suggesting radical institutional reform including replacement of the Court with two separate legislatively defined bodies: an appeal court and a constitutional court. Former Queensland Premier Rob Borbidge - one of the most vocal of the High Court's detractors-announced his own strategy to overhaul the Court, involving the election of judges by popular referendum and the removal of judges by petition signed by 15% of the Australian voting public.[28]
Williams provided a limited defence for the High Court,[29] whilst academic commentators and the legal profession were required to take up the mantle to provide more in-depth analysis of reformist plans that appeared to represent an inherent threat to judicial independence.
Chief Justice Gleeson, in his first interview after taking office, noted that criticisms of an institutional or functional nature directed at the High Court have increased.[30] This prompts the question: Who will rise to the defence of the Court to prevent the destabilisation of the rule of law that is caused by damage to public confidence in the Court? The JCA accepts some responsibility for speaking out in defence of the High Court on matters that affect the general administration of justice.[31] Judges may also use the vehicle of extra-judicial comment in public lectures to provide a strident voice in defence of judicial independence and the role of the Court. Chief Justice Gleeson used the opportunity of the 2001 Boyer Lecture Series to do just that. However, this mechanism cannot always be relied upon to provide a timely response to criticism.
When forced to find an alternative avenue for entering public debate, judges have resorted to using the forum of High Court hearings to explain its role and answer its critics. Following a series of vitriolic attacks in the media over its law-making role in Wik and in the face of the Attorney General's suggestion that judges find an alternative way to respond to unwarranted criticism, two members of the Court rose to its defence. In answer to counsel's assertion that it was inappropriate for the High Court to make law Justice McHugh said:
anybody who doesn't believe that judges make the law, doesn't live in the real world. How did the common law get from the last quarter of the II th century to the 20th century?[32]
Whilst this avenue for defence may answer the problem of timeliness of response, seldom will the High Court be provided with such a fortuitous opportunity. Further, comments made in the forum of the Court may not gamer the necessary exposure to render a response effective.
No one person or body is equipped speak in defence of the High Court and notwithstanding conventional wisdom, we argue that judges are often best placed to defend themselves. But rather than looking for a cure, it might be more constructive to address prevention. Ill-conceived and uninformed criticism would not find a foothold in a society better educated to appreciate the processes of political and judicial institutions. Justice French of the Federal Court contends that:
... widespread community ignorance, apathy, or misunderstanding of democratic institutions is a matter of the gravest concern. It falsifies the theoretical premise of democracy-that people know what they are doing when they vote.[33]
If this is so, then whilst the Attorney General has not stepped in to provide a cure for all the High Court's ills, he may have contributed to a long-term prevention strategy by increasing funding to national civics and citizenship education initiatives.[34] The High Court has itself assisted the educative process by appearing on the occasional television and radio program designed to demystify the Court's place in government. While recent criticisms of the High Court have had a potentially negative effect on public confidence in the judiciary, they have nonetheless raised the High Court's public profile...and, after all, any publicity is good publicity.
[*] Tatum Hands is a PhD candidate in the Department of Political Science at the University of Western Australia. Danielle Davies is a Perth lawyer.
email: tatumh@cyllene.uwa.edu.au
© 2003 Tatum Hands and Danielle Davies (text)
© 2003 John Lynch (cartoon)
[1] Indeed Winterton describes the Court's reputation as being 'never higher': Winterton G., 'Dissolving the Communists: The Communist Party Case and its Significance' in E. Atkin and B. Evans (eds), Seeing Red, The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform, 1992 pp. l33, 157.
[2] See for instance: Bulletin, editorial, 18 August 1948, p.l2; Sydney Morning Herald, editorial, 12 August 1948, p. l; Age, editorial, 12 August 1948, pp.2-3; and Age, editorial, 12 August 1948, pp.I-2 of which there is no criticism of the High Court or the legitimacy of its decision.
[3] 'Verdict Should Be Accepted', Age, editorial, 13 August 1948, p.2. This was despite the fact that a review of major newspapers revealed no such attempt to discredit the Court.
[4] See for instance the decisions in Federal Commissioner of Taxation v Williams [1972] HCA 31; (1972) 127 CLR 226; Steinberg v Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640 where the Court interpreted income tax provisions narrowly and in favour of the taxpayer.
[5] Waterford J., 'Criticism of the Court' in T. Blackshield, M. Coper and G. Williams (eds), Oxford Companion to the High Court of Australia, 2002, p.l83.
[6] Mason, A.F., 'The Role of the Courts at the Turn of the Century', ( 1993) 3 Journal of Judicial Administration 156 at 158.
[7] Such as the provision of media summaries of facts, issues and reasons in important cases; enhanced access to judgments by immediate publication on the Internet; media statements, occasional interviews and National Press Club addresses by judges. Recently, media access to the Court has been further enhanced by the employment of a public information officer.
[8] An excellent discussion of the respective roles and conventions governing the office of Attorney General in the United Kingdom and the colonies can be found in King, L.J., 'The Attorney-General, Politics and the Judiciary', [2000] UWALawRw 11; (2000) 29(2) University of Western Australia Law Review 155.
[9] Williams, D.R., 'Who Speaks for the Courts?' in Courts in a Representative Democracy, 1994, p.l83.
[10] Williams, D.R., 'Who Speaks for the Courts?' in Courts in a Representative Democracy, 1994, pp.l83, 192.
[11] Williams, D.R., 'Who Speaks for the Courts?' in Courts in a Representative Democracy, 1994, pp.l83, 194. See also Williams, D.R., Commonwealth Attorney-General, The Courts and the Media, Press Release, 19 November 1998.
[12] Mason, A.F., 'No Place in a Modem Democratic Society for a Supine Judiciary', (1997) 35 Law Society Journal 51 at 54.
[13] Solomon, D., 'Commentary: Who Speaks for the Courts?' in Courts in a Representative Democracy, 1994, pp.l95,196.
[14] Brennan, G.F., 'The State of the Judicature', address to the 30th Australian Legal Convention, 19 September 1997, p.27.
[15] See for instance: Williams, G, 'Without Support, Court is Fragile', Australian, 20 March 2002, p.ll.
[16] 'Attorney-General Defiant on Lack of Support', Australian, 20 March 2002, p.4.
[17] Above, ref l6.
[18] Williams, D.R., Address to the Judicial Conference of Australia Colloquium, 7 April 2001, p.5.
[19] 'Gleeson Vows to Stand Up for Judges', Australian, 25 June 2001, p.l.
[20] .
[21] White Industries (Qld) Pty Ltdv Flower and Hart (a firm) [1998] 806 FCA (14 July 1998).
[22] Williams, D.R., Commonwealth Attorney-General, Justice Jan Callinan, Press Release, 26 August 1998.
[23] Flower and Hart (a firm) v White Industries (Qld) Pty Ltd [1999] 773 FCA (II June 1999). The Full Court of the Federal Court found that the adverse findings about Justice Callinan were not relevant to any issue in the case.
[24] Gleeson, A.M., 'The State of the Judicature', address delivered on 14 October 2001 at p.12.
[25] Gleeson, A.M., above, ref 24.
[26] Queensland Premier Rob Borbidge quoted in 'PM Backs Fischer Over Court Attacks', Weekend Australian, 1-2 March 1997, p.2.
[27] 'Borbidge's Attack', Queensland Country Life, 20 February 1997, p.l2.
[28] 'Leaders Back Plan to Curb High Court', Gladstone Observer, 20 February 1997, 9; 'High Court Under Fire', Sydney Morning Herald, 20 February 1997, p.l6.
[29] 'Williams Sticks by High Court', The Cairns Post, 20 February 1997, p.2.
[30] 'Gleeson Opens the Door to His Court', Australian, 29 November 1998, p.5.
[31] Intervention in Matters Relating to the Judiciary: Guidelines, Judicial Conference of Australia, 10 May 1997, cl.4(b).
[32] 'Judges Back Court's Role', West Australian, 5 March 1997, p.5. These comments were made in arguendo in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 145 ALR 96.
[33] French, R.S., 'Educating for Democracy', (1996) Buntine Oration, The Australian College of Education, p. 10.
[34] Williams, D.R., 'Judicial Independence', (1998) 36(3) Law Society Journal 50.
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