1 In this talk I intend to deal with three issues facing the Australian judiciary each of which claimed my attention
during my term as Chair of the Judicial Conference of Australia ('JCA') from 2004 to 2006. These were not the only significant issues
requiring attention, but I think that each, in its own way, has an important influence on public perceptions of the judiciary. The
three are:
- the attitudes expressed by appellate courts towards lower courts (or what can be described as judicial flagellation);
- the judicial appointments process; and
- media commentary on judicial officers and judicial decisions.
Judicial Flagellation
2 I was aware before commencing my term as Chair of the JCA that judicial officers occasionally expressed concern
- even dismay - at what they perceived to be particular examples of unfair or unnecessarily harsh criticisms directed by appellate
courts at lower courts. I did not detect any clear pattern to the complaints. On occasions, judicial officers accepted that a particular
criticism had substance but thought that the appellate court had used strong or even hurtful language. Perhaps a more common complaint
was that the appellate courts were insufficiently astute to acknowledge that arguments which ultimately found favour and thus established
'error' on the part of the lower court, were rather different - even altogether different - from those put to the lower court. Sometimes
concerns were expressed that an appellate court had disapproved of a procedural course adopted at trial without recording in the
appellate judgment that the parties themselves had suggested to the hapless trial judge that he or she should adopt that course.
3 A further issue arose with proceedings in the High Court because it is the only Australian court which places
transcripts of argument on its web site. The transcripts record not only the argument on an appeal, but also the truncated and often
lively exchanges on applications for special leave to appeal. From time to time, members of intermediate appellate courts or trial
judges react to unguarded comments critical of lower courts that might be made by members of the High Court in the course of argument.
Judicial officers tend to be sensitive about any such comments apparently directed at them, bearing in mind that the electronic
transcripts are readily available to anyone, including any representative of the media, who cares to access the High Court web site.
The comments can be and sometimes are reported more widely, even if they are not ultimately reproduced in a judgment of the High
Court.
4 It is probably fair to say that only the most robust judicial officers are indifferent to criticism made by
appellate courts of their judgments or of the manner in which they have conducted a case. It is also fair to say that sensitivity
to criticism is most acute when the appellate court identifies a clear error on the part of the lower court. For this reason, I
found it difficult at the time to assess whether the concerns I had heard expressed reflected a genuine problem within the Australian
judiciary or whether the occasional complaints were essentially the product of understandable, albeit perhaps excessive, judicial
sensitivity to criticism from above.
5 It became clear, however, from my discussions with judges and magistrates in my capacity as Chair of the JCA
that there was a widespread perception within the Australian judiciary that appellate courts were frequently unfair to lower courts.
Oddly enough, intermediate courts, whose members might have expressed concern at inaccurate or overstated criticisms by appellate
judges, sometimes were themselves the subject of displeasure expressed by other judicial officers. For example, some magistrates
deprecated what they saw as the failure of appellate courts to appreciate fully the pressures under which local or magistrates courts
operate. In particular, they complained that appellate courts from time to time made insufficient allowance, not only for the immense
and varied workload of courts of summary jurisdiction, but also for the limited resources provided to them to cope with that workload.
Thus apparent delays in completing a case might reflect the practical difficulty of a magistrate securing consecutive days for the
hearing, rather than any lack of diligence or efficiency on his or her part. Language used by appellate courts was also sometimes
perceived to be less than respectful towards magistrates courts.[1]
6 Similarly, District Court judges (or their equivalent) expressed concern that State appellate courts were sometimes
unduly critical of the decisions under appeal, particularly when hearing appeals against sentence. They also tended to feel aggrieved
by judgments that found or implied serious error on the part of the trial judge when, in the opinion of that judge, the appellate
court had simply reached a different conclusion on equivocal material. On occasions, it was thought that the appellate court had
misunderstood what had occurred at the trial, leading to unwarranted criticism of the trial judge.
7 A repeated theme in my discussions, particularly among judges of superior courts, was that appellate court not
infrequently allow appeals on grounds that were not put, at least in the same way, to the lower court. Complainants accepted that
the arguments advanced on appeal are often legitimately different from those put at trial or (in cases that reach the High Court)
in an intermediate appellate court. Their complaint was that appellate courts are not always sufficiently careful to record that
the argument has taken a different course on the appeal and that the so-called 'error' of the lower court consists in a failure to apply a principle, or perhaps even a statute, that the parties had not drawn to the
lower court's attention. In this connection, my own experience suggests that appellate courts should exhibit a healthy scepticism
when told by counsel as to what arguments were or were not put to the Court below. Just as a teacher should not be convicted of
incompetence on the uncorroborated testimony of his or her student, so a trial court or intermediate appellate court should not be
convicted of serious error solely on the basis of uncorroborated assertions of counsel appearing on the appeal.
8 In consequence of these concerns, which appeared to be widely shared, the JCA raised the issue with heads of
jurisdiction, noting its potential, not only to damage relations between courts, but to bring the judiciary itself into disrepute.
The JCA recognised that grievances can be more a reflection of judicial disappointment at the outcome of a successful appeal, rather
than any excesses on the part of an appellate court. It also recognised that there will be occasions on which an appellate court
needs to state clearly and firmly that a lower court has committed a serious error or, in extreme cases, has failed to live up to
the standards expected of judicial officers. An example is where a judicial officer does not deliver judgment until after an unacceptable
delay and, as a result, one party has not received a fair trial or has otherwise suffered a miscarriage of justice.[2] Independent scrutiny of the judgment or orders of a lower court may demand no less. Nonetheless, the JCA pointed to the dangers
of unnecessary, intemperate or unfair criticism by appellate courts directed to lower courts.
9 The High Court, as the ultimate court of appeal in the country, has an important role to play in setting the
tone of appellate judgments and thus in establishing the tone of the delicate relationship between appellate and lower courts. It
is a little unfortunate, therefore, that the issue has recently been brought to the fore by the unanimous judgment of a five member
Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[3] It is this judgment that apparently provided the impetus for heartfelt comments made by Keith Mason,[4] President of the New South Wales Court of Appeal and a member of the Court of Appeal in Say-Dee, on the topic of offensive judgments.
10 By any measure, the joint judgment in Say-Dee is highly unusual. The actual decision of the High Court turned purely on a question of fact. After an extensive analysis of evidence,
occupying over 20 pages of the Australian Law Reports, the Court reinstated a key finding of the trial Judge, Palmer J. This finding was that the appellant, Farah, had disclosed to Say-Dee
information relating to the development of a property in which the parties to the litigation had an interest. Consequently, so the
High Court held, contrary to the conclusions reached by the Court of Appeal, Farah had complied with its fiduciary obligation of
disclosure to Say-Dee. The High Court's reversal of the factual finding made by the Court of Appeal was the end of the case. The
appeal had to be allowed. It follows that anything else said by the High Court could not be part of the ratio decidendi.
11 Nonetheless, the High Court thought it appropriate to address issues that arose only on the assumption (contrary
to the High Court's findings) that Farah had breached its duty of disclosure to Say-Dee. On this basis, the joint judgment considered
whether the Court of Appeal had been correct to rely on general restitutionary principles as one alternative ground for holding certain
parties associated with Farah, each of whom had acquired a property near that held by the joint venture, liable to Say-Dee in consequence
of Farah's assumed breach of fiduciary duty.
12 The High Court considered that the Court of Appeal, by invoking the doctrine of unjust enrichment, had committed
a 'grave error'.[5] It had acted in a 'very unjust' manner and had 'caused great confusion'.[6] The relevant part of the Court of Appeal's judgment would have come as 'a complete surprise to all parties'.[7] Notwithstanding that the Court of Appeal had said that the argument had not been 'specifically exposed in any detail',[8] thereby implying that the issue had at least been referred to in argument, in truth it had not been discussed at all. Had it been,
Farah would have wanted to advance contentions about the 'want of intellectual merit' of the principles applied by the Court of Appeal. Moreover, the judgment:
'which states no reason why restitutionary liability should be recognised, conveys the impression that the result was so foreordained
and so inevitably correct that it was not necessary to seek any assistance, however modest, from [Say-Dee]'.[9]
13 According to the High Court, the judicial statements relied on by the Court of Appeal either did not support its
approach or (so the joint judgment said without a hint of irony) were 'entirely unnecessary for the decision of the cases in which they were uttered'.[10] Moreover, the Court of Appeal's:
'reasoning did not allege, let alone demonstrate, any inconsistency of principle, any point of practical inconvenience, or any other
reason which would justify changing the law in the manner it purported to'.[11]
The restitution theory was:
'imposed as a supposedly inevitable offshoot of an all-embracing theory. To do that was to bring about an abrupt and violent collision
with received principles without any assigned justification.[12]
14 The High Court's analysis may be entirely right as a matter of principle, even if it comprises mere obiter dicta according to the received doctrine of stare decisis. But that is not the point. Why is it necessary or appropriate for an appellate court to use language such as this in stating its
position? Can it really be said that the differences of opinion on matters of legal principle warranted criticism suggesting that
the Court of Appeal had committed 'grave errors' or had adopted principles demonstrating a 'want of intellectual merit'? At a more general level, what opportunity does a lower court (whose members are not represented on an appeal) have to answer what
are, in effect, allegations against it? What is the impact of unnecessarily harsh criticism on the targets of the judicial criticism?
15 The issues thrown up by the Say-Dee judgment are relevant to the work of all appellate courts, not only the High Court. As Mason P says and I agree[13], appellate courts should not hold back from their painful, but necessary, supervisory role. Judicial officers are not entitled to
immunity from criticism for their failings. Sometimes that criticism needs to be expressed strongly. But as Mason P also says,
the obligation to act without fear or favour does not justify unnecessarily derogatory language, even where error is clearly established.
16 In my view, this is an important point that should be remembered by all appellate courts, wherever they are in
the judicial hierarchy. All appellate judges, including those who protest about the tone of judgments such as Say-Dee, may be tempted to overstate criticism of lower courts. There is, however, a tolerably clear line between the necessary correction
of error or the better attainment of justice according to law, on the one side, and unnecessarily hurtful condemnation of lower courts,
on the other. The temptation to cross that line should be resisted. The fact that some wounds to the judiciary are self-inflicted,
like an own goal in football, does not make them any less harmful to the standing and morale of the judiciary.
Appointments
17 A second issue that attracted much attention during my term as Chair of the JCA was the process for appointment
of judicial officers. Australia has largely adhered to the model of unfettered executive discretion for appointments to the judiciary,
although this has been modified to some extent in relation to the appointment of magistrates in a number of jurisdictions. The modifications
have usually involved advertising for expressions of interest, publishing the professional and personal criteria candidates are expected
to meet, interviewing by a panel (including current judges or magistrates) and, in some instances, following a structured consultation
process. But with a few exceptions, these modifications have not intruded into appointments to superior courts.[14]
18 The JCA's interest in the judicial appointments process pre-dates concerns that have recently been expressed,
sometimes sotto voce, about the quality of certain appointments to both federal and State courts. The debate raises important issues of principle that
have been addressed in other common law jurisdictions, notably the United Kingdom, Canada and New Zealand. (The United States, as
ever, has its own history and unique mechanisms.) Supporters of change point to the need for a more transparent appointments process,
the desirability of attracting a wider range of suitably qualified candidates for appointment and the benefits of applying standard
criteria uniformly to all candidates for judicial office.[15] The supporters of change argue that a reformed appointments process will maintain public confidence in the independence, competence
and integrity of the judiciary.
19 In recent times, support has grown within the judiciary and in the wider community for a system that curbs the
unfettered discretion of the Executive to make judicial appointments. A number of distinguished commentators, including Sir Gerard
Brennan[16] and a former Judge of the Queensland Court of Appeal,[17] have called for changes. Sir Gerard, for example, has argued that:
'The time has passed when it is possible to have any confidence in the system to discover and evaluate the abilities and character
of prospective appointees to Commonwealth courts.'[18]
He, like many others, says that a more informed and structured process is needed. The JCA itself has established a committee to consider
whether it should support the creation of a judicial appointments commission and, if so, what powers and functions the body should
have.
20 Many factors have contributed to the surge in support for a more transparent judicial appointments process. In
consequence, the movement for change has attracted some odd bedfellows. For example, some professional associations have been motivated
by what they see as a disturbing trend towards the appointment of too many judicial officers who lack the forensic experience that
can only be acquired (they say) in legal practice. They see a judicial appointments commission as likely to curb misguided political
attempts to 'widen the gene pool' (to use Gleeson CJ's expression in another context).[19] Their temporary bedfellows include those who consider, by contrast, that the fundamental problem with the current system is that
it favours practising barristers as the primary source of appointees, at least to the superior courts. These less traditional proponents
of reform see a judicial appointments commission, perhaps along the lines of the determinedly inclusive English Judicial Appointments
Commission, as the antidote to a male-dominated, conservative, largely monolithic judiciary.
21 Sir Gerard Brennan refers in his paper rather delicately to 'an increase in the number of anecdotal reports of unmeritorious appointments'.[20] This is indeed a delicate issue, particularly for a serving judge. Naturally, I do not wish to comment on any individual appointment
to any particular court and I certainly do not wish to comment on any particular appointments to the Federal Court. I also accept
that, except in very rare cases, there is no single candidate who is clearly superior to any other available candidate to fill a
given vacancy, once the appropriate criteria are taken into account, and that all judicial officers can be expected to do their best
to discharge the onerous duties of their office. Furthermore, it is by no means unheard of for appointees with apparently relatively
modest qualifications to perform at a much higher level than might have been expected at the time of their appointment.
22 The current judicial appointments process raises issues for both the Commonwealth and the States. If, however,
attention is focussed on the three federal courts (leaving aside the High Court), in my view it is impossible to avoid the conclusion
that appointments have not always been made on the basis of objective criteria that embody standards of excellence. During this
period, of course, there have been some very fine appointments to federal courts. Nonetheless, I think it undeniable that some
appointments to the federal judiciary have not been made from the most qualified available candidates . By that statement I do not
mean to imply that judicial officers should be drawn from any narrow segment of the legal profession. On the contrary, I am a strong
supporter of widening the judicial gene pool. My point is that the exercise of unfettered executive discretion has not ensured appointment
of only the most qualified candidates for judicial office. Accordingly, the system has proved not to be the optimum mechanism for
maintaining the hitherto outstanding reputation of the federal judiciary. Not only have appointments been made of candidates who
cannot be said to be among the most qualified available, but outstanding candidates who have been available have not been offered
federal appointments, usually with the result that they have gone to other courts. The harsh reality is that the reputation of the
federal judiciary has suffered some damage in recent times by reason of deficiencies in the appointments process.
23 It is important to appreciate just how much circumstances have changed since the current arrangements for appointment
to federal judicial office were adopted at the dawn of the twentieth century. In 1903, the year the High Court commenced its work,
there were three federally appointed judges and no federal courts (other than the High Court itself). In October 2006, there were
133 judges or magistrates holding office in the three federal courts (other than the High Court), all of which had been created within
the previous 30 years. Much the same increase in the size of the judiciary has occurred at State level. For example, in 1903, New
South Wales had 14 Supreme Court and District Court Judges; in 2006, it had 120 tenured Judges.[21]
24 One of the arguments regularly used to support retention of the current system is that the elected government
should retain exclusive responsibility for judicial appointments because it is politically accountable for its decisions. The fundamental
difficulty with this proposition is that if a judicial appointee is not up to the job, it is his or her court that inevitably suffers
the opprobrium. In those (fortunately rare) cases where judges or magistrates experience serious difficulties in performing their
duties, the reputation of the court concerned - and indeed the judiciary as a whole - is diminished and of course litigants suffer.
Political accountability may be present in theory, but in practice is largely illusory, since the effects of a sub-optimal appointment
are usually not clear until the Attorney-General responsible has moved on or the Government has lost office.
25 Moreover, the consequences of a series of appointments made otherwise than from the most qualified available candidates
are not easily measurable in a manner that renders political accountability meaningful. Yet appointments of this kind have a tendency
over time to lower the reputation of the court concerned. The difficulties from the court's point of view are compounded if appointments
are made without the court being afforded a meaningful opportunity, through its chief judicial officer, to contribute to the consultative
process. I do not mean by this comment that the current members of a court should have the ability to replicate themselves. I mean
only that a court should play a meaningful role in the consultative process that precedes the making of particular appointments.
26 I appreciate that attitudes within the judiciary itself to the judicial appointments process are not uniform.[22] In certain jurisdictions, there are fewer pressures for change because the consultative and deliberative process appears to work
more effectively than it has recently at federal level - or at least more to the satisfaction of senior judicial officers. Even
so, those within the judiciary who are content with the status quo need to factor in the potential for sudden political change that can affect the quality of judicial appointments. A week can be a
long a time for the judiciary, just as it can be for politicians.
The Media
27 The third issue that attracted attention was the ever-present problem of relations between courts and the media.
Contrary to popular judicial belief, ill-informed and even malicious criticism of courts is not a new phenomenon. Nineteenth century
commentators were at least as robust and, if anything, less respectful of courts and judges than modern commentators, who tend to
be wary of the law of defamation. The major difference in the twenty first century is that criticisms of the judiciary are disseminated
very much more swiftly and widely by means of the electronic media, including the internet.
28 The basic dilemma was identified presented by a very astute commentator, although he was not a lawyer. He deplored:
'… the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those
who write them. … These ordures are rapidly depraving the public taste. It is however an evil for which there is no remedy,
our liberty depends on the freedom of the press, and that cannot be limited without being lost'.
The commentator was Thomas Jefferson.[23]
29 The traditional response of Australian courts and judges in the face of media attacks has been to maintain a stoic
silence. While non-response has the superficial attraction of maintaining the appearance of dignity, it does little to achieve that
elusive goal of enhancing public confidence in the judiciary. In the most extreme cases, invoking contempt sanctions or (in the
case of individual judicial officers who have been unfairly maligned) instituting defamation proceedings are options that are theoretically
available. In practice, they have many serious disadvantages and, in any event, are difficult to justify in their current form in
the face of the implied constitutional freedom of communication.[24] Paradoxical as it may appear, extension of the constitutional protection of the implied freedom to critics of the courts would do
more to enhance the standing and reputation of the judiciary than reliance on blunt 'remedies' that are the product of a very different age and, in any event, are rarely invoked.
30 The judiciary's response to criticism of courts and individual judicial officers must undergo something of a sea-change,
if not revolution, if the benefits of an independent and impartial judiciary are to be better appreciated by the general community.
Significant changes have already taken place. But a good deal more needs to be done.
31 The principal developments that need to be taken further include these:
- The courts and judicial officers should do more to communicate effectively with the media. There have been substantial improvements
in recent years, for example the appointment of court media liaison officers and the publication by courts of judgment summaries
in cases of particular public interest. Other measures include the preparation of material that explains, both for the media and
lay people generally, what the courts do and why. An example is the JCA's Guide to Sentencing in Australia,[25] which attempts to counter some of the persistent myths about the sentencing of offenders.
- Judicial officers need to understand better the ways of the media. Understanding the media does not necessarily imply approval of
all their self-serving habits, but it tends to minimise the risk of counter-productive reactions or disproportionate or alarmist
responses to media exaggerations or misrepresentations. A better understanding does imply, however, that those who accept judicial
office must accept that the possibility of critical media attention, whether justified or unjustified, goes with the job. This is
particularly the case for those who undertake the thankless task of sentencing, which will frequently attract vehement and, very
often, ill-informed and sensationalist criticism. Obviously enough, this vulnerability to public criticism and even ridicule does
not necessarily suit every lawyer who otherwise would be eminently qualified for judicial office. Aspirants to judicial office therefore
need to appreciate the risks that go with the territory. Representative organisations also need to be aware of these issues. It is
for this reason that the JCA has attempted to contribute to the media education of judicial officers by providing all of its members
with a Handbook for Judicial Officers entitled 'Working with the Media'.[26]
- Courts and judges must be much more willing to engage in public debate, particularly in order to correct ill-informed commentary or
to provide balance in the face of media excesses. It is no longer tenable to expect that an injured judicial silence will reassure
members of the public that courts are not only independent and impartial, but take into account, in an appropriate way, community
standards in areas such as sentencing and criminal procedure. This is why it is important for a representative body such as the
JCA to act as a point of contact for media enquiries and for issuing statements on behalf of the judiciary on issues of public interest
involving the courts or judicial officers. Certainly heads of jurisdiction have been much more willing to engage with the community
by explaining the role of the courts and, in appropriate cases, responding to criticisms of court practices or even of particular
judicial decisions. But the judiciary has a long way to go before achieving a satisfactory accommodation between respecting the imperatives
of independence and impartiality and ensuring that the voice of the judiciary is heard publicly in matters of central concern to
judicial officers.
Conclusion
32 I do not intend to convey the impression that the Australian judiciary is in dire straits. On the contrary, the
overall condition is healthy and the prognosis for a robust, independent and impartial Australian judiciary is good. The qualifications
to this optimistic assessment are that the judiciary should avoid self-inflicted wounds, strenuously resist a lowering of standards
for appointment to judicial office (while supporting a widening of the gene pool) and recognise the need to adapt to the peculiar
challenges and opportunities of the electronic age.
