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Judges
1 April, 2005  
Much Ado About Nothing

The annual Australian Press Council address this year was delivered by your editor. It critiques some conventional wisdoms about judicial independence and endeavours to explore the vexed relationships between judges and journalists. The True State of the Judicature


imageThe title of this sermon given in the official Press Council material is “Dripping with Venomous Insinuation”. It is a line from the Tom Hughes’ repertoire of purple flourishes to juries in defamation cases.

Like a lot of things you read in the papers, this title is quite misleading.

The talk was meant to be about the hyperbole of media law and its utter dizziness. However, the defamation landscape is in more of a fluid state than normal following the most recent meeting of Attorneys General.

So, we’ve changed gear and the issue now before us is judges and the media and the new title of this missive is “Much Ado About Nothing or the True State of the Judicature”.

As a journalist the whole event is unnerving. Justice Sackville from the Judicial Conference of Australia is here to critique my criticisms.

Journalists are not used to this sort of thing. We much prefer just to fling together a few random thoughts unperturbed by someone sitting at hand to deliver a public flogging.

But after reading a whole series of recently presented talks, interviews and speeches from judges I’ve come to the conclusion that the judiciary is as prone as any other interest group to overstating its case, over egging its pudding and claiming immunities, privileges and perquisites that are beyond its due.

Contrary to popular belief, the media does not pose a threat to judicial independence by criticising these ambit claims.

In case it might be thought infra-dig for a journalist to be lecturing about judges I should preface these remarks by saying that all the usual human shortcomings such as drunkenness, drowsiness, depression, tardiness, rudeness are things that are quite acceptable in journalists, maybe even compulsory, but are out of bounds for judges.

Judges’ speaking out

Over the previous week it’s been raining off-the-bench remarks by judges.

Invariably these pronouncements include the reminder that judges are at a huge disadvantage because they cannot defend themselves in public.

This little incantation seems odd given that the Judicial Conference has produced a 40 page booklet for judges on how to work with the media, how to issue press releases, how to hold press conferences, give interviews, and to generally be engaging.

The golden thread that runs through last week’s collection of speeches is the independence of the judiciary, its sacredness, its importance to the proper functioning of democracy and how it is under threat like never before.

My thesis, on the other hand, is that we should take all of that with a huge grain of salt and a huge glass of Jeff Shaw red.

Last week the Chief Justice of Victoria Marilyn Warren gave a generous interview to The Age. The newspaper also published a lengthy report of the farewell address by Justice John D. Phillips from the Court of Appeal.

There was a Gold Coast edition of the State of the Judicature from Chief Justice Murray Gleeson. He also gave eight one-on-one interviews with journalists.

Justice Sackville spoke to Kerry O’Brien on ABC television.

Justice Michael Kirby spoke, so too did the Chief Justice of Queensland, Paul de Jersey.

Apart from the threats to independence and the need for judges to be remote the other main topics were governments not granting pay rises to judges in the face of findings by the Remuneration Tribunal and the evils of appointing acting judges.

Justice Phillips claimed that the Victorian Supreme Court was the third arm of government and is “co-equal” in concept with Parliament and the executive.

Chief Justice Gleeson said something was going to be done about lawyers speaking out to the media on behalf of their clients. His other principal anxiety was of a pending judge shortage because good people are now less likely to accept appointment.

He later explained to the ABC’s PM program that this could be due to “lifestyle constraints” that are a burden for judges. Unfortunately, the Chief Justice wasn’t pressed on the nature of the unnatural constraints he suffers.

Justice Sackville mentioned in his TV interview that the intensity and degree of media attacks on judges is now much greater than used to be the case. Contrary to the usual incantation about the constraints on speaking out, he thought that the courts have to be prepared to engage more openly in the public arena in order to rebut criticism where rebuttal is warranted.

Justice Kirby went so far as to say in his speech that adequate resources for the courts and adequate pay for the judges were factors in the doctrine of judicial independence.

The most immediate response to all of this, at least from my perspective, and I suspect from many other members of the public, is to say, “What on earth are they on about?”

Part of the problem, I believe, is that judicial notions of independence have become inflated and have now assumed a proportion that is unrealistic and in fact never existed.

Far from judicial independence being under attack from governments and the media, it has actually now more robust than it has ever been.

In their shy, remote, supposedly unworldly way, judges have done a brilliant job at seeking to occupy expanded new living space, in the name of independence.

Let’s look at the weight of several of the grievances.

Acting judges

The proposed appointment of acting judges has been a fiercely contested issue in Victoria. The judges, the bar and the Judicial Conference are all opposed to the government’s plan.

From where did this opposition spring? In previous generations there were acting judges in Victoria and the world went on undisturbed.

It was good enough for Sir Own Dixon to be an acting Victorian Supreme Court judge. These appointments were a regular feature in Victoria between 1950 and 1972.

Particularly in the 1960s the government started to make a practice of giving County Court judges a trial run on the Supreme Court. The bar’s opposition to acting judges really started to built up steam from that time on. Until it was perceived to be a threat to the elevation of worthy barristers, the bar’s objection to acting judges was restrained.

Progression up the judicial food chain has been a feature of the English system. It is not regarded there as an awful threat to judicial independence.

What has happened here is that self-interest has become conflated with constitutional independence.

Judges’ pay

If the quality of accommodation is not being contended as a constraint on independence, you can be sure that judicial pay and superannuation is.

Melbourne legal observer Barry Lane has just had an interesting article published in that scurrilous legal organ Justinian, of which you may have heard. He thinks that in the public’s mind judges are not all that different to doctors, nurses, school teachers or police all of whom are on the public purse.

Judges might think they are different, ultimately though they still have to compete for funds with all the other officers and agents of the Crown who provide services to the public. By comparison with other professionals on the public purse judges are far from underpaid.

Co-equality

Now we have the revolutionary suggestion from Justice Phillips that State courts are co-equal with government and parliament. This is bold grab to extend the concept of independence.

Ever since the parliament won the battle with the crown over who is to run the state, it is parliament that is absolutely supreme. Through the executive it appoints, removes, and pays judges. It sets up courts, it abolishes courts. It decides when judges retire (except for federal judges). It decides where courts sit and how many judges there will be.

To talk of State courts being co-equal, and that any threat to that co-equality undermines judicial independence, has to be bunkum.

Lawyers speaking out

Chief Justice Gleeson’s concern about lawyers speaking outside the courts in defence of their clients also is an interesting one.

Maybe he’s got in mind lawyers for suspected terrorist detainees or those in detention centres in Australia or Crown Prosecutor Margaret Cunneen who spoke about shortcomings, as she sees them, in the criminal justice system.

Guidelines are to be drawn up to regulate this conduct. We should wonder, as a letter writer to The Sydney Morning Herald suggested, whether these guidelines will extend to the behaviour of Messrs Ruddock, Downer and Howard who have made quite a practice of demonising some of these clients.

Judge shortage

Then there is the issue also identified by Chief Justice Gleeson of a shortage of top barrister talent being available to be judges.

Again, one has to scratch one’s head. The anecdotal evidence is that since the tort law reforms and the shrinking of some of the bar’s traditional cash flow, the closure of whole floors of chambers and the lingering of barristers in coffee shops and other riskier establishments, there is no shortage of senior people anxious for judicial appointment. Some of them are women.

The fact that the bar may have priced itself out of its near exclusive franchise on judicial appointment is no bad thing. It is refreshing to see that Chief Justice Gleeson has embraced a wider gene pool from which judges can be selected.

Media attacks

Justice Sackville on the 7.30 Report last week thought that one of the things that made life less attractive for judges is the greater intensity and degree of the present day media attacks.

Judges share a similar characteristic with other human beings – they don’t like to be attacked.

Justice Sackville didn’t specify instances, but I can think of a few.

There was a series of articles in The Australian before Christmas in which it was claimed the courts with the longest holidays have “the biggest criminal case stockpile”.

However, statistics can take on a variety of shades and hues and there was undoubted confusion. In fact on a finalisation basis, the supreme court with the shortest holidays, Western Australia, had a far lower rate of finishing criminal cases than the court with among the longest holidays, NSW.

The newspaper editorialised:

“In line with its guild traditions, both the judiciary and the bar have not been noted for disciplining poor performance or for pursuing efficiency with the same vigour that applies to most of the rest of the workforce.”

Reporters Ean Higgins and Brad Norington of The Australian were the lead writers on the Jeff Shaw case. They pushed hard to try and establish whether the government knew at the time of his appointment that the judge had a drinking problem.

However, they attributed various dark connotations to Justice Shaw concealing the blood samples from the hospital while giving less space to possible innocent explanations. There was also an extraordinary moment when Higgins obtained entry unannounced to Jeff Shaw’s private alcohol treatment clinic. His story commenced like this:

“Jeff Shaw is used to a big world of excellent food and wines, sports cars, a stately house with expensive views, and a politico-judicial circle of friends including ministers, silks and fellow judges.

“Yesterday his universe was a small, rather depressing room in The Sydney Clinic, from which he took a break to eat his lunch with a dozen or so other patients in a Spartan dining hall with plastic table tops”

These stories gave rise to the suggestion that the Murdoch press has it in for the judges. There was also the Jelana Popovic case in which the Melbourne magistrate successfully sued the Herald-Sun for defamation arising from a column by Andrew Bolt; just as in Sydney, left wing Pat O’Shane successfully sued The Sydney Morning Herald over a piece from its former right wing columnist Janet Albrechtsen. The appeal against the verdict of $220,000 damages is reserved.

As an aside, there is something unsettling about judicial officers claiming the high ground of remoteness while at the same time engaging the newspapers in the courts when they seek a remedy for their hurt feelings.

In journalistic scoop terms there have also been some excellent stories. The Daily Telegraph had the news about Judge Dodd in the District Court falling asleep while sitting on a case.

The Judicial Commission upheld the complaint and referred it to the head of jurisdiction.

The paper went on to publish a bold story with pictures of Jeff Shaw, Ian Dodd and Vince Bruce, captioned respectively, “drunk drowsy depressed”.

I don’t think anything can top the Financial Review some years ago on the front-page publishing a picture of Mr Justice Else-Mitchell wearing his wig. A sub-editor in a state of confusion captioned the photo “Mrs Else Mitchell”.

The Australian had the story about the very slow Family Court judge in Tasmania and the 66 judges who were between one and seven years behind lodging tax returns.

Those were perfectly legitimate stories and for judges to say that they represent attacks on them is to suggest they should never be criticised for drunkenness, slowness or being late with their tax.

The responses, I have to say were not entirely convincing.

Justice Sackville on behalf of the Judicial Commission reassured us that 94 percent of judges and magistrates were law abiding.

Ian Harrison from the NSW Bar Association wrote to the Telegraph saying its criticism of “drunk drowsy and depressed” was “just plain wicked”.

“Are all members of the community suffering from these illnesses to be treated callously?” asked Harrison.

Sydney Morning Herald columnist Paul Sheehan also had some strongly expressed pieces about the NSW Court of Criminal Appeal’s finding and orders for retrials in relation to some of recent rape cases.

The DPP Nicholas Cowdery and the Attorney General Bob Debus wrote to defend the judges but the letters were not published by the paper.

Subsequently, on behalf of the Judicial Conference of Australia, Justice Sheller wrote an unusual letter to the Australian Press Council.

The JCA was not complaining, it was seeking to find out whether the Sheehan case was suitable material for complaint.

This approach shows the problem. The judges want to engage, but they don’t want to engage too vigorously for fear of dimming “the blaze of glory” that Justice Wilmot claimed in 1765 surrounds the courts.

I don’t think the vehemence of the criticism of judges has been more strident in recent years, particularly when you consider that in 1913 The Bulletin vehemently criticised the Hughes’ government’s appointments to the High Court of Piddington and Powers.

Under the heading of “The ghastly error of W.M. Hughes” the paper said that this pair were “not so much mistakes as grim tragedies”.

To my knowledge recent criticism has come nowhere near that quality.

Then one most not forget that when it comes to slagging off at judges, the judges themselves are no slouches.

In the Rivkin, Kirby said McHugh was “excessively defensive” of the jury and “insufficiently attentive” of the appellate court. Further McHugh’s approach was “highly artificial” and “starry-eyed”.

In the advocates immunity case Kirby described McHugh’s reasoning as “distasteful”.

The attacks from appellate judges on judges lower down the food chain are sometimes so vehement that it is a wonder that the victims can show their faces at work the next day.

Media as a danger

Overarching all of this is a core belief of the judges that the media poses a threat to the judicial system and the delivery of justice.

Whole rafts of law are designed to constrain media coverage in an attempt to protect the sanctity of the system. The boundaries are constantly being expanded.

The latest effort urged upon the NSW government by the court is an extension of the normal protection of the identity of children in criminal proceedings to a prohibition on naming dead children.

For instance, the media will not be able to write about the famous Graham Thorne case or the Kathleen Folbigg case.

Even if the story did not name the Folbigg children if the mother was named the children would be identified and there would be a breach. The Macquarie Fields riots case is going to be interesting. In the proceedings against Jesse Kelly’s aunt, the media will not be allowed to name the deceased.

No one is quite sure why these prohibitions were felt to be necessary, but clearly they were done in the name of protecting the sanctity of the trial system.

Justice Virginia Bell, an otherwise sound judge, gave a paper at the beginning of the year dealing with how the integrity of jury trials can be preserved in a mass media age. She sought to expand the scope of the protection of the jury.

Her particular focus was the fact that potentially prejudicial material could be discovered by jurors on the internet.

What Justice Bell came up with was that the Crown in any pending case should “carry out searches on the internet and, in the event that prejudicial material is identified, to request any Australian based website to remove it until the trial is completed.”

This is a pretty serious challenge to the freedom to publish and of course it leaves gapingly open the question of what to do about web sites viewable here that are hosted offshore.

Before judges keep on seeking to expand their blaze of glory we should refresh ourselves with the findings from the NSW Bureau of Crime Statistics and Research on the reasons why criminal trials are aborted.

The figures are from 2002, but their meaning would not have radically altered in the intervening years nor would the outcomes be markedly different in other jurisdictions.

Of the trials that were aborted 43 percent were due to the introduction of inadmissible evidence. Twenty one percent of those aborted arose because of juror knowledge of a particular participant in the trial.

Eleven percent because of some problems with witnesses. Judges misdirections or mistakes accounted for four percent. Prejudicial publicity by the media, one percent.

It would seem that everyone else is doing more to botch the sanctity of the system than the journalists.

Conclusion

Judges stressing about their status, authority and perquisites is quite needless, as is the belief that the media is the main threat to their privilege.

The Judicial Commission should be beefed up to engage on these issues. Justice Sackville is an effective spokesman. The judges should come out of the cupboard.

Richard Ackland
March 31, 2005