Courts in need of public scrutiny, top judge saysSydney Morning HeraldAugust 29 2005By Fergus Shiel
The case for permitting wider public criticism of Australia's courts is "extremely strong", says the head of the national judges association, Justice Ronald Sackville.
Justice Sackville says he agrees with the Law Reform Commission that there is no evidence that public confidence in the judiciary is significantly impaired by baseless allegations made in the media or elsewhere against courts and judges.
In a lecture at Monash University today, he says the courts themselves have repeatedly stressed that well-founded accusations of judicial misconduct are in the public interest.
"Current laws have the additional disadvantage that they too often place courts in a position where they can be seen as literally judges in their own cases," he says. "It is difficult to deny that contempt for scandalising the court … bears the hallmarks of a doctrine designed to provide special protection for courts against harm that is more imaginary than real."
Justice Sackville, who is the chairman of the Judicial Conference of Australia and a Federal Court judge, says it is time for change to be considered.
"The existing constraints on the freedom to criticise courts have been informed by an assumption that the judiciary cannot respond to ill-informed or malicious criticism about particular decisions or the conduct of individual judges," he says. "The time has come … for that assumption to be re-evaluated."
Justice Sackville says judges do actively participate in debates affecting the judiciary; and heads of jurisdiction correct inaccurate statements made about their courts.
Moreover, he says, techniques may be available to the courts, short of formal contempt proceedings, that draw public attention to inappropriate comments about judges or their work.
"The greater willingness of the judiciary to respond to public criticisms reflects the reality that the traditional stoic silence in the face of an ill-informed even malicious attack is by no means the most effective means of maintaining confidence in the judicial system."
He says the judiciary is the third branch of government and it is hard to dispute the proposition that freedom of the press is a means of making courts accountable to the community.
"The work of the courts may be as relevant to the informed judgement of electors as the actions of elected representatives or public officials," he says. "This is so notwithstanding that the courts are and must remain independent of other branches of government."
Justice Sackville says courts need powers to deal with rare cases where verbal attacks pose a real threat to the standing of the judiciary. But the independence of the judiciary did not justify placing courts in a separate, privileged category to MPs or public officials so far as protection from unjustified criticism is concerned.
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