Why judges must not be a protected species

Sydney Morning Herald
September 2 2005
By Richard Ackland

This is hardly the moment for the media to be sticking their hand out asking for an enlargement of their freedom of expression. The cheap, nasty and downright hypocritical newspaper tub-thumping about John Brogden's alleged moral failings is enough to turn the average tummy. But the most recent inspiration for some sensible broadening of horizons comes not from the usual special pleaders but the unlikely quarter of the judiciary.

On Monday Justice Ronald Sackville, who is head of the Judicial Conference of Australia, an organisation that represents the interests of judges, issued a rallying call for fresh thinking on the hitherto ironclad protection against media criticism that judges have awarded themselves.

At the heart of this is the idea of a constitutional protection for free speech on matters connected to our system of representative democracy; that is, the affairs of government and politics.

If media organisations can jump through the many hoops the High Court carefully plotted in the famous Lange case (named after an action the former and now late prime minister of New Zealand took on these shores against our ABC) then they are afforded a constitutional protection to defame politicians and other public officials.

The fact that it is well nigh impossible to get through all the riders and qualifications, even if you can pass the threshold, makes it another of those marvellous-sounding defamation defences that just goes nowhere.

What the courts have done is to confine the defence so that the constitutional protection does not extend to defamatory criticism of judicial officers.

We've seen this in the Melbourne case brought by the magistrate Jelana Popovic against the Melbourne blowhard Andrew Bolt and his newspaper, the Herald Sun.

More recently, against this newspaper, the magistrate Pat O'Shane successfully brought an action over a critical column written by a contributor at the time, Janet Albrechtsen.

The trial court and the court of appeal refused to entertain the idea that the newspaper was entitled to a constitutional protection to say that the magistrate was biased or in breach of her duty.

Quite apart from the special legal protection appellate judges have handed themselves, and those further down the line, in the view of this observer it is just as unsightly for judicial officers to be using the courts to extract damages in the first place. It looks just a bit too in-club.

Maybe it is too rich for a newspaper columnist to be writing about all of this in a newspaper so closely affected by this long-running and no doubt ludicrously expensive litigation.

It was Sackville's speech that cleared the path, so to speak. He said: "It is difficult from a policy perspective to justify placing courts in a separate and privileged category so far as protection from unjustified criticism is concerned. Moreover, if the High Court endorses the current trend of authority, the courts will be open to the charge that they have awarded themselves an immunity that is difficult to justify and is likely to prove counterproductive to the values they have repeatedly espoused."

As if by magic, on Wednesday the NSW Court of Appeal popped out its redetermination of damages for the successful plaintiff in O'Shane v Fairfax. The magistrate had lost 50 per cent of her case in the original appeal determination, but on Wednesday the damages were sliced by only 20 per cent from the original $220,000.

There was a stern lecture not to look at the outcome in this way, but frankly it was a lecture that wasn't convincing. There were a few judicial swipes about Albrechtsen along the way, including the inadequacy of her research, and no sign of that good ole judicial activism.

Yesterday saw a further development in this genre of free speech and the third arm of government. Further up the food chain, the High Court spoke and Sackville's foreboding was realised. It delivered its judgement in a case that sought to test whether the ban in NSW on lawyers advertising their services in personal injury cases was unconstitutional. Now we know, it isn't.

Part of that case concerned the constitutional right of political and government communication - the very thing Sackville was on about.

Justice Michael Kirby was the only one firmly in support of an extension of the Lange principle "so that it applies to the judicial branch of government as much as to the legislative and executive". As we know, he's in a minority, with Sackville.

But it remains odd that in this special protective twilight zone, the judges have conjured up the idea they are not part of the machinery of government, when they so clearly are.


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