By Rory Brown, Blog Editor. The views expressed herein are those of the author alone.
Recently, UQ students were privileged to hear from The Honourable Catherine Holmes, Chief Justice of the Supreme Court of Queensland. The topic of her Honour’s lecture was the independence of the judiciary – threats faced by judges in other countries and in Australia. The speech was lucid, convincing, and thought-provoking, and concluded with a call to consider the issues further. This, I seek to do now.
Judicial independence is fundamental to the rule of law, ensuring that cases are decided on the evidence before them according to the application of the law alone. Where judicial independence is compromised, other considerations can creep in, undermining the rule of law. For such a critical aspect of our legal system, it remains remarkably unguarded. With limited legal protection for judicial independence, much rests on mere convention - and those conventions are slowly eroding.
Legal Protections
These consist essentially of the constitutionally entrenched securities of tenure and renumeration.[1] These provide that judges cannot be removed before the end of their term except for proven misbehaviour or incapacity, and that judges’ wages cannot be reduced during their term.[2] This promotes judicial independence by protecting judges from parliamentary or executive retribution for agitative rulings. Very few judges have been removed for misbehaviour – Justice Murphy famously came close in 1985 for allegedly corrupt conduct,[3] and Queensland’s Justice Vasta was removed after being implicated in the Fitzgerald inquiry.[4] The protection of tenure therefore seems relatively strong in Australia. In other parts of the world however, tenure is under attack, as will be discussed later on.
Judicial renumeration does not appear to be under threat either; judges enjoy a salary comfortable enough to draw learned persons away from lucrative private practice.[5] A legal financial threat can still be made against the judiciary in the form of reductions to court funding, and while court funding leaves much to be desired in Australia, budget cuts have not been used as a retributive cudgel (yet).
Protections by Convention
Appointment
The most obvious non-legal convention ensuring judicial independence is appointment on consideration of merit alone. The appointment power belongs to the executive,and is essentially discretionary.[6] The obvious threat in giving discretionary appointment power to the executive is the temptation for the executive to appoint judges it believes will rule on its behalf, regardless of the merits of cases.
Political affiliation need not always conflict with merit, but where partisanship appears to be the dominant reason for selection, it cannot be overlooked. Queensland has a poor track record in this area. In 1940, the government overlooked the most senior judge for promotion to Senior Puisne Judge (now Senior Judge Administrator), as he had previously ruled against the government in an electoral dispute. Instead, the government appointed a judge who had served just two days on the Court.[7] In the early 1980s, the Bjelke-Petersen government overlooked Justice Douglas for the Chief Justiceship despite him being the longest-serving member of the court, because Justice Douglas was rumoured to have once voted for the ALP.[8] And most recently, in 2014 the Newman government appointed then Chief Magistrate Tim Carmody as Chief Justice of the Supreme Court of Queensland.
Many criticised the appointment as a violation of judicial independence. As Chief Magistrate, Judge Carmody had twice defended the government’s controversial conduct, when the government passed severe anti-bikie legislation, and when the Attorney-General leaked details of private conversations they had had with a senior judge.[9] It was very shortly after this that Judge Carmody was elevated to Chief Justice of the Supreme Court. This was despite the fact that Judge Carmody had only five years’ experience as a judge on the Family Court – a tenure marred by controversy, including one instance where it was found he had copy-and-pasted from a previous judgement – and nine months as Chief Magistrate.[10] It did not appear that any member of the judiciary, or the Queensland Bar Association, had recommended Judge Carmody for this elevation: in fact, the opposite seems true.[11] In light of this and more, the appointment appeared strongly to be based on the confidence the government had in Judge Carmody’s disposition to rule in the government’s favour. The government’s response to widespread consternation at the appointment was to double down: Newman alarmingly dismissed the separation of powers as “more of an American thing.”[12]
Chief Justice Carmody’s time on the Court was marred by controversy, culminating in his resignation just under a year later. The resignation was conditioned on the government providing him “just terms.”[13] These turned out to be his appointment as a supplementary member of QCAT, and “favourable consideration” to become President of QCAT.[14] This negotiation between a member of the judiciary and the executive branch, where “the judge agrees to resign one judicial position in exchange for appointment to another, with a promise of being given preference for a third,”[15] offended the separation of powers and judicial independence. Arguably, this appointment was a more explicit abuse of the appointment power than the initial appointment, with a written demand (and agreement) for preferential treatment.
The conditions which permitted such controversial conduct still mostly persist. The Palaszczuk government has introduced a public protocol for judicial appointment. However, this protocol is voluntary, and could be discarded at any time.
Concerns have been raised that the power of appointment is being misused at the federal level with the appointment of members to tribunals. Tribunals are not courts, but are court-like, and the system for appointment is virtually identical. One such concerning appointee is Tony Barry, who boasted on social media about getting kicked out of law school for failing too many subjects, but who has worked as a Liberal Party staffer for most of his career, and it was later revealed, works as a consultant at a lobbying firm.[16] Another example is the appointment of Theo Tavoularis, who had represented the Attorney-General’s son in court and had made a large donation to the Liberal National party.[17] These appointments have received almost no coverage, but should prompt serious questions about whether the appointment power is being improperly exercised. They are an ominous precursor to potential future misuses of the appointment power.
Media Commentary
The Carmody affair was also marked by intense media vitriol, with the Courier Mail adopting a particularly harsh attitude toward those who raised concerns about judicial independence. Their editorials described the justices of the Supreme Court as a ‘petulant’ ‘self-selected elite’ who had carried out an ‘undemocratic coup.’[18] The Courier Mail has not given up on this cause, writing years later in 2020 that Newman had merely
“dared to appoint judges who he considered to be worthy of appointment. Left-leaning lawyers successfully ran a political campaign that helped unseat him.”[19]
Criticism of the courts is not inherently detrimental and can be a sign of a healthy democracy. Nevertheless, it clearly weighs heavily on the judiciary that media criticism has grown less informed and more sensationalist. Chief Justice Holmes argues that media criticism, particularly when it comes to bail and sentencing decisions, is particularly unnuanced and targeted at provoking outrage.[20] Her Honour points to studies that indicate that 83% of jurors believe that judges are in touch with public opinion, compared with only 20% of the general public.[21] One can only guess as to why the section of the public that has actual experience interacting with judges has a vastly greater opinion of the judiciary than the section of the public that only reads about the judiciary in the press.
Australian media appears to be following the worst practices of the British and American media in this regard. The Daily Mail infamously described two judges of the British Supreme Court as “enemies of the people,” and editorialised that the Supreme Court had conducted a “constitutional coup” when it held that the British government needed the approval of Parliament before it could withdraw from the European Union.[22]
Australian politicians seem only too happy to play into this escalating vitriol. Chief Justice Holmes discussed some particularly outrageous examples. In one instance, two judges on the Victorian Supreme Court noted that sentencing patterns for terrorism-related charges differed between NSW and Victoria, with the former not placing as much weight on youth and prospects of rehabilitation.[23] Three ministers commented: one accused the judges of being more concerned with wellbeing of terrorists than harsh reality, one accused the judges of engaging in ideological experimentation in the face of Islamic terrorism, and a third said that “Labor’s continued appointment of hard left activist judges has come back to bite Victorians.” [24]
Disingenuous, sensationalist commentary conducted by the media and by politicians compromises judicial independence, because it places judges in the position where if they impose a harsh sentence, it appears that they did so to placate their critics. If they do not, they risk not doing so because they are contrarian. In either instance, judges are pressured to consider how their judgement appears, rather than the law alone. Further, click-bait commentary designed to incite the public’s ire increases the incentive for politicians to curry favour with the public by appointing tough-on-crime judges.
The rise of social media as a forum for discussion is baneful to nuanced discussion of the judiciary – judgements often run to 140 pages, in contrast with the 140 characters required to smear their authors. The problem is compounded by the judicial convention of not engaging in political commentary or advocating for their own decisions. There are few others who are willing to stand up to blistering media criticism, for the simple reason they have nothing to gain and everything to lose. The prognosis is bleak for judicial independence in this regard.
Disengagement
Another factor that is not often discussed in the context of judicial independence is disengagement. Justice can appear not be done in one of two ways – it can appear that injustice is perpetrated, or the appearance of justice can simply fade away as the citizenry stops caring.
Public disengagement undercuts judicial independence by acting as a catalyst for the other threats already discussed.
First, a disengaged public is more likely to accept the cynicism of a sensationalist press. As Hannah Ardent observed in The Origins of Totalitarianism:
“In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true… ready at all times to believe the worst, no matter how absurd….”
How the appearance of judicial independence and impartiality can be maintained with a cynical, disengaged public is a mystery.
Second, a disengaged public is less likely to hold to account a government that begins to abuse the power of appointment, as they simply do not care. The deafening silence around the concerning appointments to the AAT highlights this perfectly.
Poland – A Case Study
Cynicism and disengagement are leading to the rise of ‘illiberal democracies’ in other parts of the world, notably in Hungary, Turkey, and Poland, as Chief Justice Holmes outlined. Poland, in particular, presents a grim warning of how an Australian government might compromise the independence of the judiciary. The Polish Ministry of Justice engaged in a covert propaganda campaign, employing people to operate a social media misinformation campaign designed to spread defamatory content about members of the judiciary.[25] Polish state television has been overtaken by the ruling party, and airs a nightly program that depicts judges as corrupt and greedy.[26] The ruling party has illegitimately packed the courts, leading Poland’s three highest courts to jointly declare that more than 350 recent judicial appointments have been improper.[27] The packed lower courts refuse to recognise the decision. With the judiciary stigmatised, the ruling party attempted to lower the age of retirement, so as to force out judges appointed before they came to power.[28] They have subsequently introduced measures allowing disciplinary hearings to be conducted against judges who rule in a way that displeases the government.[29]
Could that happen here?
Not yet. But the requisite elements are lining up. The Australian government is growing increasingly secretive, taking harsher action toward whistle-blowers,[30] neglecting the Freedom of Information system,[31] and defunding the national broadcaster and auditor.[32] The Australian media has demonstrated a willingness to engage in hyper-partisanship and bad-faith criticism of the courts. The government is potentially experimenting with improper appointment at the AAT. And the general public is disengaging, with trust in our institutions falling precipitously. The soil is fertile for the growth of an illiberal government in Australia, one that might decide that judicial independence is, to quote Campbell Newman, “more of an American thing.”
Conclusions
The tone of this post is glum, for which I apologise. The solutions are incredibly complex, and many lie outside the ordinary remit of the legal profession. But it behoves the legal profession to engage with rising illiberalism, because eventually rising illiberalism will engage with the legal profession – and the independent judiciary will be a target.
[1] Australian Constitution, s 72.
[2] Ibid.
[3] M. Kirby, Judicial Independence in Australia Reaches a Moment of Truth, (1995) 13(2) UNSW Law Journal 199.
[4] https://insidestory.org.au/judging-vasta/
[5] Austin v Commonwealth (2003) 215 CLR 185, 262.
[6] Commonwealth Constitution, s 72(i).
[7] Ananian-Welsh, Appleby, and Lynch, The Tim Carmody Affair, 42-43.
[8] Ibid.
[9] Ibid, 26,35.
[10] Ibid, 15
[11] Ibid, 52
[12] Ibid, 57.
[13] Ibid, 166.
[14] Ibid, 182.
[15] Ibid=.
[16] https://www.theguardian.com/australia-news/2020/nov/09/labor-accuses-coalition-of-stacking-tribunal-as-member-revealed-to-be-working-as-lobbyist
[17] https://www.smh.com.au/politics/federal/george-brandis-must-explain-370000-appointment-of-liberal-donor-says-labor-20160909-grch72.html
[18] Ananian-Welsh, Appleby, and Lynch, The Tim Carmody Affair, 178.
[19] https://www.couriermail.com.au/news/opinion/who-the-hell-does-yvette-dath-think-she-is-campbell-newman/news-story/35ab6bb41f9031a0dff0276e6af2f1c8
[20] https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/622507/sc-paper-aust-legal-review-chief-justice-on-independence-20190614.pdf, 4.
[21] Ibid, 5
[22] https://www.independent.co.uk/news/media/daily-mail-nazi-propaganda-front-page-ipso-complaints-brexit-eu-enemies-people-a7409836.html
[23] https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/622507/sc-paper-aust-legal-review-chief-justice-on-independence-20190614.pdf, 7.
[24] Ibid.
[25] https://www.theatlantic.com/ideas/archive/2020/01/disturbing-campaign-against-polish-judges/605623/
[26] Ibid.
[27] Ibid.
[28] https://edition.cnn.com/2020/01/24/europe/poland-assault-on-judiciary-intl/index.html
[29] https://www.bbc.com/news/world-europe-50302102
[30] https://law.anu.edu.au/multimedia/podcasts/secret-trials-extraordinary-prosecution-bernard-collaery-and-witness-k
[31] https://www.theguardian.com/australia-news/2019/jan/02/how-a-flawed-freedom-of-information-regime-keeps-australians-in-the-dark?fbclid=IwAR12llAmQXZF_SJuOsgdMDrOvZBn_7y1Dq_tpJ3DTXdKqzAoV0RU2XVe8LA
[32] https://theconversation.com/latest-84-million-cuts-rip-the-heart-out-of-the-abc-and-our-democracy-141355, https://www.abc.net.au/news/2021-02-19/auditor-general-warns-budget-cuts-less-audits/13172600