Fitzgerald, Tony; Bacon, Wendy; Eisenberg, Julie; Kenyon, Andrew; Walker, Judith --- "Panel Discussion" [1999] UTSLawRw 13; (1999) 1 University of Technology Sydney Law Review 98

In Defence of the Administration of Justice: Where is the Attorney-General?

• Tim Fischer's Attack on the Competence of the High Court of Australia
• Other Criticisms
• Judicial Activism
• Independence of the Judiciary
• The Consequences

In a paper presented on 11 November 1994,[1] prior to becoming Attorney-General, Daryl Williams expressed the view that "there are good practical reasons why neither judges nor the public should look to the Attorney-General to take up cudgels for judges in media debate". His reasoning was based on his analysis of the current role of the Australian Attorney-General.

That analysis was, in turn, substantially based on conclusions contained in a Report by the Electoral and Administrative Review Commission chaired by Mr David Solomon. Mr Williams argued that the Australian Attorney-General is first and foremost a politician and not the chief law officer of the nation as is arguably the case in the United Kingdom.

Mr Williams relied heavily on the fact that, in Australia, the Director of Public Prosecutions (DPP) has independent statutory authority to supervise criminal and contempt of court proceedings. While Mr Williams acknowledged the power of the Australian Attorney-General to give directions to the DPP, he indicated that this power is rarely exercised. Mr Williams also acknowledged that the Attorney-General retains the right to grant or refuse a fiat for the bringing of a relator action. However, he argued that the Attorney-General is seldom requested to do so because of a general broadening of situations in which litigants are granted standing to commence proceedings in their own name.

Essentially, Mr Williams argued that to have a politician defending the judiciary would, in itself, further politicize the issue in controversy.

It is noteworthy that David Solomon who chaired the Administrative Review Commission, which Mr Williams relied upon for his analysis, expressed the opinion that Mr Williams reasoning was flawed. He said:

I think it highly desirable that Attorneys should regard the defence of the judiciary as being among their functions. Judges cannot be expected to become involved in exchanges with politicians. In effect the Attorney is their only protection. It is only very rarely that anyone else, such as a journalist, is prepared to defend them.[2]

Mr Williams' analysis has also been criticized by Gerard Carney.[3] Mr Carney argued that while the Attorney-General in the United Kingdom does perhaps have greater independent standing than in Australia, the Australian Attorney-General nonetheless has significant duties and responsibilities which are derived from both the executive prerogative power at common law and from statute. He noted that those powers included the power to:

• initiate and terminate criminal prosecutions;
• advise on the grant of a pardon;
• grant immunity from prosecution;
• issue a fiat in relator actions;
• appear as amicus curiae or contradictor;
• institute proceedings for contempt of court;
• apply for judicial review;[4] and
• provide legal advice to the Parliament, Cabinet and the Executive Council.[5]

Gerard Carney notes that, as a result of having those powers bestowed, the Attorney-General is often described as the "chief law officer of the Crown".

In his 1994 paper, Daryl Williams argued that, while the community could not expect the Attorney-General to defend the judiciary, the judiciary should look to organizations such as the Council of Chief Justices and the Australian Judicial Conference for their defence. The flaw in Mr Williams' argument is its total impracticality. Those bodies meet irregularly and would require any response to criticism of an individual judge or court to be by a majority decision. It is akin to arguing, for instance, that a solicitor or a barrister should not respond to personal criticism but allow such response to be through the Law Society or by the Bar Council.

The impracticality of Mr Williams' suggestion is demonstrated by recent incidents in which the judiciary has been criticized, regrettably, for political purposes as the following examples show.

Tim Fischer's Attack on the Competence of the High Court of Australia

The most notable incident was, of course, the Deputy Prime Minister's attack on the Court prior to the handing down of the Wik[6] decision. Mr Fischer stated on 27 November 1997 that: "I am frustrated and angered by the delay in handing down of the decision by the High Court of Australia with regard to the Wik decision."

This criticism was rightly rejected by the then Chief Justice of the High Court, Sir Gerard Brennan AC KBE, in a letter to Mr Fischer dated 3 January 1997. Sir Gerard said:

You will appreciate that public confidence in the constitutional institutions of government is critical to the stability of our society...I ask you to bear this in mind and to consider whether the making of attacks on the performance by the Court of its constitutional functions is conducive to good Government, even if an attack can gain some temporary political advantage.

Mr Howard defended Mr Fischer's attack on the High Court when the correspondence from the Chief Justice was disclosed on 28 February 1997 by saying: "There is nothing wrong with criticizing judgments, people frequently criticize the judgments of the courts."

However, Mr Fischer's attack was not a criticism of a judgment of the Court. It was a direct attack on the competence of the High Court and the diligence with which it carries out its functions.

Mr Fischer continues to this day to deny that his remarks were a personal attack on the Court. On 28 February 1997 Mr Fischer stated that: "I have never attacked an individual judge other than to make reference to their written judgments and I've got a right to do that in a responsible way recognizing the separation of powers." However, his words of criticism belie that contention.

Other Criticisms

Yet, Mr Fischer's comments represent just some of the abuse that has been hurled at the Court.

For example, Victorian Premier Jeff Kennett said on 20 February 1997 that: "We are all concerned that the High Court is not giving the clarity of leadership that this country requires."

But by far and away the worst offender has been the former Queensland Premier, Rob Borbidge. Mr Borbidge said on 28 February 1997 that: "The current High Court, across large parts of Australia, is increasingly being held in absolute and utter contempt." But most infamously he said on 1 March 1997 that: "Some of the High Court judges are dills about history."

These criticisms cannot, in any way, be said to be valid. They are clear and unequivocal attacks on the credibility and professionalism of the Court.

Judicial Activism

A broader attack has also been waged by conservatives against what is known as "judicial activism". Critics of judicial activism argue that the courts should merely interpret the law and should not make the law.

The most public criticism made in this regard was that made by the Attorney-General Daryl Williams who stated on 7 February 1997 that:

Just as the Executive should not expect judges to play advisers in the political process, as evidenced in the recent Wilson case in the High Court, so judges need to refrain from intruding into the legislative function.

Likewise, Queensland Premier Rob Borbidge stated on 10 February 1997 that: "If the High Court is embarking on a course of judicial activism, the High Court itself disregarded the principle of the doctrine of the separation of powers."

The New South Wales National Party Leader Mr Armstrong also stated on 28 February 1997 that: "I think that the High Court has in some of its statements on the Wik decision gone beyond the powers of separation that the courts have under the Constitution."

Mr Howard supported these views when he stated on 21 February that:

I can understand why people are saying more about this than they used to, because we have had a few emanations from the judicial area to the effect that really what the role of the courts is to give the Parliament a hurry on and to fill the gaps that the politicians don't fill by their actions. If that is the view of some people in the judiciary, well it's a very mistaken view and it's a view that goes beyond the writ of the judiciary in our system of government.

He repeated his view on 24 February 1997 when he told the Federal Parliament that:

The role of the High Court is to interpret the law, the role of the Parliament is to make the law, and the laws governing Australians ought to be determined by the Australian Parliament and by nobody else.

The view that judges do not make the law ignores over 1,000 years of Australian and British legal history. The Common Law--the very basis of our legal system--is, by definition, judge-made law. The Common Law is fundamental to the operation of the Rule of Law in our society.

As Justice McHugh succinctly put it during argument on the Lange[7] and Levy[8] cases on 4 March 1997: "Anybody who doesn't believe that judges make the law doesn't live in the real world."

In his more reasonable moments the Prime Minister has recognized this. On 28 February 1997, Mr Howard stated that Australia did not need a Bill of Rights because the Common Law was adequate to protect our rights. However, the protection of rights in this way is a relatively modern exercise and has inevitably involved judges in modifying the Common Law. This is the epitome of judicial law making at work.

Likewise, the Australian Attorney-General, Daryl Williams, has recognized a legitimate role for judicial law making. He stated on 25 October 1997 that it was inevitable the High Court would make some decisions: "...not based on any attempt to declare the existing law. If there is no relevant statute law or relevant precedent, the Court will have to look to other sources..."

He further went on to recognize that the High Court clearly does exercise some restraint: "when in unchartered waters, sometimes saying `this is not a matter for judicial law-making, it is a matter for Parliament.'"

Mr Williams said that when the courts were in "an activist phase" the need to leave matters to Parliament was likely to be given less weight. As he openly recognized:

"I suspect this is due to Parliament not dealing with all its workload."

There is, of course, a valid academic and legal debate about the extent to which judges should be "judicially active". Regrettably, many conservatives have chosen not to engage in that debate. Rather, they have used the slogan "judicial activism" for political purposes as a means of discrediting legal decision making without actually engaging in a considered response to the particular decision. It has become the legal equivalent of being described as "politically correct".

Independence of the Judiciary

The concern expressed by conservatives about "judicial activism" has principally transpired because of their discontent with the effect of a number of High Court decisions. This is best seen in their reaction to cases such as:

• the native title cases such as Mabo[No.1][9], Mabo [No.2][10] and Wik;[11]
• the cases implying rights and protections into the Constitution such as the Theophanous[12] and Stephens[13] decisions; and
• the use of powers, such as the external affairs power, to expand the legislative scope of the Commonwealth as occurred in the Tasmanian Dams[14] case and the Seabed[15] case.

Some, such as Senator Lightfoot from Western Australia, still rail against the Engineers[16] case and long for the return of the reserved powers doctrine.

Most of these criticisms are based on dissatisfaction with the political implications of the decision rather than genuine academic or legal criticism of the reasoning of the Court.

As Mr Williams correctly noted on 1 May 1997:

Where criticisms of a decision of the Court is based not on an analysis of the legal argument supporting the decision, but on other personal or political considerations, the criticism is likely to be unfair.

An interesting counterpoint to Mr Williams reasoned statement is the basis for the Prime Minister's criticism of the Wik[17] decision. On 2 June 1997, Mr Howard said in the Parliament that:

[The 10 Point Plan] endeavours to address the fact that in the view of the Government the High Court's decision in Wik pushed the pendulum too far in one direction and the proper role of the Parliament so to bring the pendulum back to the middle.

And again he stated in the Parliament on 16 June 1997 that:

The truth is that the Wik decision pushed the pendulum a long way from the centre. The debate essentially was about what measures were necessary in order to bring it back to equilibrium.

The Prime Minister's criticism of the Wik decision has regrettably always been one based purely on politics. Put simply, he thought the balance of rights should have been drawn differently by the Court and in a manner that was of great disadvantage to indigenous Australians. He has never mounted a legal critique of the decision. Instead, he has engaged in a political campaign and enacted legislation that was designed to achieve much the same effect.

In response to all these improper criticisms, the High Court has remained largely, and appropriately, silent. For it to have done otherwise would have required it to directly engage in the political process. Meanwhile, the criticisms have become increasingly vociferous and personal. And, because of his policy, they have gone unchecked by the Attorney-General.

In summary, criticism of the judiciary and in particular political criticism requires an immediate and effective response. It is not an understatement to say that our very system of government and the fundamental freedoms enjoyed by all citizens are at stake if the role of the judiciary is not properly protected.

The Consequences

Justice Kirby said in a speech delivered on 15 August 1997:[18]

I have seen countries where the power of the Courts has been eroded by unrelenting political attack. Let me tell you, when you take the independence of the judges away all that is left is the power of guns or of money or of populist leaders or of other self interested groups.

Justice Kirby's warning is not novel. It has been the warning of more enlightened statesmen throughout the centuries. In 1925 Charles Hughes, the President of the American Bar Association, warned that "[d]emocracy has its own capacity for tyranny". He said:

Some of the most menacing encroachments upon liberty invoke the democratic principle and assert the right of the majority to rule. Shall not the people--that is, the majority--have their heart's desire? There is gainsaying this in the long run, and our only real protection is that it will not be their heart's desire to sweep away our cherished traditions of personal liberty. The interests of liberty are peculiarly those of individuals, and hence of minorities, and freedom is in danger of being slain at her own altars if the passion of uniformity and control of opinion gathers head.[19]

In that context Mr Hughes said that:

an honest, high minded, able and fearless judge is the most valuable servant of democracy, for he illuminates justice as he interprets and applies the law, as he makes clear the benefits and the shortcomings of the standards of individual and community right among a free people.

More recently Sir Frank Kitto warned:

Every judge worthy of the name recognizes that he must take each man's censure; he knows full well as a judge he is born to censure as the sparks fly upwards; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all.[20]

The Honourable Sir Gerard Brennan AC KBE, while still Chief Justice of Australia, said on 22 April 1997:

Should a judge be accountable to the government of the day? Certainly not. Should the judge be accountable in some way to an interest group or to the public? The rule of law would be hostage to public relations campaigns or majoritarian interests. Should a judgment be fashioned to satisfy popular sentiment? That would be the antithesis of the rule of law.[21]

Those principles, which are at the heart of our Westminister system, have been recognised and applied in decisions of the High Court. In Clunies-Ross v the Commonwealth[22] the High Court said:

It would be an abdication of the duty of this court under the Constitution if we were to determine the important and general question of law...according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve...as a matter of Constitutional duty, that question must be considered objectively and answered in this Court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case.

The fundamental error made by those who have more recently criticized the judiciary is their misunderstanding of who are the custodians of power in our system of government. As Sir Gerard Brennan aptly said, "...sovereignty is vested in the people and the courts give practical effect to that doctrine".[23]

Sir Gerard Brennan's deep understanding and passionate commitment to our system of government lead him to take the extraordinary step in January 1997 of writing directly to the Deputy Prime Minister as I have already described.

One wonders whether Chief Justice Brennan, as he was then, would have taken that extraordinary course of writing such a letter to the Deputy Prime Minister had he been confident that the nation's Attorney-General would have adopted the traditional role of defending the judiciary against politically motivated criticism.

This issue is far more than academic. During the course of the last federal election campaign the One Nation Party, for instance, advocated the introduction of legislative controls on the judiciary. Clearly its policy was based on a fundamental misunderstanding of our system of government.

Nevertheless, the ill informed comments of political leaders (which include the Deputy Prime Minister and the two State leaders) have clearly lent encouragement to those more ignorant elements of society who do not understand and respect the role of the courts in protecting our fundamental institutions. These institutions guarantee our freedoms from the unchecked and arbitrary control of the majority of the day.

I have argued that the judiciary cannot be protected by a Judicial Council or Judicial Conference or any similar forum. What are the alternatives? Should judges adopt the role of, not only administering justice, but also defending the role of the judiciary by politically promoting their decisions? Should the courts engage public relations consultants to strategically leak snippets during the preparation of judgments to test the public mood? Should they hold doorstop interviews to simplistically describe their judgements by one line grabs? Should they instigate a campaign of vilification of the party they will find against in their decision?

Clearly they should not. However, these are all common and accepted political tactics. If our courts are to defend themselves against political attacks, at what point do you draw the line regarding the extent of that defence? At what point is respect for our judicial administration so diminished that the courts will be forced to adopt such self promoting tactics?

The answer is that they should never be in a position where they need to resort to those tactics because the judiciary should be vigorously defended by an objective and considered Attorney-General. That is not to say that an Attorney-General is obliged to defend judicial decisions per se. Rather, the Attorney-General has a clear obligation, as chief law officer of this country, to defend the institution of the judiciary.

If the attitude of our current Attorney-General is not reversed then it will be a significant turning point in the history of our system of government. Individual judges will be forced to defend themselves in order to defend the very institution of the judiciary. That situation would be not only regrettable but extremely dangerous for the administration of justice in this country.

[1] Paper presented to the National Conference, Courts in a Representative Democracy, on 11-13 November 1994.

[2] Ibid.

[3] Associate Professor of Law, Bond University.

[4] Judiciary Act 1903 Section 78 A (1).

[5] Kidman v The Commonwealth [1925] HCA 55; (1925) 37 CLR 233 at 240.

[6] Wik Peoples v Queensland (1996) 187 CLR 1.

[7] Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 71 ALJR 818.

[8] Levy v Victoria (1997) 146 ALR.

[9] Mabo v Queensland [No 1] (1988) 166 CLR 186.

[10] Mabo v Queensland [No 2] (1992) 175 CLR 1.

[11] Wik Peoples v Queensland (1996) 187 CLR 1.

[12] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.

[13] Stephens v Western Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.

[14] Commonwealth v Tasmania [1983] HCA 47; (1983) 153 CLR 1.

[15] New South Wales v Commonwealth (1975) 135 CLR 337.

[16] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

[17] Wik Peoples v Queensland (1996) 187 CLR 1.

[18] Sydney Morning Herald, 16 August 1997.

[19] Presidential address to the American Bar Association, September 2 1925, ABA Journal September 1925.

[20] "Why write judgements?" (1992) 66 Australian Law Journal 787 at 790.

[21] "The Third Branch and the Fourth Estate" second lecture in the series "Broadcasting, Society and the Law" presented at the Faculty of Law, Radio Telefís Eireann, University College Dublin, 22 April 1997.

[22] [1984] HCA 65; (1984) 155 CLR 193 at 204.

[23] "The Third Branch and the Fourth Estate" second lecture in the series "Broadcasting, Society and the Law" presented at the Faculty of Law, Radio Telefís Eireann, University College Dublin, 22 April 1997.