JUDICIAL CONFERENCE OF AUSTRALIA SYMPOSIUM
8-9 November 1997
JUDICIAL RETICENCE
Helen Cunningham[1]
For much of this century the stability of the environment in which the judiciary work has been sustained through compliance, by the judiciary and the executive, with conventions designed to ensure the orderly conduct of government, notwithstanding the natural ebb and flow of tensions between its respective branches. These conventions include firstly judicial reticence and secondly an obligation on the part of the judiciary to steer well clear of party politics. In return, judges have been able to proceed with judicial decision making relatively untroubled by adverse public comment or scrutiny. Two corollaries to these conventions are the role of the Attorney General, as speaker for and defender of the judiciary, and the practice of members of parliament refraining from publicly criticising judicial officers on the basis that the need for a response would comprise a judge's impartiality.
In using the term "judicial reticence" I refer to that natural reserve on the part of judges against publicly articulating a viewpoint on an extra curial matter. As a convention judicial reticence has two facets —
The first is said to be that courts should, while acknowledging that judges make law, within certain limits and using certain specific techniques, accept their role as an interpreter of the law (ie) as "law finders" and discharge it accordingly.[2]
The second aspect of the convention is the notion that the judiciary should avoid involving themselves in issues located directly within the policy making function of executive government. This protocol is based on the philosophy that insulation from controversy requires that you yourself do not invite it.[3]
To support the utility of judicial reticence commentators point to the "relative peace in which the judiciary has gone about its essential tasks when it has not been the focus of political attention."[4] A policy of strict judicial reticence has worked well for the judiciary and executive government in a climate when the handing down of a judgment by a court militated against the occurrence of significant controversy over it. Moreover, higher levels of public respect have tended to coincide with lower levels of public criticism of judges and the decisions they make.
This situation has, however, changed. In the present social and political climate, the stance of relative judicial reticence, which succeeded the decline of its more stringent predecessor, after the Kilmuir Rules[5] fell away in the 1980s, appears to be working less well than it might be in ensuring the judiciary remain clear of the wide swathe of controversy which party politics has traditionally cut through Australian society.
Part of the reason for this may be found in the impaired operation of a range of formal and informal mechanisms, including judicial reticence, which have traditionally operated to sustain and support the doctrine of judicial independence. To illustrate this one can point to the fact that parliamentary conventions, which have supported and reinforced the judiciary in the conduct of its role, now command a diminishing level of significance and utility in cabinet and the legislature generally. Attorneys General have chosen to defend the judiciary on markedly fewer occasions than was the case 20 years ago, and parliaments dominated by the executive appear to see little to be gained in refraining from publicly criticising the decisions of judges and the actions of courts.
On another level, society itself has undergone profound and comprehensive change. The concept of a Commonwealth has loosened considerably, changes have occurred in the style and structure of the legal profession and the public service,[6] and a new and more confrontational style of political administration in Anglo- American legal systems is looking at the justice system, and the manner in which it works, with a different eye. The judiciary, among other institutions, has become the object of closer government and media scrutiny, and there has been an attendant shift in the importance of a judge remaining stoically silent in the face of controversy.
The point I seek to make here is that the convention of relative judicial reticence appears to be operating less effectively than it once did, to support levels of judicial autonomy. To explore why this is the case it may be useful to look beyond the technical reasons which constrain a judge from publicly articulating a point of view and to consider the recent, broader changes which have taken place in our society and their impact on a range of social institutions including courts.
In circumstances where a judicial officer chooses to communicate to the public, the question arises as to what extra-curial issues may be appropriate for a judge or magistrate to speak or write about. In addition, although this is not the place to explore them, issues arise as to whether a judge might speak directly to an audience, or alternatively communicate a point of view through the auspices of a Public Information Officer.[7] And, if in speaking out a judicial officer or his or her remarks are the subject of comment or criticism, who can that judge look to for assistance?
In relation to the subject matter on which a judicial officer might publicly speak or write about I wish to make two points —
First, judges frequently question the wisdom of expressing a public stance on a particular issue for the very sensible reason that such action may, at the time or at a later date, affect impartiality in the decision making process or the appearance of impartiality. It may also work to undermine the perception of the integrity of courts and the judiciary generally.
In this context it can be said that judges have, for some time, engaged in speaking on issues in a variety of semi-public and academic forums to very good effect. And, it is difficult to identify cogent reasons against judges contributing to public discussion of a particular issue where judicial officers are, by reason of their role and function, uniquely placed to offer an informed contribution.
As Justice Sopinka of the Supreme Court of Canada said on this point[8] —
"Surely a judge should be able to comment on matters relating to the administration of justice and any reforms to that system. As key players in the justice system their views should not be absent in fear of somehow entering the political fray on issues such as court reforms."
The second point, one which is closely related to the first, is that judges are capable of having a powerful impact on the picture of the justice system which reaches the public, especially by way of the media. The manner in which a judge makes use of press, radio or television to communicate aspects of the courts work, for example, can and does affect public perception of judicial institutions and community confidence in the integrity of their processes.
A central and difficult issue which relates to judicial reticence is that members of the media, and the community, have little knowledge of what judicial reticence is or the role it is intended to play in energising levels of judicial impartiality. Fifty years ago, twenty even, this absence of knowledge would have merited little consideration. In 1997 the fact that few people know or understand the nature and role of the judicial function, or why conventions like judicial reticence matter, poses a complex of issues which, in my respectful view, do merit consideration.
As Sir Anthony Mason AC KBE has observed[9] —
"Unfortunately we live in an age of image and impact in which it is expected that those who have claims upon the government or the legislature are expected to speak for themselves. Unless they do, their claims appear to lack that sense of urgency and immediacy which so often carries the day."
If judges consider that they should refrain from expressing a public view on certain matters, or decline to respond to public comment or criticism, then it is likely that this stance will be more readily appreciated if the community has some knowledge or understanding of what is motivating and informing such a position.
The question of whether written guidelines should be prepared to assist judicial officers negotiate the delicate and sensitive terrain of public communication is a thorny one. The task of formulating any such guidelines would appear to be elusive and potentially unending. This is because it would be impossible to foresee what subjects it may be appropriate for judicial officers to speak upon, and in some ways imprudent to chart direction on public communication by judicial officers, for all the reasons which operate to support the independence of judges in their role. Courts in each of the federal, State and Territory jurisdictions operate independently of each other. In addition, judicial officers as members of courts work independently of their professional colleagues, subject of course to the head of jurisdiction. In a modern and increasingly inter-dependent world this situation is unusual. It is, however, the governing reality and its existence renders the task of drafting parameters in this area problematic and exhausting, and perhaps ultimately of little value.
A brief consideration of judicial reticence reveals a mosaic of issues in relation to which no special solutions or formulas exist. Inspite of the fact that this convention operates less effectively to support the doctrine of judicial independence than it has in the past, it remains an important strategy for protecting the neutrality and balance of the judicial environment. For that reason alone, the way in which the convention may be reinvigorated in a modern judicial system, and its value in supporting the position of the judiciary, merits further consideration. A single suggestion I make for your consideration is that the meaning, importance and viability of judicial reticence may be enhanced if members of the media, and the community, understood something of its meaning and operation.