Criticism of the courts and judiciary

It is timely to consider the recent decision of the Court of Appeal in The Queen v Brown [2013] QCA 337 and in particular:

[33] The words attributed to the Premier are implicitly critical of decisions made by magistrates who have granted bail to “alleged bikie members”. The decisions of magistrates and judges are not exempt from criticism, even robust criticism. The most competent of judicial officers will err from time to time; that is why appeal processes exist. The Solicitor-General submitted that persistent statements criticising judicial decisions by a member of the executive or legislature could in no circumstances have any effect on the integrity of the court; rather, such statements could reflect only on the integrity of their maker. While we are confident that judges and magistrates would continue to make independent decisions in the face of sustained criticism, we are not so sanguine that consistent disparagement cannot have any tendency to weaken public confidence in the courts. Recognising such considerations, members of the executive and other members of Parliament generally, and observing a convention in that regard, exercise restraint in voicing such criticisms.

[34] In an article published in The Australian Law Journal, Gleeson CJ observed of public confidence in the judiciary, “Confidence is not maintained by stifling legitimate criticism of courts or of their decisions”.[34] After discussing the nature and extent of criticisms of and complaints about judges, the Chief Justice said:[35]

“Confidence in the judiciary does not require a belief that all judicial decisions are wise, or all judicial behaviour impeccable, any more than confidence in representative democracy requires a belief that all politicians are enlightened and concerned for the public welfare. What it requires, however, is a satisfaction that the justice system is based upon values of independence, impartiality, integrity, and professionalism, and that, within the limits of ordinary human frailty, the system pursues those values faithfully.”

[35] These views, which we respectfully adopt, are inconsistent with the primary judge’s approach which implicitly postulates a public perception of the Supreme Court as a fragile institution whose judges may be swayed by random utterances of a member of the executive. The reputation of an institution gained by the conduct of its officers over decades is most unlikely to be affected adversely by occasional criticisms.

[36] The two concluding sentences of the quotation from the ABC program express the wish that magistrates and judges in bail matters concerning “alleged bikie members” ascertain the wishes of the community and act in accordance with those wishes. That approach is incompatible with the duty of a judicial officer to apply the law as expressed in legislation irrespective of the wishes or policy of the executive or, for that matter, the popularity of the legislation involved. Unsurprisingly, nothing in the Bail Act requires or allows a judicial officer determining an application for bail to take into account “what the community wants”. It is unproductive to subject the words of the passage quoted to further analysis.

Brisbane Barrister – David Cormack

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