Chief Justice Stephen Gageler raises concerns over ‘increasing’ media attacks on judges

Chief judge Stephen Gageler has raised concerns that media ‘attacks’ made on individual judges may reflect on the judiciary as a whole, saying judges need to be seen upholding standards.

High Court Chief Justice Stephen Gageler. Picture: Jane Dempster/The Australian

Australia’s chief judge has raised concerns that increasing media “attacks” made on individual judges may reflect on the judiciary as a whole, saying judges need to be seen upholding ethical and professional standards, especially in an “increasingly polarised political climate”.

High Court chief justice Stephen Gageler, in his first interview since taking up the country’s highest judicial role, highlighted the importance of “maintaining the level of competence of our judiciary” and emphasising the need for judges to be seen as “within the acceptable middle of ideological positioning and not at an extreme”.

He also took a veiled swipe at overseas jurisdictions for making “overtly ideological appointments” to the bench, praising Australia for escaping “the extremes of the political forces that have driven those problems in other countries”.

In an interview with New Zealand Court of Appeal judge David Collins published in the Judicature International journal, Gageler said while Australian courts don’t seem to face any “unique threats”, the polarisation of politics is becoming a problem globally, and is, in some instances, leading to “a global perception of the politicisation of the judiciary”.

“The threats we face are a mild reflection of global trends. What I see happening globally is a polarisation of politics, resulting in almost all social problems being at some level characterised as political issues, and increasingly demanding an ideological solution rather than an evidence-based solution,” he said.

“Associated with that, I see a rise of populism leading to a diminution in mechanisms of political control – particularly political control by the legislative arm of government over the executive arm of government.”

With that, he said, may come the “judicialisation” of previously political issues, which has meant “every social issue can become a judicial issue, at least in the sense that anything can be brought before a court.”

“The court then at the very least needs to determine whether it has jurisdiction to address the issue before it,” he said. “So, I think it has led to, or is leading to, a global perception of the politicisation of the judiciary.”

In some countries, he said, the politicisation of the judiciary has led to “overt challenges in judicial authority” or has manifested in “changes to the way members of the judiciary are chosen.”

“This leads in some cases to a diminution in the quality of the judiciary, and sometimes in overtly ideological appointments or perhaps more extreme ideological appointments that have generally been considered to be unacceptable in the past,” he said.

“Domestically, we have escaped the extremes of the political forces that have driven those problems in other countries.”

However, Gageler said Australia needs to be “vigilant” to ensure judges are “within the acceptable middle of the ideological positioning and not at an extreme” and are “very careful in this increasingly polarised political climate to be seen to uphold ethical and professional standards.”

High Court chief justice Stephen Gageler said the number of attacks on the judiciary in the media has increased recently. Picture: iStock

He said the number of attacks on the judiciary in the media has increased recently, and that he was concerned by whether the criticism “will reflect on the judiciary as a whole.”

“The tendency of the mainstream media to criticise individual judges who are seen to fall short – even in their personal lives – of maintaining community standards, has increased. I could point to two or three examples of individual judges who have been criticised publicly in Australia in the last few months,” he said.

“This would not have occurred previously, and if it had occurred it would have been of little moment. But increasingly, I am concerned that attacks on individual judges – usually by reference to a failing of ethical, professional, or community standards – will reflect on the judiciary as a whole.”

Gageler was appointed as Chief Justice in November last year, having been appointed to the High Court under the Gillard government in 2012 following service as a barrister and as solicitor-general.

His tenure has begun with many landmark judgements, including the recent NZYQ decision against indefinite detention, leading to the release of dozens of non-citizen detainees who had not been released into the community due to character concerns and could not be deported to their home countries.

In the interview, he said the High Court had played a “central role” in the resolution of many “large political issues” including when then-deputy prime minister Barnaby Joyce was disqualified from office due to his dual citizenship along with about a dozen other politicians.

“Those kinds of decisions have obviously been highly controversial. There is always some questioning of the correctness of the decision at the time of the decision,” he said. “But never, in my experience, has there been questioning of the authority of the court to make it. The grumpiness about the outcome tends to subside relatively quickly.”