’Political expedience’ has affected the role of attorneys-general, says top judge

Judges should not expect attorneys-general to defend them in the face of ‘ill-informed’ attacks, the top judge of Australia’s largest jurisdiction says, particularly when it would involve criticising their cabinet colleagues.

NSW Chief Justice Andrew Bell.

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Judges can no longer expect attorneys-general to defend them in the face of “inaccurate” or “ill-informed” attacks, the top judge of Australia’s largest jurisdiction says, particularly when it would involve criticising their cabinet colleagues.

NSW Chief Justice Andrew Bell, delivering the 2024 Acton Lecture last week on the topic of “truth decay”, said persistent criticism of the judiciary will result in the public losing faith in decisions released by judges, and any decline in trust in the courts is a “profound concern”.

He cited live-streaming court proceedings and courts having a presence on social media as practical ways judges may “proactively promote broader public engagement in, and respect for, the work of the courts”.

“It is incumbent on courts and the legal profession more broadly to develop strategies for maintaining confidence in their vital work and resisting, or at least mitigating, the erosion of rational, fact-based public discourse,” he said. “Extensive civic education about the role and importance of an independent judiciary is critical.”

Chief Justice Bell questioned whether judges should contribute to public debate in the face of “misrepresentation and unfounded criticism”, or if another “body or office” should intervene on their behalf.

Attorneys-general were once “the traditional ‘defender’ of the judiciary”, Chief Justice Bell said.

However, quoting former High Court chief justice Anthony Mason, he said “political norms” have shifted and attorneys-general “have become less inclined to defend judges because they are “more conscious of the advantages of political expedience”.

“A politician does not win votes by defending judges or public servants,” he said, quoting a 1989 speech by Sir Anthony. “An attorney-general no longer feels that he needs to defend the judges or their decisions in the face of every critic.”

Chief Justice Bell says modern judges can ‘no longer’ expect an attorney-general to defend the courts

Chief Justice Bell said the “increasingly belligerent” criticism of the bench in the late 20th century “coincided with a well-observed contraction of the willingness of many attorneys-general to defend the judiciary in the political arena and in the public domain”.

“Modern judges can no longer expect that an attorney-general will leap to the defence of courts, particularly where doing so would involve criticising their cabinet colleagues,” he said.

A statement from the head of a jurisdiction is “most likely” to be the appropriate response to criticism when “an unwarranted attack is mounted against the competence of a particular court”, Chief Justice Bell said.

“The guiding considerations should always be whether the criticism has the capacity seriously to undermine public confidence in the court, and whether a public statement will in fact mitigate the damage or merely compound it,” he said. “There is always a risk that by responding directly to unfounded criticism, the dominant effect will be merely to amplify that criticism.”

It is not the first time Chief Justice Bell has raised concerns over the decline of public trust in the judiciary. In delivering a similar address at a Durham University roundtable earlier this year, he also questioned how artificial intelligence could exacerbate truth decay in Australian courts.

Chief Justice Bell said courts have a “real vulnerability to the pernicious effects and reach of truth decay”, in local and overseas jurisdictions, pointing specifically to the 2020 US presidential election and the belief that voter fraud played a role in Joe Biden’s win.

“I refer to the fact that, notwithstanding that myriad superior courts including appellate courts in the United States and comprising judges nominated by both Republican and Democrat administrations have categorically rejected the claim that the 2020 presidential election was ‘rigged’ or ‘stolen’, many, many millions of American citizens apparently continue to give credence to this narrative,” he said.

“Putting aside some cases which turned on technical questions of standing, the uniform dismissal of these cases entailed the conclusion that there was no truth to the factual allegations of widespread voter fraud.

“The apparently continued widespread acceptance of the narrative despite its judicial rejection means that a significant percentage of the United States population is either ignorant of the rulings of multiple courts of high standing or simply do not accept such rulings as factually accurate or reflective of the truth. Neither explanation is comforting.”

Chief Justice Bell encouraged Australian judges to continue live-streaming judicial proceedings and courts to have a presence on social media in order to “proactively promote broader public engagement in, and respect for, the work of the courts”.

“Maintenance of respect for the work and independence of Australian courts is important for many reasons,” he said. “One of those reasons is to preserve the notion that truth is not relative, and its ascertainment is the foundation for many, many legal outcomes of significance not only to the parties in the immediate case but also at a more general level of institutional importance.”