Public deserves right to pass judgment on courts

Last month, the NSW Land and Environment Court ruled against a proposed coalmine at Rocky Hill in a decision I criticised in these pages. Since then, public debate about that decision, which is likely to have far-reaching effects, has been astonishingly muted.

It isn’t difficult to understand why. As is clear from the letter Victoria’s Director of Public Prosecutions, Kerri Judd QC, recently addressed to as many as 100 publishers, editors, broadcasters, journalists and subeditors about the criminal proceedings against George Pell, an ancient menace is being brandished at the media: the menace of being charged with “scandalising the court”.

The offence, as the High Court described it in 1935, is that of publishing material that “aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of justice”.

Variants of the charge can be found as far back as the 14th century. But it is no coincidence that it came to prominence only about 400 years later, when radicals such as John Wilkes used the relatively new medium of newspapers to ­attack the “old corruption” of which the English courts were all too often the mainstay.

The English judges had many other weapons in their armoury for dealing with critics; this one, however, was uniquely attractive, in that the offence could be summarily punished — that is, by the judge himself, without the ­difficulties and uncertainties of a jury trial.

It is therefore unsurprising that it rapidly established itself as the judiciary’s instrument of choice for stifling criticism.

And it is also unsurprising that an offence that allows a judge who claims to have been libelled to act simultaneously as party, prosecutor, judge and jury, created immense scope for abuse — scope the English judiciary systematically exploited to suppress dissent and curb press freedom.

By 1883, a reaction was well under way, with Lord Fitzgerald, in supporting parliament’s efforts to abolish the offence, noting that its effect had been to “enforce silence on the part of the press when the public interests required the fullest publicity and the closest criticism of what was going on”.

Faced with mounting pressure, the Privy Council asserted in 1899 that the offence had become ­“obsolete” in England and Wales, where “courts are satisfied to leave to public opinion attacks or ­comments derogatory or scandalous to them”.

Even then, however, Lord ­Morris indicated that “in small ­colonies, consisting principally of coloured populations”, retaining the offence and ensuring its strict enforcement “may be necessary to preserve the dignity of and respect for the Court”.

But it was not merely in those colonies that it remained in place. The offence had played an important role in 19th-century Australia, with prickly judges using it to gag a vigorous and often rambunctious press; having once enjoyed its fruits, they were hardly likely to give it up.

Yet while the offence hovered in the background, it went to some extent into quiescence; now it has sprung back to life — and so have the risks it creates.

Nowhere are those risks clearer than in the hearing before the Victorian Court of Appeals in June 2017 following the publication in this paper of comments by three federal ministers about the unduly lenient sentencing of convicted terrorist Sevdet Besim.

As former High Court judge Dyson Heydon AC QC argues in the latest issue of The University of Queensland Law Journal, the court’s contentions in those proceedings were so poorly articulated that even understanding the precise nature of the alleged ­offence requires peering “through the fog” of statements that are “not compatible with the idea that intelligible reasons must be given for decisions”.

Instead of explaining “how the conduct could have been a contempt or why it was”, the court ­relied on “vague complaints which did not necessarily involve illeg­ality”. Yes, the court indulged in its share of “ringing rhetoric” about judicial independence; but it could well be asked if the fine words did not mask a “shrill, petulant and precious” performance “marked by absurdity”.

Ultimately, freed of the disciplines of a normal trial, the court “smeared the reputations of the Ministers” in a proceeding “it used … to deter anyone contemplating criticisms in future” — an outcome that seems more likely to damage than to enhance the standing of the judiciary.

This is, in other words, a dangerous law. And far from ­diminishing in the years ahead, the dangers it poses are only likely to grow.

In effect, as Columbia Law School’s Philip Hamburger shows in his brilliant history of the concept of judicial duty, the independence of the courts was secured over the cen­turies by drastically narrowing their scope, shifting them from their intensely political role in early modern Europe to the carefully circumscribed determination of facts and law.

But it is undeniable that trend has been reversed, as courts take on such tasks as that of assessing the nature and extent of Australia’s responsibility for combating climate change — as the Land and Environment Court did in its Rocky Hill decision.

Whether it is appropriate for the courts to decide questions of that kind is debatable. Lon Fuller, one of the most eminent legal ­theorists of the past century, put it well when he wrote, in a classic ­article on the form and limits of ­adjudication, that once judges are allowed to stray into determining fundamental values, they ­readily become “czars (who) drift into the dangerous business of ‘playing god’ ”.

What is certain is that if the courts do determine those questions, the answers they give, and the manner in which they arrive at them, ought to be subject to ­vigorous, open and uncompromising public discussion. And it is every bit as certain that there can be no justification for vesting in the courts a power to curtail it, merely because they find that discussion disrespectful, offensive or poorly informed.

Nor could they in the other ­advanced democracies. In the US, the Supreme Court decisively squashed the comparable doctrine in 1941. In Europe, the European Court of Human Rights has ­repeatedly overruled decisions by national courts that rely on similar provisions, making the doctrine inoperable. In Canada, it was effectively eliminated by a decision of the Ontario Court of Appeals in 1987. And in England, Wales and Northern Ireland the offence was entirely abolished in 2013.

That Australia hasn’t followed suit is not just a disgrace — it’s a scandal. With the threat becoming clearer every day, its high time “scandalising the court” vanished into the antiquity from which it came.