Ex High Court of Australia Judge Dyson (Dyson Heydon) in a speech in London in February 2018 examined the issue of contempt of Court in the context of political criticism of Judges[1]

Mr Heydon concentrated his speech on the approach of the Victorian Court of Appeal in dealing with criticism of that Court when it was hearing a terrorist sentence appeal in June 2016

Three Federal Ministers criticised the Court of Appeal during legal argument on the sentence appeal calling them hard-left activist Judges, ideological experiments and Judges divorced from reality

Mr Heydon argued that those who attacked the Minister’s comments “were either leading members of the party opposing the Ministers’ party or professional organisations of lawyers, including the Judges’ Trade Union, the Judicial Conference of Australia. This reaction tends to weaken the idea that Judges are not adequately defended and hence should be immune from criticism”.  (See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

The reference to the Judicial Conference of Australia as being the Judge’s Trade Union says something about Mr Heydon’s personal political views.

Mr Heydon mounted an interesting argument to the effect that the Court of Appeal made findings of contempt against the Ministers without a formal hearing being conducted as to whether the Minister’s comments were in fact contempt at law.

Mr Heydon raised the question of why can’t politicians criticise Judges.

Mr Heydon makes some interesting observations about Australian Judges. He said:

  • “There are many admirable Australian Judges, with respect. But Australian Courts have several faults. Some Judges lack the capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor. The whole system is rotten with excessive delay, some of which, but certainly not all of which, Judges are responsible for. It is in the public interest for these failings, whether they are widespread or not, to be exposed with a view to their eradication.”

Mr Heydon also observed that it is one thing for Courts to dislike a stream of criticism from the media and from politicians – well informed or not, weighty or not. It is another thing to seek to dam this stream by threatening or actually initiating contempt proceedings.

Mr Heydon cited with approval the former British Prime Minister David Cameron who told the House of Commons on 18 April 2012 that there are “occasions where Judges make critical remarks about politicians and there are times when politicians make critical remarks about Judges. To me, this is part of life in a modern democracy. We should try to keep these things as far as possible out of the Courts”.

In concluding his speech Mr Heydon asks a rhetorical questions: “where Judges seek to preserve judicial independence in response to political criticism by threatening use of the contempt power, do they actually strengthen the hands of those who oppose judicial independence.” [2]

Mr Heydon’s UK speech is an interesting perspective on the role of criticism of Judges in Australia. What is notably absent from his speech, though, is the problem caused by the convention when Judges are attacked they are not permitted to publicly respond to the attack.

Perhaps it is time for Heads of Court in every jurisdiction in Australia, including Queensland, to become much more proactive in responding to criticism of Judges in the media.

The fact that Heads of Jurisdiction rarely defend attacks on individual judicial officers has the effect of lowering respect for the judiciary simply because there is no judicial response to criticism of an individual Judge or Magistrate, no matter how unfair or unjustified such criticisms may be.

By Terry O’Gorman

23 April 2018

[1] See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

[2] Page 17