13th Lucinda Lecture
How fragile are the courts? Freedom of speech and criticism of the judiciary
by Justice Ronald Sackville*
Monash University
29 August 2005
* Judge, Federal Court of Australia
I wish to thank Ms Nana Frishling for her valuable research assistance in the preparation of this lecture.
Freedom of Speech as a Fundamental Value
Australia’s constitutional arrangements are now ‘peculiar and virtually unique’[1]
among liberal democracies by reason of their failure to incorporate an express
guarantee of freedom of speech. Australian courts therefore cannot rely solely
on the explicit text of the Constitution to accord freedom of expression
the status of a fundamental value, to be respected and preserved against legislative
or executive intrusion.
Nevertheless, independently of strictly constitutional considerations, the
English and Australian courts have repeatedly reaffirmed the centrality of freedom
of expression in a democratic society. In Attorney-General v Times Newspapers,[2] Lord Simon of Glaisdale said that
the:
‘first public interest involved is that of freedom of discussion in democratic
society. People cannot adequately influence the decisions which affect their
lives unless they can be adequately informed on facts and arguments relevant
to the decisions. Much of such fact-finding and argumentation necessarily
has to be conducted vicariously, the public press being a principal instrument’.[3]
In a similar vein, Mason J observed a few years later that:
‘[i]t is unacceptable in our democratic society that there should be
a restraint on the publication of information relating to government when
the only vice of that information is that it enables the public to discuss,
review and criticize government action’.[4]
The guarantee of freedom of speech in the First Amendment to the United
States Constitution is couched in absolute language which has no counterpart
in the common law world.[5] Even
so, the values underlying the First Amendment, as articulated by the Supreme
Court of the United States, have universal resonance. The classic formulation
of Brandeis J transcends the specifics of the American experience:[6]
‘Those who won our independence believed … that public discussion is
a political duty … They recognized the risks to which all human institutions
are subject. But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsels is good ones. Believing in
the power of reason as applied through public discussion, they eschewed silence
coerced by law – the argument of force in its worst form.’
A commitment to the value of free speech carries with it a recognition that
protection cannot be limited exclusively to speech which is factually accurate.
The United States Supreme Court, in one of its seminal decisions,[7]
interpreted the First Amendment as reflecting:
‘a profound national commitment to the principle that debate on public
issues should be uninhibited, robust and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials’.[8]
For this reason, the Court refused to accept a test of truth as the touchstone
for determining whether criticism of a public official was protected by the
First Amendment.
Not all other nations necessarily have the same ‘profound commitment’ to uninhibited
debate as the United States. Certainly Australia has not had the same commitment.
Yet the High Court has acknowledged the importance of protecting even some forms
of erroneous speech. Thus in Gallagher v Durack,[9] the majority judgment identified as a principle
of ‘cardinal importance’ that:
‘speech should be free, so that everyone has the right to comment in
good faith on matters of public importance, including the administration of
justice, even if the comment is outspoken, mistaken or wrong-headed’.[10]
As this statement implies, unless there is a significant margin for error,
a guarantee of freedom of expression may prove to be a hollow entitlement.
A Dilemma
Obviously enough, the courts have a central role to play in determining the
proper scope and limits of free speech. As the Australian experience shows,
even without an express Bill of Rights the courts may find it necessary, by
a process of implications drawn from the Constitution, to formulate
and apply principles protecting fundamental rights and freedoms against legislative
or executive intrusion. The courts must struggle to reconcile, or at least
balance, the competing values of freedom of expression and preservation of reputation
reflected in the law of defamation. They must also decide the limits that should
be imposed on the media to comment on or prejudge pending criminal cases in
order to ensure that the accused can have a fair trial.
At a more prosaic level, courts must at some stage confront the dilemma of
what, if anything, to do about vehement criticism or scurrilous accusations
levelled at them or at particular judicial officers. Similarly a court may
have to rule on a civil claim by a serving judicial officer in the same hierarchy
that he or she has been defamed by hostile and inaccurate media comment.[11]
In part, the dilemma arises out of the fact that the court itself may be the
object of criticism, yet at the same time is responsible for determining whether
the over-enthusiastic critic should be exposed, for example, to criminal sanctions
for contempt.[12] For an institution
which is necessarily much concerned with the appearance of impartiality and
fairness, there is an obvious danger that a judgment unfavourable to the critic
will be taken as some by evidence that the court has placed the protection of
its own interests ahead of the public good.
The dilemma is rendered more acute by the potential for cases of this kind
to present a stark choice between competing values. Just as the courts have
stressed the fundamental importance of freedom of expression in other contexts,
so have they affirmed that the freedom applies to criticism of the courts.
In Nationwide News Pty Ltd v Wills,[13]
for example, the High Court held that Commonwealth legislation making it an
offence ‘calculated … to bring … [the Industrial Relations] Commission into
disrepute’ was invalid. Reasoning by analogy with the position of courts, Mason
CJ regarded the protection afforded to the Commission as ‘so disproportionate’
as to be outside the scope of the relevant head of Commonwealth power.[14]
His Honour emphasised that, as with courts:
‘the interest of the public [lies] in ensuring that the Commission and
its activities should be open to public scrutiny and criticism’.[15]
Mason CJ quoted approvingly the celebrated observation of Black J in Bridges
v California[16] that:
‘the assumption that respect for the judiciary can be won by shielding
judges from public criticism wrongly appraises the character of American public
opinion … [A]n enforced silence, however limited, solely in the name of preserving
the dignity of the bench, would probably engender resentment, suspicion, and
contempt, much more than it would enhance respect’.
Nor is it a matter simply of providing an outlet for critics whose frustrations
might otherwise take over. The judiciary itself benefits from vigorous criticism.[17] Judges no less than other fallible
human beings may overlook or underestimate the need to change apparently settled
principles or practices.
Not surprisingly, the exercise of freedom of speech in relation to courts can
collide with competing principles. In Gallagher v Durack,[18] the very case which affirmed
the ‘cardinal’ principle that critics of courts have the right to free speech,
the High Court breathed new life into what many thought was the moribund offence
of contempt by scandalising the court. The Court decided that the law of ‘scandalising’
contempt survives as a mechanism for punishing those who threaten public confidence
in the legal system by making scurrilous imputations about courts or judges.[19] The majority identified the
rationale for this branch of the law as the fact that the:
‘authority of the law rests on public confidence, and it is important
to the stability of society that the confidence of the public should not be
shaken by baseless attacks on the integrity or impartiality of courts or judges’.[20]
There are two odd features about this passage. The first is that the orthodox
view is that neither truth nor justification is a defence to a charge of contempt
by scandalising the court.[21]
Thus in a case which pits freedom of speech against the perceived importance
of maintaining public confidence in the judiciary, it may not be easy for the
former to prevail. The second is that the passage assumes that baseless attacks
on courts or judges are in fact capable of shaking public confidence in the
legal system. On the contrary, it might be thought that well-founded
attacks on the judiciary have a greater capacity to shake public confidence
in the integrity of the system. Yet public comment which fairly identifies
judicial conduct that is ‘truly disreputable’ is said to be for the public benefit,
notwithstanding that the revelation necessarily impairs the confidence of the
public in the competence or integrity of the court.[22]
Perhaps it is for this reason that the majority in Gallagher v Durack added
a rider that in many cases ‘the good sense of the community’ will be a sufficient
safeguard against scandalous disparagement of a court.[23]
Comments about courts may collide not only with the perceived need to preserve
public confidence in the judiciary generally, but with the need to ensure that
particular litigants will receive – and be seen to receive – a fair trial.
For example, vehement criticism of an individual court or judge, or uninhibited
comment about the merits of a specific case, may be calculated to influence
the outcome of pending proceedings.[24]
The unrestrained ability of the media to press for a given outcome
might interfere with a party’s right to a fair trial, or at least help create
a perception that a fair trial will not be available.
Resolving the resultant clash of values may have less to do with legal principle
than with competing assessments of the robustness of the judiciary. The point
is illustrated by Craig v Harney,[25]
one of the leading United States cases. At issue was a publisher’s conviction
for contempt of court by reason of an editorial which was designed to induce
an elected lay judge in Texas to grant a returned war veteran a new trial in
a civil case.
Douglas J, writing for the majority, took an uncompromising view of the judicial
temperament, even that of a lay judge. He considered that:
‘… the law of contempt is not made for the protection of judges who may
be sensitive to the winds of public opinion. Judges are supposed to be men
of fortitude, able to thrive in a hardy climate’.[26]
Frankfurter J, by contrast, was more sceptical. He warned that even a conscientious
judge, and not merely a lay judge serving under a short judicial tenure:
‘may find himself in a dilemma when subjected to a barrage pressing a
particular result in a case immediately before him’. [27]
Frankfurter J had acknowledged in the earlier case of Pennekamp v Florida[28] that ‘weak characters’ ought not to be judges
and that no judge fit to occupy the office would consciously be influenced by
anything other than what he or she sees in court.[29] But, he said in that case, judges are human, not ‘angelic’,
and we ‘know better than did our forbears how powerful the pull of the unconscious
and how treacherous the rational process’.[30]
A third example of an area where free speech conflicts with other compelling
values is the law of defamation. In the absence of constitutional imperatives,
a judicial officer who institutes defamation proceedings to vindicate his or
her professional reputation is in no different position to any other plaintiff
complaining of defamatory publications. Yet successful defamation proceedings
by judges against media outlets which choose to attack the manner in which they
perform their judicial duties may well have a ‘chilling’ effect so often referred
to in the United States authorities on debate about the performance of the judicial
branch of government. Frank and vigorous media criticism of court decisions
and the conduct of judicial officers may be discouraged by the fear of provoking
a lawsuit.
It might be thought that the practical constraints on judges bringing defamation
proceedings make it unlikely that they will have a ‘chilling’ effect on public
debate about the courts. The Australian Law Reform Commission reported in 1987
that a very large majority of judicial officers responding to a questionnaire
reported that they saw ‘major problems’ in judges suing for defamation.[31] One particular difficulty they
identified was that of a judge-plaintiff submitting to cross-examination, perhaps
about his or her conduct of a particular case. The Commission reported at the
time that defamation actions by judges arising out of criticism of their official
conduct, had hitherto been a rare phenomenon.[32]
Recent experience suggests, however, that defamation actions by judicial officers
may not be quite as rare as the Commission expected. Two recent Australian
defamation cases have involved substantial damages awards to magistrates. In
the first, the Victorian Court of Appeal upheld an award to a magistrate of
$210,000 for compensatory and aggravated damages for an article which ‘distorted’
what had transpired in court and wrongly accused the magistrate of misconducting
herself.[33] In the second
case, a New South Wales court awarded $220,000 to a magistrate for an article
which was held to convey eight defamatory imputations, including allegations
of bias and incompetence. On appeal in the second case, judgment was entered
for the defendants in respect of four of the imputations and the matter remitted
for further consideration of the quantum of damages.[34] Two cases do not amount to
an opening of the litigation floodgates. But not surprisingly, aspects of the
decisions have been interpreted by some sections of the press as examples of
the courts looking after their own, to the detriment of healthy criticism of
the legal system.[35] In this
respect the collective memory of the press is likely to be long.
Challenges to Limits on Freedom of Expression in Relation to Courts
The protection accorded to courts and judicial officers in Australia by the
laws of contempt and defamation has not gone unchallenged. As early as 1911,
the High Court dismissed a motion for contempt brought against the 82 year old
publisher of the Hobart Mercury, HR Nicholls.[36] Nicholls had accused Higgins J, a High Court Judge and President
of the Commonwealth Court of Conciliation and Arbitration, of being a ‘political
Judge’ who owed his appointment to his services to a political party. Griffith
CJ observed that an imputation of want of impartiality was not necessarily a
contempt of court and in some circumstances might be for the public benefit.[37] Indeed, the Chief Justice implied
that Higgins J may have merited the criticism since he had made some curious
remarks in the course of the Arbitration Court hearing that appeared to be highly
protective of the government of the day.[38] Griffith CJ made his feelings clear about
the contempt proceedings by citing authority to the effect that the class of
contempt known as scandalising the court had been regarded as ‘practically obsolete
in England’.[39]
The High Court’s revival of scandalising contempt in Gallagher v Durack
did not pass without protest. The facts of the case provided a classic
illustration of a critic moving from the legal frying pan into the legal fire.
Mr Gallagher, the well-known secretary of a construction union, celebrated his
successful appeal against two months’ imprisonment for contempt of court by
announcing his state of mind as follows:
‘I’m very happy to [sic] the rank and file
of the union who has [sic] shown such fine support
for the officials of the union and I believe that by their actions in demonstrating
in walking off jobs … I believe that that has been the main reason for the
court changing its mind’.
In a tangible demonstration that speech is by no means always free, this exuberant
comment earned Mr Gallagher a sentence of three months’ imprisonment for
contempt of the Federal Court.
A majority of the High Court refused special leave to appeal from the conviction,
holding that the insinuation that the Federal Court had bowed to outside pressure
was calculated to lower the authority of that Court.[40] Murphy J delivered a powerful dissent, pointing
out that the law of scandalising contempt imposed severe limits on the freedom
to criticise or comment on courts and thus had a ‘chilling’ effect on public
criticism of courts. In his view, no society should be prepared to accept such
censorship. Murphy J proposed adoption of the standard approved in the United
States, whereby contempt requires proof not merely of a tendency to detract
from the administration of justice, but a ‘clear and present danger’ to the
administration of justice.[41]
The Australian Law Reform Commission in its 1987 report on Contempt[42] in effect recommended abolition of the offence
of contempt for scandalising the court. The Commission said that the offence
intruded too far into freedom of expression and concluded that there was no
evidence that the administration of justice could be undermined by comments
of the sort that had attracted sanctions. The Commission proposed to substitute
the much narrower offence of publishing an allegation imputing misconduct to
a judge or magistrate. Such an offence would be committed only where publication
was likely to cause serious harm to the reputation of the judge or magistrate
in his or her official capacity. Moreover, it would be a defence that the report
was a fair and accurate account of legal proceedings or that the defendant honestly
believed on reasonable grounds that the statement was true.[43]
More recently, the Chief Justice of Massachusetts, in an address to an Australian
audience, has argued that citizens ‘should be permitted to say practically anything
they please about judges and the courts – even untrue and vicious things’.[44] Chief Justice Marshall suggests that Bridges
v California and its progeny
‘have allowed the live practice of justice to unfold before the American
people in all of its raw immediacy and sometimes manipulative theatricality’.[45]
She points out that despite uninhibited criticism of courts and judges, people
accept the rulings of courts even in such highly politically charged cases as
Bush v Gore,[46] which virtually decided the
outcome of the 2000 Presidential elections.[47] Moreover, she claims, no Massachusetts judge (none of whom
is elected) has ever been swayed in the slightest by the glare of publicity.
Plainly inclined to the ‘angelic’ view of judicial temperament, she asserts
the Massachusetts judiciary’s ‘imperviousness to outside bullying’.[48]
In short, Chief Justice Marshall sees untrammelled criticisms of courts and
judges as vital to the triumph of the rule of law in a ‘pluralist multifaceted
democracy’. Accordingly she concludes:
‘with full deference to the different social, historical, and political
climates of our different nations … Commonwealth courts can, and should, tolerate
a great deal more criticism of judges and of the judiciary, even when a case
is pending, than is presently permitted’.[49]
Not every element of this reasoning commands unqualified acceptance. For example,
while the Massachusetts judiciary may be particularly robust, not all judges,
even those enjoying security of tenure, necessarily have what Frankfurter J
would have regarded as the necessary angelic powers to resist intense external
pressure. The point is illustrated by a well-known case in the United States
District Court.[50] Judge Baer, a New York District
Court Judge, suppressed physical evidence seized from the car of a defendant
who had been charged with illicit drug distribution, on the ground that the
seizure had violated the defendant’s constitutional rights.[51] In response to this ruling and the furore
which followed it, President Clinton threatened to ask for Judge Baer’s resignation
if he did not reverse himself. Some 140 members of Congress supported a proposal
that if the Judge did not resign, he should be impeached. Senior Judges of
the United States Court of Appeals for the Second Circuit denounced the threats
as ‘extraordinary intimidation’. Despite the collegiate support, Judge Baer
very swiftly vacated his earlier decision and denied the motion to suppress.[52]
In considering Chief Justice Marshall’s arguments, it is also important not
to minimise the cultural and institutional differences between the United States
and Australia. Although federal judges enjoy life tenure in the United States,
most states provide for the election of judges. In consequence, nearly 90 per
cent of all state trial and appellant judges face election at some point in
their tenure.[53] Chief Justice Marshall contends
that the system of electing state judges has worked surprisingly well.[54] Be that as it may, the uninhibited
freedom to criticise judicial officers in the United States may well owe a good
deal to concerns about the variable quality of the state judiciary. It may
also owe something to the fact that for a very long time the federal and state
judiciary in the United States have exercised far-reaching powers of judicial
review of legislation, stemming from their role as the interpreters of both
federal and state Bills of Rights. The broad freedom of Americans to criticise
courts (in common with other public institutions) constitutes part of the price
the American judiciary pays for its formidable constitutional authority.
Making due allowance for these matters, the case for widening the scope of
permitted criticisms of courts and judicial officers in Australia is extremely
strong. As the Australian Law Reform Commission has observed, there is simply
no evidence that public confidence in the judiciary is significantly impaired
by baseless allegations made in the media and elsewhere against courts and judges.
And the courts themselves have repeatedly stressed that well-founded accusations
of judicial misconduct are in the public interest. Current laws have the additional
disadvantage that they too often place courts in a position where they can be
seen as literally judges in their own cause. It is difficult to deny that contempt
for scandalising the court, in particular, bears the hallmarks of a doctrine
designed to provide special protection for courts against harm that is more
imaginary than real. Recent comments by Sachs J of the Constitutional Court
of South Africa have particular force:
‘It is particularly important that, as the ultimate guardian of free
speech, the Judiciary show the greatest tolerance to criticism of its own
functioning. Its standing in the community can be undermined only if the
public are led to draw the inference that, in pursuance of the principle that
an injury to one is an injury to all, the judicial establishment is closing
ranks’.[55]
The existing constraints on the freedom to criticise courts have been informed
by an assumption that the judiciary cannot respond to ill-informed or malicious
criticism about particular decisions or the conduct of individual judges. The
time has come, however, for that assumption to be re-evaluated. In recent times,
judges have participated actively in debates about matters affecting the judiciary.
Heads of jurisdiction or their representatives have publicly corrected inaccurate
statements made about their courts. Courts now have media liaison officers
who can ensure, among other things, corrections reach the right quarters (even
though they cannot ensure publication). Bodies representing the judiciary,
such as the Judicial Conference of Australia, have contributed to public discussion
on contentious issues confronting the courts. Moreover, there may be techniques
available to courts, short of formal contempt proceedings, that properly draw
public attention to inappropriate comments about judicial proceedings or judges,
whether made by politicians or others.[56] The greater willingness of the judiciary to
respond to public criticism reflects the reality that the traditional stoic
silence in the face of an ill-informed or even malicious attack is by no means
the most effective means of maintaining confidence in the judicial system.
Towards Greater Freedom
In jurisdictions that have express constitutional guarantees of freedom of
speech, the traditional protections accorded to courts and judges have come
under close scrutiny. In Canada, for example, the Ontario Court of Appeal held
in 1987 that legislation preserving the common law offence of scandalising the
court infringed the guarantee of freedom of expression contained in s 2(b) of
the Canadian Charter of Rights and Freedoms.[57]
Statements of a sincerely held belief on a matter of public interest, even if
intemperately worded, were said to be protected by the guarantee.[58] A majority of the Court also
held that the offence of scandalising the court would not satisfy the ‘proportionality’
test embodied in s 1 of the Charter, which subjects the express guarantees
to ‘such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society’. The particular vice of the scandalising
offence was that it assumed that the words which were the subject matter of
the charge would bring the court into contempt or lower its authority without
requiring any proof of that fact.[59] Houlden JA expressed his confidence:
that our judiciary and our courts are strong enough to withstand criticism
after a case has been decided no matter how outrageous or scurrilous that
criticism may be. I feel equally confident that the Canadian citizenry are
not so gullible that they will lose faith and confidence in our judicial system
because of such criticism. If the way in which judges and courts conduct
their business commands respect, then they will receive respect, regardless
of any abusive criticism that may be directed towards them’.[60]
The European Court of Human Rights has considered on a number of occasions
the scope of the freedom of expression guaranteed by the European Convention
on Human Rights, as applied to criticisms of courts and judges.[61] Like the Canadian Charter, the European Convention is
not unqualified in its terms. Article 10(2) provides that the exercise of the
freedom of expression may be subject to such restrictions ‘as are prescribed
by law and are necessary in a democratic society’ for, among other things, maintaining
the authority and impartiality of the judiciary.
The general principles have recently been restated by the European Court of
Human Rights in Hrico v Slovakia.[62]
The case arose out of an action by a Slovakian judge ‘for protection of his
personal rights’. The action was based on newspaper articles which alleged
that the judge’s decisions were motivated by his political views. The Slovakian
courts ultimately awarded the plaintiff a small amount as compensation for non-pecuniary
damage he had suffered as a result of the publications.
The European Court said that an interference with a person’s freedom of expression
violates Art 10(1) if it does not come within one of the exceptions in Art 10(2).
The Court therefore had to determine whether the interference was prescribed
by law, had an aim that was legitimate under Art 10(2) and was ‘necessary in
a democratic society’ for that aim. The Contracting State had a ‘certain margin
of appreciation’ in assessing whether the measure was necessary, but the Court
retained a supervisory role. In exercising its supervisory functions, the Court
had to have regard to the comments and the context in which they were made,
and had to determine whether the interference was ‘proportionate to the aims
pursued’. The press had a right and duty to impart information and ideas on
matters of public interest, including the functioning of the judiciary. On
the other hand, courts were entitled to be protected against unfounded attacks,
especially given that judges could not respond in kind to criticism.
The Court considered that the critical point in the case before it was that
the judge had made public his intention to become involved in politics. He
should therefore have withdrawn from a case that could be linked to his political
views. While the articles had used strong language and contained factual errors,
Art 10 protected opinions ‘which may shock or offend’ and permitted ‘recourse
to a degree of exaggeration’. Accordingly, the standards applied by the Slovakian
courts were not compatible with the principles embodied in Art 10.[63]
The South African Constitution gives everyone ‘the right to freedom
of expression’, including freedom of the press and the freedom to receive and
impart information or ideas.[64]
As in Canada, the freedoms are qualified, in that they may be limited by a law
of general application:
‘to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom …’[65]
The South African Constitutional court has taken a cautious approach to these
provisions as applied to the offence of scandalising the court. In S v
Mamabolo,[66] the Court rejected an argument
that the law of scandalising contempt unjustifiably limited the constitutional
right to freedom of expression. Kriegler J, writing for the Court, emphasised
the importance of informed and public scrutiny in promoting the impartiality,
accessibility and effectiveness of the courts and in acting as a ‘democratic
check on the Judiciary’.[67]
Nonetheless, he saw a role for the offence of scandalising the court to perform,
principally as a means of protecting the ‘moral authority’ of the judiciary
as ‘an independent pillar of State’.[68]
Kriegler J rejected the view that the First Amendment jurisprudence should
be imported into South Africa, not least because of the very different constitutional
texts. Even so, he accepted that in view of:
‘founding constitutional values of human dignity, freedom and equality,
and more pertinently the emphasis on accountability, responsiveness and openness
in government, the scope for a conviction on this particular charge must be
narrow indeed if the right to freedom of expression is afforded its appropriate
protection. The threshold for a conviction on a charge of scandalising the
court is now even higher than before the superimposition of constitutional
values on common-law principles; and prosecutions are likely to be instituted
only in clear cases of impeachment of judicial integrity.’[69]
Kriegler J said that the test was whether:
‘the offending conduct, viewed contextually, really was
likely to damage the administration of justice.’ (Emphasis added.)[70]
Clearly enough, scandalising contempt will rarely be invoked in South Africa.[71]
In an eloquent concurring judgment, Sachs J argued for a higher threshold,
namely that conduct ‘must pose a real and direct threat to the administration
of justice.’[72] He envisaged
that the standard might be satisfied if, for example, someone engaged in a campaign
to promote defiance of the law or the challenge the legitimacy of the constitutional
State. A less demanding standard would detract from the goal, in an open and
democratic society, of exposing ‘all public institutions to criticism of the
most robust and inconvenient kind’.[73]
The Implied Freedom of Communication
In Australia, the recent judicial defamation cases have thrown up the question
of where criticism of the judiciary fits within the framework of the implied
freedom of political communication that the High Court says is to be discerned
from the text and structure of the Constitution.[74]
Because the implied freedom does not apply to freedom of speech generally, but
only to speech of a particular kind,[75]
it poses awkward questions of classification, many of which have not yet been
resolved.
As Michael Chesterman has pointed out,[76]
traditional accounts of theories of speech generally rely on three justifications.
The first conceives of freedom of speech as a personal right deriving from each
person’s capacity for self-expression. The second, reflected in many decisions
of the United States Supreme Court, sees freedom of speech as a means of discovering
the truth through the marketplace of ideas. It assumes that false ideas will
ultimately be exposed as such and that the truth will prevail in the marketplace.
The third more limited justification sees freedom of expression as the means
of ensuring that the electors are able to exercise a free and informed choice
as an incident of representative government.
It is the third of these theories that the High Court has invoked to justify
implying a freedom of political communication from the provisions of the Constitution,
notably ss 7 and 24,[77] which
create the system of representative government at federal level. In Lange,
a unanimous High Court held that ss 7 and 24:
‘necessarily protect that freedom of communication between the people
concerning political or government matters which enables the people to exercise
a free and informed choice as electors. Those sections do not confer personal
rights on individuals. Rather they preclude the curtailment of the protected
freedom by the exercise of legislative or executive power’.[78]
The Court made it clear that the implied freedom cannot be confined to the
receipt and dissemination of information during an election period and that
electors cannot be denied information concerning the conduct of the executive
branch of government. But the freedom of communication protected by the Constitution
is not absolute. It is limited to what is necessary for the effective
operation of the system of representative and responsible government for which
the Constitution provides.[79]
Lange laid down a two-limb test for determining the validity of a
law of a Commonwealth, State or Territory Parliament said to infringe the implied
freedom of communication. As slightly modified in Coleman v Power,
the test is as follows:
‘First, does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or effect?
Second, if the law effectively burdens that freedom, is the law reasonably
appropriate and adapted to serve a legitimate end in a manner which is compatible
with the maintenance of the constitutionally prescribed system of representative
and responsible government and the procedure prescribed by s 128 for
submitting a proposed amendment of the Constitution to the informed decision
of the people … If the first question is answered “yes” and the second is
answered “no”, the law is invalid’.[80]
The Court went on to hold that the law of defamation, insofar as it required
electors and others to pay damages for the publication of communications concerning
government or political matters, burdened the freedom of communication about
these matters.[81] Accordingly, the defence of
qualified privilege had to be extended to cover communications on government
and political matters to the public at large, provided that the defendant’s
conduct was ‘reasonable’. As a general rule conduct would not be reasonable
unless the defendant:
‘had reasonable grounds for believing the imputation was true, took the
proper steps, so far as they were reasonably open, to verify the accuracy
of material and did not believe the imputation to be untrue’.[82]
The Lange test presents many difficulties of application. Most importantly,
the vagueness of the Court’s language provides opportunities – indeed virtually
requires – judges to give effect to their own value judgments. Thus in Coleman
v Power, Kirby J protested at the:
‘ungainly phrase “appropriate and adapted” [which] involves a ritual
incantation devoid of clear meaning’.[83]
Callinan J observed that:
‘[t]he appreciation of what is reasonably appropriate and adapted to
achieving a legitimate end may very much be a matter of opinion’.[84]
It is difficult to disagree.
The extent to which value judgments are involved is shown by Coleman v
Power, itself a case concerned with State legislation prohibiting the use
of insulting words in public places. Heydon and Kirby JJ took diametrically
opposed views as to the role, if any, insulting words have to play in communications
on governmental or political matters. Heydon J saw the State legislation
as directed to the preservation of ‘an ordered and democratic society’. For
him:
‘[i]nsulting words are inconsistent with that society … because they
are inconsistent with civilised standards’.[85]
For his part, Kirby J had difficulty in recognising in this analysis the Australian
political system. To him, Heydon J’s chronicle sounded:
‘more like a description of an intellectual salon where civility always
(or usually) prevails’.[86]
This does not exhaust the difficulties posed by the Lange test. Its
language does little to discourage different approaches in assessing the extent
to which courts should allow (in the language of the European Court of Human
Rights) a ‘margin of appreciation’ to the elected legislature.[87] The fact that the implied freedom is limited
to what is necessary for the effective operation of the system of representative
and responsible government for which the Constitution provides, creates
yet further difficulties. How is the line to be drawn between conduct which
is sufficiently related to the political system and conduct which, although
it involves elected representatives or public officials, does not affect people
in their capacity as federal electors? What is the position when criticism
is made of State or local government officials about purely State or local issues?
In Coleman v Power, a concession was made that allegations against
a State police officer were capable of concerning matters within the scope of
the implied freedom. Of those members of the Court who considered the point,
two thought the concession was properly made; two thought it was probably correct;
and one apparently thought otherwise.[88]
Those who thought the concession was correct did so essentially on the basis
that the conduct of State police officers is relevant to the system of representative
government established by the Constitution because in Australia the
police are responsible for enforcing federal as well as State laws.
In the light of these uncertainties, it is not clear how far, if at all, the
Lange principle applies to criticisms of the judiciary. Two questions
arise, although they may be interrelated. First, is criticism of the decisions
or official conduct of a judge or magistrate capable of constituting communications
on government or political matters within the Lange principle? Secondly,
if so, is criticism of a State judicial officer, exercising only State jurisdiction,
sufficiently connected with the effective operation of the system of representative
and responsible government for which the Constitution provides?
In Herald & Weekly Times Ltd v Popovic[89]
it was not strictly necessary for the Victorian Court of Appeal to decide whether
criticisms made of a magistrate were within the implied constitutional immunity,
since the publisher, in any event, could not satisfy the reasonableness test.
However, two members of the Court expressed the view that the comments did not
attract the implied immunity. Winneke ACJ said that criticisms by a newspaper
of a magistrate’s performance in conducting or handling isolated proceedings
in the Magistrates’ Court, even to the point of implying his or her unfitness
to hold office, was not discussion of government or political matters of the
relevant type.[90] Winneke ACJ acknowledged that each case had to depend upon
its own circumstances. However, he thought that criticisms and comment directed
to the conduct of individual judicial officers cannot be said to be concerned
with the exercise of powers at a government or administrative level:
‘It is true that, when discharging their functions, judicial officers
are performing a public role; one which is to be performed in the “public
gaze” and thus, open to public scrutiny and comment … However … [s]uch comment
and criticism could, in my view, have no impact or influence upon the choice
of their representatives by the people of Australia’.[91]
Warren AJA understood the Lange principle to be ‘confined strictly
to matters of government and politics’.[92]
Her Honour recognised that some members of the High Court, before the decision
in Lange, had expressed the view that the implied freedom might extend
to comments about the judiciary.[93]
But this view had not been adopted in Lange. In any event, the need
to promote public confidence in the judiciary was a further reason for exempting
the judiciary from the province of ‘government’ and ‘politics’ as applied in
Lange.[94]
In John Fairfax Publications Pty Ltd v O’Shane,[95]
the New South Wales Court of Appeal rejected an argument that the Lange
principle applied to criticisms of the conduct of judicial officers generally.
Giles JA[96] followed dicta
in an earlier case[97] to the
effect that the:
‘conduct of courts is not, of itself, a manifestation of any of the provisions
relating to representative government upon which the freedom is based’.
Giles JA distinguished the position of judicial officers from public representatives
and officials:
‘Judicial officers are not elected representatives, and are not subject
to the control of parliament or the executive in the exercise of their functions,
short of removal from office by parliamentary act in extreme circumstances.
This independence of the judiciary exists for sound reasons, was historically
hard won, and serves a vital constitutional and social purpose in the impartial
dispensation of justice’.[98]
Young CJ in Eq adopted similar reasoning. His Honour reviewed the authorities
and concluded that such authority as there was held against the extension of
the Lange principle.[99]
He specifically rejected an argument that discussion of the conduct of judicial
officers was related to representative government because of the possibility
of their removal by Parliament and because electors may have concerns about
the quality of judicial appointments made by the executive government. He was
persuaded by the ‘general thrust’ of submissions that included a warning that
an extension of the Lange principle would be ‘a licence for irresponsible
journalism’.[100] Young CJ
in Eq accepted that ‘considerable latitude’ should be given to reports about
courts and tribunals. But, he said:[101]
‘if the reports are too negative too often, the effect will be not that
the public is informed, but that they will (probably unjustifiably) lose confidence
in the legal system. Once public confidence goes, disputes will again be
decided by the “Might is Right” philosophy and thus decided by reference to
the party with the greater economic power or the best fighter behind the hotel’.
Where to now?
The High Court, as always, will have the last word concerning the application
of the Lange principle to criticisms of the courts and the judicial
system. The legal arguments that have led to the judiciary being largely exempted
from the operation of that principle have considerable force. Given that the
rationale for the privilege is based on implications from the system of representative
government established by the Constitution, the reasoning in cases
such as Herald & Weekly Times v Popovic and John Fairfax v
O’Shane has a logical attraction.
But as Oliver Wendell Holmes famously said, the life of the law has not been
logic, but experience.[102]
At the very least, logic should be tempered by experience. The current trend
of authority reflects the longstanding belief that the judiciary requires special
protection, when compared with other institutions of government, in order to
maintain public confidence in the legal system. That belief, however, has always
rested on dubious assumptions rather than solid empirical evidence. Other jurisdictions,
like Canada, the European Union and South Africa, while not adopting the First
Amendment jurisprudence of the United States, have modified common law or traditional
principles in the interests of protecting freedom of speech. Their actions
do not seem to have prompted a crisis of community confidence in the judiciary
of those countries.
The fact is that judicial power is ‘an element of the government of society’
and the judicial branch is the ‘third great department of government’.[103] Although the Court in John Fairfax v
O’Shane appeared to doubt whether freedom of the press is a means of making
the court accountable to the broader community, the proposition is hard to dispute.
It is true that mechanisms adopted by the courts themselves, such as the appellate
process and the concept of open justice, are extremely important for ensuring
that the Judiciary is ‘accountable’. But these are not the only mechanisms
appropriate to a democratic society. Criticism of the courts often goes beyond
matters than can be tested on an appeal. In any event, the perspectives informing
the approach of an appellate court are not the only ones deserving of a public
airing.
The work of the courts may be as relevant to the informed judgment of electors
as the actions of elected representatives or public officials. This is so notwithstanding
that the courts are and must remain independent of other branches of government.
Unlike elected representatives, judicial officers are not answerable to the
electors for their decisions in particular cases. Yet judicial decisions are
not only frequently based on policy considerations in respect of which members
of the community will have strongly divergent views, but they may impinge directly
upon the program of the elected government of the day. Court decisions may
also be intensely controversial and generate proposals for responses or changes
through the political process. Even the day-to-day work of the courts can be
of profound political importance. Criminal sentencing, for example, is very
frequently the subject of passionate community discussion and debate. More
specifically, criticism of individual decisions or of the conduct of particular
judicial officers, may directly bear on the appointments made by the executive
government or the selection procedures followed by the government.
Nor is it difficult to discern a relationship between the actions of State
judicial officers and the concerns of federal electors. State courts exercise
federal jurisdiction, including in prosecutions for offences against Commonwealth
law. Just as the conduct of State police officers is intertwined with federal
concerns, so the decisions and conduct of the State judiciary cannot readily
be divorced from the concerns of federal electors.
The ambivalent position of the judiciary under the Lange principle
is a consequence of the limited nature of the implied freedom of political communication
recognised by the High Court. Yet it is very difficult, from a policy perspective,
to justify placing courts in a separate and privileged category so far as protection
from unjustified criticism is concerned. Moreover, if the High Court endorses
the current trend of authority, the courts will be open to the charge that they
have awarded themselves an immunity that is difficult to justify and is likely
to prove counter-productive to the values they have repeatedly espoused.
This is not to say that the courts should be bereft of powers that are capable
of being used in the rare cases where verbal attacks pose a genuine threat to
the standing of the judiciary. These powers might take the form recommended
by the Australian Law Reform Commission, or they might involve the High Court
relying on the Lange principle to set a much higher threshold for conduct
amounting to scandalising contempt. Similarly, there is no reason in principle
why individual judges should enjoy fewer avenues for redress of unjustified
attacks on their reputation than elected representatives or public officials.
But the independence of the judiciary does not justify conferring on judges
greater protection than those representatives or officials enjoy.
It is to be hoped that the High Court will interpret the scope of the implied
freedom of communication more broadly than recent decisions might suggest.
If the High Court does not do so, there is a strong case for legislation to
bring the principles governing criticism of the Australian judiciary into line
with those of other liberal democracies.
[1] Coleman v Power (2004) 209 ALR 182, [208],
per Kirby J; cf Human Rights Act 2004 (ACT), s 16(2).
[2] [1974] AC 273.
[3] Id, 315.
[4] Commonwealth v John Fairfax
& Sons Ltd (1980) 147 CLR 39, 52. This observation and that
of Lord Simon in Attorney-General v Times Newspapers were cited by
Mason CJ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 31.
Interestingly enough, in both Commonwealth v John Fairfax and Attorney-General
v Times Newspapers freedom of speech did not prevail.
[5] The First Amendment provides
that: ‘Congress shall make no law … abridging the freedom of speech, or of the
press …’ Most constitutional guarantees are qualified, for example by allowing
the legislature to impose ‘such reasonable limits … as can be demonstrably justified
in a free and democratic society’: Canadian Charter of Rights and Freedoms,
s 1; see text at notes 58-66 below.
[6] Whitney v California 274 US 357, 375-376 (1927). .
[7] New York Times Co v Sullivan
376 US 254 (1964).
[8] Id, 270, per Brennan
J.
[9] (1983) 152 CLR 238.
[10] Id, 243. This, too,
was a case in which freedom of speech gave way to other values. See text at
notes 18-23, below.
[11] Herald & Weekly Times
Ltd v Popovic (2003) 9 VR 1; John Fairfax Publications Pty Ltd v O’Shane
[2005] NSWCA 164.
[12] R v Dunbabin; Ex parte
Williams (1935) 53 CLR 434; Gallagher v Durack (1983) 152 CLR
238.
[13] (1992) 177 CLR 1.
[14] Constitution s 51(xxxv),
which empowers the Commonwealth Parliament to make laws with respect to conciliation
and arbitration for the prevention and settlement of interstate industrial disputes.
[15] (1992) 177 CLR 1, 33.
[16] 314 US 252, 270-271 (1941).
[17] S v Mamabolo 2001
(3) SA 409, [77], per Sachs J.
[18] (1983) 152 CLR 238. Gibbs
CJ, Mason, Wilson and Brennan JJ; Murphy J dissenting.
[19] For a recent example of a conviction
for scandalising contempt being upheld, see Hoser v The Queen; Ex parte
Attorney-General (Victoria) [2003] VSCA 194 (Vic CA).
[20] (1983) 152 CLR 238, 243.
[21] Australian Law Reform
Commission, Contempt (Report No 35, 1987), par 415.
[22] Australian Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1, 39, per Brennan J.
[23] (1983) 152 CLR 238, 243. See
also Re Colina; Ex parte Torney (1999) 200 CLR 386, where Gleeson CJ
and Gummow J observed (at 391) that the summary jurisdiction to punish for scandalising
contempt should be exercised sparingly, and only when necessity demands.
[24] I leave to one side the particular
problems posed by prejudicial pre-trial publicity relating to jury trials in
criminal prosecutions: see M Chesterman, Freedom of Speech in Australian
Law: A Delicate Plant (Ashgate, 2000), ch 6. The current position in Australia
is that any implied freedom of judicial communication must give way to the imperatives
of a fair trial for the accused person. In John Fairfax Publications Pty
Ltd v Doe (1995) 130 ALR 488, 515, Kirby P said it would be a ‘complete
misunderstanding’ of recent developments in constitutional law to suggest that
the implied right of free communication deprives courts of the power or duty
to protect an individual’s rights to a fair trial where it is, as a practical
reality, under threat.
[25] 331 US 367 (1947).
[26] Id, 376.
[27] Id, 392.
[28] 328 US 331 (1946).
[29] Id, 357.
[30] Id, 357, 366.
[31] Law Reform Commission,
Contempt (Report No 35, 1987)
[32] Id, par 452,
n 119.
[33] Herald & Weekly
Times Ltd v Popovic (2003) 9 VR 1.
[34] John Fairfax Publications
Pty Ltd v O’Shane [2005] NSWCA 164.
[35] See, for example, ‘Case
Against Laws that Halt Free Speech’, The Australian, 15 June 2002,
18; ‘Matter of Fact Approach to Expressing our Opinions’, Sydney
Morning Herald, 19 March 2004, 13; ‘Judges Able to Stand Criticism’,
Canberra Times, 31 May 2004, 10.
[36] The King v Nicholls
(1911) 12 CLR 280.
[37] Id, 286.
[38] J Rickard, Henry Bourne
Higgins: The Rebel as Judge (1984), 186-188.
[39] (1911) 12 CLR 280, 285,
citing McLeod v St Aubyn [1899] AC 549, 561, per Lord Morris.
[40] (1983) 152 CLR 238, 244.
[41] Id, 246-248, citing
Bridges v California 314 US 252 (1941) and Pennekamp v Florida
328 US 331 (1946).
[42] Australian Law Reform
Commission, Contempt (Report No 35, 1987).
[43] Id, par 460.
[44] MH Marshall, ‘Dangerous
Talk, Dangerous Silence: Free Speech, Judicial Independence and the Rule of
Law’ (2002) 24 Syd LRev 455, 455.
[45] Id, 458.
[46] 531 US 98 (2000)
[47] Id, 459.
[48] Id, 461.
[49] Id, 463.
[50] See SB Bright, ‘Political
Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and
Remove Judges From Office for Unpopular Decisions?’ (1997) 72 NYUL Rev
308, 310-311; MH Freedman, ‘The Threat to Judicial Independence by
Criticisms of Judges – A Proposed Solution to the Real Problem’ (1997)
25 Hofstra L Rev 729, 737-739.
[51] United States v Bayless
913 F Supp 232 (SDNY, 1996)
[52] United States v Bayless
921 F Supp 211 (SDNY, 1996).
[53] MH Marshall, note 44 above,
464.
[54] The claim that the system has
worked well does not sit easily with the recognition that for an elected judge
to ignore the political ramifications of a decision near election time is like
‘ignoring a crocodile in your bathtub’: id, 467.
[55] S v Mamabolo 2001
(3) SA 409, [78].
[56] E Campbell and HP Lee, ‘Criticism
of Judges and Freedom of Expression’ (2003) 8 Media & Arts L Rev 77,
87-88.
[57] R v Kopyto (1987)
47 DLR (4th) 213.
[58] Id, 229, per
Cory JA.
[59] Id, 239, per
Cory JA.
[60] Id, 255.
[61] See generally M K Addo, ‘Are
Judges Beyond Criticism under Article 10 of the European Convention on Human
Rights?’ (1998) 47 I & CLQ 425.
[62] 20 July 2004, Case No
49418/99.
[63] For other examples of restraints
on freedom of speech that were held not to be proportionate to the aim pursued
see The Sunday Times v United Kingdom (1979) 2 EHRR 245; De Haes
and Gijsels v Belgium (1998) 25 EHRR 1. For a decision upholding a restraint
in respect of articles accusing Viennese judges of pre-judgment, incompetence,
rudeness, arrogance and maladministration, see Prager and Oberschlick v
Austria (1996) 21 EHRR 1.
[64] Constitution of the
Republic of South Africa Act 1996, s 16(1).
[65] Id, s 36(1).
[66] 2001 (3) SA 409.
[67] Id, [29], [30].
[68] Id, [16], [17].
[69] Id, [45].
[70] Ibid.
[71] The conviction and sentence
of the appellant for contempt were set aside.
[72] Id, [75].
[73] Id, 71.
[74] Lange v Australian Broadcasting
Corporation (1997) 189 CLR 520; Coleman v Power (2004) 209 ALR
182. E Campbell and HP Lee, ‘Criticism of Judges and Freedom of Expression’
(2003) 8 Media & Arts L Rev 77.
[75] Coleman v Power
(2004) 209 ALR 182, [28], per Gleeson CJ.
[76] M Chesterman Freedom
of Speech in Australian Law: A Delicate Plant (Ashgate, 2000), 20-21.
[77] These sections require the members
of the House of Representatives and of the Senate to be ‘directly chosen by
the people’ of the Commonwealth and the States, respectively.
[78] Lange v Australian
Broadcasting Authority (1997) 189 CLR 520, 560.
[79] Id, 561.
[80] Id, 567-568;
Coleman v Power (2004) 209 ALR 182, [93], per McHugh J.
[81] Id, 568.
[82] Id, 574.
[83] (2004) 209 ALR 182, [234].
[84] Id, [292].
[85] Id, [324]. See
also id, [297], per Callinan J.
[86] Id, [238]. See
also id, [81], per McHugh J.
[87] Compare id, [101]–[106],
per McHugh J; [296]-[297], per Callinan J.
[88] McHugh and Kirby JJ thought
the concession was correct: [80], per McHugh J [229], per Kirby J; Gummow and
Hayne JJ thought it was probably correct: [197]; and Callinan J apparently thought
otherwise: [293].
[89] (2003) 9 VR 1.
[90] Id, [6].
[91] Id, [9].
[92] Id, [500].
[93] Nationwide News Pty Ltd
v Wills (1992) 177 CLR 1, 74, per Deane and Toohey JJ; Theophanous
v Herald & Weekly Times Ltd (1994) 182 CLR 104, 179-182, per Deane
J; Cunliffe v Commonwealth (1994) 182 CLR 272, 298, per Mason CJ.
[94] Id, [507].
[95] [2005] NSWCA 164.
[96] With whom Ipp JA agreed.
[97] John Fairfax Publications
Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694, [83], per Spigelman
CJ (with whom Priestly JA agreed).
[98] [2005] NSWCA 164, [95].
[99] Id, [282].
[100] Id, [291],
[298].
[101] Id, [302].
[102] OW Holmes J, The
Common Law (Little Brown, 1881), 1.
[103] D’Orta-Ekenaike
v Victoria Legal Aid (2005) 214 ALR 92, [32]-[33].
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