Public comments by judges of their colleagues: an unhappy Australian episode

ABSTRACT

There are few formal or clear rules governing when and why judges may make public statements outside their official duties. The conventions which govern public statements by judges are general in nature and proceed upon the assumption that judges can and should avoid controversial issues when they speak publicly. That assumption does not anticipate instances where the issue in question is about a fellow judge, or the very court on which a judge sits. What can or should judges say when one of their colleagues or their own court is what they wish to speak about? Can judges avoid controversy in such cases? What should they do? This article examines those issues by reference to the public statements made by many judicial officers during the controversy about the appointment and tenure of the former Chief Justice of Queensland, the Hon Timothy Carmody.

KEYWORDS:

• Judges
• public comments
• Kilmuir rules

Notes on contributor

Matthew Groves is a professor in the Faculty of Law, Monash University. He researches in public law, parliamentary privilege and the judiciary.

Notes

1 A phrase Toohey J used to describe when a court might make its views known about an appointment to it: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 64.

2 Lord Kilmuir's letter is reproduced in AWB Bradley, ‘Judges and the Media: The Kilmuir Rules’ [1986] Public Law 384.

3 Ibid, 385.

4 Ibid.

5 Diana Woodhouse, The Office of the Lord Chancellor (Hart Publishing, 2001) 34.

6 The current version of the document, published by the Lord Chancellor and the Senior President of Tribunals in 2012, is available at <www.whatdotheyknow.com/request/125047/response/307849/attach/8/mediaguide2012%201.pdf> (accessed 10 May 2016).

7 A conclusion reached by Justice GL Davies in ‘Judicial Reticence’ (1998) 8 Journal of Judicial Administration 88. The decline of the Kilmuir rules in Australia is traced in Hon Margaret McMurdo, ‘Should Judges Speak Out or Shut Up?’ (Speech delivered to the Queensland Business Institute, 16 October 2001) <http://archive.sclqld.org.au/judgepub/mcmurdo161001.pdf> (accessed 10 May 2016).

8 JB Thomas, Judicial Ethics in Australia (Lexis Nexis, 3rd edn 2009) 129.

9 Hon Jack Beatson, ‘The New Model Judiciary and the Other Two Branches of the State’ [2015] Judicial Review 63, 65.

10 Hon TF Bathurst, ‘Opening Address’ (Speech given to the Community Awareness of the Judiciary Program, Sydney, Australia, 30 October 2014) 3 <www.supremecourt.justice.nsw.gov.au/Documents/bathurst_20141030.pdf> (accessed 10 May 2016).

11 See, eg, MD Kirby, ‘Attacks on Judges: A Universal Phenomenon’ (1998) 72 Australian Law Journal 599, 600–601.

12 See, eg, the attacks on an English judge recounted in AWB Bradley, ‘Judicial Independence Under Attack’ [2003] Public Law 397.

13 Many Australian instances are examined in Pamela Schulz, ‘Rougher Than Usual Media Treatment: A Discourse Analysis of Media Reporting and Justice on Trial’ (2008) 17 Journal of Judicial Administration 223.

14 Lord Dyson, ‘Criticising Judges: Fair Game or Off-Limits?’ (3rd Annual Bailli Lecture, London, 27 November 2014) para 47 <www.judiciary.gov.uk/wp-content/uploads/2014/11/bailli-critising-judges.pdf> (accessed 10 May 2016).

15 Such an attack, by an Australian politician on a High Court Justice, is recounted in Enid Campbell and Matthew Groves, ‘Attacks on Judges Under Parliamentary Privilege: A Sorry Australia Episode’ [2002] Public Law 626.

16 Daryl Williams, ‘The Role of the Attorney-General’ (2002) 13 Public Law Review 252.

17 Ibid, 254–58. Williams’ few examples are not persuasive. A short but effective rebuttal is made in Thomas (n 8) 132–33.

18 Ibid, 254.

19 See, eg, Bradley Selway, ‘The Different Role of an Australian Attorney-General’ (2002) 13 Public Law Review 263.

20 See, eg, Ruth McColl, ‘Reflections on the Role of the Attorney-General’ (2002) 14 Public Law Review 20.

21 It has been argued that Williams’ claims align with political practice: Paul Donegan, ‘The Role of the Commonwealth Attorney-General in Appointing Judges to the High Court of Australia’ (2003) 29 Melbourne Journal of Politics 40.

22 Farewell ceremonial sitting for the Honourable David Norman Angel, Transcript of Proceedings (18 January, 2010) 14 <www.supremecourt.nt.gov.au/media/documents/Angel_J_Retirement_18012010.pdf> (accessed 10 May 2016).

23 Australian Institute of Judicial Administration (AIJA), Guide to Judicial Conduct (2nd edn 2007). This document has many similarities to the UK Guide to Judicial Conduct (2013).

24 Australian Guide, 5.6.2.

25 That would not be the case if the criticism is directed at the relevant Chief Justice.

26 In the UK, judges would typically seek advice from the Judicial Communications Office about whether to make a public reply and, if so, what should be said. See Graeme Gee, Robert Hazell, Kate Malleson and Patrick O’Brien, The Politics of Judicial Independence in the UK's Changing Constitution (CUP, 2015) 145–46.

27 [2013] NSWSC 1425.

28 The Australian and UK tests on this issue are essentially the same: Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 and Porter v Magill [2002 2 AC 357.

29 [2013] NSWSC 1425, [210].

30 Ibid, [211].

31 Ibid.

32 Sir Anthony Mason, ‘Judicial Independence and the Separation of Powers – Some Problems Old and New’ (1990) 24 University of British Columbia Law Review 345, 352.

33 Ibid.

34 AIJA (n 23), 5.6.1. A very similar statement is contained in the UK, Guide to Judicial Conduct (n 23) 8.2.1.

35 Ibid, 1.2. This is not unlike the approach taken in the equivalent UK document, which states that it is ‘intended to offer assistance to judges on issues rather than to prescribe a detailed code and to set up principles from which judges can make their own decisions and so maintain their judicial independence’: UK, Guide to Judicial Conduct (n 23) 3.

36 A current member of the High Court of Australia commented that the Australian Guidelines and judicial standards more generally are largely ‘self-administered by judges’: Hon Susan Kiefel, ‘Judicial Independence’ (speech to the North Queensland Bar Association, Cairns, Queensland, Australia, 30 May 2008) <www.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/kiefelj-2008-05-30.pdf> (accessed 10 May 2016).

37 Hon Murray Gleeson, The Rule of Law and the Constitution (2000) 121. The Australian Guide advocates a similar view: AIJA (n 23) 5.6.2. See also UK, Guide to Judicial Conduct (n 23) 8.1.1.

38 The bias rule does not prevent extra-judicial comments. It restricts the ability of judges to preside in cases where their public statements create an apprehension of bias about issues that then come before them in an official capacity: Matthew Groves, ‘Public Statements by Judges and the Bias Rule’ (2014) 40 Monash University Law Review 115, 146.

39 Judicial silence is advocated in Susan Bartie and John Gava, ‘Some Problems With Extra-Judicial Writing’ (2012) 32 Sydney Law Review 637.

40 Enid Campbell, ‘Judges’ Freedom of Speech’ (2002) 76 Australian Law Journal 499. A similar such caution is contained in the UK, Guide to Judicial Conduct (n 23) 8.2.2.

41 Campbell (n 40) 510.

42 Ibid, 505. This approach is broadly similar to that in the UK, Guide to Judicial Conduct (n 23) 8.2.1.

43 Sir Grant Hammond has suggested that Chief Justices occupy a singular position and therefore can make public comment on issues of ‘high policy’, so long as they accept these issues ultimately rest with the executive: ‘The Court and the Executive’ (conference paper, ‘The New Zealand Supreme Court – the First Ten Years’, Auckland, 14 November 2014) 14 <https://cdn.auckland.ac.nz/assets/facultyconferences/faculty-of-law/Supreme%20Court%20Conference/G%20Hammond%20DRAFT.pdf> (accessed 10 May 2016).

44 Campbell (n 40) 505. See also Thomas (n 8) 40, who states that ‘Squabbling between judges is undesirable in court or out of it’. He argues this rule helps to maintain solidarity within the judiciary.

45 Robert Hazell and Patrick O’Brien, ‘Meaningful Dialogue: Judicial Engagement with Parliamentary Committees’ [2016] Public Law 54, 55.

46 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

47 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

48 This jurisdiction is directly entrenched in the original jurisdiction of the High Court: Australian Constitution s75(v).

49 A position the High Court only reached in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1. Some UK judges appear hesitant about the practice for pragmatic rather than constitutional reasons: see, eg, Lord Lisvane, ‘The Courts and Parliament’ [2016] Public Law 272, 280.

50 Hazell and O’Brien (n 45) 59 could locate only two minor instances in Australia in modern times.

51 See, eg, Lord Justice Beatson, ‘Closer Engagement with Parliament: The Importance of Developing New Conventions’ (speech given 2 July 2015) <www.judiciary.gov.uk/wp-content/uploads/2015/07/closer-engagement-with-parliament-beatson.pdf> (accessed 10 May 2016). But there are limits. The Lord Chief Justice has argued that the conduct of an inquiry by a judge is part of the judicial function and parliamentary committees should therefore not seek to question the judge about the conduct of the relevant inquiry: Lord Thomas, ‘The Future of Public Inquiries’ [2015] Public Law 225, 234.

52 Adopting a bill or charter of rights is controversial in Australia. When speaking on the issue, the Chief Justice of Australia pointedly noted that this raised ‘policy questions to be resolved in the national parliament’: Hon RS French, ‘Protecting Rights Without a Bill of Rights’ (speech given to the John Marshall Law School, University of Chicago, 26 January 2010) 1 <www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26jan10.pdf> (accessed 10 May 2016).

53 See, eg, the speech of Sir John Laws on the issue of whether the final judicial word on questions of human rights should be given by national or European courts: ‘the Common Law and Europe’ (speech given 28 November 2013) <www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/> (accessed 10 May 2016).

54 A practice described as a ‘flagrant breach of the separation of powers doctrine’: Mark Elliott and Robert Thomas, Public Law (OUP, 2nd edn 2014) 254.

55 This was by reforms largely started by the Constitutional Reform Act 2005 (UK). The judicial culture created by earlier practices clearly still influences the UK judiciary.

56 (1990) 170 CLR 1.

57 Ibid, 18–19 (Mason CJ).

58 Ibid, 33–34 (Brennan J), 58–59 (Dawson J), 64 (Toohey J).

59 Ibid.

60 There are regular calls for reform in Australia. See, eg, John Doyle, ‘Choosing Our Judges’ (2014) Adelaide Law Review 223; George Williams, ‘High Court Appointments: The Need for Reform’ (2008) 30 Sydney Law Review 163.

61 See Gee and others (n 26) 163–92.

62 Justice GL Davies, ‘Judicial Reticence’ (1998) 8 Journal of Judicial Administration 88, 103.

63 Ibid.

64 Ibid.

65 The possible lack of consensus among judges about key issues of judicial conduct is acknowledged in the Australian Guide, 1.2 (quoted at n 35).

66 Lord Justice Beatson, ‘The New Model Judiciary and the Other Two Branches of the State’ [2015] Judicial Review 63, 66.

67 Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld) s 7; Criminal Law Amendment Act 2012 (Qld) ss 3, 7; Criminal Law and Other Legislation Amendment Act 2013 (Qld) ss 47, 83; Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) ss 43, 45–46.

68 Penalties and Sentences and Other Legislation Amendment Act 2012 (Qld) s 37 and Penalties and Sentences Regulation 2005 (Qld) r 8A.

69 Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013 (Qld).

70 G20 (Safety and Security) Act 2013 (Qld) s 63(4) [reversing the presumption of innocence], s 82 [reversing the presumption in favour of bail].

71 Vicious Lawless Association Disestablishment Act 2013 (Qld). Similar laws were also contained within the Tattoo Parlours Act 2013 (Qld) and the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld).

72 Andrew Trotter and Harry Hobbs, ‘The Great Leap Backwards: Criminal Law Reform with The Hon Jarrod Bleijie’ (2014) 36 Sydney Law Review 1.

73 Corrective Services Act 2006 (Qld) ss 17, 66(6)(7), 68(6)(7), 71(4)(6).

74 Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld).

75 By the Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld).

76 Criticisms made by Tony Fitzgerald QC in a submission on the legislation mentioned in the previous note to the Queensland Legal Affairs and Community Safety Committee: <www.parliament.qld.gov.au/documents/committees/LACSC/2014/CMOLAB2014/submissions/004.pdf> (accessed 10 May 2016). Fitzgerald was singularly placed to comment on such issues because he chaired an influential inquiry into Queensland public governance in the 1990s, which led to fundamental reforms to governance in Queensland.

77 Examples of latter include lessening parliamentary sitting days (said to lower the potential scrutiny of government) and conducting hearings of parliamentary committees simultaneously (said to distract public and media attention from individual committee proceedings). These were reversed when a new government took office: Hon Annastacia Palaszczuk, ‘Queensland Parliament Sits From March 24’ (Media Release, 27 February 2015) <http://statements.qld.gov.au/Statement/2015/2/27/queensland-parliament-sits-from-march-24> (accessed 10 May 2016).

78 Much of the speech is reproduced at ‘Judging the Gender Balance’ Courier Mail (Brisbane, Queensland, 26 March 2014) 20.

79 Campbell (n 42).

80 That conclusion is supported by the similar speeches made by other senior female judges. See, eg, Hon Lady Hale, ‘Appointments to the Supreme Court’ (speech made at the Conference to mark the tenth anniversary of the Judicial Appointments Commission, University of Birmingham, 6 November 2015).

81 Sarah Volger, ‘Judicial Battlers Meet in Secret’ Courier Mail (Brisbane, Queensland, 7 August 2014) 23.

82 Sarah Volger, ‘Top Female Judge's Sexism Slapdown’ Courier Mail (25 March 2014) 1.

83 Editorial, ‘Public Spat Undermines Our Faith and Respect’ Courier Mail (25 March 2014) 20. The Attorney was directly quoted in revealing such conversations in Daryl Passmore and Sarah Vogel, ‘Bias Not By Us: Bleijie’ Courier Mail (23 March 2014) 9.

84 Sarah Volger and Steven Wardill, ‘Counsel of War’ Courier Mail (25 March 2014) 4.

85 That characterisation of Judge Carmody's remarks is suggested by the by-line of a report of the remarks: Renee Viellaris, Sarah Vogler and Steven Wardill, ‘Split in Judges Ranks’ Courier Mail (26 March 2014) 4. The by-line of that article was ‘Carmody enters political fray in support of Bleijie.’

86 See n 34 above.

87 Taking Responsibility: A Road Map for Queensland Child Protection (Queensland Government, 2013). <www.childprotectioninquiry.qld.gov.au/__data/assets/pdf_file/0017/202625/QCPCI-FINAL-REPORT-web-version.pdf> (accessed 10 May 2016).

88 Hon Jarrod Bleijie, ‘Tim Carmody Appointed as Chief Justice’ Media Release 23 June 2014. <http://statements.qld.gov.au/Statement/2014/6/12/tim-carmody-appointed-as-queenslands-chief-justice> (accessed 10 May 2016).

89 Ibid, 2.

90 Walter Sofronoff, ‘Carmody's Links to Executive Rule Him Out For Chief Justice’ Courier Mail (10 June 2014) 20.

91 Ibid.

92 Ibid.

93 Peter Davis QC, ‘Letter of Resignation’ (13 June 2014) <www.justinian.com.au/storage/pdf/Davis_BAQ_resignation.pdf> (accessed 10 May 2016).

94 Ibid, 2.

95 Ibid.

96 Australian Bar Association, ‘Independence of judiciary under threat in Queensland’ media release, 14 June 2014, available at: <http://www.austbar.asn.au/archives/1369> (accessed 10 May 2016).

97 Ibid.

98 Law Council of Australia, ‘Queensland Chief Justice’ (Media Statement, 16 June 2014) <www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/mediastatements/1405_-_Queensland_Chief_Justice.pdf> (accessed 10 May 2016).

99 Ibid, 2.

100 See, eg, Bathurst (n 10) 3.

101 Melinda Howells, Stephanie Smail and Maria Hatzakis, ‘Legal Figures Question the Suitability of Tim Carmody as the New Queensland Chief Justice’ (ABC News, 13 June 2014) <www.abc.net.au/news/2014-06-12/qld-government-appoints-tim-carmody-as-chief-justice/5519358 (accessed 10 May 2016).

102 Ibid.

103 Hon Justice JD Muir, ‘Address’ (speech to the North Queensland Bar Association Bi-Annual Court of Appeal Dinner, Townsville, 18 June 2014) 10 <http://archive.sclqld.org.au/judgepub/2014/muir180614.pdf> (accessed 10 May 2016).

104 Ibid.

105 Ibid, 11. On the concept of merit and the appointment of Carmody CJ, see Andrew Lynch, ‘Chief Justice Carmody and the Merit Principle’ (3 September 2014) <www.law.unsw.edu.au/news/2014/09/chief-justice-carmody-and-%E2%80%9Cmerit-principle%E2%80%9D> (accessed 10 May 2016).

106 Ibid.

107 Ibid.

108 Ibid, 7.

109 Ibid, 12.

110 Melinda Howells, ‘Queensland's Outgoing Chief Justice Paul de Jersey Calls for Support for Judge Tim Carmody’ (ABC News, 21 June 2014) <www.abc.net.au/news/2014-06-20/chief-justice-paul-de-jersey-calls-for-support-for-judge-tim-ca/5538858> (accessed 10 May 2016).

111 Ibid.

112 Ibid.

113 Hon Justice Alan Wilson, ‘Notes – Valedictory 2015’ (speech given Brisbane, Queensland, 26 March 2015) 2. <http://archive.sclqld.org.au/judgepub/2015/wilsonj260315.pdf> (accessed 10 May 2016).

114 Ibid.

115 Ibid.

116 Ibid, 3.

117 Ibid, 2.

118 Ibid.

119 Ibid.

120 These arrangements are not expressly required by the Electoral Act 1992 (Qld) s 137, which provides that a single judge of the Supreme Court (including the Chief Justice) may constitute the Court of Disputed Returns. Amendment of this provision to require the Court of Disputed Returns be constituted by the longest serving judge (with the next longest serving judge as an alternative, and the next three longest serving judges as a possible Court of Appeal) would resolve the concerns of Wilson J. That change has not been made by the new government, perhaps because in all Australian jurisdictions the precise arrangements to constitute the Court of Disputed of Returns are typically not clearly specified by statute.

121 Wilson (n 113) 2.

122 The wider facts on this point are explained in Amy Remeikis, ‘Chief Justice Tim Carmody to play role in deciding Ferny Grove’ (Brisbane Times, 10 February 2015) <www.brisbanetimes.com.au/queensland/queensland-election-2015-chief-justice-tim-carmody-to-play-role-in-deciding-ferny-grove-20150209-13a5fw.html> (accessed 10 May 2016). The electoral seat in question (Ferny Grove) was ultimately not the subject of litigation in the Court of Disputed Returns. Queensland.

123 Wilson (n 113) 2.

124 Ibid.

125 That possibility cannot be dismissed because the High Court has held bias may be established ‘if a judge were anxious to sit in a particular case, and took pains to ensure that he or she did so’: Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337, 348 [21] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). It is a small step to reach a similar conclusion where a judge was anxious to affect the composition or thinking of the relevant court.

126 Editorial, ‘Anti-Carmody Crusade an Error of Judgment’ Courier Mail (25 March 2015) 34.

127 Michael Madigan, Sarah Vogler and Brooke Baskin, ‘Carmody Digs His Heels In’ Courier Mail (28 March 2015) 9.

128 ‘Chief Justice Tim Carmody Vows to Stay in Top Job, Despite Calls for his Resignation’, ABC News (27 March 2015) <www.abc.net.au/news/2015-03-27/chief-justice-must-resign-says-council-for-civil-liberties/6352616> (accessed 10 May 2016).

129 Queensland has no independent commission to investigate complaints against judges, such as that established by the Judicial Officers Act 1986 (NSW).

130 Mason (n 32).

131 Hon Timothy Carmody, ‘Letter to the President of the Queensland Bar Association’ (29 March 2015) <http://images.brisbanetimes.com.au/file/2015/03/30/6398787/LetterTIM.pdf?rand=1427675819995> (accessed 10 May 2016).

132 Ibid, 2.

133 Joshua Robertson, ‘Queensland Chief Justice Tim Carmody's Work Rate Far Less Than Predecessor’ Guardian (Guardian, Australian section, 9 January 2015) <www.theguardian.com/australia-news/2015/jan/09/queensland-chief-justice-tim-carmody-work-rate-less-than-predecessor> (accessed 10 May 2016).

134 Carmody (n 131) 2.

135 I say ‘wrongly’ because the only reference to the Chief Justice in s 137 of the Electoral Act 1992 (Qld) is in s 137(3), which notes that the Chief Justice may comprise a judge of the Court of Disputed Returns. The section confers no special role or power upon the Chief Justice.

136 Carmody (n 131) 2.

137 Ibid, 3.

138 Ibid, 1.

139 The President of the Queensland Council for Civil Liberties replied to the Chief Justice, suggesting that such remarks demonstrated ‘a complete breakdown in proper professional relationships’ between the Chief Justice and other Justices of the Supreme Court: Terry O’Gorman QC, ‘Letter to the Chief Justice’ (1 April 2015) 2 <www.justinian.com.au/storage/pdf/QCCL_CJ.pdf> (accessed 10 May 2016).

140 The selective nature of Carmody CJ's response to Wilson J was noted by O’Gorman, Ibid.

141 That case was R v Cowan [2015] QCA 87. As the disagreement between the judges was largely conducted in private (by many unhappy emails) that were leaked to the press rather than made in public, it is not examined in this article.

142 Hon Annastacia Palaszczuk and Hon Yvette D’Ath, ‘New Chief Justice Appointed’ <http://statements.qld.gov.au/Statement/2015/9/7/new-chief-justice-appointed> (accessed 10 May 2016).

143 Hon Yvette D’Ath, ‘Attorney-General's Comments at the Swearing in the New Chief Justice’ <http://statements.qld.gov.au/Statement/2015/9/11/attorneygenerals-comments-at-the-swearing-in-of-chief-justice-catherine-holmes> (accessed 10 May 2016).

144 Hon Katherine Holmes, ‘Remarks’ (Address made at the ceremony to swear in the Hon Chief Justice Holmes, 11 September 2015) 1 <http://archive.sclqld.org.au/judgepub/2015/holmes080915.pdf> (accessed 10 May 2016).

145 Ibid.

146 Ibid, 2

147 Hon Catherine Holmes, ‘Address’ (speech, 11 September 2015) 1 <http://archive.sclqld.org.au/judgepub/2015/holmes110915.pdf> (accessed 10 May 2016).