AUTHOR: Catherine Holmes SECTION: SUPPLEMENTS ARTICLE TYPE: NEWS ITEM AUDIENCE : 94,448 PAGE: 1 PRINTED SIZE: 3731.00cm² REGION: National MARKET: Australia ASR: AUD 82,683 WORDS: 4595 ITEM ID: 1132559487 14 JUN, 2019 The fight for independence The Australian, Australia Page 1 of 7 Winning strategies The Big Four make their move Law schools of tomorrow Funders go corporate LegalReviewJUNE 14, 2019 The fight for independence Catherine Holmes, Chief Justice of the Supreme Court of Queensland, goes to bat for the judiciary V1 - AUSE01Z50FE Licensed by Copyright Agency. You may only copy or communicate this work with a licence. AUTHOR: Catherine Holmes SECTION: SUPPLEMENTS ARTICLE TYPE: NEWS ITEM AUDIENCE : 94,448 PAGE: 1 PRINTED SIZE: 3731.00cm² REGION: National MARKET: Australia ASR: AUD 82,683 WORDS: 4595 ITEM ID: 1132559487 14 JUN, 2019 The fight for independence The Australian, Australia Page 2 of 7 Catherine Holmes, Chief Justice of Queensland: 'Judicial independence is not some kind of unassailable citadel.' Story / CATHERINE HOLMES Photography / RUSSELL SHAKESPEARE Uninformed criticism from media and politicians risks damaging public confidence in the judiciary Declaration of independence Licensed by Copyright Agency. You may only copy or communicate this work with a licence. AUTHOR: Catherine Holmes SECTION: SUPPLEMENTS ARTICLE TYPE: NEWS ITEM AUDIENCE : 94,448 PAGE: 1 PRINTED SIZE: 3731.00cm² REGION: National MARKET: Australia ASR: AUD 82,683 WORDS: 4595 ITEM ID: 1132559487 14 JUN, 2019 The fight for independence The Australian, Australia Page 3 of 7 t was suggested for this essay that I write about the way forward for the courts. I will do that, in a sense, but my focus is on my anxiety about the maintenance of the independence of the judiciary as an arm of government. In particular, I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence. This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a Ihealthy democracy. My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions. So what does judicial independence mean, and why does it matter? Essentially, judges need to be able to decide the cases on the evidence before them in accordance with the common law and statute, without influence or pressure from any external source. Judicial independence is not some sort of privilege for judges; it is a safeguard of impartiality and independence in judgments. I don’t think there would be much dispute that equal treatment before the law is a crucial democratic right. Australia performs well in that regard. Someone with a claim against the government can be sure that the judge will not be taking directions from the executive on how to decide the case. A defendant in a sensational criminal case in this country can be confident that notoriety is not going to make any difference to his or her rights at trial. A litigant against a large corporation does not have to worry about bribes flowing into judicial chambers. It’s not difficult to point to other countries where that’s not so, but Licensed by Copyright Agency. You may only copy or communicate this work with a licence. AUTHOR: Catherine Holmes SECTION: SUPPLEMENTS ARTICLE TYPE: NEWS ITEM AUDIENCE : 94,448 PAGE: 1 PRINTED SIZE: 3731.00cm² REGION: National MARKET: Australia ASR: AUD 82,683 WORDS: 4595 ITEM ID: 1132559487 14 JUN, 2019 The fight for independence The Australian, Australia Page 4 of 7 INNOVATION COVER Chief Justice Holmes in her Brisbane chambers it is true of Australia. (If the reader does not accept that maintenance of judicial independence is really a matter of good faith premise, no point in reading on.) and mutual respect between the arms of government: the legislature, But I am not sure that most people give much the executive, and the judiciary. thought to how this fortunate state of affairs is achieved It can be imperilled at the institutional level by legislative change and what is necessary to maintain it, because judicial or by moves by the executive to interfere with the conditions necessary independence is not some unassailable citadel. to independence; and at the level of the individual decision-maker, by In Australia, section 72 of the Constitution provides attacks from media or politicians. And one form of imperilment can that federal judges cannot be removed except for proven provide fuel for the other. misbehaviour or incapacity and that the executive It seems to me that the pressures on judges and magistrates in their cannot reduce judicial salaries. decision-making from media attention are greater now than at any You can see why security of tenure and remuneration time in the two decades I have been a judge. (When I speak about matters: the public might well question the media, I am talking about traditional media, print and television news. independence of a judge who could be dismissed or Social media is too diverse and diffuse to lend itself to coherent have his or her pay cut because of decisions which The maintenance discussion, and there is little point in appealing to notions of offended the government. Most, but not all, states have of judicial responsible reporting when it comes to Twitter and Facebook.) legislation to the same effect. But in no state, apart from independence is At the same time, some politicians appear prepared to use court NSW, are those conditions entrenched; that is to say, really a matter of decisions as a form of political ammunition to attack opposing parties, their removal requires merely a vote of parliament, good faith and without regard for the possible impact on judicial independence, both not a referendum. mutual respect actual and as perceived by the public. And while security of tenure and salary is critical to between the What chiefly attracts public commentary is the criminal law, judicial independence, it is not by any means a complete arms of although, of course, it represents only one area in which courts make assurance of it. Government still appoints judges and government: the decisions. Decisions to grant bail and sentencing decisions are the provides the staff and infrastructure necessary to the legislature, the areas of most intense focus. operation of the courts (or the funding by which executive, and Reporting and discussion of bail decisions leave a lot to be desired. they are secured). the judiciary There is a strong tendency in the media, shared by some of our At least in the state context, parliament is able to politicians, to speak about bail as if it were some form of preliminary legislate to restrict judicial power and discretion. The sentencing; so that if, for example, someone gets bail on a charge of Licensed by Copyright Agency. You may only copy or communicate this work with a licence. AUTHOR: Catherine Holmes SECTION: SUPPLEMENTS ARTICLE TYPE: NEWS ITEM AUDIENCE : 94,448 PAGE: 1 PRINTED SIZE: 3731.00cm² REGION: National MARKET: Australia ASR: AUD 82,683 WORDS: 4595 ITEM ID: 1132559487 14 JUN, 2019 The fight for independence The Australian, Australia Page 5 of 7 dangerous driving causing death, it is portrayed as their “walking free” fairness, is sudden change in reaction to public despite having killed someone. sentiment. How, in any event, does one gauge that It makes for a very powerful headline, without any regard paid to sentiment? It is often said judges have failed to meet the presumption of innocence or the relevant considerations in bail community expectations. That raises the question of decisions, which are essentially about an assessment of risk: risk of quite what that term means: community expectations flight or reoffending. as represented by (and perhaps formed by) media Someone can be charged with a very serious offence, but be most reporting of particular cases, or community unlikely to abscond or reoffend before trial. Conversely, someone expectations as informed by the actual detail of cases? charged with a minor offence may be a risk of breaching his bail, but There is a marked difference between the two, as the offence charged would not warrant holding him in custody for demonstrated by two jury sentencing studies, one what may prove to be a longer period than any eventual sentence, conducted in Tasmania between 2007 and 2009 and assuming he is convicted. Those factors tend not to receive any the other in Victoria between 2013 and 2014. consideration or discussion. The methodology in the two studies was largely the Similarly when it comes to media coverage of sentencing decisions, same: jurors who had sat on a trial were initially there is little consideration of the factors that the sentencing judge has surveyed after they had returned a guilty verdict, but actually had to take into account, such as mitigating circumstances before any sentence was imposed. The jurors in each — those things which can be said in favour of the offender. study were given a list of sentencing options and asked Reporting usually takes place from the viewpoint of the victim or to indicate the sentence the offender should receive, the victim’s relatives. That is not at all surprising; but while that and to give their opinions as to general sentencing perspective is important, it is not all that must be considered.