It's not fair to attack Judges over compensation for personal injuries

At times the judiciary and governments endure a relationship of some uneasiness. This situation is typically a result of one of more of the following factors. First, a particular decision may impinge unfavourably upon a subject matter in which a government has a vested interest. Second, a body of law or a certain legal principle may be inconsistent with a government's perception of what is in the public interest. Third, governments may find it politically expedient to criticise judges, to seek to curtail judicial discretion, or to impose measures designed to make judges more accountable.

In the area of personal injury law, the operation of these factors in increasing the tension between the judiciary and governments is particularly evident. Most politicians would have us believe that judges are at fault, at least in part, for the rises which we have witnessed in recent years in the cost of securing a contract for certain types of liability insurance, especially in relation to medical negligence and public liability. Consequently, political attacks on judges in this connection have become increasingly common. For instance, politicians have, in response to some compensation awards, belittled judges with assertions that they are "Santa Clauses", "irresponsible", "and out of touch with reality". The truth, however, is that judges have had nothing to do with the rise in the cost of insurance. Rather, the rise is the outcome of a combination of several factors including the collapse of HIH, the terrorist attack on 11 September 2001, increased reinsurance costs, a renewed focus on profitability by insurers, poor regulation of the Australian insurance market, and a decline in the returns on investments made by insurers in equity markets.

The attacks on judges for contributing to the rise in the cost of insurance are objectionable not only because they are unjustified. Rather, a more important problem with the attacks is that they have the potential to undermine public confidence in the ability of the judiciary to administer justice.

It is axiomatic that the effective operation of our system of justice is contingent upon the existence of sufficient public confidence in its ability to perform its functions. In the absence of such confidence, the enforcement of judicial decisions is likely to become problematic. If this occurred, individuals would be less inclined to turn to the courts to resolve their disputes and would seek alternative and potentially harmful and disruptive means of doing so.

Of course, some criticism of the judiciary is beneficial. As the current Chief Justice of Australia has noted: "[c]onfidence is not maintained by stifling legitimate criticism of courts or of their decisions. Judges have never sought, or received, immunity from criticism." Constructive criticism is beneficial and is a sign of a healthy democracy. The important question is what can be done to counter political attacks which are inimical to the effective operation of the judicial system?

It is obvious that it is generally impractical for judges, as a result of their position, to personally counter political attacks. Judges who attempt to rebut attacks risk being drawn into political disputes, thereby jeopardizing both the reality and appearance of being impartial and independent. Judges cannot have recourse to defamation actions or the law of contempt to suppress these attacks as the attacks are protected by the freedom of political discussion which is implied in the Australia Constitution. The traditional defenders of judges, Attorneys-General, have, on the whole, exhibited a reluctance to provide substantial assistance in relation to staving off attacks. This is largely because Attorneys-General have too little independence from politics to effectively support judges in all circumstances. This is particularly true where the attackers are political allies. Members of the legal profession may be able to offer some protection to the judiciary. However, the political attackers may be unreceptive to the views of the legal profession, as it is likely to be perceived that any rejoinders are made in self-interest or with an ulterior motive.

Ultimately, the only individuals who can prevent harmful criticism from being levied against the judiciary are the politicians themselves. Politicians must find the moral strength to forego any political advantages that they may see in directing harmful criticism at the judiciary, as their personal interests in this regard are clearly insignificant in comparison to the retention of public confidence in our system of justice.

The public has a low opinion of politicians. To a large extent, this is a result of their willingness to court popular opinion in preference to demonstrating moral leadership. But political populism is not a low-risk option. If politicians are unwilling to support the judiciary and the rule of law, the fabric of our society will slowly unravel.