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
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
"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
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
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
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
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