Judicial Independence is More Important Than Ever

Print Friendly, PDF & Email

By Paul Gregoire and Ugur Nedim

“Most Australians assume that an Australian judge would not hesitate to find against the government or a government agency if the law requires that result,” said High Court Justice Jacqueline Gleeson, in a recent speech on judicial independence in liberal democracies.

Appointed to the highest court in March last year, Gleeson, introduced her 22 August address to the Australian Academy of Law, outlining that a judiciary of “unquestioned independence” upholds free, democratic values, which shape common law and further influence the statutory kind.

The High Court justice adds that this independence allows the judiciary to often protect the governed, not those governing, and this autonomy is guaranteed by aspects of their employment, which include “security of tenure”, financial security, adequate resourcing and judicial immunity.

This independence and the freedom from fear of threat that Australian judges experience for the most part, stands in stark contrast to other judiciaries in nations like Poland, Turkey and Afghanistan, where judges’ personal independence is not guaranteed, and their safety may be threatened.

Gleeson pointed to this contrasting experience as her speech followed another on that very subject, given by International Association of Judges president José Matos, who, also being the president of the Portuguese Court of Appeal of Porto, has just toured Australia giving a series of legal speeches.

Promoting independence

According to Gleeson, despite the Australian judiciary having numerous safeguards to ensure judicial impartiality that other nations may lack, “this does not mean that there is no need for discussion of judicial independence” in this country.

Indeed, the justice is raising this, at a time when judicial independence has been publicly criticised in nations with similar systems to ours, such as England and South Africa, where there have been cases involving judicial officers being pressured by colleagues when coming to their decisions.

“There is probably no good reason to think that Australian judges would not be as vulnerable as English or South African judges to pressure from public criticism or to pressure from their own judicial colleagues, were such pressure ever to come to bear here,” her Honour added.

And Gleeson’s speech has echoes of that made by former NSW Chief Justice Tom Bathurst, as he addressed the Law Society of NSW in February 2021, in which he suggested that over recent years public trust in the judiciary has been in decline.

Both Gleeson and Bathurst recommend that the judiciary should be actively promoting an understanding of the independence of the courts, via resources made available to the public to convey the understanding that judges are independent and hence rebuild that public trust.

Consolidating the powers

The High Court justice goes on to explain that the issue of judicial independence has rarely been deliberated upon in Australian courts. She points to five cases where it was raised, with each being related to security of tenure.

These cases, her Honour continues, took place during the decades that bookended the twentieth century at a time when “liberal democracy had triumphed in successive wars”, including the Cold War.

“The growth of liberal democracy had at that stage occurred in a series of waves, the latest of which was known to political scientists as the “third wave”, bringing into the growing camp of liberal democracies a large number of Eastern European and South American countries,” she said.

Gleeson added that around the time of the third wave, academic literature was focusing on the concept of a “consolidated democracy”, which posits that once a democracy has developed economically and held a number of free elections, it can be expected “to last forever”.

However, this theory has proven wrong, the justice continues, as after the third wave, the globe has fallen into a “democratic recession”, which has been marked by governments attempting to collapse the separation of powers.

Decay in the UK

The justice further suggested that the decline of judicial independence in Britain should be of concern to our nation, as our system is founded on its model. And she cites a 2020 survey of all UK judges, which found that the overwhelming majority were concerned with declining independence.

Issues raised as major concerns for judicial independence, and hence the rule of law, were staff reductions, financial constraints, the loss of experienced judges, court closures, and the inability to attract “the best people”. “Personal safety” was also an issue raised by a majority.

This decline commenced in November 2016, when the Daily Mail printed the headline, Enemies of the People, which was accompanied by photos of the three High Court justices, who’d ruled the government must obtain the consent of the parliament to move on Brexit.

Gleeson then raised a June 2022 report from a UK parliamentary working group, which found that since 2016, ministers have reacted to losing cases “by accusing judges of bias and incompetence”, as well as instances where ministers were found to be misrepresenting the outcomes of cases.

This has resulted in judges being subjected to “soft pressure” with the threat of “political reform” if they decide against the executive. And the inquiry found seven instances when the Supreme Court “departed from its previous authority and assumed a position more palatable to the executive”.

Reflected down under

“An obvious lesson for Australian lawyers concerns vigilance for the maintenance of appropriate standards of judicial independence,” Gleeson said in conclusion. She underscored that it protects the legitimacy of the court, democratic processes and liberal freedoms.

Her Honour maintained that recent history reveals that “liberal political cultures” are under threat from “illiberal populist movements”, as well as economic inequality, social discontent and states of emergency.

Of course, government criticism of the judiciary is not confined to the UK. In 2018, then home affairs minister Peter Dutton criticised Victorian magistrate appointments , due to unfavourable decisions. He added that “joke sentences” had been handed down and political correctness was taking hold.

The final point raised by Gleeson is that the judiciary today is expected to uphold “a wider range of contemporary values” than in the past, “including “diversity, efficiency and accountability”, as well as the more “traditional values of impartiality and reasoned judgements”.

“Public education and informed debate will be important contributors to respect for judicial independence and community confidence in judicial impartiality,” the High Court justice ended.

Author Image

About Sydney Criminal Lawyers

Sydney Criminal Lawyers® is Australia's Leading Criminal Defence Law Firm, Delivering Outstanding Results in All Australian Courts. Going to Court? Call (02) 9261 8881 for a Free Consultation.

Leave a Comment