How is the judicial branch of government affected by the implied

By Eugene Stewart,2014-06-13 16:03
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How is the judicial branch of government affected by the implied




    Judicial Conference of Australia Colloquium 2007 Sydney

    Sunday 7 October 2007

    Steven Rares*

    It is just over 10 years since former New Zealand Prime Minister David Lange made his most significant contribution to Australian law allowing the High

    Court of Australia to expound that the Constitution contained an implication of freedom of communication on government and political matters. This enables the people to exercise free and informed choice as electors (Lange v Australian 1Broadcasting Corporation). But, does it affect the principles, or operation, of open justice? What can the public, and in particular, the media now see of any documentary material used in court? With more and more written and electronic material being used in court proceedings, what rights do persons who are not parties to the case being heard have to access this material?

    1. Today I want to discuss two concepts which are fundamental to the way we are governed. The first is the principle of open justice. That principle requires that justice should be administered in public, transparently and openly, and that every member of society has the right not only to see what takes place in open court but to make fair and accurate reports of it, to discuss it and to comment on it.

    2. The second principle has been the subject of more recent exposition but is rooted in similarly fundamental values. It is the freedom from legislative or executive control of citizens‟ rights to discuss matters concerning government and politics. In 1997 the High Court of Australia identified this as an implication in the Constitution of the Commonwealth which constrained the making of laws or the use of executive power to inhibit citizens from being able to participate in the parliamentary democracy and mechanism for changing the Constitution by

    referendum for which the Constitution itself provided. If there are to be elections

    * A judge of the Federal Court of Australia. The author gratefully acknowledges the assistance of his associate, Aaron Timms, in the preparation of this paper. The errors are the author‟s alone. 1 (1997) 189 CLR 520


    or referenda, the electors must be able to discuss freely matters of government and

    politics which fall within the spectrum of issues about which they may wish to

    cast their vote.

    3. Courts, too, are institutions of government in a democratic society. Each of the

    three arms of government, the Parliament, the executive and the judiciary, has a

    role in making and changing the laws under which citizens live. The Constitution

    defuses the power of each arm of government by distributing various

    responsibilities and functions among them.

    4. The Parliament is given the power to enact legislation which, subject to its

    constitutional competence, determines public and private legal rights, obligations,

    duties and discretions.

    5. The executive has the traditional function of enforcing the law although it can

    exercise powers delegated to it by the legislature to make regulations within limits.

    Moreover, the executive carries out tasks confided to it by laws made by the

    Parliament. These include the exercise of powers that affect citizens and non-

    citizens in their ordinary lives and activities such as the granting of licenses,

    permissions, concessions, pensions, the collection of revenues and the prosecution

    and confinement of offenders.

    6. The judicial branch has the function of declaring the law and applying it to the

    facts of particular cases. In a constitutional democracy such as ours, it is the role

    of the courts to determine whether, ultimately, the Parliament or the executive

    have acted within the constitutional bounds of their powers. But judicial

    decisions can have political consequences. One only has to remember the

    controversy that emerged from the decision of the High Court in Mabo v State of

    2Queensland (No 2) to appreciate that by declaring the law judicial decisions can

    have profound political impacts. Political and governmental reactions follow

    from decisions of the courts. Talk back radio and the tabloid press comment daily

    on the adequacy, or more usually the perceived inadequacy, of sentences imposed

     2 (1992) 175 CLR 1


    by magistrates and judges. Frequently, they assert the need for „… the

    government to do something about it‟.

    7. Members of the community are entitled to agitate to change the law declared by

    the courts through the legal means afforded them by the Constitution. They may

    do this not only by discussing matters of government and politics and seeking to

    influence elections or politicians, but also by promoting a referendum to vest in or

    remove from the Parliament of the Commonwealth some legislative power under

    the mechanism in s 128 of the Constitution. Part of the debate on such a question

    may involve discussion about the judicial reasoning process which led to various

    judges determining the law which is sought to be changed, modified or addressed

    by a referendum. There is an open question whether discussion about the judicial

    reasoning process itself is protected by the implied constitutional freedom, as the

    diversity of views expressed by McHugh and Kirby JJ in APLA Ltd v Legal

    34Services Commissioner (NSW) shows.

    8. This suggests a capacity for interaction to occur between the rights of the public

    afforded under the principle of open justice and the implied constitutional

    freedom of communication on government and political matter. And it raises an

    important question as to whether each of those legal concepts affects the ability of

    third parties, including the media, to have access at any particular time to the

    material before the Court on which it is acting or asked to act. It is to those

    matters that I wish now to turn.

    The principle of open justice

    9. A classic statement which goes to the heart of one aspect of the principle of open

    5justice, is the aphorism of Lord Hewart CJ in R v Sussex Justices; Ex parte


     3 (2005) 224 CLR 322 4 (2005) 224 CLR 322 at 360 [63], 440 [347] 5 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 per Barwick CJ,

    Gibbs, Stephen and Mason JJ 6 [1924] 1 KB 256 at 259


    „It is not merely of some importance but is of fundamental importance,

    that justice should not only be done, but should manifestly and

    undoubtedly be seen to be done.‟

    10. A second fundamental aspect of the principle lies in its recognition that everyone is entitled to access to the Courts. This is achieved in two ways. First, members of the public are entitled to be present in court, not by leave or licence, but as of

    7right. As long ago as 1829, in Daubney v Cooper the Court of King‟s Bench

    held that:

    „… it is one of the essential qualities of a court of justice that its

    proceedings should be public, and that all parties who may be desirous of

    hearing what is going on … have a right to be present for the purpose of

    hearing what is going on.‟

    11. Secondly, there is a right to publish a fair and accurate report of court proceedings

    8which is of fundamental importance. McHugh JA described the importance

    which the common law has attached to a fair and accurate report of court proceedings as being illustrated by the rule that its publication is not a contempt

    9of court even though it is likely to prejudice the fair trial of pending proceedings.

    McHugh JA said:

    „It is also illustrated by the rule that a fair and accurate report of court

    proceedings made in good faith is not an actionable defamation. Without

    the publication of the reports of court proceedings, the public would be

    ignorant of the workings of the courts whose proceedings would inevitably

    become the subject of the rumours, misunderstandings, exaggerations and

    falsehoods which are so often associated with secret decision making. The

    publication of fair and accurate reports of court proceedings is therefore

    vital to the proper working of an open and democratic society and to the

    maintenance of public confidence in the administration of justice. It is a 10right which can only be taken away by words of plain intendment.‟

     7 (1829) 10 B & C 237 at 240 8 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at

    481C-E per McHugh JA, with whom Glass JA agreed; see too: Esso Resources Australia Ltd v

    Plowman (1995) 183 CLR 10 at 43 per Toohey J 9 Police Tribunal 5 NSWLR at 481D-E; R v Evening News; Ex parte Hobbs [1925] 2 KB 158; Re

    Consolidated Press Ltd; Ex parte Terrill (1937) 37 SR (NSW) 255; 54 WN 106 10 Police Tribunal 5 NSWLR at 481E-F


    12. These values are by no means unique to Australian or English common law. A striking early formulation came when Mirabeau rose before the French National Constituent Assembly in the early 1790s and declared:

    „Donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi

    même, si vous voulez: peu m‟importe pourvu qu‟il ne puisse rien faire 11qu‟à la face du public.‟

    1213. As Lord Shaw of Dumfermline remarked in Scott v Scott the principle had

    moved Jeremy Bentham to say:

    „Publicity is the very soul of justice. It is the keenest spur to exertion, and

    the surest of all guards against improbity. It keeps the judge himself, while 13trying, under trial.‟

    14. Nonetheless, the principle of open justice is not absolute. It is subject to the fundamental principle that the chief object of every court of justice must be to

    14secure that justice is done. Thus, as Viscount Haldane LC remarked in Scott,

    there are three recognised categories of exceptions to the open administration of justice. The first concerns proceedings involving wards of the Court or children. The second concerns persons who are incapable of conducting their own affairs, quaintly referred to in 1913 as „lunatics‟. In each of those two classes of cases his

    Lordship explained that the Court was really sitting primarily to guard the interests of the ward or mentally incapable person. Thus its jurisdiction in that respect was paternal and administrative, and the disposal of controversial questions was an incident only in the exercise of the jurisdiction. In order to achieve the proper care of the child or mentally incapable person, it may often be necessary to exclude the public so that the Court can attain its primary object of achieving justice. Viscount Haldane LC explained that the broad principle of

     11 “Give me whatever judge you will partial, corrupt, my enemy even, if you must; these things

    will trouble me little, so long as what he does, he is only able to do it in the face of the public.” As quoted in Robert W Millar, “The Formative Principles of Civil Procedure” (1923-24) 18 Illinois

    Law Review 1 at 156. 12 [1913] AC 417 at 477 13 J Bowring, ed, The Works of Jeremy Bentham, Vol 4 (Edinburgh: William Tait, 1843), pp 316-317;

    as cited by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62

    NSWLR 512 at 525 [61] 14 [1913] AC at 437-438


    open justice then yields to the paramount duty which is the care of the ward or the

    mentally disabled person. The third class of exception involves commercial

    secrets, secret processes, confidential information and the like where the open

    administration of justice in respect of the secret would destroy its subject matter.

    15. Ultimately, the exceptions may be seen to resolve into the principle that the Court

    will sit in public unless it is necessary, in the interests of justice, not to do so.

    Necessity, not preference, is the metwand by which the Court is guided to move

    15from the rigour of always sitting in public.