The Public’s Right to Question the Judiciary

The Federal Court of Australia judge, Justice Ronald Sackville in his lecture [PDF] on 29 August 2005 to the 13th Lucinda Lecture Monash University entitled: “How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary

Justice Sackville: “Yet the High Court has acknowledged the importance of protecting even some forms of erroneous speech. Thus in Gallagher v Durack, the majority judgment identified as a principle of ‘cardinal importance’ that:

‘ speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed ’

And

“Reasoning by analogy with the position of courts, Mason CJ regarded the protection afforded to the Commission as ‘so disproportionate’ as to be outside the scope of the relevant head of Commonwealth power His Honour emphasised that, as with courts:

‘ the interest of the public [lies] in ensuring that the Commission and its activities should be open to public scrutiny and criticism’.

“Mason CJ quoted approvingly the celebrated observation of Black J in Bridges v California that:

‘ the assumption that respect for the judiciary can be won by shielding judges from public criticism wrongly appraises the character of American public opinion … [A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt, much more than it would enhance respect’.

“Nor is it a matter simply of providing an outlet for critics whose frustrations might otherwise take over. The judiciary itself benefits from vigorous criticism. Judges no less than other fallible human beings may overlook or underestimate the need to change apparently settled principles or practices.