Lambaste the Critic

Balance of power

Morry Bailes’ In Daily article entitled “Anti Judge rhetoric a danger to democracy” (https://indaily.com.au/opinion/2018/01/18/anti-judge-rhetoric-danger-democracy/) made the following fairly remarkable claim:

“The recent criticism of Victorian judges is not helpful and serves only to undermine the public’s confidence in the judiciary. It’s up to all of us to protect the separation of powers and to denounce anyone’s criticism, especially politicians seeking bumps in the polls.”

Unfortunately, this admonition to back off from judicial decisions shows the profession to be several passes behind.  If criticism of a judicial decision must be confined to someone with standing and wealth to appeal, a right limited to the parties themselves; if public comment on a public decision must be ‘denounced’; if the critic poses a threat to democracy, then we’re in deep manure.

Judges aren’t elected in Australia, but they are still part of the political process.  The Judicial arm of the State simply can’t hide behind bromides such as ‘independence’ and ‘public confidence’ anymore.  Judges who already tweet criticisms of the Executive or the Legislature have merely got with the programme.

Much as we might regret it, the niceties that served in the past are dead, buried and possibly cremated on the altar of social media and the New Outrage. There’s almost no point in engaging in traditional modes of communication anymore.

[Update – 16 March 2018: former High Court Justice Dyson Heydon has weighed-in on this issue, suggesting the Judges should not be immune from just criticism.  Hear, hear!]