Victoria’s outgoing Chief Justice Marilyn Warren has taken a parting shot at politicians who undermine confidence in the courts, as she steps down after 14 years in the state’s leading judicial role.
Chief Justice Warren said the court was increasingly taking things into its own hands in a bid to reach the community directly, cutting through political rhetoric and media fervour.
“From my perspective, having seen it play out repeatedly, there is a temptation for the politician to speak about complex, difficult criminal and legal topics in a very simple and superficial way,” Chief Justice Warren told The Australian Financial Review.
“That does not do justice to the need for the community to understand what happens in the courts.
“It also is risky and at times dangerous, because it undermines confidence in the courts.”
In June, Health Minister Greg Hunt, Human Services Minister Alan Tudge and Assistant Treasurer Michael Sukkar were called to the court to explain why they shouldn’t be subjected to contempt charges after publicly criticising sentencing in a terrorism case that was still live.
A packed courtroom watched as Commonwealth Solicitor-General Stephen Donaghue, QC, representing the ministers, went from resisting retraction to ultimately withdrawing the statements.
No charges were laid.
The Chief Justice would not comment on the matter, but said it was a “powerful demonstration of the internet and social media”.
The matter was the first time the state’s Court of Appeal streamed proceedings in a live broadcast online. The Supreme Court has streamed high-profile civil cases previously, including the five-day trial and appeal over the right of a Dutch Formula One driver to participate in the Melbourne Grand Prix in 2015. It has also streamed opening addresses in class actions, including those relating to Victorian bushfires and the failed Great Southern managed investment scheme.
A ‘voice’ through social media
“Every instance has demonstrated the power and impact that the internet and social media provides,” she said.
“It enables the courts to have some control in getting the message out about what we do. We’re not sitting back being passive, we’re actively trying to help the community be properly informed.
“Courts are open and the public can come and go any time, so in the 21st century it’s just a natural extension to use the mediums that are available.”
The benefits go beyond educating and informing the public – enabling “the community to see what judges actually do” – to giving the court its own voice, she said.
“For a long time the courts have felt frustrated and inadequate in terms of responding to the media’s representation of what we do.
“The internet and social media enables us to have a voice that we have not had before.”
Chief Justice Warren said she has “endeavoured to persuade” colleagues of the benefits of using technology to reach the community for a long time. Since 2013, the court has webcast sentences delivered in high-profile criminal cases; in 2015, it expanded to selected civil judgments including the $4.5 million damages awarded to actor Rebel Wilson this month. In June, it began a pilot of making webcasts available in selected Court of Appeal judgments and sentences.
Judges engage with the community in other ways, including by giving speeches, visiting regional areas on circuit sittings, and inviting local community groups, schools and tertiary institutions to visit the courts; a process she says can “quite dramatically” change opinions. About 5000 secondary students tour the court each year, engaging in informal chats with judges.
“We’re not a national or a top-selling newspaper, but we do the best we can.”
Courts were also challenged by political backlash against decisions striking down or qualifying legislation “in a way that politicians do not like”, Chief Justice Warren said.
In Victoria, baseline sentencing was struck down at trial and on appeal; federally, former Prime Minister Julia Gillard openly criticised the High Court after striking down its Malaysian Solution.
Sentencing and criminal law in particular were areas in which the courts were “constantly challenged and undermined”, she said; and signs were emerging of the federal government taking the same approach in terrorism cases.
“We have seen frequent attempts by governments over the last 20 years to try to control and limit judicial power and discretion,” she said.
“The media, with state governments, usually will lead the charge to attack the courts, or imply that what has occurred is the court’s fault.
“There’s a simplicity about that approach which is inappropriate, and I would say quite wrong.
“Judges do things for very carefully reasoned outcomes and that is often not understood because the media does not provide the full information to the community.”
Despite the concerning trend, Chief Justice Warren said she was “very confident about the ultimate acceptance of governments of the role of the courts”; particularly when party to a dispute.
“At both state and federal levels, there is a very strong and sound acknowledgement that when the citizen wishes to litigate against the state, then the courts are there to provide that service, which we do. The outcomes of the cases are accepted.
“I feel very confident about the ultimate acceptance of governments of the role of courts. There might be noises about what we do.
“The judges don’t engage with that, we go about our business.”
Under Chief Justice Warren’s reign, the Supreme Court has boosted efficiency by introducing specialist commercial judges, gained financial independence, removed wigs and embraced paper-free trials.
On Thursday, delivering her farewell speech in Banco Court, the Chief Justice made a final pitch in favour of a new Supreme Court building, to replace the much loved – but aged – one.
On retiring from the bench, she will take up a vice-chancellor’s professorial fellowship at Monash University.
Replacing her in the state’s peak judicial seat is former Allens partner and Supreme Court judge Anne Ferguson, among the few solicitors appointed directly to a senior judicial role.