The Australian's Nicola Berkovic has reported that "journalists could be jailed for articles found to undermine public confidence in the courts or interfere with a person’s right to a fair trial, under new contempt of court laws proposed in Victoria."
Contempt of court laws were formulated at a time when judges understood that they must remain aloof of the people they judge, and their debates. This is no longer the case, and as Tim Blair described not too long ago, even chief justices are not able to restrain themselves (see story below). The problem is endemic.
Given the circumstances journalists can never be sure when something said or written might be considered to have undermined public confidence in some judicial officer and his or her court. Todays judges seem not likely to want to confine themselves to their courts and judgements. Hence in keeping with these progressive times contempt laws are best diluted, not affirmed, and eventually forgotten.
TO BE READ WITH
Judges know best. They are more knowledgeable and caring than politicians. They are also more knowledgeable and caring than the voters who elect those politicians.
We know this because the state’s leading judge, Tom Bathurst, says so.
In a speech to the Opening of Law Term dinner, Chief Justice Bathurst declared it was the judiciary and not the government who can be relied upon to promote fairness and equality. Left to our own devices, and without the soothing touch of all-wise judges, Australians would apparently descend into rampant racism.
“It should give us pause that one of the most serious threats to the rule of law in Australia was grounded in xenophobia,” Chief Justice Bathurst said, much in the manner of his predecessor Jim Spigelman.
The chief justice’s speech will no doubt please that sector of our community which is essentially suspicious of and distrusting towards the majority of Australians. Bathurst reinforced this notion with a line about promoting equality, fairness and the rule of law “in spite of popular sentiment”.
Poor old popular sentiment always cops a bashing from the we-know-better brigade. This is frequently ill-considered. After all, popular sentiment led to stopping the people smuggling trade in our region – and therefore ending a murderous practice that cost around 1200 lives at sea during Labor’s six years of power.
Interestingly, the legal fraternity – those promoters of fairness and equality – even now forms a large part of the movement dedicated to ending Australia’s life-saving border security operations.
Chief Justice Bathurst reached all the way back to 1888 for one example of the judiciary’s wisdom over popular opinion. During that year the NSW Government ordered police to stop Chinese passengers getting off a ship which had docked in Sydney Harbour, only for the government to be eventually overruled.
The chief justice sees parallels between the events of 1888 and Australia’s current mood, at least in terms of then-NSW premier Sir Henry Parkes’s comments at the time.
Sir Henry is presently unable to respond, having been dead for more than 100 years, but we would submit that Australia has changed a great deal during the intervening period. We are now a multicultural, tolerant, educated and thoughtful people who are quite capable of seeking fair outcomes without being bossed into them.
If Chief Justice Bathurst would like to have more of a say in the state’s affairs, he is welcome to run for elected office.
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