Serving judges have no business inserting themselves into contemporary political debates.
If they simply can’t help themselves they should leave the bench, and, if they truly want to pursue their political ambitions, become politicians.
For years, judges have been sharing their well considered and important thoughts on weighty matters of public interest with other members of the legal fraternity and the public at large.
At law school functions and at law conference gala dinners, judges are often called upon as speakers and guests of honour. General rules of judicial conduct dictate that judges ought not to comment publicly on issues that might come before them.
Practically, this requirement is in place to avoid a judge being disqualified for bias.
Preconceptions about matters before the court would breach the archetypal judicial character described by Edmund Burke in 1794 — “the cold neutrality of an impartial judge”.
Or, as decided by the High Court in Johnson v Johnson in the context of apprehended bias, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
The obvious problem faced by judges when intervening in public debate is that it’s not obvious how the rule against bias might apply to a future case at the time such an intervention is made. Often the statement becomes legally problematic only after the fact.
Of course, there is a simple answer: don’t be a participant in political debate.
Avoiding judicial entanglement in the realm of politics is also a good idea in general. More distinct lines between the arms of government help individual participants better understand their role and their place in our democratic system.
There are a number of recent examples of where judges have failed to meet this standard.
Last month at the constitutional law dinner 2018, organised by the Gilbert + Tobin Centre of Public Law, West Australian Supreme Court Chief Justice Wayne Stewart Martin gave an extraordinary speech for such a senior judicial officer.
His honour spoke about the recent cases heard before the High Court under section 44 of the Australian constitution, making clear his view that dual citizens should be allowed to take their seats in the parliament. His honour even referred to “the draconian operation of section 44”.
In relation to the ongoing debate on the matter of constitutional recognition of Aboriginal and Torres Strait Islanders, his honour said it wasn’t his purpose “to suggest which of these competing arguments is to be preferred”.
But it is hard to see how the Chief Justice of the WA Supreme Court does not have a clear view on the issue when he says in the following paragraph: “As one who sees first hand and all too often the disastrous consequences of colonisation and our continuing failure to properly and meaningfully recognise Aboriginal people, the consequences of which are played out every day in police stations, courts, hospitals and prisons all around Australia, I sincerely hope the movement for constitutional recognition of Aboriginal people does not suffer a similar fate.”
As if the use of a politically loaded term like “colonisation” is not enough, the WA Chief Justice’s views on the substantive matter of whether the constitution should be changed to recognise Aboriginal and Torres Strait Islanders could not be more obvious.
Perhaps his honour believes he will never have to hear cases regarding the constitutional matters he addressed last month. Given that High Court Justice James Edelman won’t be forced to retire until 2044, it’s possible Martin believes the West Australian quota has been filled.
But potential future appointments, and potential questions of bias aside, his comments are a clear intrusion by a member of the judiciary into the realm of politics.
Victorian Supreme Court judge Lex Lasry found himself in hot water earlier this year after directing criticism at Home Affairs Minister Peter Dutton. Lasry eventually deleted tweets directed at Dutton, following the minister’s comments on criminal behaviour in Victoria.
Despite the apparent willingness of judges to dip in and out of political debates when it suits them, they don’t like it when the shoe is on the other foot. Federal ministers Greg Hunt, Alan Tudge and Michael Sukkar discovered this when they made reasonable comments — later retracted after the glass-jawed Victorian Supreme Court considered contempt of court proceedings against them — about what they saw as soft sentencing of terrorism in Victoria.
This looks awfully like a one-way street.
Whatever the reason, the developing trend of judges participating in political debate must end, especially given their demands for the protections from criticism afforded to the judiciary.
If judges want to be politicians, they should join the branch of government that does politics.
Simon Breheny is director of policy at the Institute of Public Affairs