In Defence Of Our Justice System

Corrosion is agradual process of deterioration, left unchecked it can be an irreversible. Ifthe recent Resolve Political Monitor survey results are an indication of thedeterioration of public faith in our courts and justice system as a whole, thencareful consideration should be given to its causes.

Over an extendedperiod of time the number of offences on our statute book has increased, thesentences imposed have lengthened and become more punitive, our bail laws mademore restrictive and parole more difficult to get. Sentencing discretion hasbeen fettered or removed. Our prison population has ballooned. None of itsatisfies those in the media or in politics who wish to make mileage from it.

Our court systemis an easy target for those wishing to make such mileage – in part because ofthe sensationalism that goes along with crime, in part because of the humancost of crime and its dreadful impact on victims and in part because the systemdoesn’t defend itself.

Efforts toundermine community confidence have been bubbling away for years but they havebeen heightened in recent times by those who have serviced their own agendas tothe detriment of the public’s trust in our justice system.

Perhaps what hasbeen omitted from the current narrative is that this process of detraction notonly serves to undermine our justice system, but to undermine public confidencein all areas of Governance.  Perhaps that is the point – a trope used bystrong men politicians the world over is that you cannot trust the system – youneed me to fight for you.

Attacks on thejustice system and the judiciary are often levelled by the media, it goeswithout saying that this criticism and scrutiny from the media to allindependent bodies and branches of government is a necessary and healthy signof a functioning democracy. A level of concern should however be raised whenthe criticisms become less informed, more personal, and more sensationalist.

Dr Pamela Schulzhas paid great attention to the discourse patterns of the Australian media inrelation to the judiciary, labelling the patterns as being largely hostile. Inher 2008 study, she demonstrated how the regularity with which the hostilityhas been sustained within the discourse, and aided by political rhetoric hasworked towards imparting a form of control over the justice system.[1]It has been some time since her research was released but it is apparent toanyone working within the system that the pattern has not simply continuedapace but has accelerated.

It is difficultto read articles claiming that criminal trials are not, ‘built on logic,’[2]a statement that is simply false. Or headlines that declare a, ‘loss of faithin courts when truth takes back seat.’[3]Or ‘How killers are beating the system in Victoria to get a sweet deal.’[4]The wave of publications alike are inflammatory and harmful to the work thatall officers of the court do on a daily basis.

It is not justthe media that feels comfortable sledging these comments, attacks are levelledby our politicians at all points of government. In 2017, during what would haveotherwise been a standard Victorian Court of Appeal case involving a young manwho had pleaded guilty to terrorism offences, comments were made by ChiefJustice Marilyn Warren relating to a difference in sentencing patterns betweenNSW and VIC. This was reported, picked up, and mangled with by senior Ministersof the then Federal coalition Government. They ran dangerously wild with their commentariesinferring that the judges’ approach,

“Eroded anytrust that remained in our legal system” and that “Labor’s continuedappointment of hard left activist judges has come back to bite Victorians.”

The issue beingthat Ministers, senior Ministers, of the Commonwealth Government had madecomments about judges who had reserved a decision in which a Commonwealthagency was a litigant. This could no less than be construed as what thenPresident of the Judicial Conference, Justice Robert Beech-Jones declared as a:

“Coordinated anddirect attack on the character and independence of the Victorian Judiciary,” suggestingthat, “the only statements that serve to undermine confidence in the legalsystem were those of the Ministers and not of the Court.”[5]

What is puzzlingabout the whole affair is that the comments made by the judges formed a part ofa wider and robust discussion of the law involving members of the appellatecourt and legal representatives, and whilst comments made during arguments donot represent the final views of the court, if anything, they do indicate thecapability of our courts to make easily traceable decisions, as opposed to thosemade behind closed doors.

What is alsoclear is that the criticisms run only one way – against the rights of theaccused and for the police.  It is nocoincidence in this setting that the survey referred to above revealed greatertrust in police than in our judicial system. Proper scrutiny of the conduct ofour judiciary when compared to Victoria Police over the past decade might raisea query over why the survey results were as they were.

The ‘Lawyer X’scandal, which has left such a dark spot on the Victorian legal, and policingsystem, still bears great significance on any discussion surrounding publicfaith in our justice system.  Former HighCourt Judge and Special Investigator, Geoffery Nettle KC was appointed to buildon the Royal Commission into the Management of Police informants. He determinedthat his job had become untenable as his office had made repeatedrecommendations for the DPP to bring criminal charges against Victorian policeofficers.

Theserecommendations were seen but not heard by the DPP and they highlight asignificant area of concern in relation to the prosecution or lack thereof ofour police. In the report tabled to Parliament, there are multiple instances ofalleged perjury, perverting the course of justice and misconduct in publicoffice perpetrated by officers. The DPP received thousands of pages of evidenceand hours of audio recordings but declined to file charges because theybelieved there would be no reasonable prospect of conviction, or the allegationswere too difficult to prove.[6]

The proposedlegislation to prevent the victims of this sordid affair from being able toreceive compensation and to provide police members with immunity fromprosecution was not greeted by the media as an attempt to sweep misconduct bygovernment officials under the rug but was hailed as an end to a lawyer’s gravytrain.[7]Of course the interests and rights of anyone accused of a crime are hard tosell. Pushing for the rights of someone thought to be a ‘criminal’ is anunpopular job. That doesn’t make it unimportant and it doesn’t make it wrong.

The police, withtheir media liaison unit, vast resources, significant public platform andallies in the media, do not shy away from making destabilising comments either.Take the statements made by Deputy Police Commissioner Ross Guenther earlierthis year. He chose to label the justice system as ‘overheated’ where, “vestedinterests pushing policies based on ideologies rather than facts hijacked theagenda.”[8]Engaging more in a culture war critique than a constructive analysis of thesystem.

The recentpublication of Victoria Police’s about face on whether they owed Ms Gobbo aduty of care was, in more ways than one, remarkable. Not least because of thesuggestion that the duty ceased to be owed because Ms Gobbo potentiallytransgressed the law. If she did, what then of her handlers?

Looking inwardsat the police and the regularity with which they transgress the law is a matterof complexity, due to the difficulty in reporting and oversight.  As of April 2024, IBAC released an annualsnapshot of its independent police oversight role, identifying a rising numberof complaints and notifications about police misconduct. In fact 58% of allcomplaints received by IBAC in 2023 related to Victoria Police. Seriousincident notifications, which include any police conduct that results in deathor serious injury was at a 19% increase from the previous year.[9]Misconduct extends from the top down. IBAC investigated former Assistant CommissionGuerin and found that he had engaged in police misconduct through trolling,both on and off duty, with information he obtained in the course of his duties.

Conversely thejudiciary has been marked by no such instances of scandal or criminaloffending, yet they often bear the brunt of public dissatisfaction. Where thecorrosion of judicial discretion in all its forms is labelled as being a causeof the public’s confidence being undermined. This is surely not the solution.

Any form ofjudicial decision making involves a delicate balancing act. For bailapplications this involves a careful process of weighing up the protection ofthe community with the rights of those involved in the application. Theindividual, and community interests will always be at odds when a crime hasbeen committed, it is here where the work of the judiciary is integral instriking a balance.

With the effortsof external corroding forces, judges are being pressured to consider how theirjudgments will appear rather than focusing solely on the law. Judicial officerssubscribe to the convention of disengaging in political commentary oradvocating for their own decisions. If they do choose to engage in a publicdiscussion, it is often long after they have retired and in the context of ahistorical discussion.

Justice canappear to corrode and fade away not only when instances of injustice areuncovered and brought to light, but also if the public stops caring in thesystem itself. The consequences of this would mean other elements of our systemof governance would suffer the same fate. The importance of those systemscannot be overstated. They should be examined critically, reformed and improved– but not simply attacked.

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[1] Dr Pamela Schulz, ‘Rougher than Usual Media Treatment: A DiscourseAnalysis of Media Reporting and Justice on Trial’ (2008)
[2] ‘Greg Lynn and trying to pull a rabbit from a legal hat’, JohnSilvester (26/06/24)
[3] ‘Loss of faith in courts when truth takes back seat’ SMH (31/07/24)
[4] ‘Killer Deals’ Herald Sun (21/8/24)
[5] Media release by the president of the Judicial Conference ofAustralia (13/05/17)
[6] https://www.parliament.vic.gov.au/4917cc/globalassets/tabled-paper-documents/tabled-paper-7257/20_june_2023_osi_s99_report_to_parliament_redacted_vf6kvnbv.pdf
‍[7] ‘Why the Gobbo case is like munching on a dead elephant’ The Age(13/8/24)
[8] A justice system in crisis, but does anyone care?’, John Silvester(23/02/24)
[9] https://ibac.vic.gov.au/strategic-assessment-victoria-police-2022-23