Opinions on high, by Kate Allman, LSJ Online (July 14, 2020)

Media commentary surrounding the Australian High Court appears to have surged in 2020. Controversial decisions such as the Indigenous “aliens” case and overturned Pell conviction provoked fiery responses from commentators on all sides of politics, as well as damning chatter among the Australian public. Almost everyone has two cents to throw in. But what impact does this have on the esteem of our highest court?

Most legal professionals have had a turbulent year in 2020. The seven-judge bench of the Australian High Court is no exception. In February, the court had to decide whether Aboriginal Australians could be deported as “aliens” under the Constitution. Barely two months later, it grappled with the high-profile conviction of Australia’s highest catholic, Cardinal George Pell, for historic child sex abuse. And in recent months, it faced twin challenges to the constitutional validity of closing Queensland and Western Australian borders amid the COVID-19 pandemic.

“Activist High Court takes nation into tricky territory” ran as a headline in The Australian on 13 February following the Love v Commonwealth; Thoms v Commonwealth case. That was the landmark case in which the court decided by 4:3 majority that non-citizens who had Aboriginal descent were not “aliens” under section 51 of the Constitution, and therefore could not be deported under the Migration Act.

Other similarly acerbic headlines have included: “Foolish ‘alien’ ruling turns indigenous gap into chasm” (The Australian, 21 February), and “Race-based ruling will send us down road to apartheid” (The Sunday Telegraph, 15 February 2020). In relation to the Cardinal Pell ruling: “The Pell decision underlines the absurdity of the jury system” (The Canberra Times, 11 April), “ABC still won’t admit shame. But what of the judges?” (The Herald Sun, 11 April).

Some of these attention-grabbing headlines are just that: hot takes designed to attract readers and clicks online. But in an age of opinion-editorial, in which the loudest voices often have the biggest reach, some lawyers worry that the independence of the court is being undermined.

“We live in an era when there is often a nasty edge to our public discourse. It’s not just discussions about the court, it’s a general problem in politics and elsewhere,” says Professor George Williams, Dean of UNSW Law.

“But when this is extended to the court, it’s very noticeable. It strips away the respect of the court and the regard that the court might be held in. It quickly gets us into some troubled terrain. Because the court depends upon public confidence and public respect to function.”

Williams says Australian media criticism of the High Court is not new. During the “Mason era”, when Sir Anthony Mason sat as Chief Justice between 1987 and 1995, the work of the High Court regularly sparked outcry on breakfast radio and in the opinion sections of newspapers of the day.

Reactions to the Indigenous land rights cases of Mabo and Wik offer good examples.

The difference between media criticism then and now is that the public today has multiple platforms to become involved in the debate – via comments sections, social media and self-authored blogs. While some of these commentators may be lawyers or experts on an issue, many are not.

Adding to this, Williams believes there is a shortage of qualified legal voices in mainstream media to balance out the hot takes. This may be partially due to commercial realities of online news outlets: editors want clicks. Journalists must either report news quickly, without nuance, or offer attention-grabbing angles and “clickbait” headlines.

The result is that the public is left with a poor understanding of the legal issues and the independent role of the court.

“That has been the way for a long time because there aren’t too many people working in the media who have that type of legal expertise. And of course, the ranks of journalists are thinning,” says Williams.

“When you look at a lot of the comments on social media, it can be totally uninformed by an understanding of what the court has to decide. The analysis of the court is usually through a political lens – without understanding the why and the how of the court’s decision. There is a tendency to assume the court is just a political actor for governments.”

Fast news is not always good news

Former High Court Justice Michael Kirby, Australia’s longest-serving judge until he retired in 2009, has long cautioned against unbalanced or uninformed media reporting on the necessarily complex cases that enter the High Court. In 2008, he gave a speech to the Library of the Supreme Court of Victoria warning that fast news did not always equate to good news.

“Media want it short, sweet and interesting. Judges know, it is often not like that,” he told his audience at the time.

Speaking with LSJ, he says “informative discussion about the High Court of Australia in the Australian media is, and long has been, extremely poor”.

“There are now very few specialist journalists writing on law or working in the area. The consequence is that the stories that tend to get published and followed up are generally in the nature of shock horror criticism or ‘Gee whiz!’ surprise. Very superficial and lightweight.”

Kirby adds this is “not the kind of thing one used to see. Nor that one sees in the Law Society Journal of NSW!”

Unfortunately, lightweight and superficial reporting readily translates to the same glib understanding among the Australian public of the complexity of High Court’s role.

Researchers from Monash University in 2017 conducted a study that exposed the lack of awareness the Australian public has of the High Court. Authors Ingrid Nielsen and Russell Smyth, academics from Monash Business School, were inspired by numerous US studies indicating “knowledge of the courts is linked to public support for their role”. At the time there had been no equivalent Australian study. Their research, the first of its kind in Australia, surveyed 520 adults. Most respondents struggled to identify the names of the High Court justices, the number of judges on the court, or how they are appointed. In fact, more survey participants recognised US television star Judge Judy than were able to identify any member of the Australian High Court bench.

Some survey participants were under the impression that Australia’s first female Chief Justice, Susan Kiefel, was a former Prime Minister of New Zealand or Victorian Member of Parliament. Three-quarters of participants were confused about whether the Australian High Court had heard the appeal trial of US celebrity and convicted felon OJ Simpson; just 17.5 per cent could say with certainty it had not.

Lead researcher Russell Smyth, a Professor of Economics and Deputy Dean of Academic Research in the Monash Business School, says he was stunned by the sheer lack of understanding among Australians about basic High Court facts. This was particularly given he conducted the study at the end of 2017 – a year which should have raised the court’s profile with its hearings of pivotal cases such as the legality of the same-sex marriage postal vote and the eligibility of seven politicians with dual citizenship to sit in parliament.

“I don’t think awareness would have changed or increased now,” he tells LSJ. “In a recent study, we asked people again about knowledge of the court, and the responses were also low. Basic knowledge about the court is very low.”

This is a problem, explains Smyth, because “knowledge is a key factor associated with support or legitimacy of the court”.

“Legitimacy means even if you don’t agree with the court’s decision, for example Pell’s case, you still respect the authority of the court to make a decision.

“Underpinning that knowledge and legitimacy is being able to distinguish the court from other political institutions like the legislature and the parliament.”

No place for politics

Australian High Court judges are appointed by the Governor-General on recommendation of the Prime Minister. They are usually recommended for their years of experience spent on other appellate court benches and have traditionally been free of political labels. This contrasts with how the US Supreme Court operates, where judges have widely acknowledged political biases and are nominated for their Democrat or Republican-leaning tendencies by the sitting President.

It is said to be a fundamental part of Australia’s constitutional monarchy that the judiciary (courts and judges) can operate independently from the executive and parliament – without political sway or bias. However, when the media mixes court reporting with political commentary, the public may misunderstand the separation.

“This is dangerous because people need to see the judges as above politics, not driven by personal political agendas,” says Williams.

The UNSW Law Dean regularly pens his own opinions on the issue – most recently in the wake of the Love decision in an article published by The Australian, titled “There is no place for politics in the appointment of High Court judges”.

“What concerns me is we may be on the cusp of a rise to politicisation of appointments. Where the ability to type-cast a judge becomes more important than the judge’s credentials and ability to fulfil a role,” Williams says.

“How often do LSJ authors write articles about how the Liberal or Labor judges decided? Because that’s what they do in the US – the Democrat judges did this, the Republican judges did that. How often do our judges even split according to political lines? It is usually quite random because there is not a correlation between who appoints the judge and their persistent outlook on these matters. And that is one of Australia’s strengths.”

Recognising the need for better understanding among the Australian public, the court in recent years has made a concerted effort to make its work more publicly available. It sends media releases out about important decisions and has begun live streaming high-profile judgments for the public to tune into, including the Pell judgment. It opened a Twitter account in 2018. This year, it introduced a new online portal for journalists to download and read documents filed during a dispute.

But Sydney Morning Herald legal affairs editor Michaela Whitbourn, herself a former corporate lawyer, says the new portal is not doing the court many favours.

“[The portal] is a welcome development but I was shocked to discover downloading three documents in one case would have cost a prohibitive $500. This strikes me as unreasonable and not in the interests of open justice,” she tells LSJ.

Adding to the mystery, Australian High Court judges are notoriously unavailable for media interviews. LSJ offered a right of reply to the High Court justices and Principal Registrar in this story, but the court’s media team declined to comment.

It is an expected, though frustrating, approach: our judges are determined to rise above media commentary and debate.

Perhaps Australian judges wish to avoid the superstar status that US Supreme Court judges like Ruth Bader Ginsburg – known widely by the public as RBG – have attracted. Or perhaps they are avoiding the politics that comes with it.