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When should judges and courts be subject to scrutiny and criticism?

Speaking earlier this week, Supreme Court of NSW Chief Justice Tom Bathurst said it is entirely appropriate for the judiciary to be criticised for its performance by the media and, by extension, the public.

user iconJerome Doraisamy 01 February 2019 The Bar
Chief Justice Tom Bathurst
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Addressing the Opening of Law Term Dinner in NSW, Chief Justice Bathurst said that to facilitate appropriate scrutiny and ensure that any criticism is informed, courts must operate as transparently as possible.

“In that way, they become accountable to the other arms of government, and to the public. But the appropriate measure of accountability cannot be determined solely by some form of quantitative analysis of a court’s output,” he said.

“What must be considered is whether the courts are performing their role of fairly and impartially administering justice according to law, a function essential to the rule of law, and to the maintenance of a just and democratic society.”


The judiciary does “not just provide a service to litigants or accused persons as consumers,” he continued. To the contrary, he said, the enforcement of legal rights and obligations is the exercise of a governmental function.

“Analyses which judge performance based primarily on financial efficiency and timeliness to the exclusion of other factors miss the fundamental point that not everything that is important to the administration of justice can be measured. Or, as Jim Spigelman put it, ‘not everything that counts can be counted’,” he said.

He did cede, however, that “very lengthy delays [in court proceedings] are completely unacceptable”.

“Dyson Heydon has set out some cogent reasons that delay is harmful. It can affect the outcome irrespective of the real merits of the case, for example, in commercial matters where circumstances change over the course of time,” Chief Justice Bathurst reflected.

“It may cause matters to fade in a judge’s mind, weakening the capacity for justice to be done. And it is simply ‘cruel to the litigants’, since the stress of litigation imposes an enormous strain on any individual’s health, wellbeing and quality of life.”

Sometimes there are understandable matters affecting ‘unreasonable’ delays on the part of the court, he noted, such as ill-health, personal problems or overwork, but parties are ultimately entitled to judgments without undue delays.

“Courts must ensure that they are as efficient as possible, in order to maximise access to justice. There is always a risk of institutional blindness — that judges sitting on a court will not be able to see flaws in process in the same way an outsider may be able to,” he said.

“Constructive discussions about reform should be part of a continuous process of assessment and improvement in courts’ operations. Those discussions can only be enhanced by constructive comments from outside the courts, including from the media.”

He concluded that what is essential is, in judging the judges, that the qualitative factors inherent in the administration of justice, including the quality of judgments and fairness of process, are taken into account.

“Critically, the role of the courts as an independent arm of government essential to our stable and democratic society must also be appropriately considered.”

Law Society of NSW president Elizabeth Espinosa also spoke at the Dinner, about the importance of advocacy, diversity and charity in what will be a double election year for those based in the Premier State.

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