Lui, Perkins --- "The High Court In Contemporary Australia: A Case For Robust Public Engagement" [2021] UNSWLawJlStuS 18; (2021) UNSWLJ Student Series No 21-18

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THE HIGH COURT IN CONTEMPORARY AUSTRALIA:

A CASE FOR ROBUST PUBLIC ENGAGEMENT

PERKINS LUI

I INTRODUCTION

Court judgments have traditionally been thought to be the main medium through which the judiciary communicates with the public.^[1] This assumption is challenged by the observation that court judgments in modern Australia often ‘takes the form of a treatise speaking to an informed elite’.^[2] This is especially so for the High Court of Australia (‘High Court’), which as an apex court grapples with the most complex and contentious legal issues. Hence, court judgements are unlikely to be an effective means for the modern judiciary to communicate with the public. How else then can courts communicate with the public? Public engagement undertaken by courts are the primary alternate means. Thus, it would be of interest to evaluate whether the public engagement of the High Court is satisfactory and if not, what should be done.

In this essay, I argue that whilst there have been improvements in recent years, the public engagement of the High Court still has much room for improvement and should be reformed to be broader, more proactive, interactive, and responsive. To make out my argument, this essay comprises two parts and are structured as follows. In the first part, I consider the rationales for public engagement by the High Court and evaluate current practices against them. In the second part, I consider how the public engagement of the High Court can be reformed. I consider principles to guide reform and comparative experience. Owing to the confines of this essay and methodological limitations, the second part is not intended to be a comprehensive reform plan but merely aims to start the discussion. I conclude with remarks on potential obstacles, the limitations of public engagement and suggestions for future research.

II RATIONALES AND EVALUATION

A Rationales for Public Engagement

I propose two major rationales for public engagement by the High Court. They should be sufficient to underscore the necessity of public engagement but are by no means exhaustive. Though not the focus of this essay, the stated rationales are also likely applicable to lower courts.

The first rationale is the prudential effect of public engagement in enabling the High Court to discharge its constitutional role. Despite the undoubted importance of an effective judiciary in a liberal democracy, the reality is as Alexander Hamilton noted in The Federalist Papers – the judiciary is the weakest arm of government.^[3] Courts have ‘neither the sword or the purse ... but merely judgement, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments’.^[4] Therefore, in jurisdictions following the English tradition, it has historically been the role of the First Law Officer, such as the Commonwealth Attorney-General, to be the public defender of the judiciary.^[5] However, the contemporary office of the Commonwealth Attorney-General is arguably political and an integral part of the Executive rather than that of an independent legal advisor to the Crown.^[6] Thus, it is doubtful whether the Attorney-General can be relied upon to defend the judiciary, especially when a former Commonwealth Attorney-General – Daryl Williams has questioned whether the Attorney-General has such a duty.^[7] Professional legal bodies such as the law societies and bar associations of the various states and territories may also view it as their responsibility to defend the judiciary.^[8] The same may also potentially be said of the legal academy or wider civil society. That said, from a risk management perspective, whilst acknowledging the limitations of what courts can do, it is undesirable that the High Court outsource its defence entirely or even to a large extent and hence be reliant on others.

Hence, I argue that the High Court must take steps to secure its reputation and standing within the Australian community. This would enable the High Court to withstand attacks on it and discharge its institutional role of upholding the Constitution and the rule of law. The securing of the reputation and standing of the High Court ultimately depends on public satisfaction that the justice system is based upon and faithfully pursues values of independence, impartiality, integrity, and professionalism.^[9] This public satisfaction is in turn derived from competent performance of the judicial task which includes provision of both procedural fairness and just substantive outcomes within the bounds of the law. The assumption is that the preceding can be demonstrated via open justice and well-reasoned judgments.^[10]

However, few if any member of the public will have sufficient and continuous dealings with the High Court to form an independent judgment of the Court.^[11] It is also unlikely that many people will subject themselves to watching dry and technical High Court proceedings, either in person or via video recordings.^[12] Regarding judgments speaking for themselves, even if judges endeavour to write accessibly, the specialist nature of appellate court workload is such that large swathes of judgments can only be understood by laypersons through the mediation of lawyers.^[13] Whilst the High Court does provide plain English summaries of their decisions,^[14] their brevity necessarily deflects from the nuanced nature of the judicial task and cannot situate the decision contextually for proper appreciation. Thus, public evaluation of whether the ‘satisfaction’ mentioned above has been reached is largely reliant on information filtered through to them via the media or other interested actors such as politicians. The problem is that to succeed commercially in a hyper-competitive media industry, some publications do resort to sensationalist ‘clickbait’ reporting, an issue further exacerbated by the dearth of legally trained journalists who contribute significantly to accurate reporting.^[15] As for other actors, many have their own ideological agendas, such as ‘law and order’ rhetoric which often are not conducive to measured, objective commentary.^[16]

Accordingly, to achieve the ‘satisfaction’ mentioned above, and in turn to secure the reputation and standing of the High Court to enable it to withstand attacks against it and effectively discharge its institutional role, the High Court cannot rely exclusively on its proceedings and judgments, or the public understanding the Court vicariously through depictions and commentaries in which the Court is passive or voiceless. The High Court should also through direct public engagement secure public satisfaction that the justice system is based upon and faithfully pursues values of independence, impartiality, integrity, and professionalism.^[17]

The above arguments are underpinned by positivity theory. Positivity theory suggests a causal chain between the public having (accurate) knowledge of the High Court and judicial legitimacy (i.e. reputation and standing of the Court).^[18] A 2017 study addressed this theory by surveying public knowledge of basic facts relating to the High Court such as the identity of judges and (then) recent cases.^[19] The study concluded that (accurate) public awareness of the High Court was very low.^[20] This was not an explicit test on public knowledge of the role of the High Court in democratic governance. The authors have countered this potential limitation by suggesting that ‘to know something about courts is to be favourably oriented toward[s] them’ (emphasis in original).^[21] Thus, even basic knowledge about the High Court indicates support for the institution.^[22] Regardless, it should not be too controversial to infer that if the public does not even have basic factual knowledge of the Court, they are unlikely to have much understanding of the institutional role of the High Court and the nature of the judicial task – something which the High Court should work to promote through its public engagement. It is only through an accurate appraisal of the functions and workings of the High Court that the public can be satisfied that the justice system is based upon and faithfully pursues the values mentioned previously.

It is worth noting the results of an Ipsos poll conducted by the TrustGov project and the Museum of Australian Democracy in May and June 2020.^[23] 51% of those surveyed in Australia had ‘a great deal’ or ‘quite a lot’ of confidence in the courts.^[24] The judiciary was not the highest scoring institution. For example, in the same survey, in terms of the percentage of Australians giving the same responses as above for other institutions, the armed forces attained 71%, the government as an overall attained 52% and universities attained 56%.^[25] On the other hand, other institutions scored lower than courts, e.g. political parties (24%), the press (30%) and the civil service (49%).^[26] I suggest that whilst such results are acceptable, there is certainly room for improvement for the High Court and the judiciary more generally, achievable via the prudential effect of public engagement as elucidated above. A limitation of this type of survey question is that when asked about their views, respondents may be referring to a ‘composite, abstract image’ of courts that do not reflect ‘pre-existing, deeply-held views’ about courts.^[27] Noting this in conjunction with the fact of low levels of public knowledge about the High Court, existing public support for the Court which is already not particularly high and does not have a rigorous factual foundation, is vulnerable to evaporation if the socio-political climate turns markedly hostile towards the Court. This empirical observation provides further impetus for the High Court to harness the prudential effect of public engagement.

The second rationale stems from changing societal expectations in modern liberal democracies of governments, of which the High Court and the broader judiciary are part of. There is a shift towards open government. The Australian Government is formally committed to open government as a founding member of the Open Government Partnership – ‘a multilateral initiative that aims to secure concrete commitments from governments to promote transparency ... to strengthen governance’.^[28] For the purposes of this essay, it is sufficient to note a working definition of open government being governance centred around transparency, participation, and accountability.^[29] As an overarching whole-of-government approach, open government as applied to the executive and legislature would obviously differ from that applied to the judiciary but the core principles remain unchanged.

Open justice is the concept of open government applied to actors within the justice system, ranging from the police to correctional systems,^[30] with the High Court being my current focus. Considering the three central ideas of open government (and thus by implication, open justice), it will become apparent how public engagement by the High Court can contribute to the attainment of open government.

First, transparency. The open-court principle as a longstanding and ‘fundamental rule of the common law’ has always contributed to this ideal.^[31] As a prescribed agency and authority under the Freedom of Information Act 1982 (Cth), the High Court already publishes or makes available on request a wide range of information about the Court.^[32] As noted above, a core aspect of public engagement is the promotion of community understanding of the institutional role of the High Court and the nature of the judicial task. Thus, if done well, public engagement can enhance the transparency of the High Court by both ensuring that more people know of the existing available information or even providing more new information.

Second, participation. The right of citizens to take part in public affairs is central to any civilised society.^[33] There is relatively limited scope for the public to take part in the affairs of the High Court compared to the other branches of government owing to the need for judicial independence. That said, if public engagement by the High Court is dialogic and with carefully-drawn boundaries enforced, citizens have an additional avenue to participate in the administration of justice. I am inspired by the notion that ‘courts are conversations’ put forward in the Executive Session for State Court Leaders in the 21^st Century – a civil society collaboration by actors such as the Harvard Kennedy School and the U.S. Department of Justice.^[34] ‘Communication is central to a court’s very being’, with every stage of the judicial process representing ‘conversations, dialogue, and expression’.^[35] It is only logical that this process can be cautiously extended by the judiciary beyond the courtroom through public engagement.

Third, accountability. Successful public engagement would impart the public with an understanding of the institutional role of the High Court and the nature of the judicial task, i.e. an understanding of what the performance of the High Court should be benchmarked against. The public is hence better equipped to monitor the High Court. Thus, public engagement by the High Court can indirectly contribute to its accountability.

The above demonstrates how public engagement by the High Court can be justified by its potential to contribute to achieving open justice and hence open government. I now turn to an evaluation of how the High Court currently engages with the public. I do so with reference to my proposed rationales for public engagement. I also consider what the current practices reflect about judicial attitudes on this issue.

B Evaluation of Current Practices

The High Court outlines in its Annual Report the public engagement activities it undertakes.^[36] I provide an overview of those not directly tied to specific proceedings, which are my focus. The Report states that the Court offers ‘specialised educational programmes and activities’ without further specification.^[37] From what is available on the High Court website, this is likely in reference to the provision of guided Court tours for visiting school groups.^[38] There is also some age-appropriate learning resources about the Court for primary school students and a 12 minute documentary providing an overview of the Court on the Court website.^[39] Of note is also a collaboration between the Court and the Constitution Education Fund in setting up the ongoing Australian Constitution Centre Exhibition (ACCE) in 2018 which is situated on the premises of the Court.^[40] The Exhibition and the accompanying website provides reasonably detailed information in accessible terms on various important subject matters, such as the Australian Constitution and its underlying principles, Australian constitutional history, leading cases decided by the Court, and the role and functioning of the Court.^[41] The Court also has a Twitter account which has been tweeting since 2019,^[42] but it is only used for limited administrative purposes such as making factual announcements on judgments, court listings and so forth.^[43] There is also the ‘High Court lecture series’, with annual presentations by eminent external jurists or academics focusing on constitutional and historical themes.^[44] The Justices of the Court themselves also give speeches and write articles, with written copies freely available on the Court website.^[45] The topics are wide-ranging, for example from those on technical legal doctrine to broad general reflections on the legal system.^[46] Whilst not officially recorded by the Court website, the Justices are likely to be members, leaders or patrons of various professional organisations, mostly with connections to law or justice.^[47] They may also be involved with other associations, such as those of a social nature,^[48] but that is unlikely to be in their official capacity. It would be inappropriate for them to conduct Court public engagement in their personal capacity. Lastly, there is an officer responsible for coordinating media affairs.^[49] However, interviews given by the Court, responses to Court controversies or similar media engagement appears to be few and far between if any at all. It is of note that judicial controversies are often responded to by the Australian Judicial Officers Association (AJOA) (previously known as the Judicial Conference of Australia),^[50] the external professional association of judicial officers.

What does the above reflect about the approach to public engagement of the High Court? The fact that there is public engagement indicates that the High Court does view public engagement ‘as an ethical obligation incumbent upon the judiciary’.^[51] That said, the public engagement of the High Court can be characterised as rather limited and conservative. They are mainly a unidirectional provision of information which are mostly factual. The evolution of public engagement is not entirely stationary, as evidenced by the relatively recent introduction of the ACCE and an official Twitter account, but change is nonetheless quite slow.

In 2017, Lindsay and Tomkins published a comprehensive study of the extra-curial activities of High Court Chief Justices from 1964-2017.^[52] The public engagement undertaken by the Chief Justices have been remarkably similar over time, mostly consisting of traditional lecture-giving, conference attendance, (academic) article writing etc.^[53] As the head of jurisdiction, Chief Justices have significant influence over court leadership. Hence, I assume that the approach to public engagement by other Justices and the Court as a whole during each period would not have differed significantly. Thus, I argue that the High Court has historically adopted a conservative approach to public engagement which continues presently. The only minor aberrations appear to be mainstream media appearances by the then Mason, Brennan, and Gleeson CJs.^[54] Mason was interviewed once on ABC Four Corners in 1995, and Gleeson was interviewed twice on ABC Radio National in 2007 and 2008.^[55] The frequency of such appearances dwarf in comparison to other forms of public engagement and do not appear to have touched on particularly contentious topics. More interesting is the appearance of Brennan on ABC Lateline and the documentary film The Highest Court, both in 1998 before his retirement and touching on the political controversy surrounding the Wik decision where the Court was under sustained attack.^[56] However, this again is the exception rather than norm.

It appears that members of the Court may actually find the low profile of the Court as a result of this approach to be desirable. When responding to an assertion that ‘many Australians would certainly sympathise with the underlying idea that there ought to be some visibility over who authors the decisions of the High Court’, former Justice Virginia Bell pointedly cautions to ‘be careful what you wish for’.^[57] She contends that ‘the community is uninterested in ... judges ... because of an unstated acceptance that the decisions are made on legal merit and not on the ... ideological sympathies of the judge’.^[58] Whilst focusing on the narrower issue of individual judge publicity, the implication is linking competent apolitical performance of the judicial task with the relative anonymity of the Court. There then would not be much impetus to change the modest public engagement approach of the Court if the current anonymity is desirable. Whilst the current Chief Justice has not commented much on the topic of public engagement, judicial independence is a recurring theme of her speeches,^[59] and she has seemingly cited with approval the remarks that ‘judges may not be out of touch but out of reach ... they will not enter public debate’.^[60] We can infer that her attitudes towards public engagement are likely similar to that of her predecessors and unlikely to change significantly.

Having contextualised the current approach of the Court against historical practices and underlying judicial attitudes, I now turn to evaluation of current practices against my proposed rationales for public engagement. First, to fulfil the prudential purpose of enabling the High Court to discharge its constitutional role, public engagement will have to effectively increase community understanding of the institutional role of the High Court and the nature of the judicial task. Second, to enable the Court to satisfy changing societal expectations of open government, public engagement has to promote transparency, allow for participation, and foster accountability.

The public engagement of the Court does increase community understanding of the issues mentioned above, and hence does fulfil the first rationale to an extent. However, I do not think it does so effectively. For instance, the speech transcripts and written articles are a quality source of information on the High Court and the judicial task. They can be accessed for free on the Court website. The problem is that for the speeches, they are often prepared for an engaged audience that have a legal background or are at least well-versed in public affairs, lasting from 20 minutes and up to an hour.^[61] Similarly, for the written articles, they are mostly written for publication in academic journals or as part of edited legal treatises.^[62] There are unlikely to be many ordinary citizens with the motivation to search up these resources themselves and spend half an hour to an hour reading up on materials that are despite the best effort of judges, necessarily complex because of the topics canvassed. The 12-minute video makes for much easier viewing but then on the flipside only provides a very basic overview of the Court. The Australian Constitution Centre Exhibition (ACCE) and the provision of age-appropriate guided tours and learning resources are welcome additions that strike a good balance between detail and accessibility. However, these initiatives are physically located on Court premises in Canberra, which is sparsely populated, geographically distant from most major capital cities, and are mostly accessed by young students on school trips who may not necessarily be reading carefully from an exhibition board. For context, in 2018-2019 (pre-COVID), there were 67,500 visitors to the Court, with 38,000 of them being school students.^[63] It should be noted that this number includes local visitors attending the Court for its free Sunday concerts that occur once or twice each month (pre-COVID) which are normally at near or full capacity.^[64] The concert attendees are unlikely to be accessing the public education initiatives whilst at the Court. As such, the number of unique visitors learning from the on-premises public engagement initiatives are unlikely to be very substantial. As noted previously, that the Exhibition content is available online remedies the problem to an extent. However, I am not aware of any publicity campaign to promote the website rather than relying on the public to stumble across it. Regarding involvement in external associations, if they are mostly with ones connected to the law as noted, the wider public is not being reached. Lastly, I am not privy to the internal processes of how the AJOA, through its media statements, may or may not be used by the Court to respond to criticism or controversies. Nonetheless, the least that can be said is that responding through another entity is not a replacement for public engagement by the Court itself. This is not to say that the Court has to respond to every issue of the day. To conclude, I argue that the public engagement of the Court does not foster the relevant community understanding to the extent needed to secure its reputation and standing that enables the Court to withstand ferocious attacks on it in the future.

For the second rationale, the information provided through public engagement does contain sufficient detail necessary to foster transparency. The problem is that even if the information is free and readily available, if not many people know of its existence (e.g. ACCE website as noted above) or the information is not easily understandable (e.g. long-winded speeches as noted above), transparency and in turn accountability are not necessarily enhanced. As for participation, most current public engagement is mediated and unidirectional, with the judiciary providing information through various means to the public. There is not much scope for the interactive dialogues and engagement central to deliberative democracy.^[65] Thus, current public engagement by the Court does not enable the full attainment of the three ideals central to changing societal expectations of open government.

I have now hopefully demonstrated how current public engagement by the High Court does not fulfil my proposed rationales for doing so. I will now turn to how the Court can potentially approach reform. I have devoted considerable length to justify my case for robust public engagement because I am of the view that a fundamental rethink of public engagement rather than the current incremental changes is needed. A consequence is that the confines of this essay prevents me from laying out a comprehensive reform plan. Instead, my modest aim for the remainder of this essay is to highlight key guiding principles for reform. I also provide a brief overview of comparative experience in select jurisdictions of potential initiatives that may be transplantable to Australia.

III REFORMING PUBLIC ENGAGEMENT

A Guiding Principles

The most important principle for reforming public engagement is that the separation of powers must be maintained as this is a structural implication of the Australian Constitution.^[66] The Constitution ‘does not allow a combination with judicial power of functions which are ...foreign to it’.^[67] What this entails is that the institutions and officers exercising judicial power – judges and courts – cannot and should not be seen to be acting in a manner incompatible with judicial independence. Subject to very limited exceptions such as the persona designata rule,^[68] the High Court and its Justices should only be concerned with exercising judicial power, which whilst not conclusively defined, generally involves ‘decid[ing] [legal] controversies ... [by] giv[ing] a binding and authoritative decision’.^[69] The judiciary does not participate in the political arena. Related is the rule against bias. High Court justices must not act in a manner that causes ‘a fair-minded lay observer with knowledge of the material objective facts [to] “entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the [dispute]”’.^[70] This covers their conduct both during trial and extra-curially.

The dual requirements of independence and impartiality are well-reflected in domestic and international guidance on judicial conduct.^[71] I have no objection to and support these guidelines. However, my point is that these guidelines already expressly accommodate for a much wider range of public engagement than is currently undertaken by the High Court. Judicial independence and impartiality should not be used to justify ‘monastic seclusion’ from the public.^[72] For example, the Australian Guide to Judicial Conduct states that ‘appropriate judicial contribution to ... [public debate on the administration of justice] is desirable’ as it may ‘help to dispose of misunderstandings, and to correct false impressions’.^[73] In fact, whilst the Guide warns judges to avoid political controversy, it allows commentary on issues which directly affects the legal system.^[74] As for public debate about particular judicial decisions, whilst it is generally inappropriate for the judges involved to comment on them extra-curially, the Guide does not preclude the Chief Justice from responding on behalf of the Court to particularly unjust criticism.^[75] The Guide also envisages appearances by judges in mainstream media, such as through written newspaper articles, radio or television programmes, particularly if to explain the legal system.^[76] That said, any involvement should be approved by the Chief Justice, and the court media officer should ensure that the ‘host’ observes the limits on judicial participation.^[77] I would add that any public engagement by the Court as a whole or by individual Justices should only be undertaken if there is consensus amongst the bench. In terms of views expressed, judges should also be cautious if there is not a strong consensus on a matter amongst judges.^[78] They should also draw a distinction between comments on general legal principles and those on particular issues or parties who may come before the Court.^[79] The Guide does not appear to address deliberative dialogic engagement, not mediated by the media but directly with the public, focusing on improvement of community understanding of the Court and the judicial task. However, I do not see any issue with this as long as the general principles enunciated in the Guide are adhered to. Similarly, the Guide states that there ‘is no reason in principle to deny judges the use of social media’.^[80] It would be particularly desirable if the official social media accounts of the Court could be used beyond delivering operational and procedural updates for wider public engagement, particularly those of an educative nature.

It should now be clear that there is ample scope for the High Court to pursue broader, more proactive, interactive, and responsive public engagement that addresses the current deficiencies I have noted whilst observing the limitations imposed by the Guide.

B Comparative Experience

In this penultimate section, I consider the public engagement undertaken by courts in the United Kingdom and Canada. I have chosen these two jurisdictions for their likely ‘comparability’ because of their similar conceptions of the responsibilities and limits of the judicial role stemming from historical traditions belonging to the Global North common law community (see footnote).^[81] This section does not purport to be a comprehensive study of measures in these two jurisdictions. I also acknowledge the need for further research on practices in other jurisdictions, particularly with those where the judiciary is under sustained external pressure likely to be valuable case-studies. This is also merely a ‘thin’ empirical analysis that focuses on the existence of certain foreign practices that may be instructive rather than proving a causal relationship between their public engagement and successful pursuance of my proposed rationales.^[82]

In Canada, Beverley McLachlin – a former Chief Justice of Canada - is an oustanding example of judicial leadership in promoting effective, appropriate, and dignified public engagement.^[83] Upon her earlier appointment to the Supreme Court of British Columbia in 1981, McLachlin sat down for an interview with the Vancouver Sun, covering permissible topics such as her life and professional career – the public response was positive.^[84] Her view that ‘the public was ... entitled to know something about the people who had been entrusted with this formidable responsibility’ contrasts with that of Bell but is the preferrable one.^[85] When she sat on the Canadian Supreme Court, a national news magazine was invited to do an in-depth story on the Court, with judges giving lengthy interviews to the reporter.^[86] By talking about both their personal lives and the realities of judging, the judges were able to show that they were not ‘occult recluses, but real people who ...sometimes went to the movies’, and that they ‘worked indefatigably to get the right answer’ in very difficult cases. ^[87] It is interesting to note that as mentioned above, the Brennan court did something similar and so did the United Kingdom Supreme Court more recently.^[88] This is certainly something that the current High Court can consider. In Canada, the Media Committee of their Supreme Court is judge-led, allowing media concerns and proposals to reach the ultimate decision-makers quickly.^[89] The High Court should follow suit if it has not already done so. McLachlin also gave annual press conferences to address public concerns,^[90] a tradition which continues to this day.^[91] There are also media lock-ups prior to the handing down of significant judgments to facilitate accurate and informed reporting rather than just distributing summaries.^[92] These modes of engagement are much more likely than lengthy academic presentations to entice the public to pay attention. McLachlin asserts that these measures have contributed to the Canadian Supreme Court consistently scoring above their Parliament and other government institutions in terms of public confidence.^[93] Lastly, aside from proactive engagement, it would also be useful to consider McLachlin’s reactive engagement. When she was falsely accused by the then Canadian Prime Minister of interfering with judicial appointments, she put out a brief, factual statement of what actually happened.^[94] This allowed the reputation of the Court to emerge not only unscathed, but actually enhanced, showing that silence is not always the answer.^[95]

The United Kingdom (UK) also has initiatives that the High Court may wish to consider adopting. For example, then President of the Supreme Court, Lady Hale appeared on the BBC show HARDtalk which is known for asking guests tough questions.^[96] She provides an example of adhering to the Australian Guide to Judicial Conduct even when under pressure. She commented solely on legal policy and reinforced the separation of powers by noting that it was the executive which was responsible for reforming the law.^[97] She did comment on then recent cases which does appear to contravene the Australian Guide, but she did so in a measured manner, emphasising that courts only decide on legality rather than the merits of government actions.^[98] This does provoke reflection on whether the Guide should allow judges to comment on their recent cases, especially if in their capacity as the head of jurisdiction and only repeating fundamental legal principles. The UK Supreme Court also offers ‘Ask a Justice’ which allows students to directly interact with a Justice in a live session in addition to tours and exhibitions available.^[99] A similar initiative in Australia would complement the Constitution Exhibition so students would not think of the High Court as a faceless institution. Whilst only lower courts in England and Wales have implemented this, the High Court may also benefit from having a Community Relations Judge who undertakes outreach work,^[100] particularly if deliberative or dialogic engagement is preferred, allowing the public to effectively relay concerns to the Court, and judges to effectively respond to them. All in all, what Australia can learn from Canadian and British experiences are that the High Court can and should engage and educate the public in a manner that interests and is relevant to them. Whether interacting with the public in person or via the media, the Court should have a voice, ideally facilitating bidirectional exchange.

IV CONCLUSION

I hope to have provided a foundation for an urgently needed discussion on how the High Court should engage the public. There are obvious practical obstacles such as budget issues and time constraints on judges. However, most of the comparative measures considered seem to have been implemented in similar apex courts relatively inexpensively and without detracting too much from the judicial task. The biggest obstacle is likely to be internal resistance from Justices to this cultural change. I also do not pretend that public engagement will be a panacea for all of the challenges facing the Court. These problems require concerted effort from also the legislature and the executive, and the long-term fostering of a culture that values and is willing to defend the courts. In terms of future research, much could be gained by a comprehensive empirical study of public engagement strategies by apex courts around the world, seeking to rigorously establish causal relationships between certain measures and public confidence in courts. Whilst the High Court is improving slowly, it still remains largely shackled to the bygone days when the Kilmuir ‘rules’ dictated that ‘so long as a judge keeps silent, his reputation ... remain[ed] unassailable’.^[101] Times have changed and so must the High Court.

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^[1] Vicki Waye, ‘Who Are Judges Writing For?’ [2009] UWALawRw 5; (2009) 34(2) University of Western Australia Law Review 274, 274.

^[2] Ibid 277.

^[3] Michael McHugh, ‘The Strengths of the Weakest Arm’ (Speech, Australian Bar Association Conference, 2 July 2004).

^[4] Alexander Hamilton, ‘The Federalist Papers: No. 78’, The Avalon Project: Documents in Law, History and Diplomacy (Document Collection) <https://avalon.law.yale.edu/18th_century/fed78.asp>.

^[5] Alana McCarthy, ‘The Evolution of the Role of the Attorney-General’ (2004) 11(4) Murdoch University Electronic Journal of Law [24].

^[6] Gabrielle Appleby and John M. Williams, ‘Introduction: Public Sentinels’ in Gabrielle Appleby, Patrick Keyzer and John M. Williams (eds), Public Sentinels: A Comparative Study of Australian Solicitors-Generals (Ashgate 2004) 1, 11.

^[7] Daryl Williams, ‘Balancing the scales of justice’, Australian Financial Review (online, 26 September 1997) <https://www.afr.com/politics/balancing-the-scales-of-justice-19970926-k7mcb>.

^[8] Daryl Dawson, ‘Judges and the Media’ [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17, 27.

^[9] Murray Gleeson, ‘Public Confidence in the Judiciary’ (Speech, Judicial Conference of Australia, 27 April 2002).

^[10] Susan Kenny, ‘Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium’ (Lucinda Lecture, Monash University, 24 March 1998) <http://classic.austlii.edu.au/au/journals/FedJSchol/1999/1.html#fn1> .

^[11] Ibid.

^[12] ‘Recent AV recordings’, High Court of Australia (Web Page) <https://www.hcourt.gov.au/cases/recent-av-recordings>.

^[13] Waye (n 1) 294.

^[14] See, eg, ‘2021 Judgment Summaries’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/publications/judgment-summaries/2021-judgment-summaries>.

^[15] Kate Allman, ‘Opinions on high’ (14 July 2020) LSJ Online.

^[16] See, eg, Karen Percy, ‘Ministers Greg Hunt, Michael Sukkar and Alan Tudge avoid contempt charges after apologising to court’, ABC News (online, 23 June 2017) <https://www.abc.net.au/news/2017-06-23/ministers-apologise-to-court-for-criticising-terror-sentencing/8645026>.

^[17] Gleeson (n 9).

^[18] Ingrid Nielsen and Russell Smyth, ‘What the Australian Public Knows About the High Court’ (2019) 47(1) Federal Law Review 31, 32.

^[19] Ibid 34.

^[20] Ibid 55.

^[21] James L Gibson, Gregory A Caldeira and Vanessa A Baird, ‘On the Legitimacy of National High Courts’ (1998) 92 American Political Science Review 343, 344, quoted in Nielsen and Smyth (n 18) 34.

^[22] Nielsen and Smyth (n 18) 34.

^[23] Will Jennings et al, Political Trust and the Covid-19 Crisis: Pushing Populism to the Backburner (Report, 21 August 2020) 19.

^[24] Ibid 22.

^[25] Ibid.

^[26] Ibid.

^[27] Sharyn Roach Anleu and Kathy Mack, ‘The work of the Australian judiciary: Public and judicial attitudes’ (2010) 20(1) Journal of Judicial Administration 3, 7.

^[28]‘ About’, Open Government Partnership Australia (Web Page) <https://ogpau.pmc.gov.au/about>.

^[29] Ibid.

^[30] Jessica Hickle, Justice Policy Series, Part 2: Open Justice (Report, 14 December 2020) 9.

^[31] John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]–[477] (McHugh JA, Glass JA agreeing).

^[32] ‘Information Publication Plan’, High Court of Australia (Web Document) <https://cdn.hcourt.gov.au/assets/corporate/policies/information%20publication%20plan%20feb%202013.pdf>.

^[33] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 99 UNTS 171 (entered into force 23 March 1976) art 25.

^[34] Garrett M. Graff, Courts are Conversations: An Argument for Increased Engagement by Court Leaders (Report) <https://www.ncsc.org/__data/assets/pdf_file/0026/17288/courtsareconversation.pdf>.

^[35] Ibid 3-4.

^[36] 2019-20 Annual Report (Annual Report, 30 October 2020) 24 < https://cdn.hcourt.gov.au/assets/corporate/annual-reports/HCA_Annual_Report_2019-20.pdf> (‘Annual Report’).

^[37] Ibid.

^[38] ‘Tour bookings’, High Court of Australia (Web Page) <https://www.hcourt.gov.au/about/tour-bookings>.

^[39] ‘Resources for Primary, Secondary and Tertiary Students’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/education/student-resources/resources-for-primary-secondary-and-tertiary-students>.

^[40] ‘About the Educational Australian Constitution Centre’, Australian Constitution Centre (Web Page) < https://www.australianconstitutioncentre.org.au/about-us.html>.

^[41] Ibid.

^[42] High Court of Australia, (Twitter, 11 February 2019, 3:04 pm) < https://twitter.com/HighCourtofAus/status/1094809437657649153>.

^[43] Annual Report 24.

^[44] ‘ High Court lecture series’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/publications/speeches/high-court-lecture-series>.

^[45] See, eg, ‘Selected Speeches/Articles by Chief Justice Kiefel AC’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/publications/speeches/current/speeches-by-chief-justice-kiefel-ac>.

^[46] Ibid.

^[47] Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ [2018] AdelLawRw 1; (2018) 39 Adelaide Law Review 1, 28.

^[48] Ibid.

^[49] ‘Contact us’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/contact>.

^[50] Mack, Anleu and Tutton (n 47) 32; ‘Media Statements’, Australian Judicial Officers Association (Web Page) < https://www.ajoa.asn.au/media/>.

^[51] Sam Bookman, ‘Judges and Community Engagement: An Institutional Obligation’ (2016) 26 Journal of Judicial Administration 3, 3.

^[52] Katherine Lindsay and David Tomkins, ‘Hail to the Chief! The Roles and Leadership of Australian Chief Justices as Evidenced in Extra-Curial Activity 1964-2017’ [2017] UNSWLawJl 26; (2017) 40(2) UNSW Law Journal 712.

^[53] Ibid 748-760.

^[54] Ibid 755-756.

^[55] Ibid.

^[56] Ibid 735.

^[57] Virginia Bell, ‘Examining the Judge’ (Speech, Launch of Issue 40(2) UNSW Law Journal, 29 May 2017) 4 <https://cdn.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29May2017.pdf.pdf>.

^[58] Ibid 6.

^[59] See, ‘Selected Speeches/Articles by Chief Justice Kiefel AC’, High Court of Australia (Web Page) < https://www.hcourt.gov.au/publications/speeches/current/speeches-by-chief-justice-kiefel-ac>.

^[60] Susan Kiefel, ‘On being a judge’ (Speech, The Chinese University of Hong Kong, 15 January 2013) 4.

^[61] See, eg, P. A. Keane, ‘The People and the Constitution’ (Lucinda Lecture, Monash University, 11 August 2016).

^[62] See, eg, Stephen Gageler, ‘Why Write Judgments?’ [2014] SydLawRw 9; (2014) 36 Sydney Law Review 189.

^[63] Annual Report 24.

^[64] Annual Report 2018-19 (Annual Report, 24 October 2019) 25 <https://cdn.hcourt.gov.au/assets/corporate/annual-reports/HCA_Annual_Report_2018-19.pdf>.

^[65] Andre Bächtiger et al, ‘Deliberative Democracy: An Introduction’ in Andre Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark Warren (eds), The Oxford Handbook of Deliberative Democracy (Oxford University Press, 2018) 1 <https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198747369.001.0001/oxfordhb-9780198747369-e-50?print=pdf>.

^[66] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 274.

^[67] Ibid 296.

^[68] Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409.

^[69] Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357.

^[70] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 (Deane J); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

^[71] Guide to Judicial Conduct (The Australiasian Institute of Judicial Administration Incorporated, 3^rd ed, 2017) 5-8; Judicial Group on Strengthening Judicial Integrity, The Bangalore Principles of Judicial Conduct, Round Table Meeting of Chief Justices, 25-26 November 2002, 3-4.

^[72] Gascor v Ellicott [1997] 1 VR 332, 351 (Ormiston JA).

^[73] Guide to Judicial Conduct (n 71) 25.

^[74] Ibid.

^[75] Ibid 26.

^[76] Ibid.

^[77] Ibid.

^[78] Ibid 25.

^[79] Ibid.

^[80] Ibid 43.

^[81] Rosalind Dixon, ‘How to Compare Constitutionally: An Essay in Honour of Mark Tushnet’ [2020] 21 University of New South Wales Law Research Series 1, 18 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3603683>; Reference re Remuneration of Judges of the Provincial Court (PEI) [1997] 2 SCR 3, [118]. Whilst it may have previously been argued that the separation of powers was not crystalised in the United Kingdom, that can no longer be argued since the formation of a separate independent Supreme Court in 2009 by the Constitution Reform Act 2005.

^[82] Ibid 8.

^[83] Beverley McLachlin, ‘Judges and the Public: Ivory Tower recluses or Engaged Actors?’ (Address to Judiciary, High Court of Hong Kong, 12 December 2019) < https://www.hkcfa.hk/filemanager/speech/en/upload/2248/20191212%20McLachlin%20NPJ%20-%20Address%20to%20Judiciary%20(final%20for%20uploading).pdf> (‘Judges and the Public’).

^[84] Ibid 6.

^[85] Ibid 8.

^[86] Ibid 10.

^[87] Ibid 11.

^[88] ‘The Highest Court in the Land: Justice Makers’, (BBC Four, 2016) < https://www.bbc.co.uk/programmes/b00xz0s5><https://www.youtube.com/watch?v=PZtYENfNa7k>.

^[89] Judges and the Public (n 83) 13.

^[90] Ibid 14.

^[91] See, eg, ‘Chief Justice Wagner Speaks on the Work of the Supreme Court – June 18, 2020’, CPAC (Web Page) < https://www.cpac.ca/en/programs/headline-politics/episodes/66217174/>.

^[92] ‘Judgment Lock-up Procedure’, Supreme Court of Canada (Web Page, May 2017) <https://www.scc-csc.ca/media/lu-hc-eng.aspx>.

^[93] Judges and the Public (n 83) 14.

^[94] Ibid 20.

^[95] Ibid.

^[96] ‘Lady Hale, President of the UK Supreme Court’, HARDtalk (BBC, 2019).

^[97] Ibid 8:00.

^[98] Ibid.

^[99] ‘Ask a Justice’, The Supreme Court (Web Page) < https://www.supremecourt.uk/ask-a-justice.html>.

^[100] ‘Diversity and Community Relations Judges’, Courts and Tribunals Judiciary (Web Page) < https://www.judiciary.uk/you-and-the-judiciary/judiciary-within-the-community/diversity-and-community-relations-judiciary-2/#:~:text=The%20work%20of%20the%20Diversity%20and%20Community%20Relations%20Judges&text=DCRJs%20play%20an%20important%20role,myths%20and%20misconceptions%20that%20prevail.>.

^[101] Joshua Rozenberg, ‘Breaking the silence’ The Law Society Gazette (Article, 22 March 2012) <https://www.lawgazette.co.uk/analysis/breaking-the-silence/64839.article>.