We previously reported on a speech delivered by the Chief Justice of NSW, Tom Bathurst, where he criticised the hundreds of new laws which impinge upon legal safeguards in Australia, calling upon lawyers to take a pro-active role in bringing the situation to the attention of the public and working to protect civil liberties.
The Chief Justice hit the nail on the head once again on Wednesday night, saying judges can no longer rely on legalese judgments to communicate with the public.
“I regret to inform my fellow judges here tonight that very few people actually read the decisions that we spend so long considering and crafting,” he lamented.
“Courts must take an active role in explaining what we do and why.”
Whilst pointing out that the Supreme Court has made some progress towards embracing social media platforms such as Facebook and Twitter, he conceded that a lot more needs to be done to counter popular perceptions of judges as being out of touch with the general public.
“I do admit that our five-and-a-half thousand followers are not much in the Twitter stakes,” he remarked.
“Apparently [Harry Potter villain] Lord Voldemort has over 400 times more followers and Depressed Darth Vader has 144 times more followers.”
He joked that the court’s social media presence is “far more noble than disseminating dark magic or fighting for an evil galactic empire, albeit quite sadly”.
The judge criticised the legal profession’s continuing use of legalese, saying it is unhelpful and unnecessary to convey simple information using convoluted legal language.
He gave the example of the phrase “I give you an orange”, which lawyers of by-gone days might reconstruct as “I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips”.
Alluding to US President Donald Trump’s recent ‘Muslim ban’, Mr Bathurst emphasised the importance of judges remaining fair and impartial in the face of popular prejudices. He gave the example of an 1888 order by the NSW government to prevent Chinese immigrants from getting off a boat on Sydney Harbour – an order “grounded in xenophobia” which was invalidated by the Supreme Court. He said the case demonstrates:
“the role of the judiciary and the profession promoting equality, fairness and the rule of law, in spite of popular sentiment”.
To speak or remain silent
The Chief Justice’s remarks come at a time when the public is disillusioned with both the legal profession and Australian foreign policy – the latter marked by a concerning trend towards Trump’s divisive and xenophobic view of human relations.
It is particularly important in the present environment for judges to embrace technology and disseminate information through the internet and social media, rather than sit idly by and allow radio shock jocks, tabloid journalists and populist megalomaniacs to feed misinformation about matters of significant importance – such as the role of the judiciary and rule of law.
As Mr Bathurst previously remarked:
“Judges can and should speak out more: to correct misinformation, raise awareness of the role of the courts and to explain the processes such as sentencing to the public. This would also contribute to dismantling the common misconception that the judiciary is somehow isolated from and out of touch with the real world.”
However, judges should be careful about the information they communicate and mindful of the power and impact of their words, both on the general public and particular groups, including other members of the legal profession.