THE INTEGRITY OF COURTS: POLITICAL CULTURE AND A CULTURE OF POLITICS.

• Date: 01 April 2021
• Author: Gordon, Michelle

CONTENTS I Introduction II What Is Institutional Integrity? III Internal Factors IV External Factors A Political Culture B Constitutional Setting C Representative and Responsible Government V Conclusion I INTRODUCTION

The relation of the judiciary to the people in a self-governing country is a question of profound importance, not only to lawyers interested primarily in the administration of justice, but to all ... citizens who are concerned with the orderly administration of the powers of government and with the secure maintenance of private rights, whether of person or property. (1) Institutions are under increasing scrutiny--not only in what they do but, in the case of some institutions, their very existence, or the need for them at least in the form in which they currently exist. Other institutions have been, or are being, dismantled. The United Kingdom ('UK') has provided two significant examples only in the last decade or so: Brexit rejected the role of the European Union--one of the largest institutions in the world--and the House of Lords was replaced as the highest judicial body by the Supreme Court of the United Kingdom. (2)

This increased scrutiny and altering, even dismantling, of institutions inevitably raises questions about the integrity of other existing institutions. Courts are not, and should not be, immune from this scrutiny. In the case of the High Court of Australia, it causes us to pause and ask: what gives a court institutional integrity, and what gives the High Court its integrity?

I undertake this examination because, as a Justice of the High Court, I must have one guiding principle--the institution, the High Court of Australia, is bigger than me. It will survive me. Because it is bigger and more enduring than me or any other individual Justice, I am but a custodian of a part of it for a short period. And as a custodian, I need to seek to protect the Court's institutional integrity. How that might be achieved is difficult, if not impossible, unless what it is that gives the High Court its integrity, its strength, is identified, as well as what it is that could damage or threaten that integrity and strength.

Much of the discussion below centres on two closely related ideas: fragility and response to change. The institutional integrity which the High Court enjoys--and which other organs of government in this country must have--is necessarily fragile. And things need not have ended up this way. Our world and our institutions are the product of a particular sequence of historical facts and social attitudes which may have been different. And both the facts and attitudes may change as circumstances change.

We have all been reminded of these ideas of fragility and response to change by the spread of the COVID-19 pandemic. Much of this piece was written before any of us had heard of the coronavirus. But its advent makes the issues raised in this piece even more important. Changed circumstances have forced changes in our institutions. The federal Cabinet met remotely and courts have 1 2 been hearing matters remotely. (3) The Family Court of Australia and Federal Circuit Court of Australia have recognised that this may result in lasting changes: for example, remote hearings may provide a safe and less stressful forum for vulnerable parties to attend hearings or give evidence even after the pandemic has passed. (4)

When institutions and circumstances change, we need to keep at the forefront of our minds what gives institutions their integrity, so that our changes preserve and enhance that integrity, rather than damage it. So, for instance, how is the open court principle to be applied when there is no physical courtroom? (5) Change is inevitable, and if we do not strengthen our understanding of institutional integrity, we ultimately risk losing it.

And, as we will see, our understanding of institutional integrity cannot be confined to the integrity of the High Court. Preservation of the Court's integrity requires that all of our institutions of government are working well. For that to be so, each of the three arms of government--legislative, executive and judicial--must fulfil their distinct functions operating, as they must, through different functionaries according to their own different 'skills and professional habits'. (6)

II WHAT IS INSTITUTIONAL INTEGRITY?

The first question is what institutional integrity means in the context of courts. It is impossible to define exhaustively or conclusively. But accepting that proposition cannot and should not obviate the analysis.

When lawyers hear the words 'institutional integrity' in proximity to the word 'court', they may be tempted to think of the requirement for Supreme Courts of the states to maintain the 'defining or essential characteristics' of a court, (7) a requirement ultimately derived from the explanation of ch III of the Constitution given in Kable v Director of Public Prosecutions (NSW). (8) But for the purposes of this discussion, institutional integrity means something broader. It is reflected in a court's ability to pursue its task properly and effectively, with public confidence in its ability to do so.

The primary function of a court is to 'decide controversies' (9) by applying legal standards. (10) If a court cannot properly carry out that function, it cannot be said to have integrity. 'Integrity' means, at least, being 'unimpaired' and 'uncorrupted'. (11) There are many ways in which a court might become impaired or corrupted in its task. If a court was prevented from deciding cases according to law, for example, we could say that it was not carrying out its task in an unimpaired or uncorrupted manner. So too would political pressure to decide cases according to the executive's policy preferences undermine the integrity of the court even where, despite the political pressure, the court decides the controversy by applying legal standards. The court must be free to make its decisions on an unimpaired basis and to feel itself to be free in that way.

Similarly, if the decisions of a court were not effective, it would not retain its integrity. Courts exercise judicial power, and part of judicial power is the ability to issue decisions which are 'binding and authoritative'. (12) If those decisions were ignored, or not treated as binding, the court would not truly fulfil its function, no matter how hard it tried. It would not have authority. It would not retain its integrity as an institution of government in our society.

Certainly, institutional integrity is related to public confidence in a court, interlinked with both its perception as an apolitical institution and the need for decisions to be made properly and effectively. If the public were to form the view that courts' decisions were made according to the preferences of the government or the whims of a given judge, the public would rightly view the courts as lacking the kind of unimpaired and uncorrupted practice which is central to institutional integrity. This, in turn, would very probably lead to those decisions not being given their proper weight, undermining the effectiveness of the court. This is why, for example, our legal system contains a rule against bias in decision-making: it is not only important that justice be done, but also that it be seen to be done. (13)

The institutional integrity of the High Court, therefore, is partly a matter within, but certainly not entirely within, the Court's control. The factors which influence whether the Court is able to pursue its task properly and effectively can be broken down into two broad categories. The first may be termed 'internal' factors--aspects of the way in which the Court operates and is administered. The second are 'external' factors--aspects of the wider political and legal framework into which the Court was born and continues to live, but which are largely beyond its control. I will consider briefly the internal factors before moving to the external factors, though the two categories cannot always be easily separated.

III INTERNAL FACTORS

There are aspects of the way in which the Court operates and is administered that contribute to its integrity. These include not only how the Court operates, but also where it operates. The Court is a national institution. It is expected to operate as such and it does. There are registries for the Court in each State and Territory and, (14) while the Court ordinarily sits in Canberra, it also sits in other cities on circuit from time to time. When the Court sits in Canberra, it sits in its own building, a building that in 2020 marked the 40th anniversary of its official opening. (15) The symbolic importance of this built form should not be taken for granted. The idea that a court should not sit together with the legislature may seem like a relatively uncontroversial proposition, but that was not a reality for the highest court in the UK until the creation of the Supreme Court there a decade ago. (16) Proponents of the creation of that Court argued that it was symbolically problematic for the separation of powers for the highest court to be located within the country's legislature. (17) A physical separation reinforces the functional separation between the branches of government, both to judges and to the general public.

Other contributors to the integrity of the institution are less self-evident but are derived, at least in part, from the Court's internal structure and arrangements. For example, the Court's practices are directed towards transparency and independent decision-making according to law. These practices include oral hearings and video recordings of those hearings, (18) as well as the publication of reasons for any decision the Court makes. Stating reasons for decisions has long been seen as essential to the performance of the judicial task. (19) The reasons that the High Court publishes show, for all to see, that the Justices take their roles seriously and...