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The following article was published in The Australian on 19 August 2021

When journalists go off on a frolic: A response to the article published in the Australian on 11 August 2021 “When judges go off on a legal frolic of their own”

Journalists, like judges, sometimes get things wrong. So far as judges are concerned, they are part of a system in which errors can be corrected by a higher court. When journalists make a mistake, they too should be corrected. In Janet Albrechtsen’s article “When judges go off on a legal frolic” error was piled upon error. Her article did not pretend to be a serious consideration of the High Court’s decision in WorkPac v Rossato. It was simply a personal attack on one judge – Bromberg J. It is ironic that an article which is premised on a supposed lack of judicial balance presented such a one-sided picture of its subject matter. In the author’s misguided approach, she fails to make clear that Bromberg was only a member of a three-judge appeal court. This skates over the fact that two other judges in the same court reached the same conclusion as Bromberg J, largely for the same reasons and with each giving detailed consideration to the reasoning process. The reasons of Bromberg J alone run to 266 paragraphs.

Entirely contrary to what is conveyed by the article, Bromberg J was not at any time singled out for criticism by the High Court in the WorkPac decision. To the contrary, at the only point at which the High Court expressly disagreed with Bromberg J, it simply stated “to the extent that Bromberg J express support for the notion that the characterisation exercise should have regard to the entirety of the employment relationship, his Honour erred”. This observation was on an aspect of the judgment which Bromberg J himself did not regard as being determinative in reaching his view. The statement by the High Court is an entirely conventional method by which an appeal court expresses disagreement. It stands in contrast to the personalised attacks in the article.

Indeed, the passage cited in the article about “departure from orthodox legal analysis”, also an expression not uncommonly found in appellate decisions, was not even directed at Bromberg J – but to another experienced and respected judge. The terminology is a long way from an “Ouch” statement as suggested.

The article raises the curious complaint that the judge was an active participant in a political party before appointment. That circumstance has been a part of Australian judicial life for over a century. Sir Samuel Griffith, after all, had been an Attorney-General and a Premier. Judges are required to vote, they are entitled to form views about politics, and they have a life before going on the bench. That does not mean they decide cases based on such political views. The law reports are full of decisions in which judges have ruled against parties which Ms Albrechtsen’s argument would have you think they would favour.

The article comments on other High Court decisions reversing Bromberg J. Again, all those decisions were decisions of three-member appeal courts. He was but one judge. None of those High Court decisions involved personal criticism of his reasons. All of them involved complex issues of statutory construction on which reasonable minds may differ.

The author’s own speculation that the decision constituted “legal adventurism” misunderstands the judicial role. Underlying the attitudes expressed in the article seems to be a belief that law is only made by Parliament and a judge’s simple job is to apply it. This view is fundamentally flawed. A great deal of the law governing Australian citizens is made by senior judges through explaining what the law is – by developing the common law or very often by filling in the inevitable gaps in legislation. The executive branch of Government accepts that it is susceptible to that process. It is simply impossible for the legislature to cater for every situation that may arise, nor does Parliament purport or attempt to do so. That is one of the several reasons there is an independent arm of government (the courts) to develop the law that is not already made. Frequently there will be different, but respectable views as to what that law should be. And, of course, there are equally such different and respectable views as to what the written law (the legislation) actually means. That the High Court of Australia makes the final decision and on occasion differs from decisions of other courts does not necessarily connote criticism. In such circumstances it establishes a different view which will constitute the binding and final stage of the judicial process.
The WorkPac case itself well illustrates the job which is left to the courts. The main issue in the case was the meaning of the expression “casual employees” as used in various provisions of the Fair Work Act 2009 (Cth). That expression, which as the High Court decision notes, was described by a former Chief Justice of the Court, Sir Owen Dixon, as of “indefinite meaning”. It is an expression which was entirely undefined by the Act at the time of the Full Court’s decision. Courts have for many decades grappled with the need to give that expression definition in various statutory contexts.

Further, the suggestion that it was “weird” for the Chief Justice to put Bromberg J on the bench in the WorkPac case, rather than to sit on it himself, when “Bromberg’s views were well-known” again displays a misunderstanding of the way in which appeal courts are constituted. There are many decisions of great importance with which the appeal courts grapple. This was just one of them. The Chief Justice sits on many such appeals which result in decisions of great significance. It is neither practical nor necessary for him to sit on all such decisions. Bromberg J, who has undoubted experience, a high reputation and insight into industrial law matters and who leads the Industrial Law National Practice area in the Court was an obvious senior judge to preside in such a matter. That said, and importantly, even if he held views contrary to his other two distinguished appellate colleagues (which he did not), he was hardly likely to be able to convert the views of two other experienced appellate judges. The selection of Bromberg J to sit on the WorkPac matter, far from being “weird”, was entirely appropriate.

Constructive criticism is essential in a healthy democracy, but personal attacks on judges, such as the one in question, are inappropriate. The article appears to proceed on the basis that those who have sworn judicial oaths to “do right to all manner of people according to law, without fear or favour, affection or ill-will” will choose to ignore the importance of those obligations or are so blinded by a political view that they are incapable of carrying out their duties satisfactorily. Such a serious assertion is entirely without foundation. And certainly, none appears in this article.

Glenn Martin
Australian Judicial Officers Association