“Happily, and despite the unavoidable controversy which some decisions produce, and the great disappointment to at least one side of the record which all decisions produce, the quotidian work of the Supreme Court of New South Wales has been respected by the community and the executive over whose decisions the court exercises a supervisory jurisdiction. Such respect is, in a very real sense, a litmus test for the health of the rule of law,” he said.

“In this context, the reported continuing belief by tens of millions of Americans that the 2020 presidential election was stolen despite considered decisions of a series of superior courts throughout the United States, delivered by judges appointed by both Democrat and Republican administrations, accords with the reported decline in respect for institutions, including courts, in the United States. This is a disturbing trend which we must guard against resolutely in Australia.”

In light of these remarks, Lawyers Weekly reached out to legal bodies across the country to determine whether confidence in the Australian court system is slipping and how trust in this system can be kept.

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President of the Law Society of NSW Brett McGrath said that “public confidence in the administration of justice is an essential element of a healthy, robust and properly functioning democracy”.

“The Chief Justice has rightly drawn attention to the ongoing vigilance needed to guard against the erosion of respect in Australian public institutions, including the justice system,” he told Lawyers Weekly.

“The Law Society of NSW is resolute in our determination to continue to reinforce trust in the justice system through our dual roles as co-regulator and representative body for a profession with a tradition of service and a history of advocacy for reform consistent with the rule of law.”

The Law Council’s pre-budget submission also calls for and supports a judicial commission.

“It is essential to the promotion of the rule of law and the Australian constitutional system that there be a strong, independent and transparent judiciary. It is, therefore, critical that there is a well-understood means of fairly and punctually addressing complaints about the federal judiciary in an independent and structured manner. The Law Council strongly supports the establishment of an FJC to perform this function,” the legal body stated in its submission.

“The Law Council also considers that the role of an FJC should extend to providing resources, support and education to the judiciary, including providing guidance on acceptable standards of judicial conduct. Such a function would facilitate the FJC – and, therefore, the federal judiciary – to learn from complaints, to effect improvements in processes, to further equip judicial officers with the necessary knowledge and skills, and to identify circumstances requiring additional pastoral care.

“In the Law Council’s view, the FJC should be established as soon as practical – preferably, in the 2024–25 financial year. The Australian government should, therefore, include funding to establish and adequately resource a federal judicial commission in the upcoming budget.”

However, Queensland branch president of the Asian Australian Lawyers Association and barrister Dominic V Nguyen added that he hasn’t seen confidence in Australian courts slipping as of yet.

“As a barrister and member of the broader community, I don’t see any significant evidence that the confidence of our courts is slipping. The risk of losing community confidence sometimes rears up when the institution is politicised, as is often the case when dealing with crime and, in particular, juvenile crime in Queensland. When politicians blame each other for not being ‘tough on crime’, this causes some politicians to blame magistrates and judges for passing ‘soft’ sentences. This was recently played out last year in Queensland when the now Premier of Queensland, Steven Miles, accused a magistrate’s decision to release children locked in a Townsville watch house as ‘a media stunt’. It’s these types of attacks which have the very real potential to undermine the confidence of our courts,” he explained.

“A potential safeguard is to ensure that our judiciary properly represents the community it serves; an example of this is that there is currently a 50-50 gender balance within the magistracy. We know that the demographics of our community are changing. We are significant[ly] behind in terms of cultural diversity within all levels of the judiciary. If the judiciary genuinely reflects the community, then arguments that the judiciary is ‘out of touch’ or not reflective of the community it serves are unsustainable.”

Lastly, the president of the NSW Bar Association, Dr Ruth Higgins SC, said that trust in the Australian court system comes from the “essential service” provided by the judiciary.

“The NSW judiciary enjoys high levels of public trust because its officers act with integrity, competence, and diligence,” she said.

“The Chief Justice of NSW has rightly described the work undertaken by the judiciary as an ‘essential service’. Such a service needs sufficient funding to flourish and succeed. Without such funding, the ever-increasing workload expected of the judiciary in NSW is, as the Chief Justice has said, ‘unsustainable’.”

Lawyers Weekly reached out to the Australian Bar Association for commentary, but they did not respond in time for publication.