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Court of public opinion ‘vital’ to the rule of law, Federal Court judge says
The “inevitable and eternal tension” between the court of law and the court of public opinion is essential to the improvement of justice outcomes, a Federal Court judge says.
Naomi Neilson
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At the 2024 Sir Francis Burt Oration, Federal Court’s Justice Katrina Banks-Smith said that while it is natural to want to protest against the “push-pull” between the rule of law and public opinion, they are “vital” to the progression of the justice system.
“The court of law and the court of public opinion are not contradictory. The inevitable and eternal tension between them is a productive one,” Justice Banks-Smith said.
“While the law is a formidable edifice, there are cracks in it, through which community standards can seep in order to make it stronger. Those cracks are not accidental; they’re deliberate – [and] they are, after all, ‘how the light gets in’.”
Justice Banks-Smith acknowledged the court of public opinion was once thought to be like “villagers with torches”, but the internet has fundamentally changed the manner of communication and interaction with the courtroom.
This “instantaneous and intoxicating accessibility” led some to view the court as “litigation by hashtag’, where the “one-eyed man with the most followers is king”, Justice Banks-Smith said, referencing a comment by Canadian lawyer Dahlia Lithwick.
In this environment, there are no rules of evidence, no need for reasons, and there is “infinite space for cyber juries, bias, assumptions and outrage” – but that does not mean the voice of this court “is not important”, Justice Banks-Smith said.
“Those who exercise power, including the judiciary, must not rashly discard popular opinion. Legal justice and what I will call popular justice can and do work together to bring about change,” she said.
For example, Justice Banks-Smith said the progress of law is dependent on the legal profession’s members “having the courage to take on novel matters, to think laterally, and to pursue cases that once might have been thought unwinnable”.
To do so, they must be “well attuned to public discourse”.
By bringing these matters into the courtroom, Justice Banks-Smith said legal practitioners can ensure “judges [are made] aware of conditions in the community and different views as to how they might (or might not) be improved”.
“While that does not in turn make judges into legislators, or at least it should not, it is another example of an entirely legitimate interface between community expectations and courts of law,” Justice Banks-Smith said.
While still accountable to the will of Parliament, Justice Banks-Smith said, it is important that the law – through the court of public opinion – is also accountable “to the public more broadly”.
“It must listen and engage with the public outside the more formal mechanisms of our system of government,” she said.
Moreover, it is vital not to treat public outcry about the legal system as a “sledgehammer to the rule of law”, as mentioned by Justice Tom Bathurst in an article with The Judicial Review.
“Fundamentally, a willingness and indeed an obligation to listen and engage is in everybody’s interest. But this needs to run in the right channels,” Justice Banks-Smith said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
