When the Judiciary is defamed: Restraint Policy under Challenge

Thomson Law Book Co
Publication Type:
Journal Article
Gould Kim 2006, 'When the Judiciary is defamed: Restraint Policy under Challenge', Thomson Law Book Co., vol. 80, no. 9, pp. 602-622.
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There is a "policy" that judicial officers should not sue for defamation, save in exceptional circumstances. But this is coming under challenge on a number of fronts. Concerns about maintaining public confidence in the judiciary if this policy is relaxed or even abandoned are now largely illusory in the face of a robust judiciary as part of a modern democracy. More worrying is the potential chilling effect on criticism of the judiciary; the real issue is whether the defamation defences are up to the task of adequately protecting this form of speech - and it appears that there may be reason for concern. These issues are considered against the background of the robust views about criticism of the judiciary expressed by Justice Sackville, Chair of the Judicial Conference of Australia and a Judge of the Federal Court of Australia, in his Lucinda Lecture and other fora in 2005. The inquiry also provides insight into other wider issues including the interrelationship between the judicial restraint policy and scandalising contempt.
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