In a recent speech at the Great Synagogue in Sydney, Chief Justice James Allsop of the Federal Court spoke candidly about the need to value “civility, reason, fairness and justice. … Civility and manners in social intercourse are not bourgeois affectations; they are necessary human customs for the peaceful and respectful exchange of ideas”
“It is fair to say that civility, justice and fairness are the more general and less defined ideas in the law, and, in that sense, the remoter parts of the law. The law must incorporate them if it is to fulfil its function as the binding agent of a just democratic society with the strength, as this nation has, of a hundred nations”.
Referring to criticism that the sentences being imposed by judges are too light and out of touch with community values as “nonsense”, Allsop CJ deplored the spate of personal attacks on judges. “It is a technique that is deeply wrong … [that] reflects a failure to understand the basic premise of the exercise of judicial power, and is redolent of the discourse of the mob”.
According to Allsop CJ, mandatory sentences (such as those introduced into NSW for various assault offences) require judges to impose arbitrary sentences that do not reflect the principles of equality before the law, impartiality, fairness and the proper determination of facts in individual cases. Furthermore, “intoxicated, aggressive and cowardly adolescents and young men, are … offenders, not enemies worthy of crushing”.
Weighing into the argument over the extent to which freedom of expression should be regulated, Allsop CJ argued that the constitutional protection of freedom of political communication should not be extended to the freedom to insult. “Why, however, is civil democratic society advanced or fostered by the expression of insulting calumny or personal invective?” While not expressing a view on the debate over the future of the racial vilification provisions of the Racial Discrimination Act, he referred to one of his own judgments concerning the role of law and judges in promoting respect and harmonious relations in a diverse society.