Justice James Spigelman AC QC NPJ, Non-Permanent Judge of the Hong Kong Court of Final Appeal, recently gave an address in Hong Kong entitled Justice ‘Seen to be Done’ or ‘Seem to be Done‘, in which he emphasised the vital role that the principle of open justice plays in our institutional arrangements. This article highlights key observations he made during his talk and views he expressed in a post-event interview on social justice and on the contribution of Non-Permanent Judges to the CFA’s work.
Justice Spigelman is a man of many talents and interests – ranging from a political activist to public intellectual to an esteemed jurist, author and orator to an art and music aficionado.
His life began in Sosnowiec, Poland, where he was born in 1946 to Jewish parents who survived the Holocaust. At age three, he migrated with his family to Australia as a refugee.
He was called to the Bar in 1976, which is also the same year he became a member of the Australian Law Reform Commission. As a barrister, he had a very substantial practice in broadcasting and media law. In 1986, he took silk.
In May 1998, he was appointed Chief Justice of the NSW Supreme Court. During his 13-year tenure, he was described as blazing “an incomparable trail” as the Chief Justice by David Marr, Sydney Morning Herald columnist. Of the changes that occurred under his leadership, he considers his efforts to shift the NSW Supreme Court’s gender imbalance to be his most significant – there being an increase from two to ten female judges, with one going up to the High Court.
After retiring as Chief Justice from the NSW Supreme Court in May 2011, he was appointed in 2012 as chairman of the Australian Broadcasting Corporation. In 2013, he became a Non-Permanent Judge of the CFA. He also still practices law as an international commercial arbitrator.
Some contend Justice Spigelman’s interest in social justice overshadows his record as an agent for change as Chief Justice and in his other government-appointed roles in NSW. When asked by Company Director Magazine in 2012 where his interest in social justice comes from, he said it likely took shape in his prime. “The question of social tolerance was very important throughout my childhood and formed a significant part of my values,” he said. “Growing up, I heard stories about how my parents and elder brother survived, when they lived in the immediate region near Auschwitz. I always understood the importance of social tolerance in the community.”
In an article featuring Justice Spigelman’s elder brother, Mark, Sydney Morning Herald columnist Geesche Jacobsen recounted how his family survived by pretending to be German and dressing Mark as a little girl. “They escaped deportation to Auschwitz when a German officer found that Mark reminded him of his daughter. Later Mark was smuggled into a ghetto where children were banned. Afterwards they hid at a garbage dump, and with a Polish family,” Jacobsen wrote.
The Spigelman’s home town had a population of 60,000 Jews before the Nazi occupation. Justice Spigelman’s brother was one of only three children who survived. His father, Miloch, was one of 15 survivors among 72 Spigelman relatives.
When asked how his background has influenced his personal and professional life, he said it has made him “particularly sympathetic to groups who suffer discrimination or are otherwise oppressed.” This is most palpably demonstrated in his work to advance the rights of the aboriginal people of Australia – from joining the Freedom Ride led by Charles Perkins in the mid-1960s to publicly revealing his views on aboriginal land rights at a special ceremony to commemorate the Supreme Court’s 175th anniversary by opening it with a ‘Welcome to Country’ ceremony (ie, a small ceremony where members of Australia’s aboriginal culture, usually elders, welcome people to their land). At that time, ‘Welcome to Country’ ceremonies were largely unknown in public life.
In an address Justice Spigelman gave in Hong Kong in mid-March, where he joined the Law Council of Australia’s Hong Kong Chapter at an after work event hosted by Davis Polk Wardell, he expanded on a number of observations he made in previous addresses on the principle of open justice.
He opened the address by explaining that the principle is most frequently expressed in the form of an aphorism attributed to Lord Chief Justice Hewart from his Lordship’s judgment in R v Sussex Justices; Ex Parte Macarthy  1 KB 256, 259:
“It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
He continued by noting that there were other articulations of the principle that have more auspicious provenances. For instance, Lord Atkin once said: “Justice is not a cloistered virtue” (see Ambard v Attorney General for Trinidad & Tobago  AC 322, 335) and Lord Bowen has said: “Judges, like Caesar’s wife, should be above suspicion” (see Leeson v General Medical Council (1889) LJ 59 Ch NS 233, 241).
Given Lord Hewart’s notoriety as being “the worst English judge in living memory”, which Justice Spigelman expanded upon at length, he indicated his preference to attribute this important aphorism to Lord Sankey, who articulated the same in Hobbs v Tinling and Company Ltd  2 KB 1. Justice Spigelman conjectured that perhaps Lord Sankey, who six years early had merely concurred with Lord Hewart’s judgment in R v Sussex Justices, was in this decision “giving us a hint as to the true origins of the aphorism”.
Questions of origin aside, Justice Spigelman said that the principle of open justice is of “constitutional significance” and is “manifest in Art. 10 of the Hong Kong Bill of Rights”. He noted that the Hong Kong Court of Appeal affirmed the principle recently in Asia Television Ltd v Communications Authority  2 HKLRD 354, paras. 19–36 (the “ATV case”), in which Chief Judge Cheung formulated ten “basic principles” relating to open justice. “This was a comprehensive synthesis of prior case law on the centrality, the significance and the purpose of the principle, together with key categories of its application,” he said.
Scope of the Principle
As explained by Justice Spigelman, the fundamental rule of the principle of open justice is that judicial proceedings must be conducted in an open court to which the public and the press have access. “A court cannot agree to sit in camera, even if that is by the consent of the parties. The exceptions to the fundamental rule are few and are strictly confined. As I have indicated,” he continued, “the inherent power of a common law court to develop new circumstances in which the public may be excluded is now spent. Sitting in public is part of the essential nature of a court of law and any new exception to the principle can only be created by statute.”
“The principle of open justice informs and energizes fundamental aspects of common law procedure and is the origin, in whole or in part, of numerous substantive rules.”
Examples Justice Spigelman highlighted that are, in part, based on the importance of appearances, include the requirement of due process or natural justice or procedural fairness, which encompass the obligation to give a fair hearing that is presided over by an unbiased decision-maker. Expanding on the latter requirement, he said “[i]n common law jurisdictions the test of reasonable apprehension of bias is an objective one. It is a question of what fair minded people – not just the parties, but the public at large – might reasonably apprehend or suspect.”
“An important manifestation of the principle is also the foundation of judicial accountability. I refer to the obligation to publish reasons for decisions. This obligation requires publication to the public, not merely the provision of reasons to the parties,” he explained.
Other specific rules Justice Spigelman noted that are influenced by the principle, include the prohibition of undue interference by a judge in proceedings; the prohibition of improper conduct by a court officer with respect to the trial; the determination of the weight to be given to the public interest when ruling on a claim of privilege; and the proposition that a permanent stay of criminal proceedings will be extremely rare.
The Media and the Principle
“The principle of open justice raises many issues about the administration of justice relevant to the media,” Justice Spigelman explained. “In the landmark case of Attorney General v Leveller Magazine  AC 440, 450, Lord Diplock said the principle of open justice requires that the court should do nothing to discourage fair and accurate reports of proceedings. This has been described as a ‘strong’ but not a ‘mechanical’ rule.”
“Access by the media to legal proceedings and judicial decisions is, perhaps, the most frequent source of litigation about the principle of open justice,” he continued. “Matters involving the requirement of a fair trial, such as suppression orders and pre-trial publicity, or other public interests, such as protecting the right to privacy or commercial confidentiality, give rise to difficult judgments, because conflicting public interests must be balanced.”
The most fundamental aspect of open justice, according to Justice Spigelman, is that it is essential to maintain public confidence in the judiciary and the administration of justice. “Indeed, that was, properly listed as Principle 1 by the Hong Kong Court of Appeal in the ATV case,” he said.
“In this respect, a critical function of open justice is to ensure that victims of crime and the community generally understand the reasons for criminal verdicts and sentences.” He noted that the significance of this function was well expressed by Chief Justice Burger in Richmond Newspapers v Virginia, 448 US 444 (1980), 571–72:
“Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people’s consciousness the fundamental, natural yearning to see justice done – or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is “done in a corner [or] in any covert manner.” ... It is not enough to say that results alone will satiate the natural community desire for “satisfaction”. A result considered untoward may undermine public confidence, and where the trial has been concealed from public view, an unexpected outcome can cause a reaction that the system, at best, has failed, and, at worst, has been corrupted. To work effectively, it is important that society’s criminal process “satisfy the appearance of justice”, ... and the appearance of justice can best be provided by allowing people to observe it.”
“It is the combined effect of the numerous manifestations in specific legal rules based on the principle of open justice, together with the institutional strength of an independent judiciary and an independent legal profession that underpins public confidence in the administration of justice,“ Justice Spigelman said. “This is, in my opinion, the principal social contribution of the principle. There is no doubt in my mind that Hong Kong’s inheritance of the common law tradition, now reinforced by the provisions of the Basic Law and the Bill of Rights, justifies such public confidence.”
Contributions of Overseas Judges to the CFA
In addition to four main Hong Kong judges, the CFA has also included veteran overseas judges from New Zealand, Australia and Britain. When asked his opinion about the benefits of the international make-up of the CFA in a post-event interview, Justice Spigelman said that their contribution has been “welcomed” by all. First, the CFA benefits from their “substantive contribution to processes and judgments of the Court, by the application of their individual skills and experience. Secondly, their presence is seen as a clear manifestation of the rule of law under the One Country, Two Systems regime. My conversations with many current Non-Permanent Judges indicate that we are all enthusiastic about making a contribution in both respects,” he concluded.
The Law Council of Australia
The Law Council of Australia (“Law Council”) was established in 1933 and is the peak national representative body of the Australian legal profession that speaks on behalf of its constituent bodies on national issues and to promote the administration of justice, access to justice and general improvement of the law. It advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. It also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world.
The International Law Section of the Law Council started establishing chapters about five years ago to enable Australian lawyers working abroad to stay in touch with each other and with Australian legal developments. The Hong Kong Chapter was formally established in 2012. Membership is opened to practising and non-practising lawyers who have graduated from Australian law schools and those who have expressed interest in the Australian legal environment.
Upcoming events organised by the Law Council of Australia, Hong Kong Chapter, include an evening reception with the Honourable Mr. Justice Murray Gleeson AC NPJ on 16 June 2016 and with the Honourable Mr. Justice Joseph Fok PJ on 3 November 2016. These events are open to members and non-members alike. To be kept informed of these and other future events, please contact Mr. Anthony P Chow at email@example.com.
Justice James Spigelman AC QC NPJ
Justice Spigelman obtained a BA and an LLB from the University of Sydney.
Early in his career, he was politically active. From 1972–1976, he served as the senior adviser and principal private secretary to Gough Whitlam, the Prime Minister of Australia and then as the Secretary for the Department of Media.
He commenced practice as a barrister in 1980 and was appointed Queen’s Counsel in 1986.
He served as acting Solicitor General of NSW in 1997. He was appointed Chief Justice of New South Wales in 1998 and served in that office until 2011.
After retiring as Chief Justice of the NSW Supreme Court, he was appointed as chairman of the Australian Broadcasting Corporation in 2012 for a term of five years. In 2013, he became a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He also still practices law as an international commercial arbitrator.
He was appointed a Companion of the Order of Australia in 2000 (“AC”), for services to law and to the community through leadership in bringing about change in attitudes to the administration of justice for a more fair and equitable society, and to the support of the visual arts. In 2001, he was awarded a Centenary Medal and in 2004 he received a Doctorate of Laws (honoris causa) from the University of Sydney.