From the High Court: We decide who comes here and if not, by the number they are known

From the High Court, 2002

Barrister Geoffrey Johnson: Well, your Honour, if it is of assistance, the practice in the Federal Court…has been to call the applicant by the assigned name.

Guadron, J.: The assigned name?

Johnson: Well, there is an assigned, I think probably randomly allocated, set of letters in the Federal Court.

Gaudron, J.  That is ridiculous.  That is ridiculous

…. You repeat that it is valid and that I am to treat this person as if he had no name.  Do you assert that?  I am to sufficiently ignore the man’s humanity as to deny him a name in these court proceedings and to deny him the ordinary courtesies that I would extend to anyone at the Bar table?

… Well, it is not. I would not do it.  I would not do it because it is discourteous.

Johnson: Well, your Honour, could I respectfully suggest to your Honour that if it is explained to the applicant that…

Gaudron, J: No, no, explain it to me.  It is my problem; not the applicant.  It is my problem. I was brought up understanding that there were certain courtesies and considerations to be extended to all fellow creatures.  I was brought up at the Bar to believe that you treated people at the Bar table with respect.  My time on the Bench has reinforced that learning; that one is to treat them with respect.

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Ken Parish
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Ken Parish(@ken-parish)
5 years ago

Justice Gaudron’s temper tantrum relates to section 91X of the Migration Act 1958 which is titled “Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court” (the title is descriptive of the content). Numbers are used because names are prohibited. Despite Her Honour’s professed doubt about the constitutionality of section 91X, no-one has subsequently challenged the provision, and the practice continues to be universally used. The reason for that is actually fairly straightforward.* Applicants for a protection visa are people who claim to be refugees i.e. people who have a well-founded fear of persecution on religious racial or political grounds if returned to their homeland. Almost by definition, disclosure of the names of applicants would be likely to expose an applicant who WAS eventually returned to their homeland for whatever reason to avoidable additional risk of persecution in a high proportion of cases.

Presumably Gaudron J suspected that it was in reality merely a ruse by the government to further dehumanise applicants as part of a strategy to deter them from applying and/or to reduce the risk that Australians might have sympathy by getting the idea that they are real people experiencing real suffering (an outcome the Howard government – and all subsequent governments – certainly didn’t desire). While one might suspect that such a motivation may not be entirely absent, the reality is that applicants generally are happy to subordinate their desires to be referred to by name in civil discourse (noting that they are almost never present in court anyway) to their much stronger desire to protect their identities from publication in order to minimise the risk that they will be persecuted if sent home.

The quoted exchange occurred only a couple of months before Gaudron J retired from the High Court bench, and probably suggests she was looking forward to retirement and taking the opportunity to pay out on things that irritated her in the meantime.

* I should note, however, that even if the motivation for 91X WAS deterrence rather than protection of applicants, that wouldn’t make it invalid. The migration and aliens powers in the Constitution are said to be “non-purposive”, meaning that a law supported by them will be constitutionally valid (almost) irrespective of legislative motivation if it creates, alters or removes rights, duties or liabilities in relation to migrating to Australia. Prohibiting use of applicants’ certainly does that.

It was a good idea at the time
It was a good idea at the time
5 years ago

I do not see Gaudron J’s problem here. In fact, I believe courts should be conducted with complete anonymity. The defendant should not be named, nationality not disclosed, gender not disclosed, suburb of crime not disclosed etc etc. After all, is it not the OFFENCE that is on trial (Ken some clarification here !!). I thought we played the ball, and not the man.

And while on that subject, why are court cases that end up as NOT GUILTY or ACQUITTED publicized ? We read of the devastation to individuals of the publicity of court cases.

What does a headline “Today, Jimmy WEST, a known male homosexual, from an aboriginal settlement in Jonesville, known associate of the Islamic “Flaming Tigers” group, member of the “Headhunters” motor cycle gang, and member of the Far Left Labor Party, was found NOT GUILTY of theft of $10,000 in the Northtown court, after a lengthy trial” say to the average Australian bogan (and a good proportion of non- bogans).

The mind boggles, and the comment “With a record like that, he must be GUILTY – what are the courts doing these days !” comes to mind.

What happened to INNOCENT UNTIL PROVEN GUILTY ? And if INNOCENT or ACQUITTED, why does the public need to know ?

Edward Carson
5 years ago

Possibly a good idea It was.
However the traditional nature of hearings and court cases is that they should be public. If you personally knew a certain indentity wouldn’t you desire to know if he was being prosecuted with a serious crime? Making it public lessens the chance of an abuse of process. Also would not the publicity of a trial attract people who may have some probitive evidence to contribute?

It was a good idea at the time
It was a good idea at the time
5 years ago

Ed, I am not convinced that Edward CARSON (an aboriginal homosexual) would like his name appearing as a headline in the national media (or the Bandiwallop Bugle, where he may live) stating that Ed had committed some terrible crime. Why ? Because 70% of people would on reading that headline reach the conclusion that he was as guilty as sin, and should Ed be an aboriginal homosexual, 10 times guilty (always thought that Ed was queer and thus would steal money, I tell you !!).

Why ? because 90% of people assume that if the police laid charges, then they must be sure of the case. We all know the police are as pure as the driven snow.

If, some time later, Ed is found NOT GUILTY of said crime, then that seems to be relegated to page 10 of the news, or may not be published at all.

Ed has to live with his best friends avoiding him, his name besmirched forever.

The commission of crimes is between the accused and the state, not the general public, except in the case of GUILTY.

I am not talking about wrongful findings which are a different case altogether.

It was a good idea at the time
It was a good idea at the time
5 years ago

And Ed, I am not interested in what is traditional. It is up to the state to prove the charges, and I am of course talking of NOT GUILTY cases.