Corrosion is a gradual process of deterioration and, if left unchecked, can become irreversible. If the recent Resolve Political Monitor survey results are any indication of declining public confidence in our courts and justice system as a whole, then careful consideration must be given to its causes.
Over an extended period, the number of offences on our statute book has increased, sentences have become longer and more punitive, bail laws more restrictive, and parole harder to obtain. Sentencing discretion has been fettered or removed. Our prison population has grown significantly.
None of this appears to satisfy those in the media or politics who seek to derive influence or attention from it. The court system has become an easy target, in part due to the sensational nature of crime reporting, the human cost of offending, and the fact that the justice system does not directly engage in public defence of its own processes.
Efforts to undermine confidence in the justice system have been developing for years but have intensified in recent times through commentary that serves particular political or media agendas at the expense of public trust.
What is often missing from this narrative is that the erosion of confidence in the justice system also risks undermining confidence in all institutions of governance. In some contexts, this narrative is deliberately framed: the suggestion that the system cannot be trusted, and that an external force is required to “fix” it.
Criticism of the justice system and judiciary is, of course, a necessary and healthy feature of a functioning democracy. However, concern arises when such criticism becomes uninformed, personal, or sensationalist.
Dr Pamela Schulz has examined media discourse patterns relating to the judiciary, identifying a sustained hostility in reporting. In her 2008 study, she demonstrated how repeated media framing, combined with political rhetoric, contributes to shaping public perceptions of judicial decision-making and may influence confidence in the justice system. Although her research is now some time old, the pattern she identified has not only continued but appears to have intensified.
It is difficult to read articles suggesting that criminal trials are “not built on logic,” or headlines declaring a “loss of faith in courts when truth takes a back seat,” or claims such as “how killers are beating the system.” Such statements are inflammatory and risk undermining public understanding of the work undertaken daily by courts and legal practitioners.
This phenomenon is not limited to the media. Political commentary has also contributed to public criticism of judicial decision-making. In 2017, during a Victorian Court of Appeal matter involving terrorism-related offending, remarks made in political discourse were reported and amplified in a manner that significantly distorted the underlying judicial comments.
Senior members of the then Federal Government made public statements suggesting that judicial reasoning “eroded trust in the legal system” and that “activist judges” were responsible for sentencing outcomes. These remarks were directed at judicial officers in circumstances where proceedings were ongoing or reserved.
The President of the Judicial Conference of Australia at the time described the commentary as a “coordinated and direct attack on the character and independence of the Victorian judiciary,” noting that the only statements undermining confidence in the legal system were those made by political actors rather than the Court itself.
What is often overlooked is that the judicial comments forming the basis of such criticism were part of a broader and legitimate legal exchange within appellate proceedings. Judicial questioning during argument does not represent a final conclusion but reflects the court’s role in testing legal reasoning in an open and transparent process.
Importantly, criticism of the justice system tends to flow in one direction—towards judicial decision-making and the rights of accused persons—rather than towards policing or prosecutorial conduct. It is therefore not surprising that surveys often reflect higher levels of public trust in police than in courts.
A proper examination of systemic conduct over the past decade may raise legitimate questions about whether such perceptions accurately reflect institutional performance.
The Lawyer X scandal remains a significant reference point in any discussion about public confidence in the justice system. The Royal Commission into the Management of Police Informants exposed serious concerns regarding the use of Nicola Gobbo as a human source while acting as a criminal defence lawyer.
Subsequent investigations, including those overseen by Geoffrey Nettle KC, identified potential criminal conduct within Victoria Police, including allegations of perjury, misconduct in public office, and perverting the course of justice. Despite extensive material being referred to prosecutorial authorities, charges were not pursued on the basis of evidentiary thresholds.
Legislative responses arising from these issues were at times framed in public debate as limiting compensation or shielding officials from liability. However, much of the public narrative failed to engage with the underlying complexity of accountability within policing and prosecutorial decision-making.
More recently, senior police commentary has also contributed to public discourse on the justice system. Statements characterising the system as “overheated” or suggesting it is influenced by ideology rather than fact have further intensified debate about institutional trust.
At the same time, oversight data continues to demonstrate that a significant proportion of complaints received by IBAC relate to Victoria Police conduct, with serious incident notifications also increasing year on year. These figures reflect the inherent complexity of policing oversight in a large operational organisation.
By contrast, the judiciary has not been subject to comparable findings of systemic misconduct or criminal wrongdoing. Despite this, it is often the judiciary that attracts the majority of public criticism when confidence in the justice system is discussed.
Judicial decision-making necessarily involves a careful balancing exercise. In matters such as bail, courts must weigh the protection of the community against the presumption of liberty. These competing interests are central to the administration of justice.
When external commentary becomes increasingly critical or politicised, there is a risk that judicial reasoning may be perceived through a lens shaped by public pressure rather than legal principle. Judicial officers, bound by convention, do not engage in public defence of their decisions except in limited academic or post-retirement contexts.
Justice can be undermined not only when failures occur, but also when public engagement with the system diminishes or becomes distorted. The consequences of such erosion extend beyond the courts and may impact broader institutional trust in governance.
The justice system must remain open to scrutiny, reform, and improvement. However, it should not be subject to sustained mischaracterisation or politically motivated criticism that undermines its independence and function.
[1] Dr Pamela Schulz, Rougher than Usual Media Treatment: A Discourse Analysis of Media Reporting and Justice on Trial (2008)
[2] John Silvester, ‘Greg Lynn and trying to pull a rabbit from a legal hat’ (26/06/24)
[3] SMH, ‘Loss of faith in courts when truth takes back seat’ (31/07/24)
[4] Herald Sun, ‘Killer Deals’ (21/08/24)
[5] Judicial Conference of Australia, Media Release (13/05/17)
[6] Parliament of Victoria, OSI S 99 Report (2023)
[7] The Age, ‘Why the Gobbo case is like munching on a dead elephant’ (13/08/24)
[8] John Silvester, ‘A justice system in crisis, but does anyone care?’ (23/02/24)
[9] IBAC Strategic Assessment Victoria Police 2022–23
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