R v Nicholls [1911] HCA 22

280 HIGH COURT

[HIGH COURT OF AUSTRALIA.]

THE KING v. NICHOLLS.

H.C: or A. Contempt of Cout—Natnre of offence—Obstruction to or interference with justice 1911. Publication of statements concerning a Judge of the High Court. "

MeErpourne.

June 7.

Statements made concerning a Judge of the High Court do not constitut contempt of the High Court unless they are calculated to obstruct or interf with the course of justice, or the due administration of the lew, in the] Griffith C.J., Court.

Barton and O'Connor JJ.

Morton. : 3 On 7th April 1911 there was printed and published at Hol Tasmania, in a newspaper called The Mercury, an article he "A Modest Judge," which was as follows:—<Mr. Justice Hig; is, we believe, what is called a political Judge, that is, he appointed because he had well served a political party. moreover, seems to know his position, and does not mean to al any reflections on those to whom he may be said to be indebt for his judgeship. In the course of the hearing of a case the Arbitration Court, one of the counsel deseribed the Brok Hill labour organizations as 'the most tyrannical that he he known, and he added, 'moreover, they are encouraged by Union and the Government of this country.' Whereupon. Justice Higgins was shocked, and is reported to have : severely, 'You are not entitled to speak severely of those abo us. Whether he meant that the Union or the Government above us' is said to be somewhat uncertain, because as 1] Unions are supposed to rule the Government, it is held that the must be regarded as the supreme power, and must not be light spoken of, no matter what kind of language they may use thi selves. On the other hand, it is argued that he must have m the Labour Ministry, because the charge of encouragement see

OF AUSTRALIA.

one knows that the Unions do encourage all sorts of we things. Assuming, as we may assume, we think, that ant the Ministry, we find ourselves impelled to remark fact that a Judge, a superior Judge too, should admit ven a Ministry or a Government is superior to him in rcise of his judicial functions. As we and most people tand the matter, a Judge on the Bench in the exercise of ial functions has no superior, and if a Government has wrong in a public manner, there is no reason why the fact id not be stated, and it might even form a reason for a decision in a case. In fact, it is conceivable that the tion of a Minister might be a reason for a special decision, and, ainly, of special remarks, not only by counsel, but by the too. Mr. Justice Higgins thinks not, and has no ublance to the Judge who did not hesitate to deal with a e of Wales in an exemplary mannner, and who has had applause ever since. 'The time may not be far distant, pose, when we shall not be allowed to speak ill of the , for that is above all. From another point of view, we be disposed to exclaim with Maria, in ' Twelfth Night' :— yu, an you speak ill of the devil, how he takes it to