Adjudication No. 1418  (adjudicated March 2009)

The Australian Press Council has dismissed the main burden of a complaint brought by Justice Jocelynne Scutt, a judge of the High Court of Fiji, against The Australian but upheld that part of the complaint relating to claims by the newspaper of "links" with the military regime.

In December 2006 a military coup took place in Fiji. Justice Scutt's appointment occurred during the resulting military regime.

The article in the March 10, 2008 edition (Judge criticised over Fiji posting) reported her acceptance in November 2007 of her judicial appointment. It noted that she was among the High Court judges who have been used to fill the gaps in the Court of Appeal in the wake of the resignation of six expatriate judges. It quoted comments critical of Justice Scutt made by the Fiji Women's Rights Movement and two prominent barristers. Additionally, it quoted a spokeswoman for the Australian Foreign Minister as saying that the state of the Fijian Judiciary is a matter of concern, as evidenced by the fact that most expatriate judges, including a number of Australian nationals, have resigned or have refused to renew their contracts 'and are urging the Fijian interim government to return Fiji to democracy and the rule of law'.

The article in the March 15, 2008 edition featured comments from Angelina Heffernan, the executive director of the Pacific Centre for Public Integrity, a body described in the article as 'Fiji's democracy lobby'. The article centred on letters of complaint sent by Ms Heffernan to various legal bodies and authorities in Australia, calling for regulatory procedures 'to deal with the activities of Australian lawyers overseas'. Ms Heffernan was reported as saying that acceptance by members of the Australian legal fraternity of 'illegal appointments in the Fiji judiciary' was 'deeply unfortunate and ethically unconscionable'. Ms Heffernan's complaint, particularly to Victoria's Legal Services Commissioner, was highlighted in the March 28, 2008 edition. It was subsequently dismissed, a fact that The Australian reported.

Justice Scutt complained that the articles were 'highly critical', 'highly defamatory' and 'damaging' and sought a retraction of the published materials and the publication by the newspaper of an apology.

A key point made by Justice Scutt is that the newspaper was wrong in asserting that she accepted a judicial appointment 'from the military-backed regime'. She contends that such an assertion is inaccurate as her appointment was made by the President of Fiji. She asserts that judicial appointments in Fiji 'are not political' as they are made by the President upon the recommendations of a Judicial Services Commission. The newspaper describes this assertion as 'disingenuous' and said that various members of the Judicial Services Commission had been replaced by the military regime since the coup.

The newspaper justifies its focus on Justice Scutt on the ground that the other expatriate appointees lack the public profile of Justice Scutt who is an internationally known feminist and a former anti discrimination commissioner in Tasmania. There is no doubting that Justice Scutt is a public figure, and that her acceptance of a judicial appointment in a country under the control of a military regime is a newsworthy story of public interest.

Justice Scutt also said that she found it surprising that the articles were written and published at all given that the matter of judicial appointment in Fiji is currently sub judice. In the Council's view, this provides no effective or convincing justification for her complaint.

The Council is critical of what appears to be inadequate attempts by the newspaper to obtain comments from Justice Scutt prior to the publication of the first article. However, once an adequate opportunity was provided to her to address questions surrounding her acceptance of the judicial appointment, she declined to comment. This refusal by Justice Scutt to provide comments based on her belief that, as a judge she was "not able to speak on the matter", did not preclude the newspaper from continuing to report, and comment on, her appointment.

Nonetheless, the Council concluded that the newspaper went too far in statements such as that the complainant has "links with Fiji's military rulers" and "is involved with the military regime", statements which incorrectly imply collaboration with and/or personal connections with members of the military regime. The newspaper offered no evidence to justify these statements.

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