Judicial Banter
Having a laugh is part of the Australian psyche. We see ourselves as a fun loving, self-depreciating society. Indeed around the world Australians are known for being larrikins. Is it appropriate, however, for humour to be used in Australian courtrooms?
This is a surprisingly well researched area of jurisprudence with research conducted both domestically and internationally. Two articles published in leading academic law journals in 2014 and 2016 respectively have discussed the appropriateness of judicial humour.
They both note the unique brand of Australian humour is sarcastic, irreverent and self-depreciative. While many of us find this type of humour enjoyable, it is these types of jokes that may cause the most problems for judicial officers.
This is reflected by the caution used by much of the judiciary when using humour. In a speech to incoming judges former Chief Justice Murray Gleeson cautioned against using humour, noting that most parties ‘do not find court cases funny at all’ and that in many cases ‘flippant behaviour has caused unintended but deep offence.’ Despite this, many other judges do still use humour and believe judicial humour has a positive effect on court proceedings when used correctly.
The main advantage they identify is that the use of humour relaxes all the parties and makes the courtroom seem less foreign. While a courtroom is set up to be quite an intimidating place with a clear power structure, the use of humour helps to modernise court processes and work towards the courtroom being used as a place of dialogue as opposed to a symbol of power.
Even those judges that advocate for judicial humour, however, warn that there are certain situations in which it is not appropriate. While it is not possible to distinctly separate where it is and isn’t appropriate, there are a number of considerations to think about. Three main considerations identified have been the purpose, topic and context of the humour. There are clearly times where humour is not appropriate or helpful due to any one of these three areas.
It may be inappropriate, for example, to use judicial humour in many family law cases given the high-stress and personal nature of proceedings. There seems to be a fine line between when it is appropriate, and indeed useful, to use humour and when it is inappropriate.
2014 article – http://law.unimelb.edu.au/__data/assets/pdf_file/0007/1586995/382RoachAnleuMackandTutton2.pdf
2016 article – Jack Oakley and Brian Opeskin, ‘Banter from the Bench: The use of humour in the exercise of judicial functions’ (2016) 42 Australian Bar Review82.
The information posted on this blog represents our opinion and should not be taken as legal advice.