Judicial complaints and concerns

Edit: Since writing this I’ve stumbled across Ron Sackville’s recent article, Judicial Ethics and Judicial Misbehaviour: Two Sides of the One Coin? in the Journal of Law and Social Science.

It traces the development of the NSW Judicial Commission and places it in historical context (if Lionel Murphy was Victorian it’s at least arguable that we would have had such a body first).

The article also refers to the Guide to Judicial Conduct, a non-binding attempt to give the judiciary practical guidance on ethical issues, sanctioned by the Australian Council of Chief Justices. I found this copy on the AIJA‘s website, and will have to remember to put finger to keyboard next year about this organisation of increasing significance.

In July, Chief Magistrate Ian Gray leant his support to reform complaint-handling procedures against judicial officers. It followed a number of high-profile incidents, most notably the resignation of a magistrate following doubts about the accuracy of statutory declarations she had submitted concerning speeding fines.

With another magistrate currently taking leave pending the outcome of an investigation into his conduct, criticism of the existing system is inevitable. Currently, whether investigation into a complaint should occur and the form it should take is a matter left up to the head of each of the respective courts, a difficult task for a judicial officer who is merely a ‘first amongst equals’ with little actual power over their colleagues. There are no formal processes for dealing with less serious conduct that does not warrant removal from office.

Chief Justice Marilyn Warren also accepts the need for review of the system but publicly rebuked Attorney-General Rob Hulls for his comments on the issue. Apparently she doesn’t like members of the executive branch saying publicly that judges should maintain the same high standards expected of other public officials.

The next step in the reform process was the release of a DOJ discussion paper last week, Investigating Complaints: Concerns Regarding Judicial Conduct.

The paper puts forward three broad alternative proposals:

1) do nothing

2) formalise or bolster the powers of heads of courts

3) create an independent complaints and investigative body

The clear front-runner preferred by government is a NSW-style Judicial Commission that will take on the responsibilities to make recommendations regarding remedial action and education for minor judicial misconduct. Similar bodies exist in Canada, India and the US. The conduct of hearings is similar to a Royal Commission, and the commission takes no final action itself but merely reports its findings to Parliament.

In NSW, the head of the Judicial Commission is the Chief Justice of the Supreme Court. Despite this, according to the report,

[w]hen the Bill to establish the NSW Judicial Commission was introduced, the Justices of the NSW Supreme Court issued a public statement that said in part: “The Bill has the potential to reduce the Judiciary to disciplined subservience. The right of the private citizen to have justice administered ‘without fear or favour’ is placed at serious risk”.

Concerns that the NSW Commission would be used to harass and persecute judges have
not been borne out. The success of the NSW model provides a powerful argument in favour of the establishment of a similar system in Victoria.

A major benefit of the NSW Commission is that it also performs an educative function
and this has contributed to the acceptance of its role.

The NSW Judicial Commission has been in place for 20 years. As well as an investigative function, the Commission also plays the roles which are fulfilled here by the Judicial College of Victoria and the Sentencing Advisory Council.

Submissions about the future of judicial complaints-handling must be in by 18 December 2009.

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