THE JUDICIAL CONDUCT AND
COMPLAINTS SYSTEM IN VICTORIA
A REPORT
Professor Peter A Sallmann Crown Counsel for Victoria
Dec 2003
Dedication
This report is dedicated to the memory of the late Richard E McGarvie AC QC, leading barrister, Supreme Court Judge, University Chancellor, Governor of Victoria and noted constitutional and political reformer, who made a huge contribution to the conduct of public affairs in Australia. Of special significance in the context of this report is his substantial influence on the development of the judicial branch of government in Australia and judicial administration in general. He was a member of the Judicial System Committee of the Constitutional Commission, a founding father of both the Australian Institute of Judicial Administration (AIJA) and the Judicial Conference of Australia (JCA) and, through a host of inquiries and committees, led many significant judicial administration reform initiatives. His numerous papers and published articles on key aspects of judicial administration are standard reading for students and judicial system practitioners alike. Richard McGarvie, who died in May this year, and the author of this report were good friends and judicial administration colleagues. They worked closely together on a number of justice system projects over the years. He contributed significantly to this particular report by providing various ideas and suggestions at key stages of the review.
P.S.
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About the Author
Peter Sallmann is Crown Counsel for Victoria. He was the inaugural Executive Director of the Australian Institute of Judicial Administration (AIJA) from 1987-96 and before that he taught law and criminal justice at La Trobe University, and was a full-time Commissioner with the Law Reform Commission of Victoria. Since 1986 he has been a Professorial Associate of the Law Faculty in The University of Melbourne. Before appointment as Crown Counsel, Professor Sallmann was Director of the Civil Justice Review Project in Victoria. He is a member of the Board of Directors of the Judicial College of Victoria (JCV) and also is a member of the Courts' Strategic Directions Working Group, a committee of senior judicial officers and others, which is currently examining the future directions of the Victorian court system.
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PAGE NO CONTENTS
1. TERMS OF REFERENCE 6
2. PREFACE 8
3. EXECUTIVE SUMMARY 9
4. RECOMMENDATIONS 11
5. INTRODUCTION 15
6. BACKGROUND TO THE REVIEW 16 Impetus for the Review 16 Conduct in Perspective 16 Dealing with Complaints 17 Roles of the Executive and Legislature 18 Conduct Guide 18
7. CONDUCT OF THE REVIEW 20 Importance of Judicial Independence 20 Project Methodology 20
8. THE PRESENT ARRANGEMENTS 23 Introduction 23 Types of Complaints 24 Complaints in Perspective 25 Removal Provisions 25 The Relevant Behaviour 28 Investigation of Removal Cases 30 Non-removal Cases 34 The Informal Complaints System 36
9. A JUDICIAL COMMISSION 43 Overview 43 Complaint Handling 44 Comment 45
10. CURRENT REMOVAL LEGISLATION 47 Background to the Modern Judiciary 47 Supreme and County Court Provisions 48 Magistrates’ Court 51 Victorian Civil and Administrative Tribunal 52
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11. GUIDE TO JUDICIAL CONDUCT 53
12. IMPROVING AND MODERNISING THE SYSTEM 56 Introduction 56 Discussion Paper Proposals 59 Removal Provisions 61 A Judicial Committee 63 Non-Removal Cases 66 Chief Judicial Officers 68 Conduct Guide 69
13. CONCLUSION 70
14. ENDNOTES 71
15. SELECT BIBLIOGRAPHY 76
16. APPENDIX: CONTRIBUTORS TO THE REVIEW 84
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REVIEW OF PROCEDURES FOR DEALING WITH JUDICIAL COMPLAINTS AND LEGISLATIVE PROVISIONS RELATING TO THE DISCIPLINE AND REMOVAL OF JUDICIAL OFFICERS
1. TERMS OF REFERENCE
To: Professor P A Sallmann Crown Counsel
You are requested to examine the system for dealing with complaints against Victorian judicial officers, the current legislative provisions relating to their removal, and the possibility of the adoption of a judicial code of conduct. Having examined those matters you are asked to report on any proposals or suggestions for changing the current arrangements.
1. Complaints procedures
You are requested to:
· examine the current system for dealing with complaints against Victorian judicial officers. (See definition below of “judicial officer” for the purposes of this review).
· consider the desirability of establishing a judicial commission to deal with complaints against judicial officers.
2. Current legislation
You are requested to review the current legislative provisions relating to the removal of judicial officers, and to advise whether the provisions:
· are adequate to deal with complaints; and
· achieve an appropriate balance between the requirements of judicial independence and accountability.
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3. Judicial code of conduct
You are also asked to advise on the possibility of Victorian Courts adopting a code of judicial conduct, especially in the light of the AIJA judicial conduct code project being conducted under the auspices of the Council of Chief Justices.
4. General matters
The review is to be conducted having regard to the constitutional principle of judicial independence and the need to maintain and enhance public confidence in the judicial system.
“Judicial officer” for the purposes of this review includes Judges and Masters of the Supreme and County Courts, Magistrates and full-time non-judicial members of VCAT.
In conducting the review you are expected to consult widely with members of the judiciary and the legal profession and to consider interstate and overseas systems for dealing with judicial conduct matters.
ROB HULLS MP Attorney-General
2 July 2001
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2. PREFACE
In July 2001 the Attorney-General of Victoria, The Hon Rob Hulls MP, asked me to review the present arrangements for dealing with conduct issues in the judiciary, including when complaints are made about judicial officers by people involved in cases or by members of the general public. The Terms of Reference for the review also included the statutory provisions on the removal of judicial officers and tribunal members and the issue of a judicial code of conduct.
In July 2002 a Discussion Paper (DP) was published containing my provisional analysis of the topic. The DP was published for comment and discussion before preparation of a report to the Minister. In order to focus the attention of readers, the DP put forward a number of proposals for change in the present arrangements for dealing with conduct and removal issues. Potential respondents were specifically invited to comment on these proposals.
The release of the DP was timed to await publication of the Australian Council of Chief Justices’ Guide to Judicial Conduct. This Guide was prepared by the Australian Institute of Judicial Administration (AIJA) on behalf of the Chief Justices and released on 17 June 2002. It was important to consider this landmark publication because the idea of a conduct code was a specific component of the Terms of Reference for the review and so the appearance of the Chief Justices’ document was a major development on this front.
More than fifty formal responses were received following publication of the DP. These were extremely helpful in the preparation of this report. A number of the submissions, including some from key legal and judicial bodies were not available until late last year and in a couple of cases earlier this year. I took the view that I needed to consider these submissions before finalising the report. I trust that anyone who has been patiently awaiting the outcome of the review will be understanding in that regard.
Peter A Sallmann Crown Counsel
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3. EXECUTIVE SUMMARY
The Terms of Reference for this review called for an examination of key features of the judicial conduct and complaints system in Victoria. More specifically, the aspects considered were the complaints process itself, the removal provisions and the possible adoption of a code of judicial conduct. The Terms of Reference also gave particular emphasis to the need to consider judicial independence and the importance of maintaining and enhancing public confidence in the judicial system in general.
The early work of the review involved a good deal of research and consultations of various kinds, including personal contact with all judicial officers in Victoria to seek their views on issues raised in the Terms of Reference. This background work led to the publication of a Discussion Paper (DP) in July 2002. The DP sketched the background to the review, explained its methodology and discussed the current complaint and removal arrangements. It also contained a series of proposals for the modernisation and improvement of the current system. Finally, it called for comments and submissions, especially in relation to the proposals for change.
The DP proposals did not call for radical changes to the existing arrangements. The current system, centred as it is on the time-honoured principles of judicial independence and the separation of the different branches of government, is basically sound. The proposals were aimed at further enhancement of judicial independence and a general modernisation and improvement of the conduct, complaints and removal arrangements. The great bulk of the more than fifty submissions received in response to the DP supported the proposals, at least in general terms.
Later work done for the review confirmed support for the general direction of the DP proposals and laid the foundations for the final Recommendations set out in this report. The submissions and comments received were most helpful in that regard. The report has a number of Recommendations on the removal provisions which apply to the Courts and VCAT and also for enhancing judicial independence generally in Victoria. It also has a proposal for a formal committee system to be established by legislation to provide for the investigation of any potential removal case that might be referred by the Attorney-General.
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The review does not support the idea of a formal Judicial Commission type body for receiving and investigating complaints against judicial officers. It supports retention of the traditional, "head of jurisdiction" arrangement for dealing with lower level complaints and notes that in the course of the review the Courts and VCAT have done significant work to up-grade and publish their protocols for dealing with complaints. The report has some proposals for further improvements in this regard, including the publication of a booklet explaining how the complaints system works and what should be done in the case of a complaint being made about a chief judicial officer.
A list of the specific Recommendations appears in the next section of the report.
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4. RECOMMENDATIONS
1. In order to strengthen judicial independence and the security of judicial tenure in Victoria it is recommended that the removal provisions which currently govern the Supreme, County and Magistrates' Courts be amended to accord with Section 72(ii) of the Australian Constitution, which provides that Federal judicial officers "shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity".
2. While no legislative attempt should be made to define "misbehaviour" or "incapacity", consideration should be given to indicating in any amending legislation that "misbehaviour" for the purposes of removal proceedings is not limited to the performance of judicial work by the judicial officer in question and may include behaviour that occurred before appointment as a judicial officer. (This could be achieved simply by adding the words "whenever occurring" after the word "misbehaviour").
3. The present removal provision for Supreme Court judges is contained in the Constitution Act 1975 (Section 77). It is recommended that the removal provisions for the County and Magistrates' Courts also be included in the Constitution Act and that, for all three Courts, a special majority vote of each House of Parliament be required for removal. It is also recommended that a special majority vote be required to repeal or change any of the removal provisions (A "special majority" means 3/5ths of the whole number of the members of the Assembly and of the Council respectively).
4. In order to fill a gap in the current system for removal cases in Victoria, it is recommended that legislation be passed to provide for the establishment of an independent standing committee of judges to determine whether, in the case of any matter referred to it by the Attorney-General, the facts established by it are capable of amounting to proved misbehaviour or incapacity warranting removal of the judicial officer in question.
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The legislation would establish the appropriate structure and administrative arrangements for a panel of Federal and Family Court and State and Territory Supreme Court Judges, (preferably nominated by their respective Chief Justices upon request by the Attorney-General), who have agreed to serve as members of a committee if called upon to do so. The members of the panel would be involved as individual judges not as representatives of their respective courts.
Any such committee would operate as a group of three judges randomly selected from the panel. The legislation or regulations produced pursuant to the legislation would also provide a simple basis upon which panel membership would change periodically over the years.
If this Recommendation were accepted consideration would need to be given to the specific powers of the committee and how it would operate. At the very least it would need to observe the accepted principles of natural justice in its approach to investigating and reporting.
Such a committee would receive a reference from the Attorney- General of the day and would report to the Attorney-General on the results of its work.
5. As an added protection for any judicial officer who is the subject of removal proceedings, it is recommended that the legislation provide that a judicial officer cannot be removed from office without the judicial committee reporting that the facts it found were capable of amounting to misbehaviour or incapacity warranting removal. (This would mean that the Parliament could vote against removal even though the report of the committee was adverse to the judicial officer but could not vote for removal unless there was an adverse report).
6. As in the case of the three Courts, the removal grounds for full- time, non-judicial members of VCAT should be the same as for the Federal Judiciary i.e. "proved misbehaviour or incapacity" but the present VCAT removal procedures should remain as they are. (The Recommendation is in relation to full-time members because the Terms of Reference were so limited but there seems no good reason why the same removal grounds should not apply to part-
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time people as well).
7. As a further protection and enhancement of the principles of judicial independence in Victoria, it is recommended that legislation be introduced along the lines of Section 56 of the New South Wales Constitution Act to provide that in the event of a court being abolished the judicial officers of that court are entitled to be appointed to a court of equivalent or higher status, unless already the holders of such an office.
8. It is recommended that the current system for dealing with lower level complaints against judicial officers should remain but that the Courts should jointly publish a booklet along the lines of the current New Zealand one, clearly and simply setting out basic information about the Courts and judicial officers and, in particular, how the complaints system operates. A joint publication would clearly be the preferred approach but, failing that, each Court should produce its own. (VCAT should have its own, separate booklet).
9. It is recommended that the Courts and VCAT should consider publishing in their annual reports general information about their complaint handling activities in the year under report. This would include an indication of the number and types of complaints received and general information about their outcomes.
10. As part of the informal arrangements for dealing with lower level, non-removal type complaints the DP made a number of suggestions about how the system might best deal with a complaint about a chief judicial officer. It is recommended in this regard that each Court consider adopting the suggestion made to the review by the County Court that a complaint against a chief judicial officer should be handled by a panel consisting of the three next most senior judicial officers of the Court.
Since the President of VCAT is a Supreme Court Judge it would seem appropriate for the Chief Justice to deal with a complaint about the President.
11. A Judicial Commission to deal with complaints against Victorian judicial officers is not recommended. The Judicial Committee proposed in Recommendation 4 above would strengthen considerably the arrangements for dealing with potential removal
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cases. The establishment of a formal Commission to deal with lower level complaints would be inappropriate and unwarranted. It would be an unnecessary intrusion into the affairs of an independent Victorian judiciary.
12. In 2002 the AIJA published on behalf of the Australian Council of Chief Justices a Guide to Judicial Conduct. Copies of this Guide have been made available to all Victorian judicial officers. It is an excellent source of reference for them. A code of judicial conduct as such is unnecessary and not recommended. A guide is appropriate and sufficient.
Over time, if any modifications to the Guide are seen as desirable these should ideally be examined centrally and nationally by the Council of Chief Justices, and up-dates issued periodically, in order to avoid the prospect of different versions of the Guide beginning to appear at local levels.
13. It is recommended that the Judicial College of Victoria should conduct regular seminars on judicial conduct and ethics issues, using the Chief Justices' Guide to Judicial Conduct as a basis for discussion.
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5. INTRODUCTION
In July 2001 the Victorian Attorney-General, The Hon Rob Hulls MP, commissioned a review of the system for dealing with complaints against Victorian judicial officers. As well as the complaints system itself, the Terms of Reference called for an examination of the statutory provisions dealing with the tenure and removal of judicial officers and sought advice on the possibility of Victorian courts adopting a code of judicial conduct. Also, the Attorney requested a report on any proposals or suggestions for changing aspects of the present arrangements. The brief, in other words, consisted of three related components – the complaints system, the removal provisions and the possible adoption of a code of judicial conduct.
It was further mentioned in the Terms of Reference that the review was to have regard to the principles of judicial independence and the need to maintain and to enhance public confidence in the judicial system. Finally, the Attorney requested the reviewer to consult with members of the judiciary and the legal profession and also to look at other systems for dealing with these issues, ie other Australian jurisdictions and overseas as well. For the purposes of the review the Terms of Reference indicated that “judicial officer” was to include Judges and Masters of the Supreme and County Courts, Magistrates, Coroners and full-time non-judicial members of the Victorian Civil and Administrative Tribunal (VCAT).
As mentioned in the Preface, a Discussion Paper (DP) was published in July last year, exploring the key issues raised in the Terms of Reference, assessing whether there were any difficulties with the current arrangements for dealing with judicial conduct matters, and suggesting some changes that might be desirable in those arrangements. The DP called for comments and submissions, particularly on the proposals for change which were included in the paper. Some fifty responses were received. These have been carefully considered in the framing of the report. A list of contributors to the review appears as an Appendix to the report.
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6. BACKGROUND TO THE REVIEW
Impetus for the Review
The review was commissioned as part of the Bracks Government’s general commitment to the modernisation and continuous improvement of the legal system and its administration. More specifically, the resignations of the former Chief Magistrate, Mr Michael Adams QC and County Court Judge, His Hon the late Judge Robert Kent, following conduct investigations, highlighted some apparent weaknesses and difficulties in the current arrangements for dealing with judicial conduct issues. An independent review was seen as an appropriate way of investigating these matters in order to ensure that the Victorian scheme is up-to-date and effective.
Some of the difficulties in this vexed area had surfaced earlier in other jurisdictions, such as the Commonwealth, in dealing with the case of the late Mr Justice Lionel Murphy of the High Court of Australia, and in Queensland in relation to the case of Mr Justice Angelo Vasta of the Supreme Court of Queensland. More recently, considerable national interest was generated by the New South Wales case of Mr Justice Vince Bruce, of the New South Wales Supreme Court, investigated by the Judicial Commission of that State for late completion of a number of reserved judgments. And indeed, as a separate but related issue, the establishment of the New South Wales Commission in the late 1980’s itself produced considerable controversy and debate, especially within judicial circles, about the appropriate machinery and procedures for dealing with conduct complaints made against judicial officers.1
Conduct in Perspective
For the purposes of perspective it should be mentioned at the outset that, despite a small number of high profile cases in recent times, the overall history of the Australian judiciary, including of course Victoria, has been a largely tranquil and satisfactory one, with remarkably few complaints made, especially serious ones. This is important to note, particularly having regard to the large number of cases heard in the courts each year and also the difficult and volatile nature of the environment in which judicial officers operate. The few prominent cases, therefore, need to be seen in their appropriate context and perspective.
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It is important to make the further preliminary observation that even in relation to major cases of recent times in only one instance, post- federation, has a judge (Mr Justice Angelo Vasta of the Queensland Supreme Court) actually been removed from office by the Head of State after a parliamentary address. In a handful of other cases judicial officers have resigned, for example, Mr Justice Vince Bruce in New South Wales, Chief Magistrate Fingleton in Queensland, and, as already mentioned, Judge Robert Kent and Mr Michael Adams, QC in Victoria.
As far as Victoria in particular is concerned it should be noted that until the recent Adams and Kent cases the Victorian judiciary had been almost entirely free of any major controversy or difficulty in relation to matters of judicial conduct and so the relevant complaints procedures had received very little attention outside the judiciary. Nevertheless, recent experience, both in Victoria and elsewhere, has raised a series of important questions and issues about the current arrangements for dealing with conduct matters.2 A particular strategic concern is whether Victoria has the right processes and machinery for dealing with conduct complaints which, if substantiated, could result in proceedings to remove the judicial officer in question. Issues have been raised about other features of the disciplinary and removal arrangements and also about the appropriateness and efficacy of the traditional, informal system for dealing with lower level complaints.
Dealing with Complaints
At present, if cases of a serious nature arise, ad hoc arrangements usually have to be made by the Attorney-General of the day to investigate the complaint and to advise the relevant government on the options which might be open to it. The lack of an appropriate standing mechanism for dealing with these kinds of cases has been highlighted over a number of years by bodies such as the Constitutional Commission, the Australian Law Reform Commission, the Australian Bar Association and the Law Council of Australia. Their criticisms have been echoed by various individual commentators.
For lower level complaints, that is, those which do not give rise to any suggestion of removal of the judicial officer in question, there are concerns in some quarters that, while the traditional, informal “head of jurisdiction” investigative system may still be appropriate, there are issues of effectiveness and transparency of the system, as well as questions of accountability to consider. At the same time, while there may be concerns about these aspects, careful consideration needs to be
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given to judicial independence, both of individual judicial officers and the judiciary generally as a separate branch of government. In other words, to the extent that there may be problems with the present system for dealing with lower level complaints, it can be argued that as a matter of basic principle it is for the judiciary to attend to these matters itself rather than the executive or legislative branches of government becoming involved.
Roles of the Executive and Legislature
However, an area in which the Executive, and certainly the Parliament, can have a role is in relation to the statutory provisions setting out the tenure of judicial officers and in particular the grounds for their possible removal from office. In Victoria, the relevant Supreme and County Court provisions are based directly on the famous English Act of Settlement of 1701, while those dealing with the Magistrates’ Court and VCAT are quite different in their nature and scope and are more specific to their particular institutions.3
It is traditional that the tenure and removal provisions for judges and, to a lesser extent, magistrates, are stronger than those for tribunal members but some commentators have recently pointed out that the provisions relating to Supreme and County Court judges in Victoria are not as clear or as strong in their defence of judicial independence and tenure as, for example, the relevant provisions for Federal judges contained in the Australian Constitution. This raises the whole question whether there is scope for improvement and strengthening of the Victorian provisions. There is also the related question whether for reasons of principle, clarity and simplicity the provisions for all Victorian judicial officers, including the magistrates, (and perhaps full-time non-judicial members of VCAT as well) should be the same, even if a different removal procedure were to continue for VCAT.
Conduct Guide
In recent years the higher profile of the judiciary as a branch of government, including an increased emphasis on conduct and accountability issues, has generated a discussion as to whether it would be useful for Australian courts to adopt a guide to judicial conduct. This discussion has no doubt been invigorated by the fact that conduct guidelines have been adopted by the judiciaries of a number of overseas countries such as Canada and the United States where there are similar legal and judicial systems to those in Australia. The issue has received
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added attention as a result of a number of particular conduct cases in recent history.
The Australian debate on this topic has now advanced considerably with the publication last year by the Australian Institute of Judicial Administration (AIJA), on behalf of the Council of Chief Justices, of a Guide to Judicial Conduct.4 It can confidently be expected that because this Guide was prepared for the Council of Chief Justices, it will in due course be adopted, formally or informally, at least by their courts and probably by other Australian courts as well. There must also be some prospect that it will be adopted on a uniform basis by courts throughout Australia. (The Magistrates' Court of Victoria has formally adopted the Guide).
It is important to emphasise that the Australian document, like the one adopted by the Canadian Judicial Council in 1998 (Ethical Principles for Judges), is not a code of judicial conduct as such but rather a series of guidelines for judicial officers as to what might be the best approach to adopt in various “on-bench” and “off-bench” situations. It explicitly recognises that in some instances there will be a range of reasonably held views and opinions on particular aspects of conduct ie that there is not necessarily a right or wrong answer to every conceivable question that might arise about judicial conduct and ethics.
The benefit of a formal document, even of a guideline rather than prescriptive nature, is said to lie in the fact that it can act as a guide to judicial officers as to the aspects they should think about when placed in different kinds of situations, both on and off the bench. Also, a published document can be of general interest and of educational value to the general community by providing insights into important features of judicial work and the operation of the judicial system. It would also of course be of great benefit if such a document were to be adopted by courts throughout the country on a uniform basis. This would be a major step forward in this complicated federation of ours.
On the general issue of guides to judicial conduct, it is interesting to note in passing that in September 2001 the Administrative Review Council published A Guide to Standards of Conduct for Tribunal Members.5 The aim of this publication is to promote discussion and awareness of issues of conduct among both tribunal members and managers. Although produced for tribunal purposes this document is no doubt of interest and relevance to judicial officers as well.
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7. CONDUCT OF THE REVIEW
Importance of Judicial Independence
Mention has already been made of judicial independence. A primary consideration in the conduct of this review has been the independence of the judiciary as a separate and distinct branch of government in a democratic society. Judicial independence has many aspects but the main ones are the independence of each individual judicial officer in hearing and deciding cases and the institutional independence of the judiciary as a whole.
The principles of judicial independence have clear implications for the handling of conduct and behaviour issues. The various removal provisions set out, mostly in rather broad terms, the basis upon which a judicial officer may be removed. These kinds of cases are extremely rare. When they do occur the Executive, through the Attorney-General, has a key role in initiating any removal procedures.
As mentioned earlier, very few complaints are made about the conduct of judicial officers. Many of the complaints made are from people complaining about the result of a case rather than the conduct of the judicial officer. The principle of judicial independence dictates that the Executive has no role to play in relation to the bulk of conduct complaints. The Attorney-General, for example, has no power to punish or reprimand a judicial officer for a conduct breach. Nor does a chief judicial officer have such a power. The principle of individual judicial independence precludes this. There is, therefore, a strong responsibility on individual judicial officers themselves to confront and deal with any difficulties and also on chief judicial officers to work informally to bring about a satisfactory resolution of any difficulties within their own courts.
Project Methodology
Conduct of the review involved an examination of the relevant statutory material and also the extensive literature dealing with complaint and conduct issues, including schemes in a number of overseas countries. There have also been consultations with members of the judiciary, including the heads of jurisdiction, and members of the legal profession. In the early stages of the review, personal letters were sent to all judicial officers in Victoria inviting their views on the matters set out in the Terms of Reference. Those letters produced a number of valuable responses and resulted in a series of meetings with individual judges and
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round table discussions with groups of magistrates at the Broadmeadows, Sunshine and Children’s Court complexes.
Letters were also sent to the Chief Justices, Chief Judges and Chief Magistrates of all Australian courts seeking information about their systems for dealing with conduct complaints, especially the lower level type matters. The responses were most helpful and produced a great deal of useful, comparative material. Among the consultations were discussions with judicial officers in various parts of Australia as well as a number of retired judicial officers, including the former Chief Justice of the Supreme Court of Victoria, The Hon Sir John Young.
A further source of material was information available within the Victorian Department of Justice on complaints against judicial officers sent to the Attorney-General. In those cases the standard procedure is for complaints to be referred by the Attorney to the head of the relevant court. This is done through the Department on behalf of the Attorney- General. The information held by the Department does not provide a full and accurate picture of the overall position in relation to complaints because some are received directly by the head of the relevant court or tribunal and thus do not form part of the information held by the Department. Nor does the Department maintain an official register of the complaints which are made to the Attorney-General. Nevertheless, the Departmental information is of general background interest in the overall context of complaints and particularly the arrangements for dealing with them.
Finally, as mentioned earlier, an important part of the conduct of the review was the publication in July last year of the DP. (The Judicial Conduct and Complaints System in Victoria). A discussion paper can be a very useful component of the methodology of a review of this kind. It certainly proved to be so in this case. It was an excellent vehicle for sketching the background to the review, indicating its methodology, setting out the current complaints and removal arrangements, discussing those arrangements, and, finally, in the light of the analysis, putting forward some specific proposals for comment. Anyone wishing to respond was invited to pay particular attention to the ten proposals published in the DP.
Some 2000 copies of the DP were distributed, mainly within Victoria, but nationally and internationally as well. Copies were sent to all Victorian judicial officers and full-time VCAT members. This produced a number of submissions, including from all three Courts and VCAT, the Victorian
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Bar, the Law Institute, individual judicial officers, practising lawyers, academic lawyers, Legal Services, and members of the general public. As mentioned, these submissions have proved to be of great assistance in the drafting of this report. A number of them are drawn upon in relation to specific topics in later parts of the report.
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8. THE PRESENT ARRANGEMENTS
Introduction
If a judicial officer is accused of a criminal offence the usual law enforcement procedures would be expected to operate. In most instances the police would be involved and would presumably conduct an investigation into the allegation in question. Clearly, allegations of criminal behaviour against judicial officers are extremely rare. The overwhelming majority of complaints against judicial officers do not involve allegations of criminal conduct or anything remotely approximating it. If an allegation of criminal conduct is made the issue of what, if anything, to do about the judicial officer in question would usually not be resolved until the completion of a police investigation and any subsequent court proceedings.
The major areas of complaint are non-criminal in nature and are usually divided into two groups – those which, if substantiated, could possibly involve consideration of the removal of the judicial officer in question, and the other category, the vast majority, consisting of the lower level complaints which, even if substantiated, would not give rise to any possibility of removal proceedings. The dividing line between the two groups is not always an easy one to draw and views will sometimes differ on the levels of gravity of particular kinds of behaviour.
There are no absolutely clear-cut procedures for dealing with either of these groups of cases but in general terms what happens is that lower level complaints are dealt with by the chief judicial officer of the court in question either directly or upon referral from the Attorney-General. Chief judicial officers are primus inter pares (first among equals) with their colleagues and have no power to impose disciplinary or punitive measures. A complaint about a more serious matter may be lodged with the Attorney-General or alternatively with the head of the relevant jurisdiction or even both, depending on how the complainant decides to deal with the matter.
In any event, under the present system it is the Attorney-General who decides in possible removal cases that the complaint is of sufficient seriousness to warrant further investigation. In the Murphy case at Commonwealth level and in the Vasta case in Queensland special committees consisting of retired judicial officers from other jurisdictions were established to investigate the matters in question and to file reports
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with the relevant parliaments. In the case of the Adams and Kent matters in Victoria independent legal advice was sought by the Attorney-General.
Types of Complaints
Some general observations on the nature of complaints made against judicial officers are in order. Most complaints are made by members of the community who have been involved in court proceedings before the judicial officer in question. In rare cases a complaint may be made by one judicial officer about another. The resignation of the former Victorian Chief Magistrate, Mr Michael Adams QC, followed from complaints made by fellow judicial officers.
While no official data on complaints against judicial officers is compiled in Victoria because of the essentially informal nature of the system, there is, as noted already, some information available in the Departmental files. For example, for the calendar year 2000 a search of the files showed the following number of complaints – two about Supreme Court judges, four in relation to the County Court, twelve for the Magistrates’ Court and twenty-five for VCAT.
The subject matter of these complaints very much matches the New South Wales experience, where there is a separate organisation for dealing with these matters, and where an annual report is filed. In its Annual Report for the year 2000-2001, the Judicial Commission noted that the most common causes of complaint were allegations of bias, failure to give a fair hearing, inappropriate comments and remarks, incompetence, and allegations that an unsuccessful party to litigation was 6 not given a proper opportunity to present his or her case.
A very frequent reason for complaint is that the party complaining did not agree with the decision of the court. On this aspect the New South Wales Commission has noted that:
“Many complaints amount, in essence, to a complaint that a judicial officer has made a wrong decision. Frequently, complaints of this kind are made in apparent substitution for appeals to a higher court. Where a party to litigation is aggrieved by an unfavourable decision and for one reason or another, does not wish to appeal, a personal complaint against the judicial decision-maker alleging bias or incompetence, is sometimes made. Such complaints are dealt with on their merits but the Commission is not an appellate tribunal with a
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function of correcting allegedly erroneous decisions; and there is an important difference between making a wrong, or supposedly wrong, decision and engaging in judicial misconduct.”7
This point is also emphasised in a brochure recently published in New Zealand as part of a new system for dealing with complaints against judges.8 Under the heading “What can complaints be about?” appears the following:
“Complaints must be about a judge’s language or behaviour; the conduct of a judge. You cannot use this process to complain about a decision a judge has made. If you do not agree with the judge’s decision, in most cases it can be reviewed by another judicial authority or appealed to a higher court. The matter will be dealt with through the judicial system and you can seek legal advice through the normal channels (lawyers and community law centres).” 9
Complaints in Perspective
A further background observation on the nature of complaints against judicial officers is that a very large number turn out to be vexatious, frivolous or unfounded. The Victorian courts do not provide information on this aspect but again the experience of the Judicial Commission of New South Wales is instructive. During the 2000-2001 reporting year the Commission received 87 complaints. Eighty-three of those complaints were examined and dismissed under the relevant sections of the legislation. Four complaints were classified by the Commission as minor and referred to the head of jurisdiction. There were no matters referred to the Conduct Division for examination.
In other words, there were no serious complaints dealt with during the year in question. The importance of this information is simply to emphasise the point made earlier that great care needs to be taken in approaching this whole subject in case the considerable prominence given to an isolated series of high-level cases leads people to believe that large numbers of serious, valid complaints are made against judicial officers.
Removal Provisions
It is convenient now to examine briefly how complaints are handled by looking first at removal cases. A useful starting point in this discussion is
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to indicate the relevant statutory provisions in Victoria. The Supreme Court position is governed by Section 77 of the Constitution Act 1975. The relevant part of the provision reads as follows:
“The Commissions of the Judges of the Court shall subject to sub-section 4 continue and remain in full force during their good behaviour notwithstanding the demise of Her Majesty any law usage or practice to the contrary hereof in anywise notwithstanding but the Governor may remove any such judge upon the address of the Council and the Assembly.”10
The relevant County Court provision is in similar but far from identical terms. Section 9(1) of the County Court Act 1958 provides as follows:
“Subject to the provisions of this section and section 14 of this Act all persons being judges at the commencement of this Act and all persons who may be appointed after the said commencement shall hold their offices during good behaviour.”
Sub-section 2 of Section 9 provides that the Governor-in Council may remove a County Court judge upon the address of both Houses of the Legislature. Thus the “good behaviour” element is the same for the County Court as for the Supreme Court, as is the requirement for a vote of both Houses of Parliament, but in the case of Supreme Court judges it is the Governor who actually removes while for County Court judges it is the Governor-in-Council. In both cases, the Parliamentary vote is by a simple rather than absolute majority of each House.
The provision for magistrates is quite different from the arrangements for Supreme and County Court judges. The relevant provision is Section 11 of the Magistrates’ Court Act 1989. What happens in the case of magistrates is that the Attorney-General applies to the Supreme Court for the magistrate in question to be suspended from office. If the Supreme Court suspends the magistrate then the Attorney-General must apply to the Court for a determination “as to whether proper cause exists for removing the magistrate from office”. If the Supreme Court does grant a removal application the Governor-in-Council may remove the magistrate from office.
The statutory grounds for the Supreme Court ordering the suspension of a magistrate are as follows:
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(a) there are reasonable grounds to suspect that the magistrate is guilty of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or
(b) if the magistrate is mentally or physically incapable of carrying out satisfactorily the duties of his or her office; or
(c) the magistrate is incompetent or guilty of neglect of duty;
(d) the magistrate is guilty of unlawful or improper conduct in the performance of the duties of his or her office.
The position in relation to the non-judicial members of VCAT is different again. The relevant legislation (Section 22 of the Victorian Civil and Administrative Tribunal Act 1998) gives the President of the Tribunal power, with the approval of the Minister, to suspend a non-judicial member from office if the President believes that there may be grounds for removal of the member.
If the President suspends a member from office Section 23 provides that the Minister must appoint a person nominated by the President to undertake an investigation into the member’s conduct. What happens then is that the person appointed to conduct the investigation reports to the Minister on the investigation and gives a copy of the report to the member in question and to the President. Such a report may include a recommendation that the member be removed from office. After receiving a report recommending removal the Minister, after consulting with the President, may recommend to the Governor-in-Council that the member be removed from office.
The grounds for a removal recommendation are the following:
(a) has been convicted of an indictable offence or an offence, that if committed in Victoria, would be an indictable offence; or
(b) has become incapable of performing, or has neglected to perform, the duties of office; or
(c) is unfit to hold office because of misconduct.
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Section 24 of the Act says that the Governor-in-Council may remove a non-judicial member from office on the recommendation of the Minister under Section 23 but not otherwise.
The Relevant Behaviour
While the Magistrates’ Court Act and the VCAT legislation include removal grounds such as unlawful activity, incompetence, neglect of duty and so on, the major debate in relation to the removal of judicial officers generally is centred on the broad concept of “misbehaviour”. The Supreme and County Court legislation talks in terms of judicial office being held during “good behaviour”, while in the case of magistrates the focus is on “improper conduct” and for VCAT it is “misconduct”.
There is no clear concept, let alone a legal definition, of the kind of behaviour that could warrant removal from judicial office, whether that behaviour is labelled “misbehaviour”, “improper conduct” or “misconduct”. It is also relevant to point out here that there are so many different kinds of behaviour that might need to be considered, including behaviour outside the line of judicial duty and behaviour before appointment to judicial office. This issue is complicated by the fact that removal cases are fortunately extremely rare and so the jurisprudence has simply not had a real chance to develop. (As noted earlier, only one judge has been removed from office since Federation.) Most of the discussion has been about “misbehaviour” for the purposes of the Australian Constitution but the problems are greater in a jurisdiction like Victoria where there is a range of provisions with different concepts, none of which has been greatly exercised, let alone defined with any precision.
While there are certainly definitional problems, some helpful light was shed on the issue of “misbehaviour” as a result of the commission or tribunal inquiries made in the Murphy and Vasta cases. By way of illustration, in the Murphy case a Commission of Inquiry was established consisting of retired judges, Sir George Lush, Sir Richard Blackburn and The Hon Andrew Wells QC.11 An argument was advanced to the Commission that in the light of statements in British cases and text books before Federation the word “misbehaviour” in the Australian Constitution denoted only misconduct in office and conviction for an infamous offence.
The Commissioners did not accept this argument. Sir George Lush, for example, said that the word “misbehaviour” was used in its ordinary
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meaning and was not restricted to misconduct in office or to conduct of a criminal nature. He further commented:
“Judges, and in this context Federal judges in particular, must be safe from the possibility of removal because their decisions are adverse to the wishes of the Government of the day. Section 72 intends to afford this by requiring proof of misbehaviour. They cannot, however, be protected from the public interest which their office tends to attract. If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their Courts, it may be appropriate to remove them.”12
Sir Richard Blackburn noted that:
…….“Proved misbehaviour” means such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question”.13
And, finally, The Hon Andrew Wells QC said:
…….“The word “misbehaviour” must be held to extend to conduct of the judge in or beyond execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under and pursuant to the Constitution.”14
No doubt with these observations firmly in mind the Constitutional Commission concluded in 1988 that conduct which would warrant removal of a judge should include:
“Misconduct in carrying out the duties of office and any other conduct that, according to the standards of the time would tend to impair public confidence in the judge or undermine his or her authority as a judge.”15
While these various suggestions are obviously very useful, the Parliament will be the ultimate judge in any particular case of whether the behaviour
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in question justifies removal from office. In that sense, “misbehaviour” is, therefore, essentially a political rather than a legal notion. A parliament, for example, would presumably be free to accept or reject what the Commissioners in the Murphy case had to say and, for that matter, what the Constitutional Commission said. This aspect was touched on recently by Professor Tony Blackshield, a constitutional law expert, who had taken a strong interest in the Murphy case:
“…… my own position throughout the ‘Murphy affair’ was that the meaning of ‘proved misbehaviour’ must rest solely on the Parliament’s judgement in any given case, and that its potential meaning thus has no legal limits at all. No doubt this proposition is itself a legal proposition, and the High Court could be asked to say whether this proposition is correct. But, if it did so decide, it could then have nothing further to say.
This does not mean that there are no limits on the Parliament’s scope for removal of judges. But it means that the limits are essentially political, not legal, in nature. To say this is not to dispute the good sense of the various suggestions and cautions advanced by the three Commissioners as to what might or might not be sufficiently serious to warrant removal. It is simply to stress that their comments were valid as political advice which each member of Parliament was free to accept or reject, not as legal instruction by which the Parliament or its members were in any way bound.”16
Investigation of Removal Cases
If a serious complaint is made against a judicial officer the relevant Attorney-General may need to decide whether removal proceedings are justified. There can be at least two major difficulties in that process. One is to establish whether the behaviour actually occurred and the other is to decide if it might justify removal. While Attorneys-General may be able to decide these questions themselves, or be assisted by obtaining independent legal advice, in most jurisdictions there is no accepted, established machinery for dealing with these matters. The Murphy and Vasta inquiries dramatically illustrated this difficulty.
Inquiries for this review revealed strong support for the suggestion that there should be a standing piece of machinery available for the
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investigation of serious complaints against judicial officers. Statutory commissions or tribunals consisting of retired judges were formed at the Federal level to examine the Murphy case and in Queensland for the Vasta case but very much on an ad hoc, case by case basis. The establishment and operation of these bodies in itself caused a good deal of controversy, including public debate and media coverage of the investigative processes. This was a most unhelpful aspect of what were already extremely difficult and delicate situations.
A strong argument has emerged in recent times that the various jurisdictions should establish bodies which can, in effect, be “wheeled into action” at the request of the relevant Attorney-General when advice is required on questions such as (a) whether the behaviour alleged did in fact take place and (b) if it did, whether it could justify Parliamentary consideration of removal of the judicial officer in question. These suggestions have been made because under the present arrangements, both Federally and in most of the States and Territories, there is a substantial gap in the processes and machinery available for dealing with any serious cases that might arise.17
A strong supporter of this approach was The Hon the late Richard McGarvie AC QC, former Victorian Supreme Court judge, Governor of Victoria and himself a Member of the Judicial System Committee of the Constitutional Commission of the late 1980’s:
“If the obvious gap in the existing system for the removal of judges is filled by a judicial tribunal available to find the facts, the system will supply all that is needed by way of a formal disciplinary sanction against judges. An impartial judicial tribunal to find what is proved by evidence to have occurred in respect of an allegation and to express an opinion whether that could constitute a ground warranting removal, would usually override partisanship in Parliament. The finding and opinion would carry a great deal of weight with Members of Parliament. Voting under the observant eyes of the electorate, members would be conscious of the electoral impact if they voted to keep in office a judge they knew the electorate regarded as unfit to hold office because of the facts found. Making it a prerequisite to removal that a judicial tribunal form the opinion that removal could be warranted on the facts found would avoid the risk of the Houses of Parliament for political reasons treating a ground
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as proved when it was not or treating it as justifying removal when it could not.”18
This approach was supported in the same year by a senior New South Wales judge in a paper presented to the Australian Legal Convention:
“Some permanent machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by a judicial tribunal of the existence of misbehaviour or incapacity which could warrant a judge’s removal from office. The design of that machinery should be such as to produce as little damage to judicial independence, public confidence in the judicial system and the authority of the Courts as is consistent with its effective operation. It should also be such as to ensure to a judge both procedural fairness and protection from public vilification and embarrassment pending the making of the determination.”19
In its 1988 report these issues were thoroughly canvassed by the Constitutional Commission. In discussing the Federal judicial arrangements, the Commission recommended that the Constitution be altered to provide:
· That there be a judicial tribunal established by the Federal Parliament to determine whether the facts established by it are capable of amounting to proved misbehaviour or incapacity warranting removal of a federal judge; and that the Tribunal should consist of persons who are judges of a federal court (other than the High Court) or of the Supreme Court of a State or Territory; and
· That an address under Section 72 of the Constitution shall not be made unless:
§ the judicial tribunal has reported that the facts are capable of amounting to misbehaviour or incapacity warranting removal; and
§ the address of each House of Federal Parliament is made no later than the next session after the report of the tribunal. 20
These recommendations were not adopted and so the same gap in the Federal system remained when the Australian Law Reform Commission (ALRC) examined these issues for its Managing Justice report published
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in 2000. The ALRC adopted the same line of argument that had been put by the Constitutional Commission some twelve years earlier:
“The Commission believes it is important for the Federal Parliament to establish a general standing procedure in advance of any controversy or “crisis atmosphere” surrounding a particular allegation. The danger in the present position is that when a particular case arises, the process itself becomes a major issue, with the potential of the merit or otherwise of the substantive allegations to become lost in the skirmishing. Every interim decision in these circumstances has the potential for added controversy – such as whether to establish an advisory committee to investigate and report, whether to use sitting or retired judges (or others) for this purpose, the particular identity of the persons appointed (eg with respect to any prior political affiliations they may have had, or any political or social views expressed, including any views about the “proper” role of judges), the powers of such a committee to compel evidence, whether it operates in the open or is closed to the public, and so on.”21
One difference between the two proposals is that the Constitutional Commission recommended a legislative approach to the establishment of the judicial tribunal while the Law Reform Commission proposed that it be done more informally by the Parliament developing a protocol. Neither body fully explained its reasons for the approach recommended.
As noted earlier, the Magistrates’ Court and VCAT situations are different from those of the Supreme and County Courts in a number of respects, including the fact that the relevant pieces of legislation do not explicitly involve the concept of “good behaviour”. Magistrates are removed from office by the Governor-in-Council after a determination by the Supreme Court not the Parliament. In common with the Supreme and County Courts, however, there is an absence of an appropriate standing investigative body, although a mechanism is provided for VCAT in the form of an investigation by a person nominated by the President. A suspension arrangement is common to the Magistrates Court and VCAT, albeit that it is activated in different ways.
As also indicated earlier, whereas the judges hold office during good behaviour (no specific mention, however, of incapacity) magistrates may be suspended and subsequently removed on a number of different grounds
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– reasonable suspicion of guilt of an indictable offence; mental or physical incapacity; incompetence or neglect of duty, or unlawful or improper conduct in the performance of the duties of office.
These provisions have some interesting features. One is the concept of “reasonable grounds to suspect that the magistrate is guilty of an indictable offence”; another is the sub-section about incompetence and neglect of duty; and yet another is that any “unlawful or improper conduct” is restricted to the “performance of the duties of his or her office”. These grounds are something of a hotch-potch and raise a whole series of philosophical, interpretive and practical difficulties.
It can certainly be argued that the VCAT situation should be viewed through a different lens because it involves, by definition, “non-judicial” members. The traditional argument is that tribunal members should not enjoy the same tenure and terms and conditions of office as judicial officers.22 Be that as it may, it is interesting to note that a magistrate can be suspended and removed on reasonable suspicion of guilt of an indictable offence whereas Section 23(5)(a) of the VCAT legislation talks about a member who “has been convicted of an indictable offence”. In both cases there are of course other removal grounds available but it is interesting to compare those two specific ones as well as to examine the more central question of “misbehaviour”.
Non-removal Cases
In the strong traditions of our common law judicial system, the only formal punishment or sanction which can be imposed upon a judicial officer who has been proved to have “misbehaved” (as distinct from having committed some kind of criminal offence) is removal from office. As detailed in this report, removal can only occur after a series of elaborate, high level procedures has been followed. The reason for this is the great importance attached to the independence of the judiciary as an institution and especially in this context the independence of individual judicial officers.
It is for this reason that there is no formal disciplinary or conduct system for the handling of “non-removal” type complaints and certainly no power to impose punishments or reprimands upon judicial officers. It is interesting to note that none of the responses received to the DP proposed any change in this situation. Under the existing informal arrangements, chief judicial officers receive details of complaints and make inquiries about them. Sometimes they will discuss the matter with the judicial
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officer in question. And on occasion these discussions will involve advice or counselling of some kind, but usually on an informal basis and certainly not with a view to any public reporting of the matter.
This is essentially the arrangement which operates at present in Victoria. Chief judicial officers have no specific powers in this area but play an important, informal disciplinary role. It follows from the informal nature of the system that each chief judicial officer will have his or her own particular ways of dealing with matters and a good deal of discretion will be exercised as to the approach to particular cases.
In their responses to inquiries from the review a number of chief judicial officers from courts outside Victoria outlined the arrangements for their courts. These responses confirmed the continuing operation of the informal system, other than in New South Wales, where the Judicial Commission receives and investigates all complaints. Most also confirmed their continuing support for the informal arrangements, with some readily conceding, however, that the system is open to criticism on the grounds of lack of transparency and accessibility to the community, especially to those members who wish to make a complaint.
Even under the New South Wales Commission type approach, however, there are no adjudicative or enforcement functions - simply those of reception and investigation of complaints. If, through its Conduct Division, the Commission finds a serious complaint substantiated, a report is provided to the Governor and the Attorney-General later tables the report in Parliament. Minor complaints may be referred to the head of jurisdiction or to the Conduct Division of the Commission but there is no power in the head of jurisdiction or the Conduct Division to impose any form of punishment on a judicial officer. This is entirely consistent with the common law tradition mentioned earlier which prevails in the other Australian jurisdictions and elsewhere in most parts of the common law world.
Interestingly enough, to the reviewer’s knowledge, there has been no serious suggestion in the Australian context that this position should be changed, either by arming a commission or a tribunal type body with disciplinary powers or by providing such a power to chief judicial officers. In practical terms it is most unlikely that the various legislatures would wish to proceed in that general direction in any event. Also, it would be very surprising if chief judicial officers themselves would wish to exercise such disciplinary powers even if they were available. Any move in that direction would run strongly against the grain of both
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individual judicial independence and the collegial culture and customs of the judiciary.
The Informal Complaints System
While there are no doubt good reasons for retaining an informal system for dealing with complaints of a “non-removal” nature there is unease in some quarters about aspects of the current arrangements. A number of submissions expressed this unease. Some of these were from judicial officers. There are concerns about a perceived lack of accessibility, transparency and general effectiveness of the existing complaints system. Some submissions made the point that it could be problematic to raise the profile of the informal system too much because false expectations might then be created that it was a system that carried sanctions of some kind.
Even though there are very few complaints about judicial officers, who do, after all, operate in public, give reasons for their decisions and are subject to appeal, there will from time to time be complaints, and the question naturally arises what sort of system there should be for dealing with them. The DP posed a number of questions about this. In general, how formalised should the “informal” system be? Should the relevant information be readily available so that people who wish to lodge complaints can easily find out what is expected of them and what they can expect from the system? Should the arrangements for registering a complaint about a judicial officer be included as part of a broader set of arrangements for dealing generally with complaints about court services and court staff? Should information about complaints and how they have been handled be published in the courts’ annual reports? These and other similar questions are at the heart of the discussion about judicial complaints procedures and an increased general public interest in the improved operation of the judicial system.
There are some difficult issues in this area. On the one hand, there is a strong argument for the proposition that whether or not the traditional, informal system is effective in dealing with complaints it is not sufficiently accessible and transparent to the community. On the other hand, there may, as raised in submissions, be disadvantages in increasing the profile of the system and in improving access to it if the result were (a) to increase the number of unmeritorious complaints and (b) to raise expectations among complainants and the community generally that chief judicial officers actually have power to conduct formal investigations and to impose sanctions for conduct breaches, eg, things like slow completion
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of reserved judgments, discourtesy to litigants, bias or unfairness in the conduct of hearings and so on.23
There is, in other words, a balance to be struck here between the adoption of the kinds of modern complaint handling systems now commonly found in many private and government organisations and the arrangements which would be appropriate in the very particular environment of the courts. Judicial independence and the separation of the different branches of government, together with the relevant removal legislation, dictate that the vast majority of complaints are matters for the judiciary itself to handle; generally, it will only be in the case of very serious matters that the Attorney-General will have a role.
In its report on Managing Justice, the Australian Law Reform Commission considered aspects of judicial accountability, including complaint procedures. The Commission referred to the National Standard for the Handling of Complaints (AS4269), the main elements of which are as follows:
§ A commitment to efficient and fair resolution of complaints, set down in writing, and an organisational culture which acknowledges consumers’ rights to complain and actively solicits user feedback § An ethos of fairness § Adequate resources devoted to the purpose § Well-publicised rights and processes § Accessibility (in all senses, including physical, linguistic and financial) § Assistance for the formulation and lodgement of complaints § Responsiveness – complaints dealt with quickly and courteously § Proper data collection systems § Attention to systematic and recurrent problems, as well as to the immediate complaint or dispute § A transparent and accountable system, including a requirement to report regularly.24
The Commission went on to make the following recommendation:
“Each federal court and review tribunal should develop and publish a protocol for defining, receiving and handling of bona fide complaints against judges, judicial officers and members, as well as complaints about court systems and processes.
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In its annual report to Parliament, each court and review tribunal should provide statistical details of its complaints handling experience under its protocol. This should include the number of complaints received, to the extent possible a breakdown by categories (eg. allegations of delay and delivery of judgments, or discourtesy) and outcomes.” 25
The recommendation included a proposal that an Australian Judicial College and a Council on Tribunals should have regard to these reports in developing and refining orientation, education and training programmes. Thus, the general view taken by the Commission was that the internal, informal system of complaint handling, with the chief judicial officer as the focal point, should be retained but that the courts should bolster their complaints arrangements by making details readily available on how the system works, and also that a segment of the relevant annual report should give an account of the numbers and types of complaints and how they were handled. Presumably, the rationale for these proposals was the twofold one of providing a better system for the public as well as enhancing the accountability and stature of the courts. It would certainly be on strong ground if it could achieve those aims.
A number of suggestions for changes in this area emerged from the early consultations conducted for the review. For example, a retired Supreme Court judge said that the current system can be difficult for chief judicial officers, who have the responsibility for receiving and investigating complaints about their colleagues. He suggested that it can be very awkward for a serving judge, albeit a chief judicial officer, to be in the position of talking to independent colleagues about their behaviour. The same judge said that for the same reasons (independence and collegiality) there can be difficulties from the standpoint of the judicial officers against whom a complaint is made ie. a natural, professional reluctance to have their behaviour scrutinised by a judicial colleague.
This judge suggested that an improvement to the present system could be the appointment of a retired, highly respected judicial officer of each court as that court’s “complaints officer”. Any complaints made either to the Attorney-General or to the court directly would be referred to this retired judicial officer for investigation and report to the chief judicial officer. The results of investigations would be communicated to complainants and there would be some mention in annual reports of the number of complaints filed, what in general they were about, and how they had been handled.
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Another retired judge said that the present informal system is basically sound but has its limitations, not least its lack of transparency and the intrinsic difficulty that chief judicial officers are no more than “first among equals”. He suggested that complaints about magistrates should be investigated by a specially nominated County Court judge and those concerning County Court judges by a nominated Supreme Court judge. It seems that under this scheme Supreme Court matters would continue to be handled by the Chief Justice in the usual way. The proposer of this scheme saw some merit in the idea of retired judicial officers acting as complaints persons for their former courts but suggested that such an arrangement might result in the retired judicial officers being accused of favouring (or being perceived to favour) their former colleagues who were the subject of complaints.
As noted earlier, a new complaints scheme was introduced in New Zealand in 2001. The scheme is outlined in a booklet issued jointly by the Offices of the Attorney-General and the Chief Justice of New Zealand. The booklet sets out clearly and succinctly how the complaints process works for the different New Zealand courts. It also provides general background information on the role of the judiciary, judicial accountability and the maintenance of public confidence in the judiciary. It is certainly useful to have such information in booklet form readily available to all members of the community. It was suggested in the DP that this could usefully be examined for Victoria.
For the most part the New Zealand scheme takes the traditional form. The booklet explains that complaints must be about a judge’s language or behaviour; the conduct of a judge. Not about a decision a judge has made. It also explains that people need to be aware that it is sometimes necessary for judges to be assertive in their manner:
“Judges are in charge of their court and are required to manage the court so that the proceedings are dealt with efficiently and effectively, without undue delay. If you feel that a judge has dealt with you too briefly, it may be for this reason.”26
The booklet then summarises the complaints procedure as follows:
“When the Head of Court receives a complaint, you will be sent an acknowledgment and the following line of inquiry will be conducted.
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1. Is the complaint about Judicial Conduct?
The Head of the Court must first ensure that the complaint is about Judicial Conduct. If it is not, you will be informed of other more appropriate options to consider.
2. Does the complaint have substance?
For complaints about Judicial Conduct the next step is to determine whether the complaint has substance. If the Head of Court determines that the complaint does not have substance, you will be advised that the complaint will not proceed and informed that you have the right to refer the complaint to the Judicial Complaints Lay Observer. The Judge subject to the complaint will be advised of the decision that no further action is required immediately.
If it appears that the complaint does have substance, you will be advised that the complaint will proceed. The Head of Court will refer your complaint to the Judge in question and any response that he or she makes to the complaint will be taken into consideration. The Head of Court may make such further inquiries as are thought appropriate, in order to determine how serious the complaint is.
3. What action can be taken?
For complaints of substance, the Head of Court will determine how to deal with the matter appropriately. The Head of Court will consider responses such as asking the Judge to convey an apology to the complainant, or by offering the Judge appropriate assistance to avoid a recurrence of the inappropriate conduct.”27
Apart from the fact that the whole system has been reduced to writing and published in booklet form, the most innovative feature of these new arrangements in New Zealand is the introduction of the position of a Judicial Complaints Lay Observer. In essence, once the relevant Chief
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Judicial Officer has decided that there is no substance in a complaint and the complainant decides to take the matter further, the role of the Observer is to investigate the complaint and the handling of it and to decide whether the matter should be reconsidered. The Observer has the power to review the complaint, how it was processed, any response from the Judge, and any other matters that may be relevant. If the Judicial Complaints Lay Observer considers that the decision not to pursue the complaint should be reviewed, he or she may request that the Head of Court reconsider the complaint.
The Complaints Observer position was introduced to provide an external layer of review to the traditional informal system. The Observer has no statutory power and thus relies on goodwill and co-operation to carry out the role. The Observer does not conduct a fresh investigation with fresh material but rather relies on the relevant chief judicial officer to supply the necessary information. It seems that the new system has the support of the judges.28
It is probably too early to make an informed assessment of how the Lay Observer arrangement in New Zealand is operating. At one level, its introduction seems a reasonable response to the criticism that the traditional system is insufficiently transparent and accountable. At another level, however, one wonders if it is a good thing to put an Observer in the position of effectively “second guessing” the assessment and judgement of the chief judicial officer of the relevant court. It could be argued that there are issues of judicial independence at stake, and from a practical standpoint one wonders about the impact, for example, of the Lay Observer disagreeing in anything other than a tiny fraction of the cases which are referred from the head of jurisdiction.
The current systems operating in most parts of Australia present particular difficulties in dealing with a lower level type complaint about a chief judicial officer. There is no established procedure in Victoria for dealing with such a situation whereas in Western Australia a complaint about the Chief Judge of the District Court or about the Chief Magistrate would be handled by the Chief Justice, not pursuant to a formal procedure or protocol but according to an informal arrangement.29 The DP specifically invited comments on this issue and suggested for discussion purposes adoption of the Western Australian arrangement for dealing with complaints about a Chief Judge or Chief Magistrate. The question then arises what should happen if there is a complaint about a Chief Justice. In the DP it was suggested that one possibility for dealing with that situation
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is that any such complaint could be referred to the next most senior Supreme Court judge.
It could be argued that under the present Victorian system there would be a difficulty in referring a complaint about a Chief Magistrate to the Chief Justice because it is the Supreme Court which deals with the suspension and removal of magistrates from office. One answer to that could be that in the case of a complaint about a Chief Magistrate, which led ultimately to suspension and removal proceedings, a judge other than the Chief Justice would obviously hear the case, thus separating the formal administrative complaint handling role of the Chief Justice from that of the judicial role of the judge who has to determine the suspension and removal issue.
If it were still objected that it is inappropriate to involve the Chief Justice in this way, because it is the Supreme Court which has the power to adjudicate on issues of suspension and removal, other solutions might have to be explored. One possibility would be that for other reasons the power to deal with removal might be transferred from the Supreme Court to the Parliament, ie the same system that operates for the judges. If that were to happen, as recommended in this report, the Chief Justice could deal with a complaint against the Chief Magistrate without having to be concerned about any conflict between the roles.
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9. A JUDICIAL COMMISSION
Overview
The Terms of Reference for the review specifically called for a consideration of the “desirability of establishing a judicial commission to deal with complaints against judicial officers”. A Judicial Commission is an alternative means of receiving and investigating complaints against judicial officers, both “removal” type complaints and “non-removal” ones. Such organisations have operated in a number of States of the United States for many years.
The Judicial Commission of New South Wales, based on the Californian Commission, which was established in 1960, commenced operations in 1987.30 It is convenient for the purposes of this report to discuss the idea of a judicial commission by reference to the New South Wales body. Naturally, there are differences in the detail among the various models of Commissions represented in the United States but the New South Wales Commission has most of the typical features and is therefore a useful vehicle to examine.
The New South Wales Commission has a number of important functions. It conducts educational programmes for judicial officers, assists the courts with information on sentencing and has a complaints handling function. As noted earlier, the Commission has no adjudicative or disciplinary role in relation to complaints. Rather, it merely receives and investigates them. So, while in Victoria complaints are made to the Attorney-General or directly to the relevant court, in New South Wales they all go initially to the Commission.
The Commission is a ten member body consisting of the chief judicial officers of the six New South Wales courts, a legal practitioner and three people appointed by the Minister after consultation with the Chief Justice. It is an independent organisation which employs its own Chief Executive Officer. Other staff are employed under public service conditions. It has an annual budget of approximately $3.2 million.
The background to the establishment of the Commission was problematic and consisted of a series of concerns in New South Wales in the 1980’s about aspects of judicial conduct and accountability. In particular, one of the specific circumstances was an allegation that a judge had been noticeably lenient when sentencing a number of offenders who were
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represented by a particular solicitor. This case led to calls for the establishment of a formal mechanism in addition to the appellate process to review sentences and sentencing practices as well as improving judicial accountability. As part of the latter the legislation provided the Commission with power to receive and investigate complaints.
Complaint Handling
The Commission publishes an information guide to assist members of the public to understand how its complaints system operates. Anyone can make a complaint to the Commission and matters may be referred to it by the Attorney-General. Complaints must be in writing and must be lodged with the Chief Executive Officer of the Commission. The particulars of complaints must be verified by statutory declaration.
Preliminary investigations are conducted into all complaints. The judicial officer in question is advised of the fact of the complaint and provided with a copy of the relevant documentation. As a result of the preliminary investigation complaints are either dismissed or classified as minor or serious. Those classified as serious are those which, if substantiated, could justify Parliamentary consideration of removal. Such a complaint must be referred to the Conduct Division of the Commission, consisting of a panel of three serving judicial officers or two serving and one retired. Minor complaints are either referred to the relevant head of jurisdiction or to the Conduct Division of the Commission.
Removal of a judicial officer in New South Wales can only be by the Governor on address of both Houses of Parliament on the grounds of proved misbehaviour or incapacity. Part of the process is a report to the Governor from the Conduct Division of the Commission setting out its findings and saying that in its view the matter could justify being referred to Parliament. Also, the legislation provides a number of grounds for the summary dismissal of complaints including the fact that there are other means of resolving the complaint, such as an appeal, and the fact that the complaint is trivial, frivolous or vexatious.
As mentioned earlier, the Annual Report of the Commission for 2000-01 recorded that the Commission received 87 complaints in that year. Eighty three of these were summarily dismissed. The remaining four were classified as minor and were referred to the head of jurisdiction. No matters were referred to the Conduct Division of the Commission.
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Comment
While consultations for this review, particularly with the judiciary, revealed strong support for some type of standing, investigative committee to assist with potential removal cases, for the very rare instances in which they arise, there was vigorous and virtually universal opposition to any thought of a New South Wales type Commission being established in Victoria to deal with all complaints against judicial officers.31
The essence of the argument for the establishment of a formal Commission type body is that there are such significant problems with judicial conduct and the current methods of dealing with it, that a new organisation is required for receiving and dealing with complaints which could, and those which could not, warrant removal of a judicial officer. In essence, the suggestion is that an overarching commission type structure is necessary in order to achieve proper accountability and to maintain public confidence in the judicial system.
The opposition case rejects the fundamental premise of the pro- Commission position and argues, among other things, that a New South Wales type body almost inevitably reduces the independence, standing, morale and effectiveness of the judiciary. As a senior New South Wales judge observed shortly after the establishment of the New South Wales Commission:
“…the mere establishment of an official body with the express function of receiving complaints against judges as a first step in an official investigation renders judges vulnerable to a form of harassment and pressure of an unacceptable and dangerous kind, from which their constitutional position and the public interest require that they should be protected.”32
In addition, a variety of more specific objections is often raised. A number of these were summarised by another senior New South Wales Supreme Court judge writing in the late 1980’s:
· The number of complaints is so small that change is not needed · The nature of the complaints is such that a change is not needed · A formal and public complaints system lowers the standing of the judiciary · A formal and public complaints system will be opposed by the judges
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· A formal system will increase the number of complaints by attracting complaints which would not otherwise be made · It will attract unjustified complaints · A formal complaints system will make the process of dealing with complaints less flexible and therefore less efficient · A formal complaints system will not deal more effectively with “the difficult cases”, the complaints which the existing system does not effectively deal with · A formal or public system will cost more, in money and time.”33
It was arguments of this kind that convinced the Judiciary Committee of the Constitutional Commission in 1988 to recommend firmly against the establishment of such a Commission. After rehearsing the arguments for and against such a body it concluded:
“The Committee has reached a firm conclusion that the advantages which would flow from setting up an organisation to deal with complaints which do not warrant removal would be far outweighed by the disadvantages. It would introduce a number of undesirable changes to the way in which our judicial system has operated for many years. The failed and disappointed litigant would be encouraged to salve disappointment and save face with friends and associates by blaming the judge and justifying that attitude by making a complaint about the judge.
Overseas experience shows that many complaints are by defeated litigants seeking in effect a retrial. The function of the judge is to resolve disputes and put an end to litigation. A system which encouraged complaints to other officials would prolong disputation. It should not be thought that this process would be limited to those who are not to be taken seriously. Some of the more powerful of defeated litigants would use every available means of justifying themselves.”34
The Committee went on to argue that a formal system of complaint handling would diminish the authority and general standing of the judiciary and would detract from its reputation.
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10. CURRENT REMOVAL LEGISLATION
Background to the Modern Judiciary
The Terms of Reference requested an assessment of the legislative provisions relating to the removal of judicial officers, including their adequacy to deal with complaints and whether they achieve an appropriate balance of judicial independence and accountability. The actual provisions dealing with the Supreme Court, County Court, Magistrates’ Court and VCAT were set out earlier in the report but to provide the proper context for an analysis of these aspects of the review a little more background should be sketched on the development of the modern judiciary.
The modern common law judiciary has taken many centuries to develop.35 As far back as 1179 Henry II chose five members of his personal household to “hear all the complaints of the realm and to do right”. Later, a new permanent court emerged (Court of King’s Bench), which in due course assumed responsibility for the correction of error in the Court of Common Pleas. The Court of Exchequer developed later again. The judges were removable at the King’s pleasure.
From time to time during the Tudor period the judges refused to obey royal commands if they judged them to be contrary to law. The hallmarks of the Sixteenth Century were strong monarchs, subservient parliaments and a non-interventionist judiciary. In the following century, Charles I was pressed to agree to the appointment of judges “during good behaviour” but by 1688 the system of appointments “during pleasure” had been unobtrusively reintroduced. In fact, in the last eleven years of his reign, Charles II sacked eleven of his judges and his brother, James II, sacked twelve in three years.
During this period of history, the Parliament saw the judges as the subservient tools of the King and the King, seeking to rule without Parliament, saw the control of the judiciary as an essential element of royal power. These constitutional struggles led eventually to the assertion by Parliament, in 1688, of sovereign power. This in turn led to recognition by the Parliament of the importance of the principles of judicial independence.
Such was the recognition of the importance of judicial independence that immediately after the reign of James II a parliamentary committee drew up a document for presentation to the new King which included tenure for
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judges “during good behaviour”, payment of judicial salaries from public revenue and the prevention of suspension or removal “unless by due course of law”. These concepts were later entrenched in the Act of Settlement of 1701 and in various forms have remained in place since that time through most of the common law world.
Supreme and County Court Provisions
As indicated in an earlier part of this report, the provisions governing Supreme and County Court judges in Victoria have come from the same legislation. It is best to comment first on these before dealing with the Magistrates’ Court and VCAT situations.
The first thing to say is that it is not necessary in the context of this report to embark upon an exhaustive legal analysis of the relevant provisions. For present purposes the matter is best handled at the level of broad legal policy and discussion. At that level there are good grounds for suggesting that in general terms the current Supreme and County Court provisions are unclear, unspecific, inexhaustive, expressed in out-dated language, and, much more importantly, in terms of policy, leave Victorian judges more exposed and in a weaker position generally than their Federal counterparts.
Some elaboration of this is obviously called for. Leaving aside the issue of the somewhat quaint and out-moded language, and the omission of the concept of “incapacity” as a basis for removal, the main problem is that these provisions appear to offer less protection to Victorian judges than the Australian Constitution does for federally appointed judicial officers. This is the clear view of a number of eminent jurists, including former Chief Justice of the High Court, The Hon Sir Anthony Mason. Writing in 1997 about Section 77(1) of the Victorian Constitution Act, Sir Anthony observed:
“………under s77, it would seem that parliament can remove a judge for any reason it chooses. There is also the possibility that the Crown could remove, without an address, on the ground that misbehaviour itself terminated a judge’s commission. But in that event, the issue of misbehaviour would be justiciable.”36
Sir Anthony prefaced these observations by referring to the remarks of Isaacs and Rich JJ, when considering a similar Queensland provision in the case of McCawley v The King:
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“At common law a judge held his office at the pleasure of the Crown. The Act of Settlement altered the common law and enacted that judges’ commissions should be during good behaviour. The qualification as to removal by the Crown on an address from both houses was added. The object of all this was to protect the judges, not from parliament, but from the arbitrary and uncontrolled discretion of the Crown. The legal result was that the Crown could only interfere with a judge either (1) for misbehaviour, or (2) if the house of parliament desired it. This obviously did not decrease the control of parliament…”.37
Sir Anthony’s thoughts were echoed in another essay in the same publication, this one by the distinguished constitutional scholar, Emeritus 38 Professor of the University of Sydney, Professor Pat Lane. Professor Lane referred to the fact that under Section 72 of the Australian Constitution a parliamentary address is the only form of removal of federal judges but that in Queensland, Western Australia, South Australia and Victoria judges could also be removed under the “good behaviour” method.39 He further noted that, unlike the Commonwealth Constitution, the State removal provisions were generally not restricted to prescribed grounds.
Some years earlier, the Constitutional Commission Judicial System Committee, noting that Federal judges are better protected against arbitrary removal than judges of State Supreme Courts, had remarked:
“While there has been no threat of arbitrary removal of a Supreme Court judge in recent decades the Committee sees advantage in conferring on the judges of the Supreme and other superior courts of States the same security of tenure as that recommended for federal judges”.40
The wording of the County Court provision is different from that for the Supreme Court but the substance is the same and the same interpretation would seem to apply as far as any removal proceedings are concerned.
The prevailing view of the removal provisions for the Supreme and County Courts, derived as they are from the English Act of Settlement, is that they contain two bases for removal - by the executive for misbehaviour and by the parliament for reasons not spelt out. In fact, the
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modern convention and understanding would seem to be that a judicial officer would not be removed for alleged misbehaviour without the matter being brought to the parliament and the parliament then voting for removal. The position in relation to the power of a parliament to remove for reasons other than misbehaviour seems somewhat clouded. While it seems that there is still such a power it is surely very unlikely that a parliament would exercise it unless there were a case of misbehaviour or incapacity proved against the judicial officer. Again, modern thinking and perhaps convention would suggest that this would be the case.
Nonetheless, the theoretical position under these kinds of provisions seems to be that a judge could be removed by the executive for misbehaviour without the matter going before the parliament and that a parliament could remove a judge for reasons other than misbehaviour. Convention may dictate that the system would not operate in that way but conventions, even constitutional ones, can sometimes prove shaky. A major question, therefore, for Victoria is whether it should strengthen and modernise the present law on this topic.
With that background one can argue that there would be a great deal of merit in Victoria adopting the relevant provision of the Australian Constitution, Section 72 (ii), which simply provides that federal judges “shall not be removed except by the Governor- in-Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”. This is an exhaustive provision which excludes the Act of Settlement provisions and thus avoids the difficulties inherent in the current Supreme and County Court legislation. The Federal arrangement is that the Parliamentary vote is by simple majority and of course any change to Section 72 would require a referendum.
In this general regard it should be noted that in 1992 New South Wales amended its Constitution Act to provide that no holder of a judicial office, including a magistrate, can be removed from office except by the Governor on an address from both houses of parliament in the same session, seeking removal on the grounds of proved misbehaviour or incapacity.41 And, as indicated before, there is even further protection in New South Wales because there can be no removal in the absence of a report from the Conduct Division of the Judicial Commission setting out the Division’s opinion that the matters referred to in the report could justify parliamentary consideration of the removal of the judicial officer on the grounds of proved misbehaviour or incapacity. In addition, the
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New South Wales Constitution Act provision can only be repealed or amended by a referendum of the electors.
Magistrates’ Court
As set out earlier, the relevant Magistrates’ Court provision is in very different terms from those which apply to the Supreme and County Court judges. It speaks of suspicion of guilt of an indictable offence; mental or physical incapacity; incompetence; neglect of duty; and unlawful or improper conduct in the performance of the duties of office. There is clearly a different legislative history here, no doubt based on the traditional distinction between the so-called “higher courts” and the Magistrates’ Court, and thus between the “judges” and the “magistrates”.
From both philosophical and practical standpoints a good deal could be said about these particular provisions as a basis for the suspension and removal of magistrates from office. For example, it is arguable that as a matter of principle it is unsatisfactory to be able to remove a judicial officer for incompetence. Judicial independence could well be at risk if moves could be made against magistrates on the grounds of alleged incompetence. At another level one wonders whether “unlawful or improper conduct” is a preferable form of words to “misbehaviour” and also why the “unlawful or improper conduct” should be confined to the “performance of the duties of his or her office”. Surely there are circumstances in which misbehaviour beyond the duties of office could be a problem and also misbehaviour before appointment as a judicial officer?
However, rather than pursuing the matter in that way, it can be argued that magistrates as full-time, legally qualified, professional, tenured judicial officers should enjoy the same system and protections as judges. In terms of the earlier discussion about the Supreme and County Court judges this would mean that magistrates could only be removed upon proof of misbehaviour or incapacity.
Whether the adjudication would be by Parliament, or as at present, by the Supreme Court is another question. There could be a system of removal of magistrates on the same grounds as the judges but by a different mechanism. Again, however, there is a strong argument for having all three tiers of the judiciary covered in the same way. Put another way, what is the justification at this stage in our history for distinguishing between the different levels of the hierarchy for the purpose of removal grounds and procedures? There is a hierarchy of courts for practical and historical reasons but does the concept of hierarchy necessarily need to
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extend to tenure and removal arrangements? There is a good case for the proposition that it should not and that these arrangements should be uniform across the board. In other words, the removal grounds and procedures should be the same for all judicial officers in Victoria.
Victorian Civil and Administrative Tribunal
Non-judicial members of VCAT can be removed by the Governor-in- Council following suspension by the President, with the approval of the Minister, and following an investigation conducted by a person appointed by the Minister on the nomination of the President. If the traditional distinction between courts and tribunals is accepted then it might be valid to accept a different removal system. The only issue then may be the actual grounds of removal themselves. It can be argued that they need not be any different from those which apply to the judiciary.
The VCAT removal grounds are conviction of an indictable offence; incapacity; neglect of duty; and misconduct. It is tempting to suggest that the operative words of the Australian Constitution ie “misbehaviour or incapacity” should be used to cover the VCAT situation. Conviction of an indictable offence would clearly be misbehaviour as would neglecting to perform the duties of office. And why would “misconduct” not be the same as “misbehaviour”? It is hard to see why they would be any different.
If there is merit in having the same removal grounds for all three levels of court there is a case for extending the argument to include VCAT, notwithstanding that the actual removal mechanisms and procedures could remain different. The argument would be that the same high standards of behaviour are expected of all judicial officers and should be expected in the quasi-judicial sphere as well. Thus, the same form of words could apply across the board, thereby constituting a uniform approach to the issue of grounds of removal right across the system in Victoria.
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11. GUIDE TO JUDICIAL CONDUCT
As noted earlier, the AIJA last year published on behalf of the Australian Council of Chief Justices a Guide to Judicial Conduct. This document was produced because the Chief Justices decided that it would be useful to provide members of the judiciary throughout Australia with some practical guidance on the conduct expected of them as holders of judicial office.42
The document was deliberately designed not as a code of conduct but as a guide to conduct. It specifically recognises that on many issues there will be a range of reasonably held views and opinions rather than a consensus. On that basis the Guide seeks to explore a range of conduct and ethical issues and to provide members of the judiciary with food for thought on what may be the appropriate behaviour or response in a variety of different situations. In this way it will make a useful contribution to discussion and debate on ethical and conduct issues within the judiciary, something which would be a worthwhile achievement in itself.
The Judicial College of Victoria is now operational and various programmes are being developed by the Board and the CEO to assist judicial officers in their important work. Judicial conduct and ethics will no doubt be included in the curriculum at some stage. The availability of the Conduct Guide will be extremely helpful as a key focus of discussion in such programmes; beyond that, it will be an essential resource document for general analysis and debate among judicial officers in courts and tribunals throughout Australia.
It is expected that over time the Guide will be adopted in one way or another by courts across the nation. Such adoption would be a major achievement since there are so many different, independent courts with hundreds of individual, independent judicial officers. In addition, uniform adoption would contribute to the further development of an Australian judiciary, giving judicial officers across the country a stronger sense of their place in the national scheme of things, as distinct from operating simply within their own particular jurisdictions and meeting periodically for conferences.
Another important aspect is that the Guide is published and available to the general community. This will increase community awareness of the judiciary as an institution and provide important insight into some of the dilemmas and difficulties confronting judicial officers in their “on-bench”
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and “off-bench” lives. It will also increase the visibility and transparency of judicial life, and in this way contribute to an enhanced public confidence in the judiciary.
The document itself is short and accessible to a range of audiences. It sets out three basic principles against which appropriate judicial conduct should be tested. They are impartiality, independence and integrity. These principles have three main objectives:
· To uphold public confidence in the administration of justice
· To enhance public respect for the institution of the judiciary
· To protect the reputation of judicial officers and of the judiciary in general.
Separate chapters deal with conduct in court, law-related functions outside the court, non-judicial activities, and conduct and activities post- retirement or resignation from the Bench.
The conduct in court chapter covers such areas as the conduct of hearings and trials; the preparation and delivery of judgments; and judicial officers acting as mediators. Matters dealt with in the law-related activities outside court section include membership of government advisory boards and committees; the making of submissions to parliamentary and like inquiries; law reform activities; membership of non-judicial tribunals and parole boards; commenting publicly on specific matters; participation generally in public debate; media appearances; teaching and writing; and taking part in conferences.
The areas covered in relation to the non-judicial sphere include commercial activities; judicial officers acting as executors or trustees; acceptance of gifts; involvement in community organisations; public fundraising; the provision of character and other references; and social and recreational activities.
The final chapter of the Guide explores the professional and other options open to judicial officers when they have finished their judicial careers. Central here are questions about the possible resumption of legal practice and involvement in public and other activities which may have some impact on the judicial institution or on judicial life in general, especially if the impact is potentially a negative one.
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While the adoption of this particular Guide or for that matter any judicial conduct guide is naturally a matter for each individual court and judicial officer to decide, it is highly significant that this one has been sponsored and approved by the Council of Chief Justices. This presumably means that there is a very good chance that the document will be adopted by their courts. There must also be a good prospect of large-scale if not wholesale adoption across the court system as a whole. As already noted, this would be a major advance in the judicial life of the nation.
The consultations conducted in Victoria for this review revealed widespread support for the concept of a conduct guide. There were strong views against the idea of any such document being prescriptive, a code in other words, but many suggestions of support for something which is very much a guide. Not only would a prescriptive approach be seen by the judiciary as contrary to judicial independence but also as raising a host of issues as to whether in many situations there are really any right or wrong answers to many ethical and conduct issues. The fact that the Guide has been conceived and developed with these aspects in mind is no doubt one of the reasons it has been well received by Victorian judicial officers.
Thus, the answer to the request in the review's Terms of Reference to advise on the adoption of a “code of judicial conduct” is very positive provided that the word “code” is replaced by the word “guide”. The fact that the work on the national Guide was done so extensively through the AIJA and the Council of Chief Justices has meant that this review was saved the trouble of its own investigation of the matter in favour simply of indicating general support for the Chief Justices’ important initiative. As far as this review is concerned, the availability of the Guide to Judicial Conduct means that it can be read in the context of other aspects of the judicial conduct arrangements discussed in the report. It is a key component of the continuing development of the judicial branch of government.
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12. IMPROVING AND MODERNISING THE SYSTEM
Introduction
Building on the work done for the DP and the responses to it, this section of the report discusses the key issues which have arisen for consideration in the review and the general conclusions reached in relation to them. The particular Recommendations are set out separately elsewhere in the report.
While well-grounded in solid, constitutional principles and conventions, the current Victorian arrangements for dealing with complaints against judicial officers and for removing them from office are in need of some improvement and modernisation. Generally speaking, this is because they are of ancient origins and have not been appropriately adjusted for modern conditions, and also because complaints, especially serious ones, are so infrequent that the machinery for dealing with them has not really been fully explored and tested. As a result it is in need of adjustment and modernisation.
Among a difficult series of issues, the most serious is removal from office. Formal attempts to remove judges or magistrates from office will often present a variety of difficulties, however modern and streamlined the particular removal system in question may be. In recent Australian history, some of the problems were well illustrated by the Murphy, Vasta and Bruce cases, and to a lesser extent by the Adams and Kent matters in Victoria. Despite the fact that in the very nature of things removal proceedings will often be difficult and traumatic, it is obviously important to have the best possible arrangements for dealing with these matters for the rare occasions when they do occur. As already discussed, a major gap in the traditional approach to potential removal cases is the absence of an appropriate, standing investigative mechanism.
As noted in the earlier discussion, the late Richard McGarvie, then a Victorian Supreme Court judge, and later Governor of Victoria, proposed in 1989 such a mechanism for filling the gap in the traditional system. This followed consideration of the same matter by the Constitutional Commission. He anticipated an argument that might be raised in opposition to this view:
“It is sometimes said that the unwieldy system which makes no provision for finding what facts of an allegation
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for removal are established by evidence should not be improved. It is said to contribute to the security of tenure of judges through the difficulty of operating it. I do not regard this as a far-sighted view. If a government comes under political pressure through allegations that there are judges in office who are unfit for their offices and there is no fair and effective machinery available to determine the issues, the government may precipitately introduce a new system which is not in the best interests of the judicial system or the community. Nobody argues that judges who are proved to be unfit for office should exercise judicial power. If there are workable procedures to remove from office judges made unfit for the office by incapacity or misconduct there will be fewer pressures to impose on judges who are fit for office new systems of investigation, supervision and discipline which would reduce the quality of the judicial system and the confidence of the community in it”.43
The 1988 Constitutional Commission report and later the Australian Law Reform Commission both made firm recommendations to this effect. A powerful case can be made for it. In practical terms any such mechanism would only be used by an Attorney-General in serious cases because otherwise it would pose a threat to judicial independence and the appropriate separation of the different branches of government.
Complaints about matters which are unlikely to raise removal issues are in an entirely different category, especially in relation to how they are managed. In keeping with the principles of judicial independence these matters are dealt with internally by the judiciary. The arrangement is an informal one. Not only is the procedure informal but there is no system of sanctions or formal reprimands for dealing with behavioural problems short of the removal category. However strange it might appear to some people this seems to be the correct approach in the context of an independent judiciary and indeed the independence of each individual judicial officer. The idea, for example, that there could be a formal system of sanctions, perhaps administered by the relevant chief judicial officer, seems totally at odds with the independent nature of judicial office.
Judicial officers are exposed to a powerful range of accountability measures and traditionally exhibit very high standards of “on-bench” and “off-bench” behaviour. Conduct problems, mostly minor ones, do occur from time to time but the predominant view is that they are best dealt with
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informally through the influence of peer pressure and the leadership of the relevant chief judicial officer. There has been some discussion in Victoria in recent times of the possibility of introducing an overarching Judicial Commission type structure, as in New South Wales, to handle all complaints against judicial officers. It needs to be remembered in that connection that Commissions of that kind have no powers of adjudication or punishment and there appears to be no suggestion that they should have such powers. They simply represent a different method of receiving and investigating complaints.
While there has been discussion about a Commission approach there has been no demonstration that in Victoria lower level conduct issues constitute such a problem that an entirely new regime is required to deal with them. The review has not seen evidence for such a body in Victoria and the vast majority of submissions either vigorously opposed the idea or simply did not raise it. The judicial committee proposed in this report would of course be available to deal with any serious matters. It would fill what at present is a problematic gap in arrangements for dealing with any higher level cases.
Then there is the question whether any changes should be made to the internal, informal arrangements for handling complaints within the courts. It follows from the remarks in this report about judicial independence that any changes to the system would be a matter for the judiciary itself to consider but in the DP it was suggested that the Courts and VCAT might wish to examine whether their arrangements for receiving and investigating complaints are as transparent, accessible and effective as they should be, especially as calls for the accountability of public officers, including judicial officers, are much stronger than in the past. The DP canvassed a number of suggestions that could be considered in this regard.
Also raised for comment in the DP were the suggestions that the Courts might produce a booklet or brochure setting out how the complaints process works and also a provide a summary in their annual reports of the number of complaints received, what they were about, how they were handled and what in general the outcomes were.
As far as the second part of the brief of the review was concerned – the statutory removal rules of the Courts and VCAT - there is strong support for the view that the current provisions are unsatisfactory because of their vagueness and uncertainty and are not strong enough in their support of judicial tenure and independence. It was suggested in the DP not only that these provisions should be strengthened but that they should be uniform for
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all three Courts and VCAT. Apart from anything else, this would give strong recognition to the fact that all the levels of our judicial system are important and that they should be operating in a more integrated, coordinated fashion better to serve the Victorian community.
As an additional feature it was floated in the DP, that there should be statutory change to ensure that in the event of a court being abolished the judicial tenure and status of the role of judicial officers would be preserved. Legislation along these lines was passed in New South Wales a number of years ago following the abolition in Victoria of the Accident Compensation Tribunal and along with it the positions of a number of people who were designated under the relevant legislation as the equivalent of County Court judges.44 A number of submissions suggested that this proposal would represent a major step in enhancing judicial independence in Victoria.
Discussion Paper Proposals
In order to focus attention on the key elements of the topics arising under the Terms of Reference, the DP included ten suggestions for modernisation and improvement of the conduct, complaints and removal system. These are reproduced here for ease of reference:
· Revamping the removal provisions which govern the Supreme, County and Magistrates’ Courts’ in accord with Section72(ii) of the Australian Constitution, which provides that Federal judicial officers “shall not be removed except by the Governor-in-Council, on address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”.
· Establishment by statute of an appropriate standing committee to determine whether, in the case of matters referred to it by the Attorney- General, the facts established by it are capable of amounting to proved misbehaviour or incapacity warranting removal of the judicial officer in question.
This committee, which would operate as a group of three, would be drawn from a panel of Federal, Family Court and State and Territory Supreme Court judges. The legislation should provide for a method of selection of the tribunal members for a particular case before the identity of the judicial officer whose behaviour is in question is known.
If this proposal were acceptable in principle consideration would need to be given to the specific powers of such a body and how it would
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operate. At the very least it would of course need to observe the accepted principles of natural justice in its approach to investigating and reporting. (The ACT Commission legislation could be used not necessarily as a model but as a point of reference in this regard).
· The relevant legislation should provide that a judicial officer cannot be removed from office without a finding by the judicial committee that the facts it found were capable of amounting to misbehaviour or incapacity warranting removal.
· The current removal machinery for non-judicial members of VCAT should remain but the actual removal grounds should be changed to “proved misbehaviour or incapacity”, as for the courts.
· In order to provide further protection and enhancement for judicial independence introduction of legislation along the lines of Section 56 of the New South Wales Constitution Act to provide that if a court is abolished the judicial officers of that court are entitled to be appointed to a court of equivalent or higher status, unless already the holder of such an office. (The New South Wales provision was introduced following the abolition of the Victorian Accident Compensation Tribunal in the early 1990’s).
· The traditional internal system for dealing with lower level complaints should remain but the courts and VCAT should examine whether the existing procedures are sufficiently transparent, accessible and effective. In thinking about their systems they should consider the relevance and applicability of the Australian National Standard for the Handling of Complaints (AS4269) and judicial complaint handling developments in other relevant jurisdictions, for example, New Zealand, where a booklet has been produced outlining how the system works.
· There is merit in the recommendations made by the ALRC in its Managing Justice report that the courts should develop and publish protocols for defining, receiving and handling complaints against judicial officers and that in their annual reports they should provide information about their complaint handling activities. This should include the number and types of complaints received, the processes used for dealing with them and general information about the outcomes of investigations.
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· There is a particular problem with the current internal arrangements in relation to any complaint made about a chief judicial officer. One way of dealing with this would be for the courts to agree that any complaint made about the Chief Judge or the Chief Magistrate would be handled by the Chief Justice. The next most Senior Supreme Court judge could deal with a complaint about the Chief Justice and the Chief Justice could look into any complaint made about the President of VCAT.
· It follows from the above that the introduction of a formal commission type system in Victoria for receiving and investigating all complaints against judicial officers and VCAT members would be inappropriate and unwarranted. The disadvantages would considerably outweigh any advantages, especially since the proposed judicial committee would be available to deal with any complaint that was regarded as a potential removal matter. For lower level complaints a formal commission would be an unnecessary intrusion into the affairs of the independent judicial branch of government and in practical terms would be a classic case of producing a “sledge hammer to crack a nut”.
· The adoption by the Victorian courts and VCAT of a conduct guide is a good idea. The Guide to Judicial Conduct produced by the AIJA on behalf of the Australian Council of Chief Justices is to be commended, certainly as a good starting point. Such a document is a useful reference for the judiciary and also for the broader community in relation to a considerable range of “on-bench” and “off-bench” conduct situations.
Publication of these provisional proposals in the DP proved to be an extremely positive stimulus for comment and discussion. Most of the submissions focussed squarely upon them and provided considerable food for thought in the preparation of the report. For the most part the proposals were supported and regarded as uncontroversial. Even where there was disagreement it was about aspects of detail rather than the main thrust of the proposals themselves.
Removal Provisions
Responses to the DP indicated very firm support for the suggestion that the removal provisions for all three Courts should be changed to accord with Section 72(ii) of the Australian Constitution ie "shall not be removed except by the Governor-in-Council, on address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity". There was also support for the proposition that while the current removal mechanism should remain, the
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removal grounds for VCAT should be "proved misbehaviour or incapacity". Among others, this proposal was supported by all three Courts, VCAT, the Bar and the Law Institute. It was supported on the basis that such a change would strengthen the independence and tenure of the judiciary, simplify and clarify the law and produce a desirable uniformity of approach across the whole judicial system.
While not suggesting that any attempt be made to define "misbehaviour" or "incapacity", a couple of submissions suggested that something be added to any amending legislation to make it clear that "misbehaviour" is not limited to actual judicial activity and also can extend to behaviour prior to judicial appointment. This is a useful suggestion if the view were to be taken that there is any uncertainty about the matter at present. Because there does seem to be some uncertainty legislative clarification is probably appropriate.
The issue of the extent to which the removal provisions for the Victorian judiciary should entrench or further entrench security of tenure and, therefore, judicial independence, was not directly raised in early consultations for the review nor was it fully canvassed in the DP. Rather, much of the discussion was about the substance of the provisions themselves and about strengthening them by bringing them into line with the Federal position.
In preparing the actual report and especially the Recommendations there has been closer consideration of the Constitution Act 1975. As a result, it is proposed not only that the Federal form of removal words should be adopted for the Supreme, County and Magistrates' Courts, as well as VCAT, but also that, in the case of the Courts, the provisions should all be included in the Constitution Act rather than scattered in separate pieces of legislation.
Closer inspection of the Act and, by comparison, the County and Magistrates' Court legislation reveals the following interesting situation. Under the Constitution Act a Supreme Court Judge can be removed from Office by a simple majority vote of each House of the Parliament (Section 77(1)). That Section, however, can only be repealed, altered or varied (Section 18(2AA)(b)) by an absolute majority vote of the Parliament. However, while County Court Judges can also be removed by a simple majority vote the relevant removal provision can be changed by a simple majority vote as distinct from an absolute one.
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Looking further afield within the Constitution Act, there are provisions governing the Houses of Parliament themselves, Appropriation Bills, the Executive Council, the Auditor-General, the Ombudsman and the Electoral Commissioner which require approval by the majority of the electors voting at a referendum before there can be any change. (Not to remove the individual holders of these Offices but to change the provisions in the legislation relating to them). Then there is a series of other provisions about the Crown, the Governor, the Lieutenant- Governor, the powers of the Parliament, members of the Council and Assembly and so on which require a special majority vote of the Parliament. (A "special majority" meaning 3/5ths of the whole number of the members of the Assembly and the Council respectively).
When one looks at all this in a broad, governmental, constitutional context it is clear that a variety of government entities and arrangements receive stronger constitutional protection than the judiciary. Why this should be so is not clear, especially given the consistent rhetoric about judicial independence and the "separation of powers". Surely, there is a good argument for strengthening the position of the judiciary in the Victorian constitutional arrangements?
To provide for change only by referendum is an exceptionally high, some would say, rigid, standard. Given the difficulty of change by referendum it may be tantamount to excluding change, barring the most exceptional of circumstances. To provide, as for the judiciary, for removal by simple majority votes and change to the relevant removal provisions by simple majority (other than the Supreme Court, where there is an absolute majority required for change), arguably sets the bar far too low.
This being the case, it is recommended in this report that the Constitution Act 1975 be amended so that Judges and Magistrates can only be removed from Office by a special majority vote of the Parliament and that, similarly, the removal provisions themselves only be capable of repeal, alteration or variation by a special majority vote. This would substantially enhance judicial independence by redressing some of the present imbalance between the position of the judiciary and other key organs of government under the Constitution Act 1975.
A Judicial Committee
Submissions also strongly supported the idea that for possible removal cases the Attorney-General should have ready access to the services of an independent, expert judicial committee to decide whether the facts
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established by it are capable of amounting to proved misbehaviour or incapacity warranting removal of the judicial officer in question. As set out earlier, the proposal is for a committee of three judges drawn from a standing panel of Federal, State and Territory Supreme Court judges. The judges would not serve on such a committee as official representatives of their Courts but simply as individual judges.
The panel would be organised so that the composition of the actual committee to deal with a particular case would not be determined by the Attorney-General of the day but would be triggered virtually automatically once the Attorney provided a reference. Further, the proposal is that the broad structure would be established by legislation; the detail would be set- out in appropriate regulations. It was also indicated that removal by Parliament could not occur unless there had earlier been an adverse finding by the Committee in relation to the judicial officer in question i.e. that the facts it established are capable of amounting to proved misbehaviour or incapacity warranting removal.
While the central thrust of this proposal was heavily supported in submissions, different views were expressed about some aspects of it. For example, it was suggested in a couple of the submissions that it was not necessary to establish a formal system but rather there should simply be a convention or understanding that, if a possible removal case arose, the Attorney-General of the day would, as a matter of course, refer the matter to a group of serving or retired judges (or perhaps a combination of the two). In other words, it was suggested that there is no need for a formal scheme, let alone one that is established by legislation.
Other submissions suggested that the panel of judicial officers from which the committee for a particular case would be drawn should not be limited to superior court level but should include judicial officers from other (if not all) levels of the judiciary (including the Magistracy). This suggestion was obviously intended to provide a spread of membership so that cases involving, say, a magistrate or an intermediate court level judge might well be investigated by a committee which included a judicial officer from the same level in the hierarchy as the judicial officer whose behaviour is in question. While appreciating the reasoning behind the suggestion, it would seem far simpler and more straightforward to limit membership of such a committee to high level judicial officers. After all, conduct issues within the judiciary should be universal in nature, notwithstanding the somewhat different jurisdictional circumstances at the different levels of the hierarchy. And from an administrative standpoint, this approach would be far more effective and efficient.
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The rationale behind the legislative approach proposed in the DP was that the possible removal of a judicial officer is a matter of considerable gravity and significance for the person concerned, for the court in question, for the legal and judicial communities generally, for constitutional arrangements, and, last but by no means least, for the community as a whole. The system for dealing with these matters should be high-level and transparent. Hence the suggestion that the standing committee arrangement be established by legislation rather than simply by a protocol or convention drawn up by the Attorney-General or even by the Parliament.
Removal cases can easily become difficult and also "political" in the broad sense of that term. It is best to remove the politics and procedural uncertainties as much as possible and to have a clear-cut, pre-established scheme which can easily and quickly be triggered into action by the appropriate reference from the relevant Minister. To put it on a legislative footing would give it a high level of visibility and certainty and remove it from the day-to-day vicissitudes of the political and governmental processes. As already noted, the broad scheme would be set out in legislation, with the detail to appear in regulations. This would put the whole process on a strong public footing, very largely divorced from politics and any suggestion of improper executive government involvement.
The legislation would establish the framework for a panel of State, Territory and Federal judges. It would probably be wise to exclude a nominee from the Supreme Court of Victoria because of likely knowledge of the judicial officer in question and possible familiarity with the circumstances of the case. This would provide a panel of nine judges whose names could, for example, be arranged in order of seniority. The first three on the list at the time in question would usually form the committee. Once they had completed a case they could go to the bottom of the panel list or go off the list altogether to be replaced by three new judges from their respective courts.
The reason for proposing a panel of serving judges is that serving judges should be more capable of applying contemporary judicial and community standards to a situation than retired judges, who would carry the risk of being somewhat out of touch. When a particular case arose in Victoria, the Attorney-General would make the threshold decision whether the matter should be investigated as a potential removal matter. If a decision to investigate were made a committee of three would be assembled on a
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random, pre-determined basis from the panel and the Minister's request would go to that committee.
As indicated earlier, the role of the Committee would be to report whether the situation it finds is capable of amounting to misbehaviour or incapacity warranting removal. In the case of a finding adverse to the judicial officer in question it would then be a matter for the Attorney-General to decide whether to take the case to the Parliament. Parliament would fully consider the merits of any case according to its own processes and procedures but obviously would benefit from careful consideration of the report of the Committee.
The Parliament would not be bound to accept the Committee's report. It could decide not to vote for removal even though the Committee had found that there was a possible basis for it. On the other hand, as proposed in the DP, the legislation would say that removal could not occur in the absence of an adverse report from the Committee. An adverse finding by the Committee would be a prerequisite to removal. This would be a safeguard for the judicial officer in question and for members of the judiciary in general. Some may see this as unduly fettering the power of the Parliament. (The Parliament would, of course, be fettering itself). The reasoning simply is that the Parliament should not be at liberty to remove a judicial officer unless an independent, expert judicial committee established by legislation had first decided that its findings were capable of amounting to a necessary ground for removal.
While a case can be made for a power of referral to such a committee which goes beyond the Attorney-General, e.g. to include the chief judicial officer of a court or all the judicial officers of a court, assembled as the Council of that court, the position recommended in this report is that the power should rest solely with the Attorney-General. It is the Attorney who is the Minister responsible to the Parliament for the legal system and the courts generally. And it is the Attorney who has the responsibility of taking a case to the Parliament. Obviously, any person who had an allegation or complaint to make about a judicial officer could refer the matter to the Attorney-General. Under these circumstances, it seems appropriate that the authority to refer a case to the Committee should be restricted to the Attorney. It would also be a much more straightforward arrangement administratively.
Non-removal Cases
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The consultations undertaken and submissions received by the review revealed very little support for the idea of a Judicial Commission type system for receiving and investigating complaints. In fact, the concept was vigorously opposed by all three Courts and VCAT as well as the Bar and the Law Institute. As far as the review is concerned, the case for such a Commission has simply not been made out. This means that if the proposals of the review were accepted, the present informal "head of jurisdiction" arrangement for dealing with non-removal cases would remain but some changes would be made to it.
It was pointed out in the DP that this arrangement, as traditionally practised in Victoria, has a number of weaknesses. The system is not well known or understood outside the immediate environment of the courts and lacks clarity and transparency generally. Proposals in the DP were aimed at remedying key aspects of these deficiencies. It was suggested that the Courts and VCAT should examine their procedures to assess the scope for improvement. There were, for example, references in the DP to the possibilities of developing and publishing protocols for dealing with complaints and a suggestion that information about complaints and how they are handled should appear in the respective annual reports. Reference was also made to the Australian National Standard for the Handling of Complaints and the recent publication in New Zealand of an official booklet on how their complaints system operates.
Finally, there was a discussion of how best to deal with any complaint made about a chief judicial officer. It was proposed in the DP that the Chief Justice should deal with a complaint about the Chief Judge, the Chief Magistrate or the President of VCAT and that the next most senior Supreme Court judge, (the President of the Court of Appeal) could handle any complaint made about the Chief Justice.
As a general comment, it is an important feature of judicial independence as practised in Victoria that lower level complaints are dealt with within the judiciary. It is also important that no penalties or sanctions are capable of being applied. If a complaint is made and found to be sustained the matter needs to be sorted out between the chief judicial officer and the judicial officer whose conduct is in question, and the complainant appropriately informed of the process and the outcome. This report does not propose any basic change to those arrangements.
It should be noted that there have been important recent developments in the Courts in the form of production and publication of protocols for dealing with non-removal type complaints. In its submission to the review
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the Supreme Court of Victoria confirmed its support for the continuation of the informal arrangements for handling lower level complaints and, referring to the DP, went on to say:
"The Judges have, however, taken up the Paper's suggestion and given consideration to the question of whether our existing procedures are sufficiently transparent and accessible."
As a result of this consideration, the recently retired Chief Justice prepared and the Council of Judges of the Court adopted a complaints protocol concerning Judges, Masters and all staff. This protocol has now been published on the Court's web site. The web site has an Internet link to the AIJA web site where the Chief Justices' Guide to Judicial Conduct can be found. These important initiatives were taken to enhance the accessibility, transparency and effectiveness of the Court' s complaints system.
In addition, the County Court, the Magistrates' Court and VCAT have all recently introduced material about complaints' procedures to their web sites, although the material is not as detailed as that provided by the Supreme Court. The Courts appear to have no plans at present to publish an explanatory booklet along the lines of the current New Zealand one.
A booklet of the New Zealand type could well be beneficial in Victoria. It could significantly improve the processes of communication between the Courts and court users and the general public. It would explain the system and help readers to understand the special nature of the courts and the value of having an independent judiciary and independent individual judicial officers. Such a document would be a worthwhile complement to the newly published Judicial Conduct Guide. Rather than having separate documents for each Court it would be worthwhile for all three to get together, perhaps with the Attorney-General, as in the case of New Zealand, to produce a joint publication. As far as the review is concerned, such a cooperative initiative would not involve any compromise in the separateness or independence of any individual institution. VCAT could produce its own, separate booklet, recognising that it is a different type of body from a court.
Chief Judicial Officers
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The issue of dealing with complaints against chief judicial officers is a difficult one. The Supreme Court did not favour the suggestion in the DP that a complaint about the Chief Justice could be handled by the next most senior Judge. The County Court did not support the proposition that a complaint about its Chief Judge should go to the Chief Justice. It suggested that such a complaint should be dealt with by a panel of the three next most senior judges of the Court. The then President of VCAT, Justice Murray Kellam, was content with the proposal that a complaint about the President could go to the Chief Justice. The Magistrates' Court did not comment on the suggestion that a complaint about its Chief could be investigated by the Chief Justice.
Ultimately, of course, as a matter of principle and practice, it is for the courts themselves to sort this matter out. Upon reflection, it may not be the best answer to adopt an hierarchical approach. It may be better to have a protocol which keeps such cases within the respective Courts and VCAT. In that way the County Court proposal may be the most appropriate and acceptable, i.e. to convene a committee of the three next most senior judicial officers of the Court to look into any complaint about the Chief Judicial Officer. This is a matter which all three Courts and VCAT should investigate for themselves. Because of its particular judicial and non-judicial arrangements a variation on the approach may be appropriate for VCAT.
Conduct Guide
There is no Recommendation as such in the report about a judicial code of conduct. In the circumstances, this was not necessary or appropriate. As discussed in the body of the report, a code is not appropriate in the judicial context but a guide certainly is, and one is of course now available in the form of the Chief Justices' Judicial Conduct Guide published in 2002 by the AIJA. As was observed in the DP, this Guide is a useful document. It may not prove to be the last word on the topic but it can always be up-dated in the light of judicial and general experience. The fact that such a document is now available and published is a significant achievement for the nation's judiciary. Any revision over time should ideally be made on a national, uniform basis.
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13. CONCLUSION
Victoria is fortunate in the quality of its judiciary and its judicial system. The judiciary has a strong reputation for independence, competence, professionalism and integrity. These qualities have developed over many years based on the solid philosophical and constitutional foundations of the English common law system, refined and developed for the particular circumstances of modern day Victoria.
This review has been specifically concerned with some key features of our judicial system, namely, the judicial conduct and complaints arrangements in Victoria. The review was commissioned by the Attorney-General as a general stock-take and modernisation initiative and also because of the particular cases in very recent history of the former Chief Magistrate and a former County Court Judge, who were both involved in conduct controversies and later resigned as a result. In essence, the review has been about the complaints procedures, the removal provisions and mechanisms, and the issue of a code of judicial conduct.
The overall conclusion of the review is that the basic structures and procedures in Victoria are sound but the system is in need of some modernisation and refinement. This report has a number of recommendations for consideration by the Attorney-General and the Courts. Each individual recommendation has significance in its own right but taken as a whole their implementation would bring about a considerable improvement in the arrangements in Victoria for dealing with judicial conduct and complaint issues. More importantly, their adoption would considerably strengthen judicial independence in Victoria and thus the independence of the judiciary as a separate branch of government. This would be an important advance in its own right.
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14. ENDNOTES
1 See the Judicial Officers Act 1986
2 A submission from the North Melbourne Legal Service suggested that the DP had possibly understated the present and likely future significance in Victoria of serious issues arising from actual or alleged judicial misbehaviour. The submission went on to say that it was reasonable to suppose that the limitations of the present system will come under closer public scrutiny in the future. As a general trend in matters of the accountability of public officials, this may well be so
Further afield ie in Queensland, the previous Chief Magistrate was recently convicted in the Supreme Court of an offence of interfering with a possible witness in a potential court case. She was sentenced to a term of imprisonment, which was later reduced on appeal
3 See Section 77 of the Constitution Act 1975, Section 9 of the County Court Act 1958, Section 11 of the Magistrates' Court Act 1989 and Sections 22-24 of the Victorian Civil and Administrative Tribunal Act 1998
4 Guide to Judicial Conduct, Published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration Incorporated (AIJA), 2002
5 A Guide to Standards of Conduct for Tribunal Members, Administrative Review Council, Commonwealth of Australia, 2001
6 Annual Report, Judicial Commission of New South Wales, 2000-2001 (And see generally more recent Annual Reports)
7 Annual Report, p.20
8 Judicial Complaints Process, Booklet issued jointly by the Offices of the Attorney-General and the Chief Justice of New Zealand, 2001
9 New Zealand Booklet, p.4
10 Section 77(1) of the Constitution Act 1975
11 Report of the Parliamentary Commission of Inquiry, 1986
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12 Report, p. 8
13 Report, p. 12
14 Report, p.12
15 Final Report of the Constitutional Commission, 1988, Volume One, p.403
16 Blackshield, A.R., The Appointment and Removal of Federal Judges, in Opeskin, B. and Wheeler, F. (eds.). The Australian Federal Judicial System , Melbourne University Press, 2000 pp. 400-441 at p. 422
17 New South Wales has a Judicial Commission to receive and investigate all complaints, while in the ACT (See Judicial Commissions Act 1994) there is a standing mechanism for dealing with potential removal cases. There is also now a tribunal arrangement in Queensland (See Section 61 of the Constitution of Queensland 2001). Another important development is that the Commonwealth is working on changes to the Federal system for dealing with complaints against judicial officers, following the 2000 report of the ALRC on Managing Justice. At the time of writing this report, no information was publicly available in relation to these potentially significant developments at the Federal level
18 McGarvie, R.E. The Operation of the New Proposals in Australia, in The Accountability of the Australian Judiciary: Procedures for Dealing with Complaints Concerning Judicial Officers, AIJA, 1989, pp. 13-42 at p.22
19 McLelland, M. Disciplining Australian Judges, Australian Law Journal, 1990, Vol 64, pp. 388-403 at p.401
20 See Constitutional Commission Report (Note 15, above), p.402
21 Managing Justice: A Review of the Federal Civil Justice System, Report No. 89, Australian Law Reform Commission, Commonwealth of Australia, 2000, Para. 2.293 at p.201
22 See generally, Tenure of Appointees to Commonwealth Tribunals, Report of Parliamentary Joint Select Committee, Commonwealth Parliamentary Paper No. 289 of 1989
23 This was a concern voiced to the review in submissions from two Chief Justices
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24 Managing Justice Report, Para. 2.280 at p.197
25 See Note 24 above at p.200
26 New Zealand Booklet, p.4
27 See Note 26 above at pp.44-5
28 Telephone communication with the New Zealand Chief District Court Judge, His Honour Judge D J Carruthers, August 2001
29 Letter to the author from the Hon Mr Justice David K Malcolm, AC, Chief Justice of Western Australia, September 2001
30 See generally The Judicial Commission of NSW: Treading a Fine Line Between Judicial Independence and Judicial Accountability, in Reshaping the Judiciary, Corns, C.(ed.) Federation Press, 2001, pp.102- 128
31 Some submissions in response to the DP proposed a Judicial Commission approach for dealing with complaints and suggested that the analysis in the DP had not done sufficient justice to the idea of a Commission type model
32 See Note 19 above at p.390
33 See Mahoney, D.L., Procedures for Dealing with Complaints Concerning Judges, in The Accountability of the Australian Judiciary : Procedures for Dealing with Complaints Concerning Judicial Officers, AIJA, 1989, pp.1-9, at p.6
In its response to the DP, the North Melbourne Legal Service set out arguments in favour of the establishment of a Commission:
§ The number of complaints being made now is likely to be substantially less than the number of complaints that would be made if a Judicial Commission were established; § The nature of complaints identified in the Discussion Paper by reference to NSW experience (p.14) gives rise to a serious question whether the present system is adequate;
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§ A formal and public complaints system promotes accessibility, accountability, consistency, transparency, high judicial standards and the public standing of and public confidence in the judiciary; § A formal and public complaints system may have widespread community support; § A formal system may increase the number of complaints by attracting appropriate complaints that would not otherwise be made; § The detriment of attracting unjustified and inappropriate complaints is an inevitable and minor incident of any proper complaints system; § A formal complaints system may expose the resolution of "the difficult cases" to appropriate public scrutiny; § A formal system may enable timely identification of any judicial officers not fit for office, for example, when many complaints are made concerning the same judge or magistrate; § The present system is based on a presumption of judicial probity, capacity and competence, not on the recognition that these are sometimes absent and with serious consequences; § the community generally assumes that nothing can be done about low-level judicial behaviour; § the present system discourages complaints by its obscurity, informality and confidentiality; § the traditional internal system has serious inherent difficulties (some of which are identified at pp.23-24 of the Paper) that undermine its effectiveness and credibility; § the projection of a formal system as primarily a means for the "failed and disappointed litigant" to blame the judge reflects a defensive posture that may not best serve the modern judiciary
34 Report of the Advisory Committee on the Australian Judicial System, 1987, at p.90
35 This overview is drawn from The Rt Hon Lord Justice Brooke, Judicial Independence : Its History in England and Wales, in Fragile Bastion : Judicial Independence in the Nineties and Beyond, Judicial Commission of New South Wales, 1997, pp.89-112
36 Sir Anthony Mason, The Appointment and Removal of Judges, Fragile Bastion (See note 35 above) pp. 1-38 at p.24
37 McCawley v The King, (1918) 26 CLR at pp.58-59
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38 Lane, P.H., Constitutional Aspects of Judicial Independence, in Fragile Bastion (See Note 35 above), pp. 53-80
39 Professor Lane's article was written before Queensland amended its Constitution (See Section 61 of the Constitution of Queensland 2001) to provide for removal of its judges on the same grounds as set out in the Commonwealth Constitution
40 Advisory Committee Report, p.81
41 Constitution (Amendment) Act 1992 (No.106), Schedule 1. And, as noted earlier, (See Endnote 17) in 2001 Queensland did the same thing
42 The forerunner to this Guide was a discussion paper published in 1996. (See Wood, D. Judicial Ethics : a Discussion Paper, AIJA, 1996)
43 See Note 18 above at p.22
44 Section 56 of the Constitution Act 1902. (And see generally, Kirby, M, Abolition of Courts and Non-Re-appointment of Judicial Officers, (1995), Vol 12 (3), Australian Bar Review, pp.181-209)
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APPENDIX
CONTRIBUTORS TO THE REVIEW*
Abbott, A N, President, Law Council of Australia Ardlie, John, Chief Executive Officer, VCAT Aydin, Ali Bartlett, Peter, Minter Ellison, Lawyers Batten, Nicholas, North Melbourne Legal Service Inc Beaumont, The Hon Justice Bryan, Federal Court of Australia Billings, John, Deputy President, VCAT Black, The Hon Justice Michael, AC, Chief Justice, Federal Court of Australia Blanch, The Hon Justice R O, Chief Judge, District Court of New South Wales Blashki, S A, Magistrate, Victoria Bongiorno, The Hon Justice B, Judge of the Supreme Court of Victoria Cain, John, CEO, Law Institute Victoria Carruthers, Judge David J, Chief District Court Judge, Wellington, New Zealand Chamberlain, The Hon Bruce, MLC, Victoria Coate, Her Honour Judge Jennifer, President, Children's Court, Victoria Corns, Dr Chris, LaTrobe Law, LaTrobe University, Victoria Costigan, F, QC, Victorian Bar Couzens, Peter, Magistrate, Victoria Cox, The Hon Mr Justice W J E, AC, Chief Justice of the Supreme Court of Tasmania Crennan, S, QC, Victorian Bar Crowe, Jillian M, Regional Co-ordinating Magistrate, Heidelberg Magistrates' Court Doogan, Christopher M, Chief Executive & Principal Registrar, High Court of Australia Doyle, The Hon Justice John, AC, Chief Justice of South Australia Elias, The Hon Justice Sian, Chief Justice of New Zealand Gaden, Sarah, Law Institute of Victoria Garfirth, Peter W J Goldsbrough, J A B, Magistrate, Victoria Gray, Ian, Chief Magistrate, Magistrates' Court of Victoria Gurvich, M, Magistrate, Victoria Hampel, Felicity P, SC, Victorian Bar Hassett, John, Reserve Judge, County Court of Victoria Heath, Steven, Chief Magistrate, Western Australia Hill, L J, Magistrate, Victoria International Commission of Jurists (Australian Section - Victoria)
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Jessup, Dr Chris, QC, Victorian Bar Jevons, Professor Fred, AO Juric, Sime Kakos, Registrar of Honorary Justices, Victoria Kellam, The Hon Mr Justice Murray, Judge of the Supreme Court of Victoria and President of VCAT, 1998-2003 Kennan, J, QC, Victorian Bar, former Victorian Attorney-General King, The Hon L, AC, QC, former Chief Justice of South Australia Lauritsen, Peter, Magistrate, Victoria Law Council of Australia Law Institute Victoria Levine, G, Magistrate, Victoria Lynch, Dr John, Assistant Director, Courts, Department of Justice, Victoria Malcolm, The Hon Mr Justice David K, AC, Chief Justice of Western Australia McGarvie, The Hon Richard E, AC, QC (deceased) McGowan, Glenn, International Commission of Jurists (Australian Section - Victoria) McGrane, I T, Magistrate, Victoria McMurdo, The Hon Justice Margaret, President, Queensland Court of Appeal McPherson, C J, Magistrate, Victoria Mendelsohn, Dr Oliver, Head, LaTrobe Law, LaTrobe University, Victoria Moran, Eamonn, QC, Chief Parliamentary Counsel, Victoria Morton, J, The Self Litigants Association, Garden City, Queensland Nankivell, Ross, Victorian Bar Nathan, The Hon Justice Howard, Reserve Judge of the Supreme Court of Victoria Neave, Professor Marcia, AO, Chairperson, Victorian Law Reform Commission Neesham, His Honour Judge T, Judge of the County Court of Victoria North Melbourne Legal Service O'Shea, Bill, President, Law Institute Victoria Parsons, Tony, Managing Director, Victoria Legal Aid Patrick, J M J, Magistrate, Victoria Pearlman, Justice Mahla L, AM, Chief Judge, Land and Environment Court, New South Wales Phillips, The Hon Justice John Harber, AC, former Chief Justice of the Supreme Court of Victoria Popovic, J, Magistrate, Victoria Reed, Robert Reinhardt, Professor Greg, Executive Director, AIJA Richards, Keith E, Martin Irwin & Richards, Lawyers, Mildura Richardson, Mark, Chief Executive Officer, The Law Society of New South Wales Ritchard, Ian, Registrar, Supreme Court of Tasmania
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Robson, Ross McK, QC, Victorian Bar Rozenes, His Honour Judge Michael, Chief Judge of the County Court Rush, John T, QC, Chairman, Victorian Bar Schmatt, Ernie, CEO, Judicial Commission of New South Wales Scott, Professor I, Faculty of Law, University of Birmingham, England, UK Shott, A, Chief Magistrate of Tasmania Sisely, Dr Diane, Chief Executive, Equal Opportunity Commission of Victoria Smith, His Honour Judge T, Judge of the County Court of Victoria (deceased) Soden, W, Principal Registrar and CEO, Federal Court of Australia Spence, His Honour Judge G, Reserve Judge of the County Court of Victoria Spillane, A J, Magistrate, Victoria Stewart-Thornton, Christine, Magistrate, Victoria Strong, His Honour Judge M, Judge of the County Court of Victoria Thomas, The Hon J, QC, Retired Judge of the Queensland Court of Appeal Vickery, Peter N, QC, Victorian Bar Victoria Legal Aid Victorian Bar Wallace, John Williams, The Hon Justice G N, Queensland Court of Appeal Willis, John, Associate Professor, LaTrobe Law, LaTrobe University Wilmoth, W A, Judge of the County Court of Victoria Wynn-Mackenzie, B P, Magistrate, Victoria Young, Sir John McI, KCMG, QC, former Chief Justice of the Supreme Court of Victoria
* This is a list of the contributors to the review, both those who made submissions in response to the Discussion Paper published in July 2002 and those who contributed in other ways. Their assistance is gratefully acknowledged.
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