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. The Judicial Conduct and Complaints System in Victoria: A Report 2 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. The Judicial Conduct and Complaints System in Victoria: A Report 3 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 The Judicial Conduct and Complaints System in Victoria: A Report 4 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 The Judicial Conduct and Complaints System in Victoria: A Report 5 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. The Judicial Conduct and Complaints System in Victoria: A Report 6 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 The Judicial Conduct and Complaints System in Victoria: A Report 7 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 The Judicial Conduct and Complaints System in Victoria: A Report 8 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.