A MATTER OF JUDGMENT Judicial decision-making and judgment writing Published in Sydney by — Judicial Commission of New South Wales Level 5, 301 George Street Sydney NSW 2000 DX 886 Sydney GPO Box 3634 Sydney NSW 2001 www.judcom.nsw.gov.au National Library of Australia Cataloguing-in-Publication entry A matter of judgment: judicial decision-making and judgment writing. Bibliography. Includes index. ISBN 0 7313 5603 9. 1. Judicial process — New South Wales. 2. Judgments — New South Wales. I. Sheard, Ruth. II. Judicial Commission of New South Wales. (Series: Education monograph series (Judicial Commission of New South Wales); 2). 347.94405 © 2003 Judicial Commission of New South Wales and contributors, except Justice Michael Kirby, “Judging: Reflections on the Moment of Decision” reproduced by permission Lexis Nexis Butterworths Sir Frank Kitto, “Why Write Judgments” and Justice Keith Mason, “Unconscious Judicial Prejudice” reprinted with permission from the ©Lawbook Co, part of Thomson Legal & Regulatory Limited, http://www.thomson.com.au This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher. The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of New South Wales, nor are they necessarily shared by the members of the staff of the Commission. Whilst all reason- able care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. Printed August 2003 Designed by Lorraine Beal Printed by Ligare Book Printer Foreword This publication collects a series of essays, most previously published, on the themes of judicial decision-making, judicial impartiality and judgment writing. These matters are interrelated and together reflect the core aspects of the judicial task. The ultimate judicial value is impartiality. It is the essence of the function performed by the judiciary in the administration of justice. However, impartiality must not only exist, it must be manifest. The common theme of the essays collected in this volume is the identification of how the process of judicial decision-making, in accordance with a 900-year-old common law tradition, leads to both the reality and the appearance of impartiality. Particular attention is paid to reconciling the centrality of impartiality with the fact that different judges bring to the judicial task a variety of perspectives and values. The appearance of impartiality is ultimately displayed in the reasons for judgment. Reasons perform a number of functions to a number of audiences. Two are of overriding significance. First, reasons explain to the parties why the judge has ruled as he or she has, and do so in a manner which is manifest to the parties and their advisors and to any appellate court. Secondly, reasons are public. They constitute the basic mechanism by which each judge is held accountable to the public for the decisions he or she has made. Though such reasons may need explication and consideration by lawyers, they are available to all, and, by reason of the internet more accessible than ever. The reasoning in judicial decisions is often the subject of comment not only by lawyers, but also by others. Few governmental decision-makers are subject to an express obligation to explicate their reasons as a matter of routine and to do so in public. Performance of this obligation enhances public confidence in the administration of justice and promotes better decisions by judges. This publication is directed to providing an educational resource for judicial officers. It is intended to promote high standards in judicial decision-making and to promote clarity in judgment writing. It is also intended to promote an understanding of the nature of the judicial process and, particularly, of the important role of judgment writing, amongst a wider public. The Honourable JJ Spigelman AC Chief Justice of New South Wales 2 June 2003 v Editor’s Note A Matter of Judgment explores some of the issues surrounding the important tasks of judicial decision-making and judgment writing. Judicial decision-making is at the core of the judicial function and there is great public interest in ensuring that decisions, once made, are communicated effectively. By ensuring that judicial decisions are open to scrutiny, the community is reassured that decisions are made in accordance with legal principles. The decision-making role of judges has been controversial at times — do judges make law and, if so, what factors do they, and should they, consider? The authors writing on decision- making address some important aspects of this topic, including the nature of the judicial process, the role of impartiality in decision-making, the values and considerations that should govern judicial decision-making, and the way in which changing public perceptions have impacted on the judicial role. They also provide guidance on how judges can resolve the challenges inherent in decision-making. Many of the authors make the point that judgments are not delivered in isolation — their function is to communicate to various audiences, ranging from the parties and appellate courts to the wider community. The articles on judgment writing thus aim to provide guidance to ensure that judgments clearly and effectively communicate both the decision and the process leading to the decision. Other questions addressed are when judicial officers should give unreserved judgments and how they should prepare for delivering a judgment, whether ex tempore or written. I would like to acknowledge the work of all the authors and thank them for their contributions to this collection. I expect that this is an area in which there will be continued debate and I trust that A Matter of Judgment will prove to be both a useful resource for judicial officers and a thought-provoking one. Ruth Sheard Editor vii Contents Foreword .............................................................................................................................v Editor’s Note .................................................................................................................... vii Contributors ......................................................................................................................xi The Nature of the Judicial Process and Judicial Decision-Making .....................................1 The Honourable Sir Anthony Mason AC KBE Judicial Impartiality: The Impossible Quest? ................................................................... 15 The Right Honourable Beverley McLachlin PC Unconscious Judicial Prejudice ....................................................................................... 27 The Honourable Justice Keith Mason AC Judging: Reflections on the Moment of Decision ............................................................. 43 The Honourable Justice Michael Kirby AC CMG Decision-Making, Public Opinion and Concepts of Rights ................................................ 59 The Honourable Justice Rosalie Silberman Abella Why Write Judgments? ................................................................................................... 69 The Right Honourable Sir Frank Kitto AC KBE Ex Tempore Judgments .................................................................................................... 81 Dr Elwyn Elms Clarity and the Rule of Law: The Role of Plain Judicial Language ................................... 91 Mark Duckworth Judgment Writing: Form and Function ........................................................................... 103 The Honourable Dennis Mahoney AO QC Seven Steps to Clearer Judgment Writing ..................................................................... 117 The Honourable Justice Linda Dessau and His Honour Judge Tom Wodak Index ............................................................................................................................ 127 ix Contributors The Honourable Justice Rosalie Silberman Abella has been a judge on the Ontario Court of Appeal since 1992. After graduating from the University of Toronto Law School in 1970, she practised civil and criminal litigation until, at the age of 29 she was appointed to the Ontario Family Court in 1976. She was a member of the Ontario Human Rights Commission, the Premier’s Advisory Committee on Confederation, the Ontario Public Service Labour Relations Tribunal, the University of Toronto Academic Discipline Tribunal, the Canadian Judicial Council’s Inquiry on Donald Marshall Jr, and Chaired the Ontario Labour Relations Board, the Ontario Law Reform Commission and the study on Access to Legal Services by the Disabled. She was sole Commissioner and author of the 1984 federal Royal Commission on Equality in Employment. She was a director of the Institute for Research on Public Policy, the International Commission of Jurists, and the Canadian Institute for the Administration of Justice. She has lectured widely in Canada and internationally, and been extensively involved in Canadian judicial education. The Honourable Justice Linda Dessau has been a judge of the Family Court of Australia since 1995. Before that, she was a magistrate and coroner