Turning lawyers into judges is a public responsibility

Jessica Kerr

26.08.2020

Much is expected of judicial officers in Australia. They are unique public figures holding an ‘extraordinary, status-based position’, a focal point for discussions of confidence in the justice system and the strength of national commitment to the rule of law.

As a New Zealander researching judicial legitimacy in an Australian university, it has been interesting to compare the recent unfolding of the Heydon scandal with the New Zealand legal profession’s #Metoo moment in 2018. Across the Tasman, the flashpoint was a sequence of allegations of ‘a culture rife with booze, bullying and sexual harassment’ in a leading law firm. No judge was implicated in that scandal, although the firm in question has certainly contributed to the composition of the New Zealand judiciary. In light of the strength of initial responses to the Heydon investigation, it is somewhat sobering to reflect on the limited evidence of significant culture change in New Zealand in the intervening two years, although the Law Society is now close to finalising promising regulatory reforms.

What has emerged distinctly so far in Australia is affirmation that people seem to expect more of judges, in this but not only this regard, than of the lawyers they used to be. It cannot be controversial to suggest that Justices of the High Court, who are at the pinnacle of the profession on any possible measure, should be able to shake off any toxic elements of broader legal culture and lead by example. Like all professional leaders, their conduct invites particular scrutiny. But not all leaders of the legal profession are judges. Some of the most senior and high-profile lawyers, including partners in firms like that at the centre of the New Zealand scandal, have actively disclaimed that path. Further, some modern judges are in their thirties on initial appointment, at a relatively early stage of their careers.

So what if similar allegations were levelled against a lower-level judge — a prospect raised in a recent thought experiment by Gabrielle Appleby — or for that matter against a brand new judge who was a lawyer only a month ago? Similar allegations at this level would still, arguably, have provoked a heightened sense of both individual outrage and systemic failure. The transition from legal practice to judicial office is taken very seriously indeed, for understandable reasons. This warrants reflection on how that transition actually occurs, and whether the Australian system adequately equips lawyers to meet the weight of expectation they face as newly appointed judges.

Independence, integrity — and competence

Article 11 of the Beijing Statement of Principles of the Independence of the Judiciary states that ‘To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.’ As Appleby observed in her initial reflections on the Heydon investigation, ‘the whole legal profession feels the responsibility for maintaining the idea that judges are of the highest integrity’. One could easily substitute competence or independence for integrity in this quotation.

Given the focus of existing discussions on integrity and independence, particularly in the context of judicial appointments and complaints, it is competence, in the broad sense of professional excellence as a judge, which forms the focus of this post.  Competence and integrity are of course interrelated: inexcusable judgement off the bench does not bode well for wise judgments on the bench. But integrity and independent-mindedness alone do not ensure high-quality judicial performance, and that performance is, ultimately, just as integral to the maintenance of public confidence.

The argument sketched here is that the weight of expectation rightly placed upon judges, as regards substantive competence no less than qualities of character, needs to be matched by a more open acceptance of public responsibility, at all levels, for supporting judges to acquire that competence. Like all professions, judging must be learned, and, as Dame Silvia Cartwright put it in 1998, ‘for the sake of the public best not learned on the job’. Importantly, since judicial competence differs from legal competence, this is not an issue that can be wholly overcome by improving the processes for choosing which lawyers to appoint as judges, as important as that reform continues to be.

Baptism by fire: the “recognition” judiciary

It is not necessarily well understood by the public that judges are lawyers, right up until the day they are sworn into office.  Taking as an analogy other modern professions, like medicine or accountancy, it might be assumed that there is a distinctive course of training and preparation for judging as a specialised branch of law, similarly to surgeons or auditors. But there is no judge school prior to appointment in Australia: no obligation, and indeed no opportunity, for specialised formal preparation before the first time one is handed a case file.  Judges arrive on the bench with everything legal practice has given them, and nothing more. That is the classic distinction between “recognition” judiciaries like Australia’s and the “career” judiciary model familiar in continental European jurisdictions.

Any substantive expectations we may have of judges that differ materially from our expectations of lawyers are therefore open to testing. All judges are, in principle, appointed on “merit” (an appealing but deeply contested standard). This concept is not, however, shorthand for proven competence in judging, except to an extent in the case of promotion to higher courts. It could not be, for unlike in the United Kingdom, where there is an increasingly settled expectation of part-time judicial experience prior to permanent appointment, the dominant practice in Australia continues to be to appoint directly from the ranks of lawyers with no adjudicative experience.

There are in fact plenty of adjudicative or “quasi”-adjudicative opportunities for lawyers in Australia’s tribunals sector, and in the wider field of alternative dispute resolution, but those have not traditionally been highly valued by appointing authorities (or, relatedly, as career choices within the legal elite). Rather, demonstrated excellence as a barrister — a court advocate — has been prized above other potential experience as ‘a good practical guide to suitability for judicial office’. Competence in appearing before judges has, in other words, been taken as a substitute for competence to judge. This working assumption, which is also reflected in the appointment of prominent barristers to recent high-profile public inquiries, is deeply embedded in the cultural traditions that Australia inherited from the English profession. But it has come under increasing pressure in recent decades throughout the Commonwealth, reflecting rapid evolution in the nature of both legal and judicial practice, and the broader social and political context. Former Chief Justice Murray Gleeson stated bluntly in a 2003 address that ‘the assumption that experienced barristers require no judicial training can no longer safely be made’.

Realising judicial potential

There is nothing necessarily problematic about appointing judges on adjudicative potential, although it does require considerable faith in the predictive abilities of those who choose them. Everyone must do everything for the first time sometime. However, the question then becomes whether there is a robust system in place to ensure this potential is realised.  This kind of system might be thought indispensable not only because of the absence of any power to remove sitting judges for incompetence, but in light of what we know about the increasing professional diversity of the bench. Judicial diversity has become a perennially hot topic, as it should be, in the context of improving demographic representativeness as a dimension of public confidence. Less often explicitly discussed are the implications of increased diversity in professional backgrounds, which is distinct from, although not unrelated to, demographic diversity, for readiness to judge at the point of appointment.

Chief Justice Gleeson, who saw judicial selection and training as two sides of the one coin, was acutely alive to these implications. He warned back in 2003 not only that governments can no longer avoid responsibility for creating a competent judiciary by looking exclusively to the ranks of experienced advocates, but that the welcome trend ‘towards increasing recruitment of judicial officers from outside the[se] ranks’ is making this responsibility ‘more obvious and more urgent’. It is undeniable that a lawyer not exposed to years of daily courtroom practice and the many unspoken traditions of bar and bench will face challenges, both technical and cultural, that a senior barrister will not. That said, he or she brings other valuable professional experience to bear, that barristers might generally lack. The point is that it is also no longer safe to assume that newly appointed judges are starting on the same page in competence terms. The demonstration of “merit” in diverse ways can be seen as a great potential strength of recognition judiciaries, but it carries with it inevitable inconsistencies, and gaps, in relevant skills and experience.

Explanations of the factors fostering judicial independence tend to emphasise the individual internalisation by judges of the public responsibility accompanying their privileged status. This is, one might think, a powerful guarantee that new appointees, who are of course all high-achieving professionals, will take the initiative in identifying and filling whatever competence gaps confront them on reaching the bench. But just as ‘the personal integrity and resilience of individual judges’ does not in itself secure an independent judiciary, nor should it be relied on to secure a competent one. The fact that most judges rise so admirably to this challenge should not obscure its presence.

It is worth bearing in mind that while it has always been understood that judges grow into the job, this has never been asserted to justify holding new appointees to a lower standard of competence. Yet it cannot be entirely unexpected that appointees may stumble substantively, particularly in their first weeks and months of sitting, particularly in an unfamiliar area of practice.  This does not necessarily indicate miscalculation on the part of appointing authorities — although the consequences of any such miscalculation are multiplied in a system which sends judges straight into action, rather than systematically preparing them over a span of years. It is simply a great deal to ask of any individual.

Supporting the transition from lawyer to judge

I do not intend here to advocate any shift to a bureaucratic “career” judiciary in Australia, although the prospect has occasionally been raised. It is, however, worth considering whether more might reasonably be done within the bounds of the recognition system to support the transition from lawyer to judge.

The approach taken in Australia to date has been to focus on intensive judicial “orientation” programmes, and associated supporting resources, as components of what is generally referred to as continuing professional development (CPD) for the judiciary.  These programmes have now been developed and fine-tuned over many years, to increasing acclaim from their participants. However, in addition to all the complexities of coordination across the various Australian jurisdictions, they continue to operate under basic and deeply embedded constraints. One is that the nationally coordinated programmes are delivered post-appointment, in some cases up to 18 months after appointment, by which time a judge or magistrate may have already heard and decided a significant number of cases. To that extent, they function more as an opportunity for early-career reflection and skill consolidation than genuinely preparatory training. They can offer little comfort to the litigant with a case scheduled for hearing in a judge’s first sitting week.

Another is that, while increasingly encouraged, judicial orientation programmes are not mandatory. The historical sensitivity around judicial education as a gateway to external ‘indoctrination’, and thus a threat to judicial independence, still has sufficient force that there remains no realistic prospect of requiring Australian judges to undertake any educational initiative as a condition of their appointment.  It is interesting to return to the analogy with other modern professions like medicine and to consider how non-lawyers might reasonably react to this, if it were widely known.

A third and related constraint, possibly the most striking to a non-Australian observer, is that the programmes offered to judges are, according to the National Judicial College of Australia (NJCA), not intended to train them ‘to become judicial officers’. The NJCA is increasingly internationally unusual in formally maintaining that judicial appointees ‘are presumed to possess the necessary skills and experience for judicial functions’ because of their experience ‘as practitioners in the courts’. This kind of statement is inextricably connected with the historical homogeneity of the senior bar and bench, and a resulting ability for the judiciary to effectively self-replicate without external “interference”. It seems strangely out of step with the growing demand for substantive judicial education from judges across the board (including the orientation programmes co-delivered by the NJCA), not to mention the fact that judicial appointees are no longer all barristers. It is also strangely indifferent to aspects of the NJCA’s own recent guide to judicial excellence that have no necessary connection with ‘the vigorously adversarial lawyer’. These include, but are not limited, to advanced ethical and engagement skills of the kind that might more effectively distance the judiciary from the less savoury elements of broader legal culture.

There is no need in 2020 to be reticent about the great potential benefits of professional judicial education and, in particular, about the benefits of intensive, personalised training at the “onboarding” stage — ideally before a judge begins hearing cases. The invaluable work already being done in this space in Australia could be better publicised, more actively evaluated, and substantially expanded. It is vital in this respect to acknowledge the distinction between ongoing CPD (of the kind with which every modern professional is familiar) and genuinely foundational professional education (of the kind traditionally denied to judges). Both are, arguably, essential to securing a judiciary of ‘proven competence’.

There is also no reason to confine the focus of attention to judges already on the bench. There is potential for supporting the acquisition of distinctively judicial competence at all stages of a legal career. In a formal educational sense, both the universities (which provide foundational and postgraduate legal training) and the providers of CPD for practicing lawyers could have roles to play, in educating lawyers about the judicial role and providing concrete opportunities for developing demonstrable skill in some (admittedly not all) dimensions of that role.

Less formally but perhaps more crucially, the profession as a whole could be much more open about judging as a career path for which individual lawyers can and should consciously prepare, for example by seeking opportunities to build competence in adjudicative and community-focused roles, without harming their progression as lawyers in the process. The strength of taboos around self-declaring as an aspiring judge is beginning to wane in jurisdictions like the United Kingdom, where the “tap on the shoulder” model has been ‘decisively rejected’ in favour of an increasingly systematic process for identifying and fostering judicial talent. This is a culture change which may be even more profound, and more difficult for government to stimulate, than that necessary to stamp out bullying and harassment within the legal profession. Making this change is, however, arguably no less important to the long-term maintenance of judicial legitimacy; and if it proves possible at the colonial source, it should be possible in Australia too.

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Jessica Kerr is a PhD candidate and sessional teacher at the University of Western Australia Law School

Suggested Citation: Jessica Kerr ‘Turning lawyers into judges is a public responsibility’ on AUSPUBLAW (26 August 2020)