Nothing to fear and much to be gained from a federal judicial commission
Gabrielle Appleby
This is a post in a special series that AUSPUBLAW is featuring on the Australian Law Reform Commission’s report on Judicial Impartiality. This special series will be hosted across two weeks on AUSPUBLAW, and the full series can be accessed here.
19.08.2022
The Australian Law Reform Commission’s (ALRC) recent Report on judicial impartiality and the law on bias, Without Fear or Favour, makes important connections between a number of much needed regulatory reforms and the foundational judicial value of impartiality. These include connecting impartiality to judicial appointments, and to the structure and reporting of the training and ongoing professional development of judges. The ALRC has also recommended that the government establish a federal judicial commission to create an alternative mechanism for raising allegations of bias. In the ALRC’s survey of lawyers this was ranked as the most important reform that could be achieved to maintain public confidence in judicial impartiality. The Attorney-General, Mark Dreyfus QC, has indicated that he supports such a proposal.
The ALRC’s recommendation joins a growing chorus calling for the establishment of a judicial commission to deal with issues of judicial misconduct. In 2020, more than 500 women in the law asked the then Attorney-General Christian Porter to establish such a body following the administrative findings against former Justice Dyson Heydon for sexual harassment of a number of his female associates. The Law Council of Australia has been consistent and clear in the need for an independent federal commission, its calls crescendoing in the wake of a series of appellate findings of poor conduct by sitting federal judges towards litigants and lawyers.
In this post, I will explain the importance of a federal judicial commission to supporting judicial impartiality and the public perception of impartiality, before reflecting on key principles to govern the possible design of such a body.
ALRC: ‘Other mechanisms for raising allegations of bias’
The ALRC’s examination of other mechanisms stems from a concern about times when the rules and processes governing bias in specific cases, including through appeals, are insufficient to safeguard public confidence in the impartiality of the administration of justice as a whole. It is easy to see how these concerns might arise. Let’s explore two examples.
Example 1: A judge fails to disclose an obvious interest in a case before them. This is subsequently revealed – but not by the judge. This speaks to more than judicial misinterpretation or misapplication of the law of bias, which might be able to be remedied through the appeal process, should this be available, and should the litigant be willing and able to pursue that path. The failure by the judge here is different in its nature and speaks, rather, to the judge’s fitness for office. The appeal process provides no recourse against the judge for this, and it provides no response to prevent future transgressions.
Example 2: A judge acts in a discriminatory way during a trial – possibly towards a litigant, counsel, a witness or even a member of the public in the courtroom. This might or might not be sufficient to give rise to an application for bias in the particular case. Even if it does, the nature of a bias application does not address the unacceptable nature and cause of the underlying behaviour. In many instances a bias application will not be made: for instance, if the matter ultimately settles, or the outcome is ultimately favourable to the victim of the conduct, or the litigant might simply decide, for tactical reasons, not to raise the point. If the application is not taken, then there is no institutional response to the behaviour at all.
Does the current process for receiving and dealing with complaints against judges, which is done through the head of jurisdiction, offer a sufficient alternative mechanism in these circumstances? The general answer, including in the view of the Australian Bar Association, the Law Council of Australia, as well as several former heads of jurisdiction, is no. Under the current system, the head of jurisdiction receives complaints, and can request assistance in investigating more serious complaints from a conduct committee. If a complaint is substantiated, for lower-level findings of misconduct, the matter is left to the head of jurisdiction to address administratively. If the matter is sufficiently serious to possibly warrant removal, the head of jurisdiction can refer the matter to the Parliament. The current process has been criticised for lacking formality, vesting too much discretion in the head of jurisdiction, not addressing potential conflicts of interest, lacking clarity and transparency, and providing limited powers of response.
Within the legal profession, the ALRC’s survey found that more effective complaints procedures concerning judges ranked as the highest concern for maintaining public confidence in judicial impartiality – ahead of reforms to diversity in appointments and reforms to the bias test and process itself. Litigants’ responses also revealed the lack of a transparent, accessible and robust complaints system. Litigants who had a negative judicial experience, but had not raised the issue, indicated that they did not do so primarily because they thought there would be no point, nobody would listen, they would not be believed and there was corruption involved. Others said they didn’t know they could, that they were scared, and that they did not get the chance.
A federal judicial commission and judicial values: Impartiality, transparency, equality, integrity, fairness and accountability
The Guiding Principles for the ALRC Inquiry connects the value of judicial impartiality to other values, including transparency, equality, integrity and fairness. Each of these values has a key role to play in understanding the need for an independent judicial commission, and in how that commission should be designed.
A judicial commission would promote equality by providing a more accessible forum for litigants as well as members of the profession, the public, and those that work with judges (including associates as well as other court staff and potentially other judges) to raise their concerns. It would have a more transparent and fair procedure than the current mechanism for dealing with complaints against judges. It would promote institutional integrity because, as the ALRC points out, such a mechanism would allow for the identification of recurring issues which can inform an institutional, supportive response, including through the development of judicial education and training programs. Where this is publicly reported, this can increase public confidence in the responsiveness of the court to concerns regarding judicial misconduct.
It would also promote integrity – when understood as accountability – for judicial conduct. It is often said that there is a tension between accountability and the fundamental need for judicial independence, particularly if accountability takes the form of an independent body. The ALRC – rightly – pushes back on this concern, and notes that judicial independence is not an endgame, but is itself an instrument through which to achieve impartiality and public confidence. Well-designed accountability mechanisms can further support impartiality and public confidence.
An important dimension of the contemporary push for a judicial commission is that the public’s expectations of accountability have changed. The lack of an independent body to receive and investigate complaints against judges seems incongruous where accountability is now an expected dimension of public life. While it is true to say that there are a number of accountability mechanisms (the appeal process, open justice, providing reasons, the judicial oath and judicial culture, and the informal role that the head of jurisdiction has in receiving and responding to complaints), it is increasingly hard to justify the lack of an independent complaints body to a public, particularly with respect to bullying, sexual harassment, sexist and racist comments, and possibly criminal behaviour. The public expects proportionate consequences that provide the victim with redress, punish the offender, and act as a disincentive for future behaviour.
Designing a federal commission
The creation of a federal judicial commission would follow the introduction of similar bodies in many of the states and territories, with the New South Wales Judicial Commission established back in 1987. The ALRC draws some key lessons from these experiences. Concerns that a Commission will be flooded by complaints from disgruntled unsuccessful litigants have simply not been borne out. While relatively few complaints have been made out, those that have indicate that there are serious transgressions in the judiciary that justify the complaints system. The state and territory commissions also highlight the close connection between problematic judicial behaviour, and physical or mental impairment, which must be sensitively navigated in the design and possible responses of a judicial commission.
While a Senate inquiry recommended back in 2009 that a federal judicial commission be established, this is the first time that the ALRC has made a firm recommendation for the establishment of a commission. (It raised the possibility back in 2000 and in 2018 but did not make a recommendation.) Even now, the issue is one the ALRC recommends be subject of further investigation: it is a ‘significant reform’, which should ‘be subject to its own policy development process, including further broad consultation.’
In this respect, the ALRC conducts a brief survey of some proposed design principles, including those submitted by the Australian Bar Association and the Law Council of Australia. Looming over the question of design is, of course, the constitutional position of the courts, and the extent to which an independent commission could impose sanctions on federal judges. The ALRC states:
If a body with guarantees of its own independence were to be established to receive and investigate complaints, without the power to remove or discipline judges, there is a strong argument that this would not impermissibly infringe upon judicial independence, particularly if the body (and any conduct panel, or equivalent) includes a significant proportion of judicial members.
This is, in my view, a constitutionally cautious – and overly-cautious – position. While it reflects the practice of the Australian commissions (with only the Victorian and NSW Commission having even the power to provide recommendations as to the type of response that might be appropriate given findings of misconduct), it does not reflect what has emerged as international best practice.
In the various systems that operate in the US, a range of sanctions is generally available against judges. For example, in California, where independent judicial commissions were first established, the Commission on Judicial Performance can issue an advisory letter, private or public admonishment and public censure. In Canada, the lack of powers of discipline have been overcome by Judicial Council through its discretion power to publish disapproval. In England and Wales, a recent report on an inquiry into whether the judicial discipline system is ‘proportionate, efficient, fair and strikes the right balance between confidentiality and transparency’, recommended that in addition to the current options that include formal advice, warning and public reprimand, a period of suspension without pay be available for misconduct in cases that fall short of justifying removal from office.
Establishing a body without the power to discipline is also a potentially damaging position for the success of a complaints body. As I have written with Prabha Nanda on this blog in the context of behavioural misconduct in courts and parliaments, trust in a complaints system rests in large part on the consistent application of proportionate sanctions where misconduct is found to have occurred:
Sanctions drive change in culture and can also be a deterrent. An absence of meaningful consequences, on the other hand, will undermine the integrity of any investigation process and more broadly an organisation’s commitment to preventing misconduct and improving workplace culture.
In their letter to the Attorney-General in 2020, more than 500 women in the law called for the creation of an independent complaints mechanism. That mechanism would incorporate the following principles:
‘clear, publicly available standards against which appropriate judicial behaviour is assessed’, developed by the judiciary and expressed as being enforceable;
a separate standing body, appointed by the judiciary, but ‘separate from the ordinary judicial hierarchy and process’;
‘a robust, fair and transparent process’ with appropriate investigative powers and the ability to protect the privacy of complainants;
the availability of ‘an appropriate suite of avenues for redress’, such as referral to Parliament for possible removal; referral to prosecutors in relation to possible criminal conduct; and intermediate forms of redress, such as public reprimand, orders for compensation, and recommendations for pastoral care and advice (eg, mentoring); and
jurisdiction ‘that extends to the investigation of retired judges and chief justices.’
It is promising that the new Attorney-General is a supporter of an independent federal judicial commission. It is appropriate that, as the ALRC recommended, the next stage for this important, significant reform will be a further process of consultation and inquiry. While the design of a federal judicial commission is constitutionally sensitive, and must be done in close collaboration with the judiciary, there is now a significant opportunity for the Commonwealth to design a robust, best-practice informed mechanism that can perform a role in increasing public confidence in the impartial administration of justice.
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Professor Gabrielle Appleby is the Director of The Judiciary Project at the Gilbert + Tobin Centre of Public Law (UNSW). She was a member of the Advisory Committee on the ALRC’s inquiry into judicial impartiality.
Suggested citation: Gabrielle Appleby, ‘Nothing to fear and much to be gained from a federal judicial commission’ on AUSPUBLAW (19 August 2022) <https://www.auspublaw.org/blog/2022/08/nothing-to-fear-and-much-to-be-gained-from-a-federal-judicial-commission>